author: By the Court.—Sedgwick, J. Barbour, Ch. J. (dissenting).

text:
    JAMES ROSS, Plaintiff and Appellant, v. GEORGE WHITEFIELD, Defendant and Respondent.
    A. lent B. his note for $500, which was renewed several times for the benefit of B., and was finally renewed by the defendant in a note payable to a firm of which B. was a member, the firm having discounted that note without any knowledge of the note being made for the accommodation of B. This note was renewed several times by the defendant to said firm. Before the last note became due, A. notified B. that he would not renew the note again. When the note became due, B. obtained from said firm its check, payable to the order of A., with the expressed purpose of paying this note, and accepting a new note of A. for the amount, payable to the said firm, as he had done several times before. B. delivered the check to A. , for the purpose of enabling him to take up and pay this note, and without requiring him to give a new note to the firm ; thus, in fact, converting the partnership property to the payment of his personal debt. A. took up and paid the note, with the check, in ignorance of the arrangements between B. and his said firm.
    Upon the firm bringing suit against A. to recover the amount of the check, as money loaned to him.

      Held, That when the firm gave the check, it knew, or was bound to know as one of the payees of the note, that, as between A. and B., that B. was bound to indemnify A. against the payment of the note (Horton v. Rogers, 12 Wend. 484; Id. 14; Wend. 576).
    Under Geery v. Cockroft, and cases there cited (33 Sup. Ct. R. 146), if the firm assented to the check being used to pay the obligation of A. (one of the firm), that A. could apply it to that purpose. In this case the firm’s assent was not only such as they gave, but also such as they authorized B. to give. The check being made payable to the order of A., shows that the firm expected it would go into his hands, and having entrusted B. with it (Story, Agency, note to § 34), the firm held out B. as having unlimited power to dispose and use it as he might please (Story, Agency, § 228, Coddington Bay, 20 Johns. 687 ; Hartfield n. Reynolds, 34 Bari. 613). The firm was, under these circumstances, bound by the action of B. in the premises, irrespective of any special instructions given to him, and the assent or direction of B. as to the application of the check to the payment of the note, was in fact the assent of the firm.
    Before Barbour, Ch. J., and Freedmah and Sedgwick, JJ.

      Decided May 3, 1873.

      ■Conclusions of the Court.—Sedgwick, J.—That A. appropriated the firm check to discharge the debt of B., with the assent of the firm, or if otherwise, the firm was botmd to provide for the payment of the note, inasmuch as A. was not liable on it to the firm, and the check was in effect ■used to pay the debt of the firm as endorsers on the note to the holder, •who discounted it, and therefore the assignee of the firm cannot recover ■from the defendant the amount of the note. Babbottb, Ch. J., dissenting.
    Appeal from a judgment entered in favor of defendant on the report of a referee.
    The facts appear sufficiently from the opinions delivered and head notes.

      T. J. McKee and Thomas Allison, for appellant.

      A. E. Morris, for respondent.
   By the Court.—Sedgwick, J.

The check in contest here was written Tby Bullwinkle, and by him handed to Merrill. It was payable to the defendant, Whitefield. When Bullwinkle did this, he knew, or was bound to, as one of the payees of the note, that, as between Whitefield and Merrill, at least Merrill was bound to indemnify Whitefield against the payment of the note (Morton v. Rogers, 12 Wend. p. 484 ; S. C., 14 Id. p. 576 ; Nelson v. Cowing, 3 Hill, p. 336).

Under Geery v. Cockroft, in this court (33 Supr. Gt. R., 146), Dob v. Halstead (16 J. R. p. 34), and Rogers v. Batchelor (11 Peters, p. 230), there is no doubt that, if Bullwinkle had assented to the check being paid in satisfaction of Merrill’s obligation, that Whitefield conld receive it for" that purpose.' blow, Bullwinkle’ s assent is not only such as he himself gave, but: such as he authorized Merrill to give. This is a stronger case than if the check had been drawn to bearer. It being drawn by Bullwinkle to Whitefield shows that he expected it would go into his hands. Having entrusted Merrill with such a check (Story’s Ag. note to § 34), he held the latter out as having an unlimited power to dispose and use such instrument as he might please (Story's Ag. p. 228 ; Coddington v. Bay, 20 Johns, p. 637; Hatfield v. Beynold, 34 Barb. p. 613). Bullwinkle having made Merrill his agent, and having, under the circumstances above considered, sent him to Whitefield, is bound by Merrill’s exercise of such power, as he had apparently given to him, irrespective of any special instructions. If, in this manner, Merrill could bind Bullwinkle, there is no doubt that, as a matter of fact, he gave to Whitefield Bullwinkle’s unconditional assent to the check being used in favor of Merrill’s obligation to Whitefield.

A check is not looked upon in such circumstances as ordinary commercial paper, but as an' equivalent of money. It may be doubted that this case should be looked upon otherwise than if Merrill had drawn money upon the firm’s check and paid it to Whitefield (Sterling n. Jaudon, 48 Barb. p. 459 ; Reynolds v. Kenyon, 43 Barb. p. 599). Whitefield having done that with the check which Bullwinkle authorized him to, cannot be liable to Bullwinkle for so doing; still less would he be liable to the plaintiff, as assignee of the firm.

