text:
    James S. Carpentier, Plaintiff, v. James C. Willet, Sheriff of the City and County of New York, Defendant.
    1. Under the provisions of the statute entitled “ An act to reduce the several acts relating to the District Courts in the city of Hew York into one act,” passed April 13, 1857, an execution against the body of the defendant cannot be lawfully issued, unless it is stated in the judgment that the case is one in which the defendant is subject to arrest and imprisonment thereon.
    2. Where the Justice rendered judgment for the plaintiff for a sum specified as damages and costs, without stating in the judgment or in the docket thereof that the case was one in which the defendant was subject to arrest, &c., and an execution was nevertheless issued against the person of the defendant, and he was arrested, delivered to the custody of the Sheriff, and he accepted such custody, making due return that “ the defendant is in custody,” and afterwards took a bond tor the jail liberties from the defendant and sureties, such arrest and detention are nevertheless unlawful; the Sheriff is not, as against the plaintiff, bound to detain the defendant; and he is not liable to the plaintiff for an escape, although such defendant departs from, the jail limits.
    3. The circumstance that, on the day following the rendering and entry of the judgment, the Justice, on the presentation of an affidavit by the plaintiff, showing cause of arrest, &c., made an order that an execution issue against the body, does not make the execution legal. Such an order is no part of the judgment; and, after rendering judgment, the Justice was, in respect to the question whether the defendant was subject to be arrested in that action, fundus officio, and had no power to make the order.
    4. Under the statute referred to, the decision of the question, whether the defendant was liable to arrest and imprisonment, when such arrest, &e., was claimed by the plaintiff, was part of the judicial duty of the Justice, and should have been included in the judgment as much as his decision of the question of the defendant’s liability for the debt or damages sued for.
    (Before Bosworth, Ch. J., and Hoffman and Moncrief, J. J.)
    Heard, December 16th, 1859;
    decided, January 7th, 1860.
    Motioh for judgment upon a verdict taken by consent, subject to the opinion of the Court at General Term, with leave to enter judgment of nonsuit or dismissal of complaint, if so advised.
    The cause was tried before Chief Justice Boswoeth and a jury, on the 23d day of April, 1858. The jury found a verdict for the plaintiff, and assessed his damages at $275.33, subject to the opinion of the Court at General Term, and to be heard there, in the first instance, on the questions of law arising in the case, with liberty to the Court at General Term to dismiss the complaint, if so advised, with the same effect as if dismissed at Trial Term, and exceptions taken by the plaintiff; judgment in the meantime to be suspended: the counsel of both parties consenting ah the trial that the verdict be so taken.
    The action was brought against the defendant, as Sheriff of the city and county of New York, for the escape of one Samuel H. Doughty.
    On the 12th of November, 1857, the present plaintiff recovered a judgment against the said Doughty, in the Third District Court of the city of New York, before William B. Meech, Esquire, Justice of said Court, for the sum of $250 damages and $17.50 costs. On the 15th of November, 1857, an execution was issued, purporting to be upon such judgment, commanding any constable, in the usual form, to levy the amount of the goods and chattels of the defendant; and if sufficient goods and chattels could not be found, then commanding such constable to arrest the defendant, and commit him to the jail of the city .and county of New York, the keeper whereof was directed him safely to keep, until he should pay.such judgment, or be discharged according to law.
    On the 18th of November, 1857, one of the constables of the city arrested the said Doughty, by virtue of the execution, and committed him to the jail of the county, and to the custody of the" present defendant, as Sheriff of the city and county, and keeper of the jail thereof.
    On the same 18th day of November, 1857, Doughty, with two persons as his sureties, gave what is termed a bond for the limits. It was executed to the Sheriff, the present defendant,, and recited that the said Doughty was a prisoner in his custody, as Sheriff of the county of New York, by virtue of a capias ad satisfaciendum. The following indorsement was on the execution: “Sheriff’s return—defendant in custody.— J. C. Willet, Sheriff.”
    On the 21st of November, 1857, Doughty was found off the limits, and the summons in the present action was duly served upon the defendant.

      On the trial, the record of the proceedings in the case m the Third District Court was given in evidence, and from these proceedings it appears:
    That the present plaintiff, as assignee of one France, sued Doughty to recover the surplus of the avails of certain notes deposited with Doughty, paid to him and remaining in his hands after satisfying a demand of Doughty, for securing which the notes had been delivered to him. It was alleged .that Doughty had received the sum of $574.19, exceeding the balance due him by about $300. The complaint demanded judgment for $250. It is needless to state the defense.
    The cause was tried on the 12th of November, 1857. The closing entry of the proceedings on the trial, as returned to the Court of Common Pleas upon an appeal, is as follows :
    “ The parties here rested; and on the same day, I rendered judgment for the plaintiff for $250 damages, besides costs. William B. Meech, Justice.1'
    The plaintiff produced in evidence a certified copy of the docket of the judgment in the District Court, which, so far as it is necessary to transcribe it, is as follows: “ J. S. Carpentier, assignee of Thomas France, against Samuel H. Doughty. Summons issued, 15th of September, 1857; returnable, 18th September. Summons returned served in person, 15th of September, 1857. Plaintiff appeared in person. Complaint on file; defendant appears by Mr. Harrington. Answer on file.”
    Then follows a minute of various adjournments until November 12th: “November 12th-—Cause tried, and the court thereupon rendered judgment for the plaintiff for damages,. $250 00 Costs, $5.50; extra costs, $12,.................... 17 50
    $267 50

      Si. nul. ordered to issue by Justice, November 13th, 1857.

      Si nul. issued November 13th, 1857.”
    There was also produced in evidence, under objection and exception by the plaintiff, the original entry of judgment by the Justice of the Third District Court, in the suit by the plaintifft against Doughty, indorsed on the summons in that action. It is as follows: “ Judgment for plaintiff, $250, $12 allowed and
    costs, Nov. 12, 1857, 3£, Justice.”

      The plaintiff’s counsel then produced in evidence, the following affidavit and indorsement:
    “ Third District Court. James S. Carpentier agt. Samuel S. Doughty, city and county of New York, ss:

    James S. Carpentier, the plaintiff in this action, being duly sworn, deposes and says: That this action was brought to recover money collected and received by the defendant to the use of the plaintiff, and belonging to him. That judgment therein has been rendered for the plaintiff, and that, as appears by the pleadings and proofs in this cause, the said defendant received said moneys in a fiduciary capacity,” to wit: as a trustee, and refused to pay over the same on demand thereof by the plaintiff. And deponent further saith, that the said defendant is a non-resident of this State, and that since the commencement of this suit he has made an assignment, as deponent is informed and believes, of all his property and assets. J. S. Carpentier, sworn this 13th of Nov., 1857, before me, Wm. E.- Smith, Jr., clerk in court.
    (Indorsed)
    Execution against the body to issue.
    WM. B. MEECH, Justice.

    Nov. 13, 1857.”
    An appeal was taken from the judgment of the District Court, to the Court of Common Pleas. An undertaking executed upon such appeal was read in evidence by the defendant, under an exception by the plaintiff
    It is not deemed necessary to state the proceedings on that appeal, except that the judgment was affirmed; and that neither the affidavit of Carpentier last mentioned, nor the indorsement upon it, nor the entry “ Si. nul., ordered to issue Nov. 13, 1857,” nor the entry I.11 Si nul, issued Nov. 13, 1857,” on the docket, were before the Common Pleas on such appeal.

      John Graham, for the plaintiff, argued, among others, the following points:
    I. The Justice who presided at the trial, properly allowed the execution issued out of the District Court, and the return of the defendant as Sheriff, to be read in-evidence, and the objection of the defendant and his exception to the ruling of the court are not well taken.
    1. It is incumbent upon the plaintiff in an action for an escape to prove the execution, by virtue of which the prisoner was committed to the custody of the Sheriff. The Sheriff’s return indorsed, proves the caption.
    2. The defendant was estopped to deny the regularity or validity of the judgment or process, as a defense in this action. Having arrested the party, he was bound to keep him until discharged by due course of law. (Cable v. Cooper, 15 Johns., 152.)
    3. It is no defense to an action for the escape of a defendant in execution, that the execution was irregularly issued. (Scott v. Shaw, 13 Johns., 378; Himnan v. Breese, id., 529; Bissell v. Kip, 5 id., 89; Ontario Bank v. Hallett, 8 Cow., 192; Berry v. Riley, 2 Barb., 307.)
    II. The “limit bond” executed and delivered to the defendant as Sheriff, on admitting the defendant in the execution to. the jail liberties, was relevant and material, and was properly admitted as evidence.
    The return of the Sheriff indorsed upon the execution is without date. It became material to show that the prisoner was in his custody before the commencement of the action, and before the alleged escape. The production of the limit bond was not only competent, but the best proof .of the fact.
    III. The motion for a nonsuit was properly denied.
    1. The pleadings and proofs upon which the judgment of the Third District Court was rendered, were a part of that judgment, and showed it to be one upon which the defendant might be lawfully arrested and imprisoned. (Fullerton v. Fitzgerald, 18 Barb., 441.)
    2. The omission of the Justice “to state in the judgment and enter in the docket ” that the defendant was “ subject to arrest and imprisonment,” does not affect the judgment, nor the rights or remedies of the plaintiff. ( Hall v. Tuttle, 6 Hill, 38.)
    3. The 50th section of the act of April 13, 1857, [1 Laws of 1857, p. 707,] is. merely directory. The entry required to be made is ministerial and. formal, “ and the statute touching the docket and its minutwe merely directory. Its language being imperative does not make it anything more. Almost every directory statute is imperative in its words.” (Per Cowen, J., in Hall v. Tuttle, supra, and 5 Seld., 208.)
    This statute is like the statute 43 Elizabeth, chapter 2, section 5, which enacted that male apprentices should be bound out by the parish till the age of 24, yet a binding till 21 was held to confer a settlement; “ for the statute is only directory, and not compulsory in this respect.” (Dwarris on Statutes, 714; Rex v. Woolstanton, 1 Bot. Set. Cas., 610; Sedg. on Statutes, 360, 381.)
    “When the language of the statute is only in the affirmative,” says Lord Hale, “it is directory;” [2 Hale P. C., 50;] and this expression is quoted with approbation by Lord Tentebden, in Rex v. Leicester, 7 B. & C., 12. (See also Rex v. Loxdale, 1 Burr., 447; Rex v. Birmingham, 8 B. & C., 29; The People v. Allen, 6 Wend. 486; Ex parte Heath, 3 Hill, 42.)
    4. But if the judgment of the Third District Court did not authorize “the arrest of Doughty,” the defendant in this action cannot avail himself of the fact as a defense. (16 N. Y. R., 439; 2 Phillips on Ev., 400; Buller N. P., 66; Ontario Bank v. Hallett, 8 Cow.; 192; Ames v. Webbers, 8 Wend., 545; Gregory v. Levy, 12 Barb., 610.)
    5. If, by reason of the omission of the justice to make the entry mentioned in section 50 of the act in relation to District Courts, the plaintiff was not entitled to an execution against the body of Doughty, the execution is only voidable and this is no defense to the Sheriff. (Ames v. Webbers, supra.)

