author: By the Court. Woodruff, J.

text:
    C. W. Moore et al. Plaintiffs and Respondents v. C. Goedel et al. Defendants and Appellants.
    1. In an action by plaintiffs (occupants of the first floor and basement of a store in New York city) to recover for damages to their goods, caused by an overflow of Croton water in the third story of the store at night, and it appearing that "W". D. C. & Co. hired and occupied all above the first story, and. that the defendants, by their permission, occupied a part of the third story under an agreement to leave at night before W. D. C. & Co. did, and not to enter in the morning until opened by them, and that the defendants conformed to such agreement, the plaintiffs cannot recover of the defendants by mere proof that the faucet in the third story was negligently left open, and damage ensued; they must prove that it was left open by the defendants’ negligence'.
    2. There is no proof, on such a, state of facts, that the negligence was the defendants’ negligence.
    3. It appearing that there were stop-cocks in the cellar to shut off the water at night, and it being proved that W. D. 0. & Co. had been in the habit of sending their porter to shut off the water every night, as there had previously been an overflow, whereupon the plaintiffs objected to the porter's going through their premises, and thereupon W. D. 0. & Go. saw Mr. Stowell» one of the plaintiffs, fold him “ they were uneasy about the water, and wanted it shut off at night,” and Mr. S. “ said he would see to it and have it turned off himself,” but neglected to do so on the night in question; held that the plaintiffs could not recover.
    4. Held also, that their negligence contributed to produce the injury, and was a proximate and not a remote cause of it.
    (Before Boswoeth, Ch. J., and Woodéuít and White, J. J.)
    Heard November 14, 1860,
    decided February 16, 1861.
    Appeal by the plaintiffs from a judgment against them. The action was tried before Bosworth, Ch. J., and a jury, on the 15th of June, 1860.
    The suit is brought to recover the damages sustained by the plaintiffs, by reason of an overflow of Croton water on the morning of the 6th of August, 1851.
    The plaintiffs occupied the cellar, basement and first floor of the premises 26 and 28 Park place, and 21 and 23 Barclay street, the same building running through to both streets. Wm. D. Cromwell & Co. hired all the rest of the building, and occupied all the rest. The defendants had certain rights in a part of the third loft, under an agreement with Wm. D. C. & Co. That agreement, as testified td by Jacob C. Goedel, was, that the defendants should, during the will of W. D. C. & Co., have the use of a part of the premises .for business purposes, but should have no right to any key to any part of the premises — should have no right of access thereto until after W. D. C. & Co. had entered in the morning, and should leave before W. D. C. & Co. left at night. No portion of the premises occupied by the defendants was inclosed. There was unobstructed access on the part of W. D. C. Sf Co., and their clerks, to every part of the premises occupied by the
      defendants, who never had possession of any key at any time.
    On the third floor there were two water-closets, 12 or 15 feet from each other. In each there was a wash-basin and water-closet; both were partly used. In the one on the Barclay street side the water-closet was used; in the one nearest Park place the wash-basin was used. The water-closet was used by Cromwell’s people. There were no keys. The overflow was from the water-closet and washbasin nearest to Park place.
    The evidence was, that neither the water-closet nor the faucet from which the overflow came had ever been used by the defendants. When the defendants first went into the premises, their porter, Mitchell, tried to get water from the faucet, but could not, and was told by Cromwell’s people it was of no use, that no water could be got on that loft. He, from that time, always kept the tap closed and never again tried to get water from it. He got all the water used from the first loft. The plaintiffs had exclusive control of the cellar, in which was the main cock, by turning off which the water was prevented from going to any part of the building. Shortly after Cromwell & Co. went to the premises, there was an overflow of the Croton, which injured their goods; Cromwell thereupon sent his porter down every night to shut off the water. This was continued until the plaintiffs objected, and Mr. Stowell, one of the plaintiffs, promised that he would see to it, and have it turned off himself. ' This fact was testified to by James McDowell, and he was not contradicted.
    The plaintiffs promised to turn off the water at night; it was generally understood that they would do so, such instructions were given to their porters, and they were accustomed to do it. They continued to do so; until one of the plaintiffs’ porters purposely refrained through a misunderstanding of Mr. Stowell’s instructions.
    The judge charged the jury {.inter alia) as follows:
    I. That if they believed from the evidence that defendants had not exclusive charge and control of the premises where the overflow occurred, but held the same as tenants of Cromwell & Co., and subject to the conditions mentioned in the testimony of the witness Jacob C. Goedel, although there might be .loss and injury resulting from the overflow, it would not follow as a matter of course that the defendants were liable. There might be an injury for which Cromwell & Co., or the defendants would alone be liable. On suing either firm, in order to recover, the evidence must show, satisfactorily, that the injury was caused by the negligence of the persons sued. In the present case, before finding a verdict for the plaintiffs, you must be,,satisfied that the negligence of the defendants, o,r of their servants, caused the injury.
    II. That if it was the common understanding between Cromwell & Co., and the defendants with the plaintiffs, well understood and acted on between them, that the plaintiffs should shut off the water in the basement at night, and if the plaintiffs neglected to do it on the occasion in question, then the plaintiffs’ carelessness or negligence contributed to the loss. Both parties being in fault, the plaintiffs could not recover.
    III. That if the jury believed the testimony of the witness James McDowell, (and the same being uncontradicted,, they were bound to believe it,) that plaintiffs objected to Cromwell’s men coming into their premises and turning off the water, that McDowell went down to see them about it, by Cromwell’s direction, and had .the interview with Stowell, to which he refers, and that the plaintiff Stowell then said to him, that they would take charge of it, or see to it themselves; that the plaintiffs thereby assumed the duty of turning it off, and, neglecting so to do, cannot recover of defendants for the loss occasioned by the overflow. It was easy for the plaintiffs to call Mr. Stowell, if they had any explanation to give or denial to make in respect to the testimony of McDowell, as to what was said at this interview.
    IY. That if the witness Wells knew where the cock was which shut off the water from the defendants’ premises, he was bound, if the fact occurred to his mind, to turn the water off before attending to saving the goods, and if he neglected to do so as soon as it could be reasonably done, if the leakage might have been in part checked by his so doing, the jury must consider how far the loss could have been thereby diminished, and if they'found for the plaintiffs, make such allowance therefor as the evidence satisfied them was just.
    To each of which points of said charge above specified, the plaintiffs then and there duly excepted.
    The plaintiffs then and there requested the court to charge the jury :
    That any promise or engagement of plaintiffs to Cromwell & Co., to turn the water off at night, could not enure to the benefit of the defendants, and that there was no sufficient consideration to sustain any such promise.
    The court refused so to charge, to which refusal the plaintiffs then and there excepted.
    The jury thereupon found a verdict for defendants.
    Judgment having been entered on the verdict, the plaintiffs appealed to the general term.

      L. K. Miller, for Appellants.

      A. Boardman, for Respondents.
   By the Court. Woodruff, J.

—The only grounds upon which the counsel for the appellants ask that the judgment herein be reversed are, that the justice, before whom the action was tried, refused to instruct the jury as requested by him on the trial; and that he erred in the instructions which he did give to the jury.

In our opinion, there was not only no error in these particulars prejudicial to the plaintiffs, but, upon the evidence, we think, a peremptory instruction to the jury, that the plaintiffs were not entitled to recover, would have been proper.

The nature and extent of the defendants’ connection with the premises were shown without any dispute or contradiction. They were in the partial occupation of the third floor of the building; but not in the exclusive possession of any part of it. The firm of William D. Cromwell & Co. occupied and had the control of the second and third stories, and the lofts above; and had consented that the, defendants might temporarily store their goods and do business upon a portion' of the third floor, but in entire subordination to their control; Cromwell & Co. storing their goods upon a portion of the same floor, and allowing defendants, also, to store goods in the upper lofts; Cromwell & Co., and their employees, having access at all times to all parts of the premises. The defendants, not being-permitted to have any keys, could not enter the premises until admitted by Cromwell & Co.; and were compelled to leave before Cromwell & Co. closed the entrance.

Under these circumstances, we are clearly of opinion that before the plaintiffs could recover from the defendants for an injury sustained by an overflow of Water on this third floor, they were bound to show that it was caused by negligence of the defendants, or of their employees. The care and control of the premises were in Cromwell & Co.; and they were last in possession at night. Although the water flowed from a closet and faucet which were at the end of the loft, which the defendants used, yet Cromwell & Co. and their employees had like access to both.

The evidence of the plumber shows that if the water-flowed from the water-closet it was owing to the wire, connected with a valve, being in some manner caught, so that the valve did not close; and also to a stoppage in the waste-pipe at some distance below that floor.- Now as to the water-closet, the proof is uncontradicted and explicit, that neither the defendants nor their employees used that water-closet. For aught that appears, the disarrangement may have occurred before the defendants went to that store. At all events, there is not the slightest evidence, beyond the limited occupation of the loft, above stated, which in any manner connects the defendants with the use of the water-closet, or with the disarrangement of its valve, or the stoppage in the water pipe.