    It is good until set aside, which can only be done on the application of the defendant in the execution. (Per Kent, Ch. J., in Bissell v. Kip, 5 Johns., 89; Bacon v. Cropsey, 3 Seld., 195.)
    It is not necessary that the execution should recite the facts to prove that it was legally issued; (Hutchinson v. Brand, 5 Seld., 208;) nor that the record itself should prove it, if it appear aliunde. (Corwin v. Freeland, 2 Seld., 560.)
    IV. The affidavit and indorsement thereon were properly admitted.
    They supplied, in substance, the entry required by the act, [1 Laws of N. Y., 1857, p. 707, § 50,] and were admissible for that purpose.
    V. Upon the whole case, the plaintiff is entitled to judgment.

      A. J. Vanderpoel, for the defendant.
    This action cannot be maintained.
    I. The execution issued against the person of Doughty, for whose escape it is sought to make the Sheriff hable, was void. That the process is void, is a defense to the Sheriff. (Cornell v. Barnes, 7 Hill, 35; McDuffie v. Bedoe, 7 Hill, 578; Jones v. Cook, 1 Cow., 309; Earl v. Camp, 16 Wend., 562; Horton v. Hendershot, 1 Hill, 118; Phelps v. Barton, 13 Wend., 68; 9 id., 430.)
    1. The judgment in this case was rendered by the Justice, and entered in the docket on the 12th day of November, 1857.
    On the 13th November, plaintiff made an affidavit, “'That judgment has been rendered for the plaintiff,” &c., and on that affidavit the Justice indorsed “ Execution against the body to issue.” Wm. B. Meech, Justice, November 13, 1857.
    2. The 50th section of the act of April 13th, 1857, to reduce the several acts relating to the District Courts of the city of New York into one act,” says: “When a judgment is rendered in a case where the defendant is subject to arrest and imprisonment thereon, it must he so stated in the judgment and entered in the docket.” The statute is imperative. He must adjudge that it is a case in which the party is subject to arrest.
    3. On the 13th of November, 1857, Justice Meech had no jurisdiction to act He was functus officio. He had no more right to order an execution to issue against the person on the day after he had rendered judgment, than he would have had three months thereafter. (Watson v. Davis, 19 Wend., 371; Sibley v. Howard, 3 Denio, 72.)
    4. But even if he could have amended his judgment, the proceedings of the 13th of November were of no avail, and void. The statute has prescribed that the right to arrest shall be stated in the judgment, thus forming a part thereof, and no other order, or form of order,, will satisfy this requirement. When it is stated in the judgment, it is just as much the subject of review on appeal as any other part of the merits. This is the only way in which the right to arrest, can be reviewed on appeal. In this case the indebtedness might not have been denied, but the sole controversy may have been whether the money had been received in the character of agent. Under the-judgment, in its present form, the Court of Common Pleas on appeal, finding the indebtedness admitted, would not review the question as to whether the moneys were received in a fiduciary capacity, or if it had been stated the Court could have reversed in the part relative to the arrest and affirmed as to the residue.
    5. The district courts are of limited jurisdiction, and can only act in the manner pointed out by statute. They cannot grant new trials, nor amend their judgments — they can do nothing requiring the exercise of discretion—from that time they are mere ministerial officers. (Watson v. Davis, 19 Wend., 371; Atkins v. Kinnan, 20 Wend., 241, 247; 1 Hill, 130.)
    6. The statute being in restraint of personal liberty, is to be strictly construed (1 Black. Com., 88, note; 12 Johns. R., 373; Case of Pierce, 4 Shep. R., 255; 10 Ind., 493.)
    II. The affidavit and indorsement at folio 112, were irrelevant, and should have been excluded.
    The defendant is entitled to judgment.
   By the Court—Hoffman, J.

The main question is, what is the effect of the omission of the Justice to declare, in his judgment, that the defendant was subject to arrest and imprisonment?

The 50th section of the act of April 13, 1857, (vol. I, p. 720,) entitled “An act to reduce the several acts relating to the District Courts in the city of New York into one act,” applies to the case. It directs that, when a judgment is rendered in a case where the defendant is subject to arrest and imprisonment thereon, it must be so stated in the judgment and entered in the docket.”

It deserves notice, in explaining the intent and force of this enactment, that, in the old act of 1813, (2 R. L., p. 376, § 98,) a provision was made by which, in certain cases, an execution could go against the person, after an inquiry into certain facts had subsequent to the judgment. But yet the proviso appears to enable the defendant to guard against this being done ex parte, by claiming an exemption.

Without, however, determining this point, or more fully entering upon the meaning of that provision, it is important to observe that, by the 30th section of the “ act to abolish imprisonment for debt,” &c., of April 26, 1831, it was provided “ that no execution issued upon any judgment rendered by any Justice of - the Peace. upon any demand arising upon contract, express or implied,, or upon any other judgment founded upon contract, whether issued by such Justice or by the Clerk of the county, shall contain a clause authorizing an arrest or imprisonment of the person against whom the same shall issue, unless it shall be proved by the affidavit of the person in whose favor such execution shall issue, or that of some other person, to the satisfaction of such Clerk or Justice, either, 1. That the person against whom the same shall issue has not resided in this State for the space of thirty days preceding,” &c. The other cases are then enumerated in which the execution against the body may be allowed.

These provisions appear to allow of evidence being given to satisfy the Justice after judgment, and ex parte.

The 16th section of the act of April, 1857, first referred to, specifies the cases in which a warrant of attachment may issue to arrest the defendant on commencing the action. They include the case of an agent receiving money in a fiduciary capacity and converting it, and the case of a disposition of one’s property with intent to defraud his creditors, and also when the action is for the recovery of damages, (in a cause of action not arising on contract,) and the defendant is not a resident of the county. The language is similar to some provisions of the Code.

Unless the defendant Doughty received the money for which judgment was obtained in a fiduciary capacity, he was not liable originally to an arrest on anything appearing in the case. And I apprehend that an execution could only be allowed against the person where the defendant could originally have been arrested.

The 25th section of the act provides, that when the defendant has been arrested, an adjournment cannot be had for more than forty-eight hours without his consent; .and an adjournment for a longer time discharges him from such arrest; but the action may proceed notwithstanding, and the defendant shall be subject to arrest on the execution in the same manner as if he had not been discharged. And by the second subdivision of section 52, as to the form of the execution, if it be a case where the defendant may be arrested, it may direct the officer, if sufficient property cannot be found to satisfy the judgment, that he arrest the de fendant, and commit. him to jail, until he pay the judgment, or be discharged according to law.

There is not in the statute any provision similar to those I have referred to in previous acts, for an inquiry into facts subsequently to a judgment, to justify an arrest. There is in the eighty-first section a positive repeal of every law or rule in any case provided for by the act, or inconsistent with its provisions; and no law or rule is to be deemed retained, because it may be consistent with the provisions upon the .same subject in the act, saving rights existing or accrued, or proceedings already taken.

It appears to me, that the enactment in question has assigned to the Justice trying a cause under it, as part of his judicial duty and office, the obligation and necessity of passing upon the question of the defendant’s liability to an arrest, as definitely as upon that of his liability in the action, and to embody his judicial conclusion in his judgment. If the defendant has been originally arrested upon grounds apparently sufficient, he may have upon the trial the opportunity of disproving them, and showing their insufficiency. If he has not been arrested, still more important and more reasonable is it that he should have the opportunity of shaping his defense to this point also upon the trial; of having it determined upon the evidence there given, and the case there made; and of having the right to review a judgment against him on this point, as well as on any other, by his appeal.

We are bound to assume, that the Justice ordered the execution against the person on the ground of the money being received inz a fiduciary, capacity. There was nothing else in the facts stated in the affidavit, which could have warranted it. And yet, that question would be open to serious doubts, and might have been decided differently on the appeal had it been brought up.