If, on the other hand, the flow of water was from the faucet underneath the wash-basin, then, also, the plaintiffs have failed to show that the defendants, or any of their employees, left it open, This wash-basin was used by the employees of the defendants ; and also by the employees of Wm. D. Cromwell & Co. But so far from its appearing that the defendants or their employees left the faucet open, they expressly deny that they ever used it; and there is no counter proof.

We think it quite clear that where a party has the permission of the tenant to use fixtures of this description, but without having the control thereof, he is only liable upon proof that his negligence caused the mischief complained of. His having such a privilege raises no presumption of negligence on his part, which casts the burden on him of disproving it. In the present case, if the defendants and their employees, and Cromwell & Co., and their employees, came to the store together in the morning, and left together at night, it would still be no more probable that it was the negligence of the former that left the faucet open, or otherwise caused the overflow, than that it was the negligence of the latter. And when it appears that Cromwell & Co. were the tenants of the premises, giving the defendants only a qualified possession of a part, continuing themselves to have access to the whole, and. retaining the control, and actually claiming and exercising, day by day, the final supervision of the premises after the defendants had left at night, there is no presumption, in the absence of proof, that the faucet was left open by the defendants, or that their negligence otherwise caused it.

Indeed, if it had appeared' that the defendants had exclusive occupation of a part of the loft, and Cromwell & Co. had exclusive occupation of another part (as might be true of two tenants of a common landlord), but each had a right to use a water-closet and faucet, connected with the Croton water, and each an equal control over the management and care thereof, we are of opinion that if either be sued for damages sustained by another from some carelessness in the use of the fixtures, the plaintiff must prove the neglect to be the defendants’. He cannot rest with merely showing his injury; and that it was caused by a flow in the night season from a faucet carelessly left open, without showing that it was so left by the carelessness of the defendant or his employees. Where two or more have the use of such fixtures in common, under a right of use or occupation held by them jointly, so that the use and the control of the premises is joint, the responsibility for the proper use and proper care of the fixtures may be joint; so that liability attaches' prima facie to each, on proof that negligence has occurred, and damage has ensued. But where the right is several, I apprehend that each is responsible only on proof of negligence on his own part; and neither is responsible for the negligence of the other.

The tenant of a. ground floor may, it is true, find difficulty in recovering his damages where there are many tenants above him, each of whom has the privilege of using the Croton water in some closet in the upper part of his store. But he is nevertheless only in the situation of all plaintiffs; he must prove a cause of action, and that the- defendant is the party liable.

It seems to us that these views are obviously just, and conformable to the first principles of the law; and that in this respect the instruction to the jury that, before finding a verdict for the plaintiffs, they must be satisfied that the negligence of the defendants, or of their servants, caused the injury, not only did the plaintiffs no injustice, but was a submission of the question to them, when there was in truth no sufficient evidence to warrant the jury in finding that the injury was so caused.

The other exceptions relate to the effect of the undertaking of one of the plaintiffs to take charge of the Croton water pipes in the cellar, and see that the water was shut off at night.

In the first place, the occupation by the defendants was in subordination to that of Cromwell & Co. All the privileges they enjoyed, and all the use they had they received through Cromwell & Co., charged with no duties, and clothed with no obligations to any body, which did not rest upon Cromwell & Co., when the defendants came there, and which Cromwell & Co. were not bound to perform, if the defendants had never come nor sent their goods there.

The occupation of the water fixtures which the defendants were permitted to have, was at most a sharing of the privileges which Cromwell & Co. as tenants enjoyed.

It did not impose upon the defendants a duty to be more careful than Cromwell & Co. were themselves bound to be, and any arrangement which Cromwell & Co. made with the plaintiffs, either for the common protection of all, or to relieve the occupants of the lofts, necessarily operated to the protection of the defendants as a species of sub-tenants.

The proprietors of the lofts had experienced the. danger of overflow in the lofts; it may be from the defendants in the water closet above referred to; at all events, they were aware of the importance of having the water cut off from the lofts at night, which was of course a full protection to them, and to the plaintiffs also ; a cut-off (or stop cock) had been placed in the cellar of the store for the very purpose of stopping the water from going up to the lofts. It was so connected with this subject, that it is fair to presume that Cromwell & Co. had the right at all suitable times, either to resort to it themselves, and shut off the water, or to require the plaintiffs to do it. Be this as it may, they were in the habit of sending down and shutting-off the water before leaving the store at night. The plaintiffs recognized their right to do this, and the propriety of having it done, by agreeing in the person of Mr. Stowell, “ to see to it, and have it turned off himself.”

It would in our opinion, be gross injustice if, after this, the plaintiffs could neglect to do what they agreed to do, and ask damages for the injury which they sustain in consequence.

We recognize the cases cited by the plaintiffs’ counsel on the subject of negligence, where the proximate cause of injury is on the one hand, and where the remote cause is on the other, but do not appreciate their application to the presentcase. The plaintiffs here have voluntarily disarmed the defendants of vigilance; agreed to do for them that which was a sure and adequate protection against any possible overflow of the water; that which, if done, rendered no precautions on the part of the defendants necessary; and having done this, the plaintiffs negligently omit to do the very thing which, but for this agreement, the defendants would have done themselves, and an overflow ensues, and the plaintiffs are now seeking compensation.

If there be any question whose negligence is proximate under such circumstances, we should say, at all events, that of the plaintiffs is not remote.

This point does not rest upon any idea that it was the duty of the plaintiffs to cut off the water in the cellar for their own protection, irrespective of any undertaking on their part to do so.

Nor upon the idea that they made a valid contract with Cromwell & Co., which as. a contract could be enforced by these defendants. Although, even on this point, it is not clear that the intermission of Cromwell & Co., to see to the shutting off the water by the plaintiffs’ request, was not a sufficient consideration for the plaintiffs’ agreement to see that it was done, and had .the plaintiffs’ neglect to do so caused an overflow, and damaged the goods in the lofts, the plaintiffs may have been responsible.

But we rest this branch of the case upon the undisputed fact, and one which the jury found proved to their satisfaction, that the omission of Cromwell & Co. to shut off the water (which would have prevented the whole injury of which the plaintiffs now complain) was by the express request of the plaintiffs themselves; and that request was acceded to upon the like express undertaking of the plaintiffs, to see that it was doné, and upon this Cromwell & Co. and the defendants had a right to rely.

As against these plaintiffs, and on a question, what care and diligence was due to them, the occupants of the lofts had a right to assume that they would do what they had agreed to do, and what they had prevented the tenants themselves from doing.

So far from there being error in this part of the charge, we think that in this also, (the testimony being uncontradicted, and no circumstance impairing its credibility,) the charge might have been more strongly against the plaintiffs.

The judgment should therefore be affirmed. -

Judgment affirmed with costs.


source: Caselaw Access Project

author: By the Court. White, J.

license: Public Domain

text:
    Thomas McSpedon and Charles W. Baker, Plaintiffs and Appellants v. The Mayor, Aldermen and Commonalty of the City of New York, Defendants and Respondents.
    1. A contract for printing and binding for the corporation of the city of New York fifteen hundred copies of the “ City Charters, with Kent’s Notes,” at two dollars for each copy, is within § 12 of chap. 217 of the Laws of 1853 (p. 410), and if not made as that section requires, is void.
    2. The facts that such a contract is made by the clerk of the common council, under the authority of a resolution passed by that body, and the printing is done, and the copies are furnished to and accepted by the common council, do not create any legal obligation upon the corporation to pay either the contract price, or what the copies so furnished are reasonably worth.
    (Before Boswobth, Ch. J., and Woodruff and White, J. J.)
    Heard November 7, 1860,
    decided February 23, 1861.
    Appeal by the plaintiffs, Thomas McSpedon and Charles W. Baker, from a -judgment in favor of the defendants, The Mayor, Aldermen and Commonalty of the City of New York, rendered on a trial had in December, 1851, before Mr. Justice Slo'sson, without a jury.
    The action is brought to recover $3,000, with interest from January 1, 1855, for printing and binding fifteen hundred copies of a book known as “ The City Charters, with Kent’s Notes.”
    The common council of the corporation of the city of New York, by resolution approved December .16, 1853, authorized and directed its clerk to procure this work to-be done, and he contracted with the plaintiffs to do it. .The plaintiffs did the work, and delivered -the copies about the 1st of January, 1854.
    The common council, by a resolution of the 18th of June, 1855, directed the comptroller of the city to pay the bill, which the clerk of the common council had before then certified to be correct, at $3,000. The comptroller refused.
    The complaint states these facts, and contains common counts for doing this work (as they allege) at the defendants’ request.
    The answer admits the passage of the resolutions, and sets forth the 12th section of chapter 217 of the Laws of 1853 (Laws of 1853, p. 410), and avers that the said resolutions are a violation of that section, and that the contract with the plaintiffs is void, and that the defendants are not liable for the said work.
    It was proved on the trial that, on the 3d of July, 1848, a valid contract, made in the mode prescribed by law, was entered into between the plaintiff’s and defendants, for printing journal, proceedings and documents of the two boards, and binding the same, at prices mentioned in a specification thereto annexed. That contract, by its terms, expired in one year from its date.
    Before this contract expired the charter of 1849 was passed (Laws of 1849, p. 278), and on the 30th of June, 1849, the ordinance organizing the departments of the municipal government to carry that charter into effect was passed.
    When the contract of July 3, 1848,-expired, no ordinance had been passed conferring on any department authority to contract for the public printing for a definite period. By the action of the common council and the officers of the city government, the provisions of the contract of July 3, 1848, was continued until the common council should otherwise determine.
    All the printing of the common council was done hy the plaintiffs, at .the rates specified in the contract of July 3, 1848, and paid for by the comptroller.
    Thus the matter stood until the resolution of December 16, 1853, was passed.
    On the 13th of August, 1854, a preamble and resolution were presented in the board of councilmen to the effect that, said board “is entirely satisfied with the existing contract with Messrs. McSpedon & Baker, in printing for the legislative branch of the corporation,” * *
    and they recommended “that the same be continued as heretofore,” which was adopted by, a vote of 31 to 22.
    The court gave judgment for the defendants. Exceptions to the decision of the court were duly filed. From the aforesaid judgment, the present appeal is taken.
    J. W. Edmonds, for Appellants.
    I. The contract under which the work was performed was a valid one, and was a compliance with the statute. (Laws of 1849, 278, §§ 1, 9 and 23.)
    II. The work in question belonged to the legislative department, and like all other printing of proceedings and documents for the use of the legislative department, it could be performed without a special contract therefor. (Christopher v. Mayor, &c. of New York, 13 Barb. 567 ; Peterson v. Mayor, &c. of Mew York, 17 N. Y. R. 454.)
    III. Even if the original contract for performing the • work was void as against the statute, the work having been done by the plaintiffs, and having been accepted and enjoyed by the defendants, the defendants were liable to pay for the same on a quantum meruit. (Angel & Ames on Corp. § 238 ; Bank of Columbia v. Patterson, 7 Cranch, 306 ; Randall v. Van Vechten, 19 J. R. 65 ; Dunn v. St. Andrew's Ch. 14 Id. 118 ; Banforth v. Schoharie Turn. Co. 12 Id. 231.)