The decision of the point of the subjection to arrest was part of the Justice’s judicial labor and duty. When he gave judgment on the 12th of November, he had not made up his mind (as we are justified in assuming) upon this point, and perhaps it had not been suggested that the defendant was liable to an arrest. “ There can be no judgment even by legal implication, neither in substance nor in form, till a judicial conclusion is made by the Justice.” (6 Hill, 41.) Equally clear is it, that there was no judgment stating that the defendant was subject to arrest, made on the 12th of November, and that the order made the next day on an affidavit was not a judicial conclusion on the case tried before the Justice. He had tried the case on the 12th of November. His judicial action on what he had tried was complete. On this particular subject, he had reached no result judicially when he gave judgment.

It seems to me that the letter, the spirit, and the apparent object of the enactment referred to, all declare the statement, in the judgment, to be a judicial act, essential to the right to arrest, and not merely ministerial, and attendant upon a judgment. The cases of Watson v. Davis, (19 Wend., 371,) Young v. Rummell, (5 Hill, 60,) Hall v. Tuttle, (6 id., 38,) and Sibley v. Howard, (3 Denio, 72,) appear to me to warrant this conclusion. What was done on the 13th of November was done when the Justice, as to that cause, was, for all judicial power, functus officio, and his act was void, not merely irregular. The question as to a statute being directory or mandatory does not arise.

2. The next question is, has the Sheriff a right to avail himself of this matter, as a defense to the present action ?

It seems to me, that the cases cited by the defendant’s counsel, and particularly that of Phelps v. Santon, (13 Wend., 68,) settle this question fully in his favor. So in Constant v. Chapman, (2 Queen’s Bench R., 771,) it was expressly decided, that when the marshal of the prison was sued for an escape, the defense was open to him that the party was not legally in custody at the time of the escape. And the case goes far to determine that receiving a prisoner with knowledge of the facts showing the illegality, is not enough'to charge the marshal, though to detain the prisoner against his will would have been unlawful.

The view thus- taken dispenses with the necessity of examining-any of' the defendant’s exceptions to the rulings of the Judge..

There are three exceptions of the plaintiff to be noticed..

The admission of the original entry of the judgment indorsed! on the summons was, in our opinion, proper. That entry is the judgment, and from that the clerk makes in his- docket the entry required by section 59, subdivision 8, page 723.

The court admitted, m evidence, the undertaking, given on the appeal to the Court of Common Pleas, and,, also, proof of the service of such undertaking on the defendant. To which exceptions were taken.

The sufficient reply to this is, that the Court orders the complaint to be dismissed, because the Judge should have done so on the trial; and orders it on the sole ground that the judgment of the Justice does not state that the defendant was liable to arrest and imprisonment; and the case (under the stipulation) is to be altered so as to show that a dismissal was ordered at the trial, and that the plaintiff then excepted.

The complaint must be dismissed, with costs.

Ordered accordingly.


source: Caselaw Access Project

author: By the Court—Hoffman, J.

license: Public Domain

text:
    Alexander Duncan and others, Plaintiffs and Respondents, v. Abel T. Edgerton, Defendant and Appellant.
    1. A letter of credit issued by the plaintiffs authorizing the defendant, during a period therein specified, to draw, or direct the drawing of Bills of Exchange for his account, to a limit mentioned, and agreeing with the drawees and all bona fide holders of such bills that such bills shall be honored on presentation at the counting-house of plaintiffs’ correspondents in London,—and a counter agreement by the defendant, to provide, by payment to the plaintiffs in New York, one month previous to the maturity of the bills drawn, sufficient funds to meet the payment thereof in London, are together, as between the plaintiffs and the defendant, mutual and dependent agreements, and on the breach by one party, the other is at liberty to decline further performance.
    2. Hence in such case, where the defendant neglected to provide funds on the 28th of May, 1857, to meet a bill drawn under the letter of credit, and due in London, June 28th, 1857, (by reason whereof, after as great a delay as was prudent, the plaintiffs were compelled to remit their own funds on the 9 th of June to meet such bill,) the plaintiffs had a right to revoke the said letter of credit, and refuse its further continuance.
    3. Although in such case the plaintiffs gave to the defendant no notice of such revocation, and he, on the 17th day of June, paid to them, in New York, the amount of the said bill due in London, and afterwards, on the 2d of July, in ignorance of such revocation, made a purchase of whiskey by letter, addressed to Dublin, and directed the vendors to draw for the price on London, in conformity to the credit before mentioned, but by reason of the said revocation their drafts were refused due honor, and such vendors thereupon refused to ship the whiskey: Held, that the plaintiffs were not liable to the defendant for any damages, either arising from a loss of the purchase, or the difference between the cost of the whiskey and its value in New York, when it would (if shipped) have arrived. That the plaintiffs had a right to revoke the credit, and were not liable to the defendant for any damage, general or special, he may have sustained in consequence of such revocation.
    (Before Bosworth, Ch. J., and Hoffman and Moncrief, J. J.)
    Heard, December 13th, 1859;
    decided, January 7th, 1860.)
    This action came on for hearing by the defendant’s appeal from the judgment for the plaintiffs, for $1,622.49, damages and costs, entered on the decision of Timothy D. Pelton, Esq., Referee, before whom it was tried on the 3d day of May, 1858.
    The action was brought upon a promissory note made by the defendant and indorsed to the plaintiffs. To this note, although the defense of usury was pleaded, no defense was in fact made at the trial, but the whole controversy related to a counter-claim set up in the defendant’s answer, by which he sought not only to defeat a recovery by the plaintiffs but to have a judgment in his own favor for a considerable overplus.
    The counterclaim was as follows:
    And defendant further says, and alleges as a counterclaim against the plaintiffs, that it was heretofore and before the making of said note agreed by and between the plaintiffs and defendant for a valuable consideration, under a certain letter of credit, that the plaintiffs should allow and give to the defendant a standing credit of fifteen hundred pounds sterling, for and during one year from the date thereof, with the correspondents of said plaintiffs on England, and that the plaintiffs would protect, or cause to be protected, the drafts of defendant to that amount upon the house of George Peabody & Company, in London, or the drafts of any other persons whose drafts said Peabody & Company might be directed by the written order of the. said defendant to accept.
    That before the commencement of tbis action, the said plaintiffs violated the said agreement and refused to protect the paper of this defendant, but suffered the same to be protested whereby the defendant was greatly injured in property, reputation and credit, and suffered loss and damage to the amount of three thousand nine hundred and fifty dollars.

      An'd this defendant, by way of allegation of special damage, says, that the defendant without any notice or knowledge, that the plaintiffs had intended to, or would withdraw or revoke said letter of credit, or prohibit said George Peabody & Co., from acting under said letter of credit, on or about the 3d day of July, 1857, purchased and ordered thirty puncheons of whiskey, of Jameson & Robertson, Dublin, Ireland; and duly requested them to draw upon, and by written request or direction, ordered the said George Peabody & Co., to accept, honor, or provide for the amount of said whiskey, viz.': $3,315; whereupon the said Jameson & Robertson accordingly drew upon said George Peabody & Co. for that amount, but in consequence of the withdrawal or revocation of said letters of credit by the plaintiffs, previous to that time, the said George Peabody & Co., refused to accept for the amount of said whiskey, and the whiskey was not shipped from Dublin, aforesaid, to the city of New York, and whereby the defendant lost the difference between the value of the said whiskey, as purchased, together with expenses of bringing the same to New York, and the price or value thereof in New York, to wit: the sum of $1,833; and that defendant kept and performed said agreement upon his part.
    Wherefore the defendant demanded judgment for the said sum of $3;950, with interest, and that the note be canceled and destroyed.
    The facts appearing on the trial relating to the counterclaim, so far as it is material to state them, were, that on the 22d day of January, 1857, the plaintiffs and the defendant entered into the arrangement expressed in the following letter of credit, and the agreement of the defendant thereunder written:
    “ OFFICE OF DUNCAN, SHERMAN & CO.,
    “ BANKERS,
    “No. 1087. New York, Jan. 22d, 1857.
    “Abel T. Edgerton, Esq., of New York, or any other parties, whose drafts Messrs. George Peabody & Co., of London, may be directed by the written order of the said Abel T. Edgerton, to accept under this credit, are hereby authorized to value on Messrs. George Peabody & Co., in London, at four months’ date for account of himself, for any sums not exceeding, in all, fifteen hundred pounds sterling, running at one time uncovered by remittances in the hands of the drawees, to be used in Europe, and is intended only to be used for the purchase of, or advances on goods or merchandise to be imported into the United States; and we do hereby agree with the drawers, indorsers and bona fide holders of bills drawn under and in compliance with the terms of this credit, that the same shall be duly honored on presentation at the counting house of Messrs. George Peabody & Co., in London.
    “ The bills must be drawn prior to the first day of January, 1858. For £1,500 sterling. .
    “ Duncan, Sherman & Co.
    “ Please sign bills as being drawn under credit,
    “ No. 1087, dated January 22d, 1857.
    “N. B. Whenever Messrs. George Peabody & Co., confirm the above credit, or any part thereof, at the request of the said Abel T. Edgerton, or their agents, such confirmation will be limited to two months, and for the amount so confirmed, the usual commissions will be charged, whether the same be used or not, as it is not necessary to confirm the credit, until it is ascertained that it will be used.
    “Received the original of the above letter of credit for fifteen hundred pounds sterling, in consideration whereof, I, Abel T. Edgerton, do hereby agree with Messrs. Duncan, Sherman & Co., to provide by payment to them in New York, one month previous to the maturity of the bills drawn under the same, sufficient funds to meet the payment thereof in London, and for that purpose if required so to do to accept, and pay the drafts of Messrs. George Peabody & Co., on us, in their favor, at three months from the date of Messrs. George Peabody & Co.’s acceptances, with commission on the amount of this credit of one per cent, and that all property which shall be purchased or shipped by means of this credit, and the proceeds thereof, and the policies of insurance thereon, together with the bills of lading, are hereby pledged and hypothecated to them as collateral security for the payment as above, and held subject to their order on demand, with authority to. take possession and dispose of the same at discretion, for their security or reimbursement, unless the amount be otherwise paid or satisfactorily secured or remitted. It being understood that remittances made in bills drawn by Duncan, Sherman & Co., or moneys paid to them, shall be taken as payment without recourse; all settlements arising under this credit, the pound sterling shall be calculated at the current rate of exchange at the time of such settlement, and interest charged together with one-tenth of one per cent for stamp duty on bills of exchange, imposed by the laws of Great Britain. Interest at bank rate if over five per cent.
    11 This credit being issued on our personal liability and without the deposit of securities, we do hereby agree with Messrs. Duncan, Sherman & Co., that we will regard and treat the same as confidential, and to be protected and paid in all emergencies, and that we will at any time give them securities to cover the same if required.
    “ Abel T. Edgebton.”
    To this was added a guaranty by one Winebrener that Edger-ton would perform his agreement.
    Among other bills of exchange, drawn by or by direction of the defendant on George Peabody & Co., under the said letter of credit, was one for £404 8s. sterling, accepted in March and payable on the 28th June, 1857. The defendant neglected to provide the plaintiffs in Hew York, one month previous to the maturity of such bill, with funds to meet the payment thereof, and the plaintiffs, on the 9th of June, remitted their own funds to Peabody & Co., to meet the payment.
    The plaintiffs thereupon, on the 12th of June, 1857, without the knowledge of the defendant, revoked the said letter of credit by instructions to Peabody & Co., and gave no notice of such revocation to the defendant, who, on the 17th of June, paid to the plaintiff the amount of the said bill of exchange so becoming due. The defendant, on or about the Sd July, 1857, not knowing of said revocation, entered into an agreement with Messrs. Jameson & Robertson, of Dublin, Ireland, to purchase and ship to the defendant at Hew York, thirty puncheons of whiskey, and the difference between the cost, (including charges,) of said whiskey to the defendant, and the market value of whiskey of the same quality in Hew York, at the time the same would probably have arriyed here, was $1,833. The said Peabody & Oo., in consequence of the revocation of said letter by the plaintiffs, refused to accept the drafts of Jameson & Robertson, for the purchase price of said whiskey, and Jameson & Robertson for that reason refused to ship the whiskey to the defendant.
    On the trial, the defendant not only claimed the above difference in value between the cost of the whiskey and its value in New York, ($1,833,) but he offered evidence to show how much profit the defendant could have made by using the letter of credit, until the expiration of the year, if it had not been revoked, and put some other questions to the witnesses of a similar character in order to prove what was denominated by his counsel, general damages. The evidence was rejected.
    The Referee, in rejecting the counterclaim and giving judgment for the plaintiffs, stated his conclusion of law thus: 11 And I do further find, as a matter of law, that the agreement of the plaintiffs to continue the credit under said letter, was dependent upon the performance, by the defendant, of his covenants and agreements as mentioned in said letter, and to be by him performed. And that the failure of the defendant to provide funds to meet the payment of the bills, as aforesaid, or any of them, was such a breach of his agreement as entitled the plaintiffs to revoke said credit, and that the defendant is not entitled to recover of the plaintiffs for the losses on said whiskey, or for any losses or damages arising from said revocation by way of counterclaim.”
    From the judgment entered for the plaintiffs for the amount of the note sued upon and interest and costs, the said counterclaim being rejected, the defendant appealed to the General Term.