      IY. The defendants are also liable on an express promise contained in their resolution of the-18th of June, 1855. . '

      II. R. Anderson, for Respondents.
    I. The resolution of the common council of December 16, 1853, is void, and creates no obligation as against the city to pay for the services contracted to be rendered by McSpedon & Baker.
    1st. The making of the (alleged contract was an executive, and not a legislative act. The common council, therefore, could not legally make it.
    If authorized by the common council, the contract could only be made by the appropriate head of department. (Charter of 1849, §9; Ordinance organizing the departments, May 30, 1849, § 243; Ransom v. The Mayor, 4 Ab. Pr. R. 342.)
    2d. The resolution of the 16th December, 1853, is void, also, because it is in express violation of the 12th section 'of the charter of 1853. This section took away from the common council all discretion as to work to be done or supplies to be furnished for the corporation, which involved greater expenditure than $250. In such cases the common council had no authority whatsoever to order the work done otherwise than by contract founded on sealed bids, or on proposals made in compliance with public notice for the full period of ten days. (Charter of 1853, § 12.)
    II. The work in question was capable of being done by contract. It was a proper subject of competition by bidders, and’the object of the 12th section of the statute of 1853 was to' secure to the corporation the benefits of the contract system, which it devised.
    1st. It was to print and bind a given number of a certain book' already in existence, and at a fixed price per number.
    2d. It is unlike the case of professional, scientific or ' artistic labor, which derives its chief, if not its only value, from being performed by some particular person. (Peterson v. Mayor, &c. 17 N. Y. R. 454.)
    III". The proceeding of the common council being absolutely void, ab initio, no subsequent act or assent or ratification can give it validity; and the resolution of June 18, 1855, directing the comptroller to pay the bill of McSpedon & Baker, fails, for want of original authority over the subject. (Brady v. The Mayor, &c. 2 Bosw. 173 ; Farmers’ Loan & Tr. Co. v. The Mayor, &c. 4 Bosw. 80 ; Bonesteel v. The Mayor, &c. 6 Bosw. 550 ; 22 N. Y. R. 162.)
    IV. What the common council could not do itself, it could not legally depute its clerk to perform. The directions to Mr. Valentine, contained in the resolution of December 16, 1853, were unauthorized. The duties of clerk and his powers are enumerated in the charter of 1849, §§ 4 and 5.
    V. The resolution of the common council of 13th of August, 1854, continuing in force the contract for printing, &c., made with McSpedon & Baker, in July, 1848, if a valid act of legislation, confers no right upon the plaintiffs to maintain this action. That contract had reference to a wholly different class of work than is embraced in the resolution of "the 16th December, 1853.
    VI. “ The contractor, when he deals in a matter expressly provided for in the charter, is bound to see that the charter is complied with. If he neglects and thus chooses to take the hazard, he is a mere volunteer, and suffers only what he ought to have anticipated.” (Brady v. The Mayor, &c. 2 Bosw. 173 ; Homersham v. Wolverhampton Water Works Co. 4 Eng. L. & E. R. 426 ; Williams v. Chester R. R. Co. 5 Id. 501 ; Farmers’ Loan & Tr. Co. v. Carroll, 5 Barb. 615.)
    VII. The plaintiffs are not entitled to recover, because the claim had not been audited by the finance department. (Charter of 1849, § 11; Charter of 1853, § 13; People ex rel. Smith v. Flagg, 17 N. Y. R. 584.)
    VIII. No previous appropriation to cover the expense of this contract having been made, the contract would be illegal, even if made by the proper executive officer. (Charter of 1849, §§ 7 and 19.) The judgment at special term should be affirmed, with costs.
   By the Court. White, J.

—Upon the facts and the pleadings in the case, two questions are presented: First. Whether the defendants are bound by the express contract made by the common council with the plaintiffs for the work in controversy. And second. If the defendants are not bound by the original and express contract, have they, by accepting and using the books, rendered themselves liable to pay the plaintiffs what the books are reasonably worth ?

It is a settled principle that when the legislative power, from which a corporation derives its authority to act, prescribes a particular mode in which the act shall be performed, the corporation cannot lawfully perform the act in any other manner.

If not done in the manner prescribed, the act is a mere nullity—utterly void.

In the present case, the Legislature having declared, in the 12th section of' the act of 1853, that all work to be performed, and all supplies to be furnished to the corporation of the city of New York, involving an expenditure of more than $250, shall be by contract, founded on sealed bids, &c., it follows, that the contract for the work done by the plaintiffs (if it is such work as is contemplated by the 12th section of the act referred to) should have been made as prescribed in that section; and, that not having been made in that manner, it is null and void; and no action can be maintained upon it. (See Brady v. The Mayor, &c., of the City of New York, 2 Bosw. 173, affirmed upon appeal to the Court of Appeals. 20 N. Y. R. 312.)

But the plaintiffs claim that the work, which is the subject of this action, was done, not under the employment or contract authorized by the resolution of the common council, passed on December 16, 1853, but under the old contract, made between the parties in July, 1848; which the plaintiffs contend was continued in full force to the time of the present transaction.

There is nothing, however, in the case to sustain this suggestion. The complaint sets up no such claim. The only contract, retainer, or employment, which the complaint alleges, or in any manner refers to, is the resolution of December 16, 1853, and the contract with, and retainer of, the plaintiffs by the defendants, “ pursuant to the said resolution.”

Again, the compensation, agreed to be given to the plaintiffs for the work, is not measured or controlled in any manner by the prices or terms of the old contract. In that contract, the payment of 46 cents per page for 250 copies is provided for; while the contract price, under the resolution of December, 1853, and set forth in the complaint, and for which judgment is demanded, is two dollars per copy; which is not only a different, but appears to be a much larger rate of compensation than that stipulated in the old contract. So that, even were the contract of 1848 in existence at the time of the employment of the plaintiffs, it manifestly was not considered by either of the parties as in any manner affecting the agreement for printing the “City Charters, &c.,” which they both evidently regarded as a new and independent undertaking. „ But the old contract had expired by its own limitation in July, 1849. And although the plaintiffs continued to print the proceedings of the common council, and to receive payment therefor as usual, yet, until August, 1854, there was nothing done that had even the semblance of an attempt to renew or revive it; and all that was done then was the passage of a resolution by the councilmen (one board only of the common council), recommending that the old contract be continued; a resolution which could have no effect whatever upon the rights or relations of the parties.

But we do not think that, after the act of 1853, the common council could, by any mere resolution, however formally passed, either make, or give vitality to, such a contract as that of July, 1848. Even before the passage of the act of 1853, the ordinances of the corporation required that all contracts for work and supplies, involving a certain amount of expenditure, should be made upon bids or proposals, invited by public notice; and this very contract of July, 1848, was made in that manner. We repeat, therefore, that we can see nothing in the case to warrant the suggestion that the work in question was done under that old contract.

It was also urged by the plaintiffs, as a ground for main-taining the validity of the contract made with them pursuant to the resolution of December 16, 1853, that it yras a legislative and not an executive act; that the books ordered to be printed were as necessary for the guidance and information of the members of the common council in the discharge of their legislative duties as their minutes, documents and journals, and that it was equally within their legislative discretion to order and contract respecting them, without any other restraint than their own sense of what was proper and necessary. The common council, it is true, is vested with all the legislative power of the corporation; but it is a peculiarly restricted legislative authority, and is in every respect subject to the provisions of the charter, othe fundamental law of the corporation. And when that charter requires that certain legislative or executive duties shall be performed in a particular manner, or when it declares that a certain act, which is appropriate to both the executive and legislative departments, shall be done (whenever it is done) in a particular manner, without making any exception in favor of any officer or department, ministerial, legislative or executive, then these several departments of the city government must comply, in the performance of that act, with those special requirements of the fundamental law. There are, it is true, several matters' pertaining to the city government, which have not been assigned by law, or by ordinance of the corporation, to any of the heads of executive departments, and the administration of which, therefore, remains with the common council. (See Peterson v. The Mayor, &c. 17 N. Y. R. 454.) The erection of new public buildings when authorized by law, and the public printing are instances of this kind. But in the administration of these branches or portions of the corporate business, everything must be done (so far as the nature or character of the particular subject will permit or render it possible) as strictly in compliance with the provisions of the charter, both as it respects the thing to be done, and the mode of doing it, as if the matter was in the control or management of the head of an executive department.

We conclude, therefore, that when the work of the public printing involves the expenditure of more than $250, it should be done by contract founded on sealed bids, &c., in pursciance of the twelfth section of the act of 1853, and that this is the law, whether the printing is required for the legislative or executive departments; and that no contract or employment for the performance of the work referred to, made in any other manner than that prescribed by said twelfth section, is lawful, or valid, or of any binding force or obligation, when it involves an expenditure of more than $250.

Upon this principle, the work done by the plaintiffs, and for which this suit is brought, was work which should have been contracted for in the manner and with all the formalities prescribed in the twelfth section of the act of 1853; and as the contract for it was not made in that manner, it is null and void, and cannot be enforced against the defendants.

There only remains now to be considered the question, whether the defendants, having accepted and used the books, are bound to pay for them what they are reasonably worth, notwithstanding that the express contract under which they were furnished is null and void ?

The plaintiffs’ counsel has cited several authorities intended to sustain the affirmative of this proposition; but they all tend only to establish what has been long held as sound general doctrine, that a corporation can in ordinary cases be made liable on an implied as well as on an express assumpsit or promise. They do not, however, reach the case of a corporation which is deprived by statute of all capacity to contract, except in certain designated or prescribed forms. In the present instance, the defendants can make no contract or promise, express or implied, except in the manner and with all the formalities prescribed by statute. No promise, or engagement, or act of acceptance, or ratification by the officers or agents of a corporation thus incapacitated, can render it liable, or give to any one a cause of action against it. The members of the common council and other officers of the city government are but agents of the corporation, entrusted with certain powers which are to be exercised in a manner specially defined and provided. This is the extent of their authority. Anything they do beyond it is a nullity, so far as it is intended by it to bind their principal. A different doctrine would render void all attempts at legal restraint upon the conduct or acts of the defendants. If the principle could be maintained, that when an express contract, made in defiance of the restraints of the charter of the defendants, should be declared void, the party seeking to recover upon it might abandon the claim on the express undertaking, and recover upon an implied promise, on the ground that the work had been done, or the supplies furnished, no matter' how unauthorized by law the work or the supplies had been, it is obvious that the statute would be a mere nullity, and that all safeguards' against: improvidence and corruption would be overthrown. Such • a doctrine could not be tolerated. These views and the reasoning in support of them are set forth more fully in the decision of this court in the case already referred to; (Brady v. The Mayor, &c. 2 Bosw. 173 ;) and we only now re-assert them.

Fully sensible of the hardship to which an adverse decision might subject the plaintiffs, who, without recompense, have parted with their property and labor upon an illegal and void contract, we have examined this case carefully, so that nothing might escape our notice- which could tend to the plaintiffs’ benefit. But we can see no ground upon which this action can be sustained. Whether in any other form of proceeding the plaintiffs can recover their property or its value, may be a question. In the present action they can have no relief.

The judgment at special term must be affirmed with costs.


author: Robertson, J. Hoffman, J. Bosworth, Ch. J.

text:
    The Bank of Beloit, Plaintiff and Respondent v. George W. Beale and Seth Adams, 3d, Defendants and Appellants.
    1. In an action commenced in November, 1858, by plaintiff against defendants to recoveivproceeds of wool consigned in the early part of 1858, by the former to the latter, for sale on the plaintiff’s account, the defendants allege in their answer that the wool was the property of one A..; that prior to June 9, 1858, A. employed B. as his agent to purchase 20,000 lbs. of wool in Wisconsin and forward it to Albany, agreeing to either pay B. half of the profits or one per cent, for commission, as A. might elect; that between June 9 and July 14, A. furnished B. $6,000 and 105 sacks worth $52.50; that B. bought 7,041 lbs. at $2,112.30, and sent it to A. with 34 sacks worth $17; and with residue of the money he bought wool in his own name, and assigned it (the wool in question), with the other sacks, to the plaintiffs; that A. had notified the defendants of the facts, and required the proceeds of the wool to be paid to him; and it appeared that in July, 1858, A-brought suit in the Supreme Court against B., and in his complaint alleged the same facts; and that B. refused’to return the residue of the sacks or deliver the residue of the wool bought, or account for the moneys advanced to him, and prayed judgment for the $6,000 advanced, less the $2,112.30, and for the value of the sacks not returned, and recovered a judgment therefor February 14, 1860; and issued a ca. sa. thereon, on which B. was arrested and imprisoned, and that such imprisonment continued up to the time of the trial of the present action, June 14,1860; it was held, that the action by A. against B. and the recovery of judgment therein, estopped A. from claiming property in the wool bought with the moneys for which such judgment was recovered.
    2. That the bringing of the action by A., with knowledge of the facts, to recover the residue of the $6,000, and recovering judgment therefor, was an election by A. between remedies, by virtue of which A. repudiated the use which B. made of the residue of the moneys as unauthorized, and waived all claim of property in the wool bought, and that such facts were a bar to the defense alleged in the answer of the present defendants.
    3. Held, (by Robertson, J.) that the suit of A. against B. was not an election of remedies affecting his right to pursue the wool until that suit had gone to judgment; and that as judgment therein was not recovered until after issue joined in this action, the defense herein was valid, when pleaded, and it was error to exclude proof of it at the trial.
    •4. Held, (by Boswobth, Oh. J.) that as no such question was made by the defendants at the trial, or'raised on the argument of the appeal, and as they did not object at the trial to proof being made of the fact of such recovery by A. against B., but only to the character of the evidence offered .to establish it, no such question was presented by the appeal; and that the only question was, whether the decision at the trial, as to the effect of such suit and recovery, was correct.
    5. Hald, also, that such suit and recovery by A. against B., and the taking of B.’s body in execution on the judgment, was a satisfaction of all claims of A. pending such imprisonment.
    (Before Boswobth, Ch. J., and Hoitmah and Kobebtsoh, J. J.)
    Heard December 13, 1860,
    decided February 23, 1861.
    Appeal by the plaintiff from a judgment, and from an order, denying a motion made by the plaintiff for a new trial. This action was brought in November, 1858, on the allegations, that the plaintiff, in the early part of 1858, consigned to the defendants a specific quantity of wool, to be sold for and on account of the plaintiff for cash; that the defendants received and sold the wool; but paid only $2,000 of the proceeds to the plaintiff, and refuse to pay the balance; the complaint prays judgment for the residue of the proceeds, which; including interest, the jury found to be $5,553.5*7.
    The defence relied on is, that B. A. Sweet owned the wool; that it had been purchased for him in Wisconsin by one M. W. Sherwood, and with Sweet’s money, on an agreement with Sherwood to forward it to Sweet at Albany; that instead of doing so, Sherwood transferred it to the plaintiff as security for antecedent advances made with notice of the rights of Sweet; that Sweet notified the defendants that the wool was his, and demanded that the proceeds of it be paid to him; and that they had in part paid to him such proceeds, except the $2,000, which they had paid to the plaintiff.
    The defendants, to show that the wool was Sweet’s, and that the plaintiffs took it under circumstances giving them no right to it, as against him, called as a witness the said M. W. Sherwood.
    On his being sworn, it was proved that he was, then, in the custody of the sheriff of Saratoga county, on an execution against his body, issued on a judgment recovered against him by said Sweet, in the Supreme Court of this State, on the 14th day of February, 1860, for $4,334.43 damages, besides costs. That said Sherwood was so produced as a witness under a habeas corpus ad testificandum.