      H. Z. Sayner for the defendant (appellant).
    I. The letter of credit being given for a valuable consideration, it was a special contract, for the breach of which the defendant was entitled to damages by way of counterclaim in this action.
    1. It was a special contract. (Russell v. Wiggins, 2 Story R., 213.)
    2. Such damages may be recovered by way of counterclaim. (Code, § 150, subs. 1, 2.)

      3. A counterclaim must be a cause of action or cross-demand. This is both. (Gleason v. Moen, 2 Duer, 642; Spencer v. Babcock, 22 Barb., 335; Lemon v. Trall, 2 How. Pr. R., 248; Kneedler v. Steinbergh, 10 id., 67; Williams v. Upton, 8 id., 205; Silliman v. Eddy, id., 122.)
    II. The Referee’s overruling the evidence offered on the part of the defendant for the purpose of ascertaining the amount of damage occasioned by the withdrawal of the letter of credit by the plaintiff, was erroneous.
    The letter of credit was to continue or run until the 1st January, 1858. It was withdrawn or revoked on the 12th June, 1857; and thus the breach of the special contract, whereby the letter of credit was granted by plaintiffs to defendant, was clearly proved.
    1. The testimony offered by the defendant, and rejected by the Referee, was admissible to prove or ascertain the damage done the defendant by such breach of plaintiffs. (Myers v. Y. & C. R. R. Co., 2 Ourtis C. C. R., 28; Masterton v. Mayor of Brooklyn, 7 Hill, 61; Dewint v. Wiltsie, 9 Wend., 325; The Narraganset, 1 Blatch. R., 211; Waters v. Towers, 20 Eng. L. & Eq. R., 410; Nourse v. Barnes, T. Raym. R., 77.)
    (a.) The damages in question come expressly within the definition of special damage, (Wybert v. The N. Y. & E. R. R. Co., 19 Barb., 39; Low v. Archer, 2 Kern., 282; Vanderslice v. Newton, 4 Comst., 130; Armstrong v. Percy, 5 Wend., 535.)

      (b.) Evidence of the amount of probable profits has been allowed. (McNeill v. Reid, 9 Bing., 68; Ingram v. Lawson, 6 Bing. N. C., 212; Donnell v. Jones, 17 Ala. R., 689; Cha. & R. I. R Co. v. Ward, 16 Ill. R., 522.)
    2. The testimony sought to be elicited was admissible to prove the damage for the general breach of the special contract by the withdrawal of the letter of credit. The only legitim^e mode of ascertaining the actual damage the defendant sustained by the revocation of the letter of credit, was to ascertain how much of the credit the defendant could, in his business, use to advantage, and to ascertain how much profit it would havé been to him for the term limited by the contract. And the above authorities authorize such profits to be proved as the measure of damages for the breach of such a contract.

      III. The revocation of the letter of credit by the plaintiff was not merely a breach of the contract for which an excuse might answer, or special damages be recovered, but it was an absolute rescission of the contract.
    1. The cancellation-of the letter of credit was not merely a refusal on the part of the plaintiffs to perform until the defendant performed on his part. (Ketchum v. Evertson, 13 J. R., 359; Green v. Green, 9 Cow., 46; Dowdle v. Camp, 12 J. R., 451; Frost v. Clarkson, 7 Cow., 24; Dubois v. Del. C. Co., 4 Wend., 285.)
    2. A contract is, in law, deemed rescinded when the party who is to perform an act places it beyond his power to do the act. (Frost v. Clarkson, 7 Cow., 24; Dubois v. Del. C. Co., supra; Franklin v. Miller, 4 Ad. & Ellis, 599; Weaver v. Sessions, 6 Taunt., 154.)
    IV. The plaintiffs have proved no legal excuse for the rescission of the contract with the defendant, by wholly revoking or withdrawing the letter of credit. (Wybert v. N. Y. & E. R. R. Co., 19 Barb., 36.)
    V. The letter of credit is, in law, an independent contract, and does not depend upon the performance of the defendant’s contracts for its continuance, or for the right to have it performed on the part of the defendant. (Pepper v. Haight, 20 Barb., 429; Bingham v. Weiderwax, 1 Comst., 509; Grant v. Johnson, 5 Barb., 161; S. C., 6 id., 337; Dox v. Dey, 3 Wend., 356; Dey v. Dox, 9 id., 129; Pearsal v. Fraser, 14 Barb., 564; Tompkins v. Elliott, 5 Wend., 496; Pordage v. Cole, 1 Saund., 320, n. 4; Betts v. Perine, 14 Wend., 219.)
    1. There are no conditions expressed in the letter of credit: it is absolute on its face; and although the contract executed by the defendant refers to the letter of credit, there is no express provision that its performance is a condition precedent to the continuance of the letter of credit, or that the non-performance thereof should work its forfeiture.
    2. It is analogous to the relation existing between a deed of conveyance and a mortgage given for the purchase-money. (Cornell v. Todd, 2 Denio, 130; Jackson v. Dunsbagh, 1 John. C., 91; Stow v. Tifft, 15 J. R., 458; Jackson v. McKinney, 3 Wend., 233; Hull v. Adams, 1 Hill, 601; Coddington v. Davis, 1 Comst., 186; Rogers v. Kneeland, 10 Wend., 219; Pepper v. Haight., 20 Barb., 430; Bingham v. Weiderwax, supra.)

    VI. There was no legal failure of performance, on the part of the defendant, proved by the plaintiffs. The defendant is not to be presumed to have known when the bills, or drafts, drawn on Peabody & Co., matured, without notice from the plaintiffs.

      John Van Buren, for the plaintiffs (respondents).
    I. The contract between plaintiffs and defendant is contained in the agreements signed by them, respectively; it is a single and entire contract, consisting of mutual and dependent undertakings, to be performed in the order of time specifically provided for. The neglect or refusal of the defendant to comply with the engagement on his part relieved the plaintiffs from any further obligation to perform on theirs.
    1. The obligation of the defendant to deposit with the plaintiffs, in-Hew York, thirty days before the maturity of each draft in London, funds sufficient to provide for its payment, was a condition precedent to the plaintiffs’ suffering future credits to be given. (King v. Preston, cited in Jones v. Barclay, Doug., 690; Grant v. Johnson, 1 Seld., 247; Sergeant Williams’ note to Pordage v. Cole, 1 Wm. Saund., 819.)
    2. The contract between the parties must be read according to its legal effect. Its construction is not to be enlarged or diminished by the fact that it was guaranteed by the collateral undertaking of David Winebrener.