    A duly certified copy of the judgment record, in the suit of Sweet v. Sherwood, was put in evidence. “The defendants’ counsel objected to the admission of the record in evidence, on the ground that it was not duly authenticated, and that the judgment should be proved by the original roll on file, or by an exemplified copy. The objection was overruled, and the paper admitted; to which decision the defendants’ counsel excepted.”
    The summons in that action states that in case of a default to answer, the plaintiff will take judgment against you (Sherwood) for $3,923.20, with interest from the 14th day of July, 1858, besides costs.
    The complaint (which was verified on the 7th day of September, 1858), states that prior to the 9th of June, 1858, Sweet “employed Sherwood” as his agent to purchase 20,000 pounds of wool for “Sweet in the State of Wisconsin,” and forward the same to “Sweet at Albany;” Sweet agreeing to pay to Sherwood either one-half of the profits made on the sale of the said wool, or one cent per pound commission for “ Sherwood’s services,” as he, the said “ Sweet, might elect.”
    That for that purpose, Sweet, between the 9th of June and the 14th of July, 1858, furnished and advanced to Sherwood $6,000, and also 105 wool sacks, of the value of $52.50. That with a portion of said moneys, Sherwood purchased and forwarded to the -said Sweet, thirty-four bales of wool, containing 7,041 pounds, purchased for, as the “said Sweet” is informed and believes, and amounting in value tó the sum of $2,112.30." That he also returned 34 of the wool sacks, of the value of $17.
    That with the remainder of the moneys, so furnished by “Sweet” to Sherwood, Sherwood purchased wool in his own name, and sold and assigned the same, together with the remainder of said wool sacks, to other parties; that he bps refused and still refuses to deliver the last mentioned wool to Sweet, or to furnish and deliver the wool purchased with the moneys advanced by Sweet, and also refused to refund or return the moneys so advanced and furnished “by said Sweet,” after deducting therefrom the amount thereof expended in the purchase of the wool delivered by Sherwood to Sweet, or to render any account thereof to Sweet.
    It alleges a demand by Sweet upon Sherwood, of the moneys not expended in the purchase of the wool delivered by the said “Sherwood to Sweet,” and an account thereof; and that Sweet “has also demanded the wool purchased therewith, but has been unable to obtain the said moneys or an account thereof, or the wool purchased therewith;” and prays judgment “for the sum of $3,923.20, with inte-' rest from the 14th of July, "1858, with costs of this action. The defendant put in an answer; verified November, 1858.
    The action was referred to, and tried before Hon. George Gould, as referee. His report, dated February 9, 1860, finds upon the pleadings and evidence, that the facts, substantially as stated in the complaint, are true; and states, in conclusion, that “ there can be no doubt that the plaintiff is entitled to recover the money advanced, less the proceeds of the wool received, with interest from the time of last advance, July 11, 1858.
    This amount is. ........................... $3,923 20
    With interest to December 28,1859 (one year,
    five months, fourteen days),______________ 411 23
    Making, in all,.................... $4,334 43
    “ For which sum the plaintiff should have judgment.”
    GEO. GOULD, Sole Referee.

      The defendants in this suit, in order to show that the wool in question was the property of Sweet, and that they were justifiable in paying the proceeds arising from the sale of it to him as such owner, after he had given notice of his title, and demanded such proceeds, offered to prove the facts stated in the complaint in the suit of Sweet v. Sherwood; being the allegations of fact contained in the second and third defences of the answer herein.
    Boswo'rth, Oh. J., before whom the action was tried, “ decided that the facts thus proved constituted a bar to the defence set up in the answer, and precluded the defendants from proving such defence; and that no evidence could be offered under it. To which decision the counsel for the defendants duly excepted.”
    The plaintiff had a verdict for $5,553.51. The defendants moved, on the judge’s minutes, for a new trial. The motion was denied, for reasons stated in the opinion following, viz.:
    Bosworth, Ch. J. —It will be seen, on examining the complaint in the suit of Sweet v. Sherwood, that Sweet’s whole claim is —
    (1) For cash advances,___________________ $6,000 00
    (2) For (105) sacks furnished,.............. 52 50
    Total,....................^...... $6,052 50
    He credits Sherwood for wool delivered, ______________________ $2,112 30
    For 34 sacks returned, _ _ „ _ ....... IT 00
    - 2,129 30
    The complaint prays judgment for......... $3,923 20
    with interest from July 14, 1858.
    The summons states that, in case of a failure to answer, judgment will be taken for that sum and costs. A summons in that form is proper only “ in an action arising on contract for the recovery of money only.” (Code, § 129, sub. 1.)

      The complaint sets forth the contract between Sweet and Sherwood, and alleges, as a breach of it, the refusal of Sherwood to deliver the wool purchased, as well as his refusal to refund the money or account for it. By the suit which he brought he elected to proceed on the contract, and claim a return of the money advanced, with interest thereon. He cannot, on the same facts, have a judgment against Sherwood for the amount of money furnished, and interest, and also for the value of the property bought with such money.
    By bringing a suit upon the contract, and claiming and recovering, as part of the damages arising from a breach of it, 'the moneys advanced with interest, he repudiates the use which Sherwood made of the money as one which was unauthorized, and absolutely waives all claim to property in the wool bought with it. After such a recovery, he could not maintain trover against Sherwood for converting the wool.
    Such a transaction is in principle like that between vendor and vendee, where the latter by fraud induces the former to sell and deliver goods on credit. In such a case, if the vendor, with knowledge of the fraud, sue the vendee upon the contract of sale and recover judgment, he cannot, in a subsequent action based on the fraud, pursue the goods or their proceeds, either in the hands of such vendee or of a third person. (Lloyd v. Brewster et al., 4 Paige R. 537)
    It seem.s to me clear, upon elementary and fundamental principles, that the action which was brought by Sweet against Sherwood, and the recovery of judgment therein, estop Sweet from claiming property in the wool, bought with the moneys for which such judgment was recovered. All causes of action, based on the transaction, are merged in the judgment recovered. . '
    In addition to this difficulty, which seems to be insuperable, Sweet has so far executed the judgment, that he has Sherwood in custody, under an execution against his body, issued on such judgment. This is a satisfaction of the judgment in such sense, that, while the imprisonment lasts, no proceeding can be taken against his property to obtain payment.
    The judgment on which he is imprisoned will not be set off against any other judgment in his favor. (Cooper v. Bigalow, 1 Cow. R. 57.) A creditor’s bill will not lie on such a judgment to reach his equitable estate. (Stilwell v. Van Epps, 1 Paige R. 615.) Nor will an action lie against the sureties in a bond given to stay the issuing of an execution ninety days, although conditioned to pay the damages and costs, with interest, before or at the expiration of ninety days. (Sunderland v. Loder, 5 Wend. R. 58.)
    A consent that the debtor go at large is an absolute discharge of the judgment. (9 Cow. R. 138.)
    I think there is a marked distinction between a case like this, and an owner of a chattel suing one person and recovering against him in trover for converting it, and subsequently suing another person for a separate and distinct conversion of the same property.
    In this State it is held, that a judgment against one, and his imprisonment, without actual satisfaction, is no bar to a subsequent action against the other. (Osterhout v. Roberts, 8 Cow. R. 43.)
    The rule in England is otherwise; and it has recently been held there, as it was held in Brown v. Wotton (Cro. Jac. 73), that a recovery in trover for a permanent conversion, vests title in the defendant, by relation from the time of the conversion. (Buckland v. Johnson, 26 Eng. L. & Eq. R. 328.)
    This is not the case of an owner, suing a second party for converting his property, after having obtained judgment and execution against another party for a separate and distinct conversion of the same property.
    In this case, after Sherwood had sold and disposed of the wool, Sweet, with knowledge of the fact, sued him to recover back the money advanced to purchase it, and recovered a judgment for such moneys, with interest.
    And Beale and Adams who received the wool from the plaintiff (to whom Sherwood had transferred it), to sell on the plaintiff’s account, instead of paying the proceeds to the plaintiff, paid them to Sweet, and insist that the wool was his, and that they had a right to pay the proceeds to him, he having demanded them as owner.
    If the judgment recovered by Sweet against Sherwood estops the former from claiming ownership of the wool as against the. latter, it also estops him from making such claim as against the plaintiff.
    Beale and Adams’ defense is based solely on the right of Sweet to claim the proceeds of the wool as against the plaintiff; and if he cannot sustain such a claim, they have no defense.
    I think Sweet’s rights are merged in his judgment, and the remedies provided by law to obtain payment of it; that in contemplation of law, it is to be treated as satisfied while the imprisonment of Sherwood is continued, and that the motion for a new trial should be denied.
    Motion denied with $10 costs.
    From the order denying the motion, and from the judgment entered on the verdict, this appeal is taken.

      James C. Carter, for Appellants.
    I. No question was made at the trial but that, aside from the effect of the judgment and execution, the defense pleaded was a valid defense. There can be no doubt that it is a good defense to the action. (Ogle v. Atkinson, 5 Taunt. 759 ; Hardman v. Willcock, 9 Bing. 382 ; King v. Richards, 6 Whart. 418 ; Bates v. Stanton, 1 Duer, 79.)
    II. All evidence tending to prove the defense having been excluded for the reason above stated, it must be assumed, for the purposes of the present argument, that the facts set up as a defense were true.
    III. These facts being taken to be true, it follows, as a necessary consequence, that at the time of the commencement of the action by Sweet against Sherwood, the title to the wool, which was then in the hands of Beale & Adams, the defendants, was in Sweet; and it was competent to him to assert that title in any of the customary methods, by replevin, by trover, or by a suit for the proceeds ; and that the defendants would be liable to him for the proceeds should they have paid them over to the Bank of Beloit after the notice which Sweet gave them. (See authorities before cited.)
    IY. The main question, therefore, on this appeal, is exactly this: whether it was the effect of the judgment and execution to defeat Sweet’s title and transfer it to the Bank of Beloit?
    Y. The recovery of the judgment per se and without the issuing and execution of the ca. sa. had no effect whatever on the title to the wool.
    The well considered case of Hyde v. Nolle, (13 N. H. 494,) is a full and explicit authority, never, it is believed, doubted or contradicted upon the question raised by this appeal.
    VI. It may be claimed that the judgment against Sherwood would bar a subsequent action of trover against him by analogy to the doctrine which was in an early case laid down in England. (Adams v. Broughton, 2 Strange, 1078.) That as a judgment in trover for the value of the article converted, vests the title in the wrong-doer, so here Sweet having recovered a judgment against Sherwood, not indeed in trover for the value of the wool, but for the whole money which was to be expended in its purchase, the title must be considered as having vested in Sherwood. This ground is clearly untenable.
    1. If the doctrine thus invoked were correct, still the present case does not fall within the scope of it. The judgment of Sweet against Sherwood is not in trover, nor is the amount of it at all dependent upon the value of the wool. The doctrine in question, so far as it has any foundation at all, is founded upon this,—that a judgment in trover for the value of an article affords the plaintiff the means of enforcing payment of such value, and is therefore in contemplation of law equivalent to such payment.
      Solutio pretii emptionis loco habetur. But this doctrine would have no application to a judgment which was not founded upon the value of an article, but simply upon the breach of a contract.
    2. But the doctrine itself above alluded to never had any permanent foundation in ' the English law, and has been rejected in this country and in this State by a weight of authority which is entirely decisive. An actual satisfaction of judgment in trover is indeed solutio pretii, and changes the title, but nothing short of actual satisfaction.
    •3. The correct doctrine on this point is laid down in Jenkins’ Centuries, (4 Cent. 189.) Adams v. Broughton, (2 Str. 1078,) does not, when properly understood, announce a different doctrine, as it is to be presumed, from the report of the case, that the damages had actually been received. The case of Brown v. Wootton, (Cro. Jac. 73,) proceeds upon a different, though erroneous principle, namely, that when judgment in trover or trespass has been recovered against one, you cannot have another action of trespass or trover against another who was guilty of the same identical trespass or conversion; for the reason that by the first judgment you have rendered what was before uncertain to. certainty. Buckland v. Johnson, (26 Law and Eq. 328,) does not decide that a judgment in trover per se changes title.
    4. It is now settled beyond all question in this State and elsewhere, that the mere recovery of judgment in trover, without certain satisfaction, does not affect the title of the property converted, and does not bar another action against another person for a subsequent conversion of the same property; and the case of Adams v. Broughton, so far as it has been interpreted as establishing a contrary doctrine, has been decisively overruled. (Osterhout v. Roberts, 8 Cowen, 43 ; Sanderson v. Caldwell, Aikens, 195 ; Sharp v. Gray, 3 B. Monroe, 4 ; Eliot v. Porter, 5 Dana, 299.)
    5. The authorities above cited apply precisely to the case at bar in the aspect in which it is presented under the sixth point, inasmuch as the question presented is exactly the same as if the suit was trover by Sweet against the Bank of Beloit.
    VII. Nor is the judgment obtained by Sweet a bar to any subsequent claim by him of property in the wool, on the principle contained in the case of Brown v.Woott(m above cited,—namely, that all Sweet’s rights of action are reduced to a certainty by his judgment, and he is confined to the relief which such judgment affords him.
    1. The case of Brown v. Wootton is based upon a strange error, compounded of a notion derived from the doctrine of res adjudicata, with another supplied by the doctrine of election and waiver of remedies. The case itself, and the doctrine declared in it, has been generally rejected as unsound. (Livingston v. Bishop, 1 John. 290 ; Sheldon v. Kibbe, 3 Conn. 214 ; Osterhout v. Roberts, supra.)

    2. If it be true that after judgment against one trespasser, you cannot proceed to judgment against another guilty of the same trespass, it would follow that after judgment against one, upon a joint and several contract, you could not proceed against another severally liable on the same contract — a doctrine to disprove which requires no citation of authorities.
    3. The true rule is, that the liability for torts is, in most respects, like that on joint and several contracts, and in either case you may proceed successively to judgment against each one liable until an actual satisfaction is obtained. (Livingston v. Bishop, supra ; Sheldon v. Kibbe, supra ; Osterhout v. Roberts, supra ; 2 Williams’ Saunders, 148, n. b.; Drake v. Mitchell, 3 East. 258 ; Brooke’s Ab. Judg. Pl. 98.)
    VIII. As to the effect of the execution. Wo think it has now been established that the judgment recovered by Sweet would have been no bar to a subsequent action of trover against him, nor to a subsequent action of trover against the Bank of Beloit. We also hold it to be clear that if the judgment would not bo a bar to such subsequent action, satisfaction of the judgment, even if actual, could not make it a bar.
    1. Payment of a judgment adjudges nothing, nor does an execution, even if satisfied. Whenever the question of res adjudícala arises, it is immaterial to look beyond the judgment to see whether it has been satisfied. The admissibility of such judgments and executions in evidence as bearing upon the matter of - damages is another and very different question. .
    2. The question of the effect of judgments upon subse- ■ quent suits may arise in several ways.

      а. In a case which presents an election and waiver of remedies. Here the judgment itself, without satisfaction, is a bar to the inconsistent remedies against the same, and, perhaps, another person. .And this not on the principle of res adjudícala, but of estoppel.

    б. Where a subsequent action is brought for the same cause. Here the judgment itself, without satisfaction, is a bar to the action if brought against the same person on the principle of res adjudícala. If, however, it is brought against another person in a case of tort, or several contract, the judgment itself is no bar. The parties not being the same, the principle of res adjudícala has no application. The judgment, however, if satisfied, is a bar, on the principle of payment; and if the action be trover, the title to the property converted is changed, on the principle of solutio pretii emptionis loco habetur.

    IX. But whatever may be the effect of a satisfied as distinguished from an unsatisfied judgment, the satisfaction must be actual and not technical.
    X. The positions we have taken are in no respect in conflict with a class of cases holding a doctrine nowhere denied, that while a judgment is satisfied, even if but technically, it cannot be made the foundation of any proceeding to recover the amount of it from the debtor, as by creditor’s bill or set-off, nor any action be maintained against a mere surety for the debt or demand thus merged in judgment.

      • XI. If the question we have discussed were not settled by authority, and was to be decided upon the broadest considerations of expediency and justice, nothing could be urged against the doctrine we have maintained, except an occasional circuity and inconvenience, to which wrongdoers would be subjected, as a consequence of their misdeeds. It involves no absolute injustice even to them." On the other hand, the doctrine would be found to be sustained by the most obvious suggestions of good sense, and by the clearest equity. The judgment appealed from should be reversed, and a new trial ordered, with costs to abide the event.

      S. Sanxay, for Respondent.
    I. Sweet having taken Sherwood in execution, his claim, arising out of his transactions with Sherwood, is satisfied. (Cooper v. Bigalow, 1 Cowen R. 56.)
    II. If the defendants were to succeed in their defense in this action, it would be in law and in fact a judgment in favor of Sweet, the defendants simply pleading title in Mm. This could never be allowed.
    1. His claim is satisfied by his judgment and execution against Sherwood.
    2. It is familiar law that “ no party is entitled to two judgments for the same cause of action, or for the same matters litigated.” And in this case Sweet must stand precisely as if he had been brought in as a party under § 122 of the Code.
    III. Sweet, having brought suit and taken judgment against Sherwood, discharges all other claim or remedy he may have. There is some confusion in the cases in reference to the terms by which the effect of this principle is illustrated. The result of this doctrine is sometimes called “a merger,” sometimes “ an estoppel,” sometimes “ an extinguishment,” sometimes “res adjudicata,” sometimes “evidence of satisfaction,” and sometimes it falls within the phrase of “ evidence of an election of remedies.” (Pierce
      v. Kearney, 5 Hill, 85, 86, per Nelson, Ch. J.; see also, 18 J. R. 459 ; 13 Mass. 148 ; 13 Seargt. & Rawle, 288 ; Cowen, J. in Pierce v. Kearney, 5 Hill, 93, 94 ; see also, a very clear exposition of the principle, by Ch. J. Gibson, in Jones v. Johnson, 3 Watts & Sergt. 276.)
    The following cases relate to the effect upon the party making the election. Its description by Dyer will be found in. Dash v. Van Kleeck, (7 J. R. 501.) See also, 4 J. R. 469, 474 ; 13 J. R. 121 ; 1 J. R. 33 ; 8 J. R. 115 ; 1 Watts and S. 83 ; 2 Burrow, 1021, cited by Ch. J. Taney, 3 Howard, 100 ; 1 Bos. and .Pul. 630, note 632 ; 1 Pick. 62 ; 5 Greenl. 147 ; 2 Bus. (S. C.) 392 ; 2 Rawle, 350, Huston, J.; 7 Seargt. and Rawle, Gibson, J. 358, who refers to the consequences of a suspension of remedies and its effects, and he puts the order of the court, the intervention of the law, and the laches of a party on the same footing so far as relates to the consequences upon a party. See also, Seargt. and Rawle, 286, Duncan, J. The following cases refer to the question of waiver, which sometimes gets mixed with that of election: 1 Hill, 240, 242; 9 J. R. 164; 11 J. R. 241.
    Where a tort is committed, it may be waived, and a remedy may be had upon the implied contract. (2 Stark. Ev. 110, 195; Bull. N. P. 113.)
    You may proceed upon either, but if you proceed upon the latter, the former is waived.
    As to the effect of the judgment in Sweet’s suit against Sherwood : Kingsland v. Spalding, (3 Barb. Ch. 341 ;) Wood v. Jackson, (8 Wend. 9 ;) Bruen v. Hone, (2 Barb. 586 ;) Embury v. Conner, (3 Comst. 511 ;) Nicholl v. Mason, (21 Wend. 339 ;) Thomas v. Rumsey, (6 J. R. 26 ;) Alexander v. Fink, (12 J. R. 218.)
    “ A judgment extinguishes the demand, and if the plaintiffs have two actions for the sáme cause, a judgment in one is a good bar to the other.”
    Applying this rule to the hypothesis of Sweet having a cause of action against the Bank of Beloit, or defendants here, upon the same transaction, or growing out of the same matter, as that upon which his judgment against Sherwood was recovered, and what must be the conclusion ?
    Sweet, having resorted to the remedy which he did against Sherwood, had he failed in it, or received inadequate damages, could not afterwards have resorted to any other action, though of a different species, to recover damages for the same injury. (Burnett v. Smith, 4 Gray, 50.)