      (a.) Some argument might, possibly, be drawn from this collateral guarantee in support of the defendant’s claim, that the stipulations in the original agreement were independent, if it could have had no operation except under that construction ; but here, there must necessarily have been a credit given to the extent of one bill or draft, for which the surety became responsible that funds should be provided in due season for its payment.
    Such a “ counterbind ” is the usual mode of securing such credits. (Story on Bills, § 460.)
    8. Ho notice to the defendant that payment was required, was necessary; his contract to pay the money was absolute, and as the draft for which such funds were 'to be provided emanated from him, he had the especial means of knowing, when payment was due.

      4. The testimony fully discloses that the defendant neglected to pay the plaintiff’s in Hew York, on the 28th May, 1857, the amount of draft drawn under the letter of credit by Otard, Dupuy & Co., £400, due in London, June 28th, 1857. That the plaintiffs delayed remitting the amount till the latest opportunity (June 9, 1857); that they revoked the letter of credit on the 12th of June, and that the defendant did not refund to them their advances on account of this draft, till June 17.
    5. The limit of the credit to be fixed by the letter, to be running at one time, uncovered by remittances in the hands of the drawees, was £1,500. On the 12th of June, 1857, when the credit was revoked, there were four drafts outstanding, amounting in the aggregate to £1,473 7s. 6d. uncovered by remittances, and the most that could be claimed in any event would be a forfeiture of defendant’s right to draw £26 12s. 6d., being the balance that remained undrawn under the letter.
    II. But if the plaintiff^ inexcusably revoked the credit and violated their agreement, no damages were sustained by the defendant which can be claimed from plaintiffs.
    1. Such damages as were sought to be proved, were not the natural and proximate consequence of plaintiffs’ act. “ Causa proxima, non causa remota spectatur.” ( 2 Greenleaf’s Ev., § 256; Sedgwick on Damages, 75; Griffin v. Colver, 16 N. Y. R., [2 Smith,] 489.)
    2. These damages, if any, were the sole consequence of defendant’s lack of credit with Jameson & Robertson, with whom he was dealing. If his credit had been good, the whiskey would have been sent.
    3. There is no evidence but that a similar credit elsewhere might have been obtained on as favorable terms.
    4. The utmost that could be recoverable by any person under the circumstances, in case a bill had been drawn under the letter and protested for non-acceptance, would have been the damages of redrawing or exchange. (Russell v. Wiggin, 2 Story, 213; S. C., Story on Bills, § 463, note.)
    In this case, no parties could complain of the breach of plaintiffs’ agreement, except Jameson & Robertson, who sustained no damage.

      5. No damages for the non-payment of money, or a failure to cause money to be paid, are recoverable on any contract, beyond interest and damages on bills of exchange. (Sedgwick on Damages, [2d ed.,] 234.)
    6. The damages claimed" by defendant consists solely in prospective profits, which cannot be allowed under these circumstances. (Blanchard v. Ely, 21 Wend., 342; Masterson v. Mayor, &c., of Brooklyn, 7 Hill, 61; Freeman v. Clute, 3 Barb., 424; Hadley v. Baxendale, 26 Eng. L. & E., 402; Wybert v. New York & Erie Railroad Company, 19 Barb., 36; Griffin v. Colver, 16 N. Y. R., [2 Smith,] 489; Sedgwick on Damages, [2 ed.,] 36, 58, 59, 69-73.
    7. Although provision is made in the contract that all property purchased or shipped by means of that credit, its proceeds, and the policies of insurance thereon, be pledged to the plaintiffs as collateral security for the payment of the drafts ; it was intended solely for the plaintiffs’ benefit. It did not contemplate the purchase of goods at any particular place. Nor that they should be shipped to New York, or any other particular place in the United States. Nor that the market price should be higher or lower at the place of purchase than at the place to which they should be shipped. Nor that the drafts should be appropriated to making purchases rather than advances. Nor that they might not be shipped to a place at which their market value might be less, and for mere purposes of exchange.
    III. There is, therefore, not the slightest ground for holding that the plaintiffs are responsible for the miscarriage of an adventure which they could not have foreseen, much less contracted to guarantee or assist.
    IV. The decision of the Referee was correct, both as to facts and law; and the judgment should be affirmed, with costs.
   By the Court—Hoffman, J.

The principal question, the question which, if determined in one way, dispenses with the examination of every other, is whether the plaintiffs were warranted in revoking the letter of credit, as they did, on the 12th of June, 1857?

The 12th of June was (as admitted by stipulation read on the trial) the day of the actual revocation in New York. It had been announced to Peabody & Company sometime between that day and the 18th of July, as appears by their letter of the latter date to the house in Dublin.

On the 12th of June, the draft for £404 8s., which should have been met with funds placed in the plaintiffs’ hands as early as the 28th of May, had not been provided for. Fourteen days had elapsed, and it was not paid until the 17th of June, twenty days after it should have been provided for. The Referee finds, that “ the defendant, on the 28th of May, 1857, and before the revocation of the letter of credit, failed to provide the plaintiffs at New York, one month previous to the maturity of a bill of £404 8s., drawn under such letter of credit, with funds sufficient to meet the payment thereof at its maturity in London.” The accuracy of this finding cannot be contested.

The plaintiffs remitted funds to London to meet this bill on the 9th of June, and it is stated, in evidence, that this was the latest period at which they could remit to provide' for the payment of the draft at maturity. This was the first draft under the letter of credit. It was for something more than a fourth of the whole amount.

The defendant, it appears, authorized Otard, Dupuy & Company to draw this bill. He was bound to inform himself of its amount, date and time, in order to comply with his engagement to the plaintiffs.

It appears to me clear, that the instruments of the 22d January, 1857, executed between these parties, are to be regarded together, as component parts of one contract and arrangement; and that the stipulations were dependent upon each other. Whenever there was anything to be done by the one party, which must be done prior in time to an obligation, to be fixed upon the other, it became a condition precedent, or an essential preliminary to the duty incumbent upon the other. Whenever an express and material stipulation should be violated by the defendant, the plaintiffs became exonerated from any farther obligation to perform any part of the contract which might remain incomplete.

Edgerton, the defendant, or other persons authorized by his written order, might have exhausted the whole of the credit of £1,500, in one draft, or in several drafts made at the same time. The obligation of Edgerton which Winebrener guaranteed, would then have been, First, to have provided funds in Hew York one month previous to the maturity of the drafts, so that the plaintiffs could remit to London in time; or, second, to accept drafts of Peabody & Company on him, in favor of the plaintiffs at three months from the date of the acceptances of that firm. The drafts under the letter of credit were to be at four months; and counsel correctly observed, that in this view of the contract, the first, or the alternative mode of providing funds to meet the bills would be in the practical result the same.

But the bills were drawn, as it may have been expected they would be, at different times, and for various amounts. The security which the plaintiffs stipulated for by the pledge of bills of lading and policies, or the guaranty of Winebrener, related to the whole agreement, and to every part of it, which Edgerton was to perform. It was additional and collateral. It could not, as I think, interfere with any right which the plaintiffs might otherwise possess under the agreement, to revoke and rescind the letter of credit, upon a violation of such agreement, in any important particular, by the defendant.

The neglect of the defendant to furnish funds as agreed upon if justifiable, would produce the effect of an extension of credit to him for the period of fifteen days; of compelling the plaintiffs to raise money out of their own resources to remit to London, and to look to the obligation of the defendant to repay, for their indemnity. How that extension of credit is not merely not permitted by any just construction of the contract, but the contrary is manifestly its true import, and conforms to the obvious intention of the parties as disclosed by it.

If we examine these correlative stipulations upon the rules applicable to conditions precedent, on which the learned counsel have mainly presented the case, the doctrine which we find in Dakin v. Williams, (11 Wend., 67,) will decide the question. Courts lean against construing covenants to be independent, unless such is the obvious intent of the parties; and when the covenant on the one side goes to the whole consideration of that which is to be performed on the other, the failure of a party to fulfill the one, exonerates the other party from his obligation. The case of The Duke of St. Albans v. Shore, (1 H. Black., 270,) is cited and relied upon by Chief Justice Nelson in deciding Dakin v. Williams.

What was the consideration of the stipulation to give this letter of credit ? It was the agreement to provide funds in anticipation in the manner prescribed—the agreement to give security by a lien on the bills of lading and policies of insurance—the guaranty of Winebrener, as well as the personal responsibility of the present defendant for the amounts to be drawn. All these constituted the consideration of the advance of credit. No one of them constituted it more than the other. The neglect to fulfill either, struck away the consideration of the engagement, and discharged the plaintiffs from it as effectually and completely as the violation or neglect of all. The rule is not, as I apprehend, that the stipulation as to which the failure takes place, formed the sole consideration, but that it was plainly as much the motive, and inducement to the promise, as anything else. In the Duke of St. Albans’ case, the trees were part of the consideration, and the cutting them down altered the estate to be conveyed, and discharged the party from the penalty, which was provided in case he broke his contract, by not taking the property.

But I think there is another ground upon which the case may be decided, apart from the technical learning of conditions precedent. In commercial transactions, exactness, promptitude, and precision in adhering to the plain requisitions of a contract is the ruling and fundamental principle of the law, and essential to commercial prosperity and safety. A Court of Justice can very rarely have a right to weigh the importance of particular stipulations, and to judge whether they are of moment, or matters of indifference. The parties have deemed them important, when, in express language, they have introduced them into their agreement.