      A fortiori. , If he could not against Sherwood, he could not against any one standing in privity or claiming through him. (See also, Hanna v. Pegg, 1 Black. 181.)
    The plaintiff cannot have a defendant arrested, and also have the property delivered to him. (Chappel v. Skinner, 6 How. P. R. 338 ; Hinds v. Twiddle, 7 How. Pr. R. 278 ; Maxwell v. Farnam, 7 How. 236.)
    IV. It may well be doubted whether, upon the facts set forth in the answer, Sweet could follow the -wool into the hands of plaintiff. There would seem to have been such a conversion by Sherwood as to render it impossible for Sweet to.preserve a specific property in the wool.
    V. It would also be impossible for the defendants, as bailees to defeat the claim of the plaintiffs, their bailors, by merely setting up a naked claim of a third person.
    The bailor may recover of his bailee without proving his right of property in the goods;, until the goods are seized by the right owner the bailee is compelled to restore the goods to the person from whom he received them, whose title he cannot controvert. (Roll. Abr. 607 ; 1 Bac. Abr. 369 ; McGaw v. Adams, 14 How. 461.)
    It is alleged in the complaint that the plaintiff directed the defendants to sell the wool for cash. This is not denied in the answer.
    The judgment below should be affirmed.
   Robertson, J.

—The reply in this case is confined to simply putting in issue the facts set up in the answer, and did not claim any estoppel of any kind. It was formerly the rule, that the benefit of an estoppel must be claimed in pleading; otherwise, the whole matter was open to re-inquiry. (Kilheffer v. Herr, 17 Serg. & Rawle, 319, 322.) It is possible no reply was necessary in this case; and, therefore, the plaintiffs may not be precluded by having put one in without claiming the estoppel; but it • is not a question free from doubt.

It is evident that the admission and exclusion of the evidence, objected to or offered on the trial, raise the question whether the judgment and execution in the previous action estopped the defendants, in this suit from setting up the title of the goods, for whose proceeds this action is brought .to be in Sweet at the time of the commencement of this action; that being really the question under the pleadings, and not whether they were his at the time of the trial. Such question of estoppel requires a careful examination of the nature of the judgment in that action, and the mode in which it operates on parties and privies, so as to estop them from setting up any of the same matters in any other action. It will be found, on such examination, that unless such judgment operated as 'res judicata upon tlje title of Sweet, and the right of the defendants in this case, as claiming under him, its posteriority to the commencement of this suit will be material in reference to such rights.

I assume that the defendants had a right to set up title in Sweet, and a liability to him for disposing of his goods without his consent, although they received them from the plaintiffs and promised to account for them, otherwise there would be an end of the case; for. this lies at the basis of the defenses. The real question between the parties was, whether Sweet owned the "goods at the time of the commencement of this suit. It might admit of some doubt whether, if Sweet now sued the defendants for the value of the goods, he would not be precluded by his judgment against Sherwood; but the question is, whether he would have been so when this action was commenced. If Sweet had a choice of remedies against Sherwood, he would not be bound by any action' brought by him to obtain any one until judgment in such action; because, until the trial, he had a right to discontinue on paying costs; (Averill v. Patterson, 10 How. 85 ; Schenck v. Fancher, 14 Id. 95 ;) and the form in which he alleged the wrong to have been done him, in the discontinued action, could not bind him in a second action. At least, no case has yet gone that length. (Hull v. Blake, 13 Mass. R. 153, 155 ; Sweigart v. Frey, 8 Serg. & Rawle, 299, 305.)

The first question arising-on such former judgment is, in what way does it preclude the defendants from proving the truth as to the title ? Clearly, not as an adjudication upon any litigated matters. There is no allegation in the pleadings in such action respecting the title to the goods claimed. If it had been material, it would have been alleged by the defendants in that action, that Sweet owned the property, which would necessarily have been denied by him, to enable him to recover for complete non-performance of the contract by Sherwood. If the decision on such an issue had been that he had no title, it would have been a decision in his favor; not against him. Would the plaintiffs in this suit have been bound, in such case, by a finding in favor óf Sherwood, under whom the plaintiffs claim, that Sweet had title ? Upon no pretense can such judgment be made an adjudication upon any question to bind the defendants, who were not parties or privies, or even notified of its existence; and who "were powerless to intervene therein for their own protection.

But it is urged that the defendants are estopped by the conduct of Sweet, in bringing his action in the form in which he did, carrying it to judgment, and charging Sherwood in execution. If so, it would plainly be by his act in pais, and not by any judicial action of the court in which the action was pending, that the estoppel would be wrought; if, indeed, the term “estoppel” is ever appropriate to any act but those of the parties to it. (See Kilheffer v. Herr, ubi sup. ; Marsh v. Pier, 4 Rawle, 273.) If so, unless the mere bringing of the action in the form in which it was brought, destroyed all claims to the wool in question, the taking of the judgment and issuing of execution in such action were purely the acts of Sweet, and could not alter the defendants’ rights as they stood at the leginning of this action. The form of the complaint in such action was ambiguous, and admitted of a recovery by Sweet, either of damages for non-performance of the contract by Sherwood; or of the money advanced by him to the latter to enable him to buy the wool in question, upon a rescission of the contract which Sweet had a right to make in consequence of Sherwood’s failure to perform it. If Sweet afterwards elected to take damages for the non-performance of the contract, he might have recovered the value of the wool which Sherwood was bound to deliver; and, possibly, the money advanced might be assumed to be the value of such wool. But, in fact, the referee gave judgment, as Sweet elected to take it, for merely the money advanced by him, and interest from the time of the advance; thus considering the contract as rescinded. Sweet did not allege in the complaint, that the wool was not his; and if he had chosen to confine his claim to damages for not forwarding the wool to him after it was bought, thereby reserving to himself a right of action for the goods, as his property, he might have done so under the state of facts set out in such complaint. It was, therefore, by virtue of the claim before the referee of the money advanced as damages, and the judgment obtained thereupon, that Sweet debarred himself of any claim to the goods; and not by the form of the summons, or complaint in the action. But until Sweet determined of which remedy he would avail himself, and what damages he would demand, he had a right to discontinue such action, and sue the defendants for the wool in case it belonged to him. The fact that Sweet, by his claim for damages, precluded himself from claiming the goods in February, 1860, by the judgment in his favor, does not help these defendants, who might be rendered liable in this suit for the proceeds received by them, and costs in consequence of Sweet’s claims. When the defendants were sued in this action, and set up their defense, they had no means of knowing what course Sweet intended to pursue; and, therefore, they conld only defend themselves by compelling the plaintiffs to make out their title to the goods; not by an unanticipated future action or election of Sweet, but by the facts, as they existed at the time of the commencement of this action. It is possible that the defendants might not be able to make out, by evidence, that the wool was Sweet’s when this action was commenced'; but they were entitled to make the attempt without being barred by his subsequent conduct; and if they can prove acts of acceptance by him, there is no reason why they should be prejudiced by the neglect of Sherwood.

The plaintiffs commenced this action at the risk of being obliged to make out their case, and allowing the defendants to make out theirs by evidence at large. They can derive no benefit from an estoppel after it was commenced in favor of Sherwood.

I think, therefore, the defendants should have been allowed to introduce evidence to make out their second and third defenses if they could; that the act of Sweet, in conducting his action against Sherwood to judgment, and thereby terminating his election, after the commencement of this suit, was not an estoppel against the defendants and in favor of the plaintiffs; and that the judgment in such action was therefore not a bar to the defendants’ defense in this.

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

Hoffman, J.