I support this view by the case of Edmondston v. Drake; (5 Pet., U. S. R., 629;) a case which appears to me to involve principles decisive of the present action in favor of the plaintiffs. The letter of credit which was given by Edmondston in conjunction with the other "admitted documents, made out a case, of his guaranteeing the purchases of Draper & Company, of coffee, to a certain amount, to be consigned to Boyce & Company at Charleston for Hobson’s account; and for which Drake & Company were to draw bills on Hew York, upon a particular firm, at sixty days. Drake & Mitchell, before the credit was exhausted, altered the mode of obtaining payment by drawing upon London at sixty days’ sight with the consent of Hobson, but without the consent of Edmondston. It was held, that he was not liable upon his letter of credit for such bills. “The change in the mode of payment by substituting a bill on London at long sight, necessarily prolonged the time at which payment should be made, and prolonged the risk of Mr. Edmondston. This, they had no right to do without his consent.”

The case, also, of Hyde v. Booraem, (16 Pet. U. S. R., 169,) appears to me quite pertinent to the present question. The doctrine of the commutative contracts of the civil law, as found in the Code of Louisiana, is entered into and discussed in the able 'opinion of Justice Story, and tends to show that where the entire fulfillment of the whole contract on the one side is the basis of the agreement on the other, the contract, is indivisible, and must be complied with in toto, or the other may dissolve the contract.

The judgment must be affirmed.

Judgment affirmed, with costs.


author: By the Court—Moncrief, J.

text:
    Henry W. Penny, Plaintiff and Respondent, v. Garret C. Black, Defendant and Appellant.
    1. In an action brought by a plaintiff to recover the possession of personal property taken from him by the defendant, the possession whereof the plaintiff claims by virtue of a hiring from a third party, in whose possession it was, and by whom it was delivered to him upon hire and on his express agreement to return it to such third party at the expiration of the time of hiring, the defendant is competent to testify as a witness in his own behalf to prove a right of possession in himself, notwithstanding such third party, under whom the plaintiff claims, is dead at the time of the trial.
    2. In such case, the party who let the property to the plaintiff upon hire is not “the adverse party or person in interest,” and the plaintiff is not an . “ assignee ” within the meaning of section 399 of the Code as amended in 1857, which forbids a party to testify when the opposite party is an assignee, or when the adverse party or person in interest is not living.
    (Before Bosworth, Ch. J., and Hoffman and Moncrief, J. J.)
    Heard, December 7th, 1859;
    decided, January 14th, 1860.
    This action was tried before Jesse C. Smith, Esq., as Referee, on the 28th day of January, 1859.
    It was brought to recover the possession of a chronometer, with damages for the alleged illegal detention thereof.
    The defendant denied the right of the plaintiff to the possession of the chronometer, and claimed to be himself in rightful possession thereof as one of the firm of Creighton & Black, to whom, as he alleged, the chronometer belonged.
    , It appeared on the trial that Frederick Creighton and the defendant were in partnership in “ the chronometer business ” for about three years prior to May, 1856: at that time they dissolved partnership.
    On the 5th Of June, 1856, the plaintiff hired the chronometer in question from the said Frederick Creighton, for the use of his ship, received it from him, and agreed to return it to him “ at the expiration of the then present voyage, or within twelve months from the date ” of the receipt.
    On the subsequent return of the ship to this port, and on the 29th of September, 1856, the defendant, in the absence of the plaintiff and of his mate from his ship, obtained possession of the chronometer and refused to deliver it again to the plaintiff.
    The questions, whether this chronometer had ever belonged to the firm of Creighton & Black?—if so, upon what terms and under what agreement (if any) it was left in the separate possession of Creighton when the firm was dissolved?—and other questions bearing on the title of the defendant as copartner, and on the right of Creighton to confer upon the plaintiff the right of possession, were subjects of investigation and contest on the trial. It appeared that, in October, 1857, after the alleged wrongful taking and detention by the defendant, and about one year after this action was brought, but before the trial, Creighton died.
    On the trial the defendant Black, -offered himself as a witness on his own behalf. The Referee excluded his testimony for the reason (stated, by the Referee in settling the case herein) as follows, viz.: “ the said Black could not be. examined as a witness in this action to prove his title to the property in question, or his right to the possession as against the plaintiff who claims the right to the possession, through Frederick Creighton who is dead.”
    To this ruling the defendant excepted.
    ■ . Other questions arose on the trial which it is not necessary to state, as the opinion of the General Term is confined exclusively to the competency of the defendant to testify for himself. A further statement of the case will be found in the opinion of the Court.
    The Referee reported in favor of the plaintiff, and the defendant appealed to the General Term.

      Benjamin C. Hitchings, for the defendant (appellant).
    I. The Referee erred in excluding the testimony of Garret C. Black, the defendant, who was examined as a witness in his own favor.
    He was objected to as incompetent when offered. The Referee reserved his decision, and finally after the cause was submitted to him, ruled out his testimony.
    The testimony was ruled out on the ground that Frederick Creighton, who had let the chronometer to the plaintiff, had died since the commencement of the suit, but before the trial. And the Referee supposed the case to come within the exception contained in the act, which provides for the admissibility of parties as witnesses, viz.: “ But a party shall not be examined when the opposite party shall be the assignee, administrator, executor, or legal representative of a deceased person. The ground taken by the Referee being, that the plaintiff was the assignee of Frederick Creighton, who at the time of the trial was deceased.
    The point is very far fetched. The plaintiff was not in any sense the assignee of Creighton.
    The. statute by its context seems to refer only to a general assignee, executors, &c., of a deceased person. It might perhaps be extended to the case of the assignee of the claim in suit, the assignor being dead.
    But in this case the plaintiff was not the general assignee of Creighton, nor was he the assignee of the claim in suit.

      The claim upon, which the plaintiff brought his suit was entirely his own. He claims to be entitled to the possession himself, under a valid subsisting lease. He made the demand upon his own alleged right, and upon refusal brought his action.
    The suit cannot possibly be claimed to have been brought by him as assignee of Creighton.
    The exception in the statute does not extend to the case of a lessee or vendee, or one who has derived title from a deceased person.
    The suit was brought on the plaintiff’s own right or claim, and Creighton was a perfectly competent witness, perhaps he would have been a material witness for the plaintiff as to the very matters and things which Black testified to on his own behalf, but his death before trial is no ground for excluding testimony on the part of the defendant.
    If the exception in the statute were construed to cover such a case as this, it would be impossible to say what case it would not cover.
    (The other points argued were not considered at the General Term.) .

      C. A. Sand, for the plaintiff ( respondent).
    I. The defendant’s testimony, (to show his own title from Creighton,) as to matters to which Mr. Creighton, if living, could be produced to contradict him, was properly held inadmissible. The objection raised was to his competency as a witness; and at least his testimony, as to transactions with the deceased'assignor of plaintiff’s title by contract to the property, should not be admitted.
    The precise point is believed not to have been adjudged. McGinn v. Worden, (3 E. D. Smith, 335,) and Van Wicklen v. Paulson, (14 Barb., 654,) were upon the question of the right of a party to be examined in reply to the testimony of an assignor, and were restrictive against such examination. In each case the assignor of the property would have been competent before the Code, and these decisions were upon the express ground, that the assignor of the property was not, in either case, the “ assignor of a thing in action or contract.” Neither the letter nor the spirit of the statute, admitting a party as a witness in the first instance, applies to this case. The language ( Code, § 399) is, that a party cannot be his own witness, unless the adverse person or party in interest is living, nor when the opposite party is “ the assignee, administrator or legal representative of a deceased person.” This difference of language is very material, and must have force to guard against a dangerous innovation upon the rules of evidence. It would be intolerable if the title of an heir or executor could be sworn away by the opposite party in suits of ejectment or trespass upon real or personal estate. It is the assignee, not of the “thing in action,” but of the 11 deceased person.,” who is protected, and that protection must apply to property derived from the deceased person, the title of which is involved, as well as to a mere chose in action so derived. This construction guards against dangerous innovation from this, in the same manner as the decisions referred to from the other clause of the statute. It is clearly in accordance with the intent and object of the law. (27 Barb., 238; 9 Abbott, 40.)
    II. The testimony (which the Referee, after he had taken it, unnecessarily decided to strike out) could not, by any possibility, affect the result under his ruling and findings, the second and third of which rulings are unquestionably correct, and the first of which found the transfer of the property to the firm of Creighton & Black. A new trial should not be granted for error in this regard then. (Crary v. Sprague, 12 Wend., 46, and other authorities.)
   By the Court—Moncrief, J.

The defendant desired to be examined on his own behalf, and it was objected that he was an incompetent witness “ on the ground that the plaintiff derived his title to the chronometer in question from Frederick Creighton, who was deceased.” The Referee reserved his decision and took the testimony subject to his decision as to its admissibility, to be afterwards made. The Referee subsequently upon the close of the testimony did decide “ That the said Black could not be examined as a witness in this action to prove his title to the property in question, or his right to the possession as against the plaintiff who claims the right to the possession through Frederick Creighton'who is déad.” The testimony of said Black taken as aforesaid was stricken out, and the defendant excepted.

The action is for the wrongful taking and detention of a chronometer. The complaint alleges “that the plaintiff on or about the 13th of September, 1856, was the master of the schooner Emily Keith, lying at the city of New York, and then and there had in his possession on board said schooner, certain personal property, to wit: a certain marine box chronometer, numbered 1354, with the appurtenances thereto belonging; which possession was by virtue of an agreement made by the plaintiff with one Frederick Creighton, the owner of said property, for the use and possession by the plaintiff, and for paying a certain sum for the use thereof, and by which the plaintiff engaged to return the same to the said Frederick Creighton, and that at the time and place aforesaid, as the plaintiff is informed and believes, the defendant wrongfully took from the said schooner and unjustly detained the same; and the said property was so taken and detained without the consent of the plaintiff a.t the. time of the commencement of this action, and was wrongfully withheld by thi defendant in his said defendant’s possession; and the value of said property at the time of said taking was two hundred dollars; wherefore the plaintiff demands that the defendant may be adjudged to deliver to the said plaintiff said property, and to pay to the plaintiff damage, for the detention thereof to the sum of one hundred dollars, and the costs of this action, and that the said chronometer may be forthwith delivered to the plaintiff.

The answer denied the wrongful taking and unjust detention of the chronometer by the defendant.

The defendant also averred, that Creighton had no right, title or ownership in, or to the said chronometer, except as a copartner with him, said defendant; that said chronometer for a long time previous to said alleged hiring, and always since, had been and was the property of said Creighton and the defendant, the firm of Creighton & Black; and being the property of said firm, said Creighton had let the same out to hire to the owners of said schooner for the use thereof for the voyage she was then about undertaking. That on or about the 30th September, 1856, the said voyage being completed, and the term for which the plaintiff had hired the same having expired, the. said chronometer was voluntarily returned to the defendant who received it, and held it as a copartner of the firm of Creighton & Black as aforesaid, as he was lawfully entitled to do. And defendant denies that at the time of the commencement of this suit, or at the time of the alleged wrongful taking or detention, the plaintiff was entitled to the possession of the said chronometer, and alleges that he, the defendant, was entitled to the possession of the same. Wherefore the defendant demands judgment against the plaintiff for the value of the said chronometer, and damages together with the costs.

Was the defendant, Black, competent as a witness on Ms own behalf?

The action was tried in January, 1859; and section 399 of the Code, as amended by the act of April 13, 1857, (Sess. Laws, 1857, vol. 1, p. 744,) was then in force.

That section allows a party to be examined as a witness in his own behalf, provided that “the adverse party or person in interest is living,” and that “ the opposite party” is not “ the assignee, administrator, or legal representative cf a deceased person,” and provided also that ten days’ notice of such intended examination has been given, as this section prescribes.

This notice had been given: the plaintiff, the sole party in interest, is living, and he is not the administrator or legal representative of a deceased person. Neither is he “the assignee” of “a deceased person ” in the sense that he is suing in a representative capacity, or to enforce rights of his assignor in the discharge of Ms duty as assignee. If the maxim, noscitur a sociis, has any application to the words connected together in this section, viz., “assignee, administrator, or legal representative, of a deceased person,” then it aids the construction that the word assignee, as here used, describes a person suing as such, and for the benefit of third persons, and in a representative or fiduciary capacity.

Any other construction would exclude a defendant from testifying in any action for the unlawful taking, injury to, or conversion of personal property, if the person from whom the plaintiff bought it was dead; and this would be so, whether his testimony related to the validity of the plaintiff’s title or to some act of justification valid in itself, even assuming the plaintiff to have acquired from his vendor a title good as against all the world.

Section 399 does not make the admissibility of a party as a witness in his own favor dependent in any way upon the parts of the controversy or nature of the matters to which his testimony may relate, but upon the character in which the plaintiff sues.

The concluding provisions of the section favor this construction. They relate to the examination of “ the assignor of a thing in action or contract,” as a witness on behalf of one deriving title through him. That covers the case of a suit upon the thing in action or contract so assigned. (Crosby v. Nichols, 3 Bosw., 450.)

But such assignor shall not be examined “ against an assignee or an executor or administrator, unless the other party to such contract or thing in action whom the defendant or plaintiff represents is living,” &c.

However indefinite or comprehensive the word 111 assignee” may be supposed to be, I think it is here used to represent a party who is prosecuting or defending in a representative capacity for the benefit of the estate which is vested in him as assignee, or for the benefit of others, and not a purchaser of personal property in his own right and on his own sole account.

Such a plaintiff as was before the Court in Hall v. Robinson, (2 Comst., 293,) McGinn v. Worden, (3 E. D. Smith, 355,) and Crosby v. Nichols, (supra,) is not an “ assignee” within the meaning of that word as used in section 399 of the Code.

The Referee having rejected the witness and his testimony as incompetent, he committed an error, for which a new trial must be granted, with costs to abide the event, &e.

Ordered accordingly.


text:
    James C. Partridge and Josiah Partridge, Plaintiffs and Respondents, v. Daniel Gildermeister, Defendant and Appellant.
    1. Where the defendant in his own name and on his own credit, agreed with the plaintiffs for the purchase of a specified quantity of goods, to be paid for in notes of a third person, and on the delivery of a portion thereof, the time for the delivery of the residue is postponed to a time specified, and the plaintiffs present a bill for the quantity delivered, and the defendant denied that he was the purchaser, and refused to deliver the notes agreed for, on the sole ground that he was acting as agent for another and not liable on the contract, the plaintiffs are not bound to deliver or to tender or offer to deliver the residue of the goods.
    2. In such case the plaintiffs are entitled, on proof of such refusal upon the ground stated, to recover the value of the portion of the goods which was delivered, if the jury are. satisfied that the purchase was in fact made by the defendant and upon his credit.
    3. By placing his refusal to pay for the goods upon the ground that he was not bound to pay for them at all, the defendant relieved the plaintiffs from delivering or tendering to him any more goods, even if the postponement of the time of the delivery of the residue did not of itself entitle the plaintiffs to claim payment for the portion delivered without waiting for such subsequent delivery.
    (Before Bosworth, Ch. J., Hoffman and Moncrief, J. J.)
    Submitted, December 16th, 1859;
    decided, January 14th, 1860.
    Appeal from a judgment for the plaintiffs on the verdict, had on a trial before Mr. Justice Slosson, on the 20th of June, 1859.
    The action is brought to recover the sum of $946, as the value of certain chairs alleged to have been sold and delivered by the plaintiffs to the defendant, in June, 1857, to be paid for in the notes of John A: Machado & Company, having not more than six months to run; which notes the plaintiffs have demanded of the defendant, and he refused to deliver the same.
    The answer of the defendant at first denied all the allegations of the complaint; and, secondly, averred that the chairs mentioned in the complaint were delivered under and in part performance of an agreement which the defendant, as the agent of one Colquitt, made with the plaintiffs in May, 1857, by which they sold and agreed to deliver on board the ship Ellen Hood, a specified number of chairs of kinds and qualities agreed upon, amounting at the price and value also agreed upon to $2,310, and to receive in payment when the whole should be delivered, the notes of J. A. Machado & Company. That the defendant’s said agency for Colquitt was at the time of making such agreement, disclosed to and was in fact well known to the plaintiffs. That the plaintiffs in June, 1857, delivered of the said chairs a portion, to wit, the chairs in the complaint mentioned and then at their 'request it was agreed between them and Colquitt that the time for the delivery of the residue should be extended, arid, the same should be delivered on board the ship Matao, to sail about the 1st of August, then next; and that the plaintiffs utterly failed and refused to deliver such residue and to complete the performance of their said contract. That Colquitt has at all times been ready and willing to deliver the notes of the said Machado & Company, whenever the delivery of the said chairs was completed according to the said agreement.
    On the trial, the testimony in relation to the making of the agreement by the defendant in his own name and without any mention of Colquitt, or agency for any one, was conflicting. The proof showed a purchase by the defendant, however, of a larger quantity of chairs than was in fact delivered; whether the purchase was for a specified number to be delivered at one time was in dispute. There was evidence that chairs were delivered to the amount named in the complaint, ($946,) and it was claimed by the defendant not only that he was not the purchaser nor liable as such, but that in any event the plaintiff could not recover, because the contract, with whomsoever it was made, was an entire contract, and the plaintiffs were not entitled to payment until all the chairs were delivered or tendered. The plaintiffs gave some evidence that in July, after the delivery of the chairs which were delivered, and after the failure of Machado & Company, they rendered to the defendant a bill therefor, in his name, and demanded from the defendant the notes of Machado & Company for the amount thereof, and that defendant then, for the first time, stated that he bought the chairs for Colquitt, and that plaintiffs must go to Colquitt for their pay, and gave no other reason for not delivering notes of Machado & Company, for the amount of the bill. It appeared on the trial that Machado & Company failed about July 3d, 1857, before the plaintiffs demanded their notes as above stated, but the plaintiffs did not, in the pleadings nor in the trial, claim that they were’ thereby relieved of their obligation (if any ) to deliver more chairs and accept such notes in payment.
    The Judge submitted to the jury the question whether the defendant was in fact the purchaser of the goods, and instructed them that if he was such purchaser and the góods were sold to Tfim on his credit, he was liable, unless the non-delivery of the residue of the goods excused him. That if all the chairs to the amount claimed by defendant were not, by the agreement, to be delivered before the notes should be given, then the non-delivery of other or more chairs was no excuse. And if, by the original agreement a greater quantity of chairs were to be delivered before payment was to be made, still, if after a delivery of a part the defendant, on presentation of the bill therefor, denied that he was the purchaser, or hable under the agreement and placed his refusal to deliver notes in payment on that ground, not objecting that the contract was entire and not completely performed, then the plaintiffs were excused from tendering to the defendant more chairs, and were entitled to recover.
    On the other hand, if Colquitt was the purchaser, or the sale was made upon the credit of Colquitt, the defendant was entitled to their verdict.
    There was no exception to the charge, but the defendant’s counsel requested the Judge to charge:

      First. That if the jury believe, from the evidence, that the contract between the plaintiffs and either Gfildermeister or Colquitt was to furnish $2,310 worth of chairs, the plaintiffs cannot recover for the amount actually furnished, unless the contract has been waived by the consent of the parties, or the other party to the contract has released the plaintiffs.