—Sweet entrusted Sherwood with money to purchase wool, to be delivered for the use of the latter, Sherwood receiving compensation in one or other of the modes prescribed. Sherwood having used the money in buying wool, and misapplied a considerable portion of such 'wool, Sweet sued him, and recovered judgment for the balance of the money advanced; allowance being made for the value of the wool properly delivered. The action was entirely for a money demand; “ the recovery of money only.” (Code 129, sub. 1.)

The-Chief Justice in his opinion on a motion for a new trial says: “ It seems to me clear, upon elementary and fundamental principles, that the action which was brought by Sweet against Sherwood, and the recovery of judgment therein, estop Sweet from claiming property in the wool bought with the moneys, for which such judgment was recovered. All causes of action based on the transaction are merged in the judgment. Beale and Adams’ defense is based solely on the right of Sweet to claim the proceeds of the wuol as against the plaintiffs; and if he cannot sustain -such a claim, they have no defense.” With these views I entirely concur. I shall refer to a few authorities.to support their correctness.

The general rule is not to be questioned, that a judgment in a case in-which the parties’ cause of action has been litigated, or was raised, and could have been litigated, is a bar to any future litigation of the same point, between the parties' or privies.' It makes ho difference that the object of the first suit was different from that of the second, that is, that a different relief was sought. (Kingsland v. Spalding, 3 Barb. Ch. R. 341, and cases, especially Betts v. Starr, 5 Conn. Rep. 550. See also Ramsey v. Hemdon, 1 McLean, 450.)

It is a bar where the claim is attempted to be used as a set-off, as well, as where it is to support an action. (Jones v. Richardson, 5 Metcalf, 267.)

In Burnett v. Smith, (4 Gray, 50,) the defendant, when sued upon a promissory note, set up false representations as to the value of the goods for which it was given, and succeeded in reducing the recovery, he was held to be barred from any action for damages for the false representations. The court say: “ The principle of waiver of right to an action, is familiarly applied in cases of tortious taking of personal property when the same has been sold, and the avails come to the use of the tort feasor.

“ The party claiming the property has.the election either to sue in trover, or to institute Ms action for money had and received: but in case of a resort to one of these remedies, and a failure to recover at all upon the merits of the v case, or a recovery of inadequate damages, he is then precluded from resorting to another action, though of a different species, to recover damages for the same injury. The evidence upon which the case of the party is to be sustained, is competent in either form of action, and once offered the verdict thereon is conclusive.”

And nothing can be more explicit upon the subject than the language of Justice Bronson in Nicholl v. Mason, (21 Wend. 339.)

There are exceptional cases to this rule, such as where the whole cause of action or right between the parties to the record, is not, and cannot be determined in the action brought, on account of particular rules governing it, or otherwise; or again, where a new action may be had against a new party for the same cause.

Thus in Arnold v. Arnold, (17 Pick. 4,) it was ruled, that a judgment in trespass quare dansum freqit cannot be pleaded in bar to the demandant in a writ of right, even although in the former action, the right of possession and entry, depending on the right of property, was put in issue.

The line of reasoning of Mr. Justice Putnam shows, that to support the plea, would be to efface the distinction universally established between real actions, which relate to the right of possession, and those in which the right of property is to be determined. And he puts the case as to personal property, of a horse taken without consent and sold, and the money applied to the taker’s use. The injured party may have trespass, or assumpsit for the proceeds. Either action is for the saíne cause, the taking and appropriation. If he brought trespass and failed, he would be precluded from assumpsit.

The case of Osterhout v. Roberts, (8 Cowen, 43,) which is relied upon by the plaintiff’s counsel, only decides that where trover was brought against A., and proceeded to judgment and imprisonment on a ca. sa., it was not a bar to another action of trover against B. for the same property. The case bears very little upon the question here. Nothing short of satisfaction was sufficient to change the property.

The case of Hyde v. Noble, (13 N. Hamp. R. 494,) is the strongest I have met with in favor of the plaintiff. But even there, the learned judge says that the judgment against Kenniston (the bailee in the case,) cannot be regarded as an affirmance of his acts, as it might have been had the action been assumpsit to recover the money he «received upon the sale. So far from a ratification of his acts, the action against him treats them all as “ tort feasors.”

I cannot doubt that the ruling upon this point was correct as matter of law.

Do the facts and dates of the respective actions make a difference ?

On the 14th of July, 1858, Sweet commenced his action; his complaint was served the 1th of September, and answered the 15th of December. Judgment was entered the 14th of February, 1860.

On the 3d of November, 1858, the present action was commenced. On the 4th of December the answer was put in, and on the 14th of June, 1860, the trial was had.

The defendants had the task of proving that the notice to them of Sweet’s claim was a valid defense to the plaintiff’s demand. When it was shown that Sweet could not recover, their defense failed. The facts showing that failure were not necessarily to be set up in a pleading. His action of the 14th of July, 1858, was the election to take the particular remedy, and was never abandoned, but prosecuted to judgment, and was. taken before the commencement of the present action.

Again, it is observed by the Chief Justice that the imprisonment of Sherwood on the ca. sa. is a satisfaction of the judgment in such sense, that while the imprisonment lasts, no proceeding could be taken against his property.

The Supreme Court of the United States held that the taking of a defendant’s person under a ca. sa. “operates as a satisfaction of the debt, and for that reason deprives the creditor of all recourse to the lands or property of any description belonging to the debtor.” (Magniac v. Thomson, 15 How. U. S. R. 281 ; Snead v. McCoull, 12 Id. 412.)

In our State, it has been repeatedly decided that as long as the imprisonment continues, there is a virtual satisfaction of the debt and judgment. It is a perfect defense to an action upon a joint liability of another with the imprisoned debtor. By force of a special statutory provision, if the party imprisoned die, or is discharged as an insolvent, his property may be resorted to. (Chapman v. Hatt, 11 Wend. 41 and cases.)

But without examining this point further, we are clear as to the sufficiency of the one before stated to sustain the decision.

The judgment should be affirmed with costs.

Bosworth, Ch. J.

—My brother Hoffman has reached the conclusion that the judgment in this action should be affirmed, and my brother Robertson that it should be reversed.

The conclusions of the latter seem to be based upon the assumption that the defendants’ rights are different from what they would have been if the judgment in favor of Sweet against Sherwood had been rendered before this action was commenced, and that the exception taken raises this question; and that on the facts as they are alleged to have existed when this suit was commenced, proof of the defense pleaded in this suit was admissible; although it might not have been if the facts, as they existed at the trial, had existed when this suit was brought.

I think the case before us furnishes no warrant for this assumption. There was no objection to the admission in evidénce of the record of the judgment in the suit of Sweet against Sherwood, except the objection “ that it was not duly authenticated, and that the judgment should be proved by the original roll on file, or by an exemplified copy.”

The decision excepted to was, “that' the facts thus proved constituted a bar to the defense set up in the answer, and precluded the defendants from proving such defense, and that no evidence could be offered under it and evidence of “the allegations contained in the second and third defenses of the answer ” was excluded.

No suggestion was then made, nor is any contained in the points of the defendants on this appeal, that the case presented any question except as to the force and effect of the facts proved, viz: the recovery of the judgment by Sweet against Sherwood, and the imprisonment of the latter under the execution issued on such judgment.

There having been no objection to the plaintiffs making proof of the facts which, they insisted, were an answer to the matters alleged as the second and third defense, and the decision excepted to being one as to the force and effect of such facts, the only question raised by such exception is the accuracy of such decision. (Belknap v. Sealey, 4 Kern. R. 147, 148.)

If there could have been any question made as to the admissibility of evidence to prove such facts,- under the pleadings as they stood, none was raised, and if any had been made, the court' was competent to modify them so as to make the evidence admissible, upon such terms as it deemed just. No question, therefore, can now be made of the plaintiffs’ right to prove the facts that were proved, and to- have the benefit of their due legal effect.

These defendants, it must be remembered, have entered into no contract with Sweet, and have no rights derived from him. Their contract is with the plaintiffs, and the question is whether they are absolved from performing it by the matters stated in their answer.

The answer to those matters is, that as early as July 14, 1858, Sweet, in the most formal and solemn manner, by the institution of a suit against Sherwood in a court of record, declared his election to repudiate the use which Sherwood had made of the money furnished, and his acts as agent of Sweet, if agent he could be called, and to have a return of his money, with the interest thereon.

That relief, in his judgment, might be preferable and more beneficial than a successful pursuit of the proceeds of the wool, or a judgment against any one, or all, who might have been charged with the conversion of it. On the Ith of September, 1858, he verified his complaint, and the relief it prayed for is a judgment for the balance of the money not accounted for, with interest.

The present action was hot commenced until the 3d of November, 1858. Over three months prior to that, Sweet had taken his position as between himself and Sherwood, and had been seeking to enforce it by an action at law; a position which renounced all obligation to take the wool, and all right to it; a position to which he has at all times since steadily adhered, by prosecuting his action to judgment, and the imprisonment of Sherwood’s body on an execution issued on such judgment.

There was no reason, 'therefore, when this action was commenced, why the defendants should not have paid to the plaintiffs the proceeds of the wool in their hands, according to their contract; and nothing occurred between that time and the trial exempting them from that obligation.

For these reasons, and those assigned for denying the motion made at special term for a new trial, I think the judgment should be affirmed.

Ordered accordingly.