      Second. That the denial of the contract by Gildermeister when applied to for the notes, even if found by the jury, is not a waiver of performance on the part of the plaintiffs.

      Ihird. That if the jury find that the insolvency of Machado & Company occurred after the delivery of the goods in suit, the fact that Machado & Company had become insolvent was not a sufficient ground for the plaintiffs to rescind the contract.
    The Court refused to charge either of said propositions, other than he had already done, and the defendant’s counsel duly excepted.
    The jury then retired and found a verdict in favor of the plaintiffs for $1,046.83.
    From the judgment entered on such verdict, the defendant appealed to the General Term.

      Charles Jones and G. T. Jenks, for the defendant (appellant).
    I. The verdict was not warranted by the evidence.

      1. The contract between the plaintiffs and the purchaser, upon which the chairs were delivered, for the price of which this action is brought, was an entire contract.
    The quantity of chairs was specified, and the price was fixed.
    And the time of performance was agreed upon. (Mead v. Degolyer, 16 Wend., 632; 2 Kent Com., p. 509.)
    And, conceding that the contract was entire, the delivery of the whole amount of chairs sold was a condition precedent to any right of action in the plaintiffs upon the contract. (Oakley v. Morton, 1 Kern., 25; Champlin v. Rowley, 18 Wend., 187.)
    II. The learned Judge erred in refusing to charge the proposition requested by defendant:
    That the denial Of the contract by Gildermeister, when applied to for the notes, even if found by the jury, is not a waiver of performance on the part of the plaintiffs.
    Granting, for the argument only, that the statement of the plaintiffs is correct, that Gildermeister purchased the goods for himself, and not for Colquitt, as he insists, even in that case, the denial of the truth by Gildermeister did not change the rights of the parties.
    The plaintiffs claimed that a certain contract existed between themselves and Gildermeister, who, untruthfully, or erroneously, denied that said contract existed.
    The plaintiffs establish the contract, and thus make the defendant liable as contractor with them, pursuant to the contract, and in accordance with its terms, but not otherwise.
    The defendant denied that he purchased the goods, and insisted that Colquitt was the purchaser; and he added, as he says, the statement that Colquitt .insisted upon the performance of the contract.
    He thus claimed, on the part of the purchaser, whoever he might be, the performance of the contract.
    III. The plaintiff could not rescind the contract, because Machado & Company failed on the 3d day of July, 1857.
    A portion of the contract had been performed, and nearly one-half of the goods had been delivered.
    The cases in which it is held that the insolvency of the third party, whose note is to be given for the price on an executory contract for the sale of goods, are all cases in which no delivery of a part of the goods had been made, and in which the time of performance on the part of the vendor had not arrived.
    In the case of Benedict v. Field, (16 N. Y. R., 595,) the goods had not arrived, and no part were delivered; and so, in the cases cited by the Court in that case, it will be found that the same distinction exists.
    By delivering the amount of chairs claimed in the complaint, the plaintiffs had lost their right of stoppage, in transitu, as to the chairs which were delivered, and the defendant, when applied to for the value of the goods so delivered, being ready to receive the balance of the goods contracted for, and to give the whole amount of the paper, and the time having arrived for such delivery, the plaintiffs were precluded by the terms of the contract, and the partial execution of it, from demanding the notes for the chairs delivered, without tendering the portion of chairs sold, but not yet delivered.
    If the plaintiffs desired to rescind the contract, so far as the same was executory, they were bound to lose the price or value of the goods by the delivery of which the contract was partially executed.
    And the defendant was entitled to have this proposition —the third one—charged by the Judge, as it appears by the testimony of one of the plaintiffs, that he called, after the failure of Machado & Company, and demanded the paper of Machado & Company for the amount delivered. Again, the plaintiffs had proved the failure of Machado &. Company, and the fact that Machado & Company had failed undoubtedly had great weight with the jury.
    The judgment should be reversed, and a new trial ordered.

      Jno. T. Hoffman, for the plaintiffs (respondents).
    I. The question of whether Colquitt or defendant was the purchaser was a question of fact, and, as such, distinctly submitted to the jury; and they were instructed that if they found Colquitt was the purchaser, the defendant was entitled to a verdict. The jury therefore passed upon this question, and their verdict establishes and finds that defendant himself, and not Colquitt, was the purchaser.

      II. The Court also charged the jury, that if all the chairs to the amount of $2,300 were not to be delivered before plaintiffs were entitled to demand Machado’s notes, the non-delivery of the balance did not excuse defendant from liability. This proposition was, of course, indisputable; and it is fair to suppose the jury gave plaintiffs the benefit of it.
    m. The Court further charged that even if the contract was to deliver $2,300 worth of chairs to defendant before the notes were to be delivered, yet the defendant was liable for the amount in suit, if when plaintiff demanded the notes for an amount actually delivered, ($946,) the defendant did not refuse to give them on the ground of the non-delivery of the balance to him, but refused on the sole ground that Colquitt was the purchaser, and not himself.
    This charge was clearly right; and the defendant must be considered as having assented to it, inasmuch as he took no exception.
    IV. The Judge was right in refusing to charge other than he had already done, when defendant’s counsel requested him to charge “that if the contract was to deliver $2,310, the plaintiff could not recover for the amount actually furnished, unless the contract had been waived by the consent of parties, or the plaintiffs had been released; and that a denial of the contract by Gildermeister was not a waiver of performance.”
    1. The request does not say “ if the contract was to deliver $2,310 before any ¡part of the same was to be paid for,” but merely if it was to deliver that amount.
    It assumed that if “ the contract was to deliver $2,310 worth of chairs,” that such delivery was to be made before notes for any part could be demanded, and there was no proof of this whatever.
    It also assumed, inconsistently with the denial of the contract, and while persistently denying that defendant was the contracting party at all, that he would have been liable if the whole amount had been delivered.
    2. The Judge had already charged that the defendant’s denial that he was the contracting party excused the plaintiffs from further performance. Defendant had not excepted to this; and yet he, in effect, requests the Judge to charge that such denial does not excuse plaintiffs, and that nothing would, but a waiver or telease in express terms.
    3. The jury found that defendant was the contracting party, and had received the chairs. He could not when sued for their value claim as a defense the non-performance of a contract which he denied he had ever made. It would be absurd to require plaintiffs to deliver more chairs to a man who denied that he had made any contract to receive or pay for any.
    4. Defendant’s denial of the contract and refusal to give the notes on the ground operated as strongly to release plaintiffs from delivering more, even if they had agreed to, as would "a waiver or release in express terms. And the defendant, having assigned one reason only for refusing to deliver the notes.when demanded, is estopped from setting up a different one when sued.
    5. Even if plaintiffs did agree to deliver $2,310 of chairs, the defendant’s testimony shows that the balance was to be manufactured and delivered at another time, and by another vessel, which was to sail at a future day, and which defendant was to dispatch. There was not a particle of proof to show that payment of the chairs delivered by the first vessel was to await the delivery by the second; nor did defendant ever give plaintiffs any notice that the second ship was ready, or notice to deliver the chairs by her.
    V. The effect of the insolvency of Machado & Company was not a point in the case. There is not a particle of evidence to show that plaintiffs had ever in any way alluded to it, or made it an excuse for not delivering chairs. The only allusion to it in the whole case is by Colquitt, who made it his excuse for not demanding balance of the chairs of plaintiffs.
    The request to charge, therefore, upon this point was improper, and the Court properly refused.
    Nor was the proposition true, as a matter of law. (Benedict v. Field, 16 N. Y. R., 595.)
   By the Court—Moncrief, J.

The Judge charged, in effect, that, although goods to the amount of $2,310 were to be delivered before any notes were to be given to the plaintiffs, yet if the defendant was in truth the purchaser, and refused to give notes for the goods actually delivered, on demand thereof, alleging, as the sole ground of such refusal, that Colquitt was the purchaser, and that the defendant was not such purchaser, then the plaintiffs were entitled to recover.

The jury have found that the defendant, and not Colquitt, was the purchaser. It was to him, therefore, and not to Colquitt, that a delivery or tender of the residue of the chairs was to be made, if to be made to any one.

When the defendant answered a demand for notes for the price of the chairs which had been delivered by a denial that he had bought those actually delivered, he took a position which dispensed with the necessity of an offer to deliver more chairs. (Crary v. Smith, 2 Comst., 60-65; Meserole v. Archer, 3 Bosw., 376.) It would be an idle ceremony to offer to deliver chairs to a person who then denied that he had contracted to buy them, and who also denied that he had bought those already delivered, and on that ground refused to pay for them.

There was no dispute as to the fact that the plaintiffs demanded of the defendant notes for the chairs delivered, and that he denied being the purchaser of them.

On such a state of facts, it is idle to insist that the plaintiffs should have offered then to deliver to the defendant the balance of the chairs. The answer that would have been given is involved in what the defendant had already affirmed, viz., that he was not the purchaser: none had been delivered to him as the purchaser, and he would not take any as purchaser.

There was, therefore, nothing in the evidence calling for the instructions first and secondly requested.

The instruction last requested, it was not error to refuse to give. The notes of Machado & Company, for the chairs actually delivered, had been demanded after their failure. The plaintiffs at no time refused to receive them, or to deliver chairs for them. Their right to recover does not depend upon their right to rescind any contract which they made. It is based on the defendant’s refusal to perform his contract, as the purchaser of goods sold and delivered to him by the plaintiffs.

There is no exception which involves any question relating to the measure of damages; and the appeal brings before us questions of law only. For the reasons stated, the judgment should be affirmed.

Judgment affirmed, with costs.