When the case was here before, the chief justice demonstrated that, in an action by the firm on the note against Whitefield as maker, there could not have been a recovery before the adoption of our present" system. Chitty on Bills, p. 71, says that “where an action is brought by several plaintiffs, whether or not general ■partners or indorsees, against an acceptor, it is a good defence to show that the acceptance was given to accommodate one of them, or on his promise to provide for the bill and the innocent co-plaintiffs, however defrauded by their partners, cannot recover at law or in equity.”

In Sparrow v. Clusmein (9 B. & C. 246), cited by the learned chief justice, the court said: “A party to whom an acceptance is given upon a condition that he will provide for it when due, and who does not perform that condition, cannot sue the acceptor, and if he therefore could not have sued alone, how can he sue jointly with others? His partners, being bound by his act, cannot recover through him.”

This has a close application here. Merrill, for several motes, had, for his own accommodation, procured Whitefield to become maker. For some reason this ended. Merrill then presented a note drawn to the order of Bull winkle & Merrill, and requested Whitefield to become an accommodation maker to it. It is very clear that the circumstances implied, not that Merrill should be the indemnity of the defendant, as in former cases, but that the firm should be his security ; and that the mote in question, which was the successor of the first mote, was given upon Merrill’s promise (implied) that the firm would protect Whitefield. Of all this the firm, being the payees, had constructive, if not actual, notice, .and when Bullwinkle endorsed the name of the firm •upon the note and procured it to be discounted, he ratified, if he were not originally bound by Merrill’s promise, that the firm would take care of the note. If we could conceive that the firm paid Merrill personally such a new consideration for the note as would make it, under ordinary circumstances, a bona-fide holder, that fact would not alter the situation. They did not buy accommodation paper, given for the purpose of benefiting Merrill in any way that it could be used; but they Bought it with knowledge of the condition affixed when it was given to Merrill, viz., that the firm would provide for its payment.

But there could he no such new consideration given hy the firm to Merrill. If they advanced anything on it to Merrill, whose money did they advance? It was Merrill’s money as much as it was Bullwinkle’s, and an advance under such circumstance would give (if it is-possible to state that it gave any right of action) only that right of action agaipst Whitefield which the firm would have had, or Bullwinkle would have had, against Merrill on the advance. It is very clear that that would not have been an action on the advance at all. Of itself, it would not have given any right to an accounting; but an accounting being had for other reasons, that Avould be an item.

The chief justice, when reversing the former judgment, surmised that possibly, under our present system, Bullwinkle might have been entitled in an action brought by ‘1 himself and Merrill against their defendant to recover judgment for the amount of his interest in the $500.” But that in order to do this, it would be necessary for him to prove at least the extent of the interest of Bullwinkle in the $500 received by the defendant, and that it was unnecessary to speculate on possible rights which might not thereafter appear in the action.

The plaintiff has not at all shown what was demanded by the chief justice. They,, to be sure, gave evidence of a very vague kind, that if the partnership affairs had been wound up at the time the check was given, May 7,1862, Merrill would have been entitled to nothing. But they also proved that the partnership did not cease until January 1, 1863. Therefore, they proved that on May 7,1873, Merrill’s interest in the firm depended upon the possibility of the future existence of the firm for the rest of the year. For instance, in a, month’s time the business of the firm might have been profitable, and in such case it would appear that on an accounting, Merrill did have an interest in the firm assets, including that $500 if it had not been paid out. I do not think that the plaintiff could have shown what was asked without proving that at the time of the giving of the check, there-had been a dissolution and an accounting, which resulted in Bullwinkle’s becoming sole owner of the assets formerly belonging to the firm.

I havp come to the conclusion that,—1. Whitefield appropriated the firm check to discharge Merrill’s obligation with the assent of Bullwinkle. 2. If this is not so, that the firm of Bullwinkle'& Merrill was bound to provide for the payment of the note, inasmuch as Whitefield was not liable upon it to the firm, and that the check was in effect used to pay the debt of the firm on the note to the holder who discounted it. The judgment should be affirmed, with costs.

Feeedman, J., concurred.

Barbour, Ch. J. (dissenting).

This is an appeal by the plaintiff from a judgment rendered upon a second trial of the action which was directed by the General Term on a former appeal, in June, 1869 (see 1 Sweeny JR. 318). The findings and conclusions of the referee upon the second trial were as follows :

" I do find as matter of fact, that on the 7th day of May, 1862, the firm of Bullwinkle & Merrill of this city, held the promissory note of the defendant made to the order of said firm for five hundred dollars, which fell due on that day and was deposited in the bank of said firm for collection, that this note had been made by the defendant without consideration, and solely for the accommodation of Wm. H. Merrill, one of the members of said firm, that Merrill individually received from his said firm the sum of five hundred dollars, upon the security of said note, that on said 7th day of May, 1862, the said Bnllwinkle gave his partner Merrill the check of the firm for five hundred dollars, drawn to the order of the defendant, and signed "by said Bnllwinkle with the firm name, to take up said note, that this check Merrill handed to the defendant, who paid the note made "by him to the firm. That defendant received, said check in good faith, and not as a loan from said firm, but as a performance of Merrill’s individual obligation to provide for the note at maturity.
“ And I do further find that at the time of the making of the said check, the said Merrill, although nominally a member of said firm of Bnllwinkle & Merrill, actually had no interest therein, the whole of the assets of said firm belonging to Bnllwinkle, who alone was liable for all the obligations of the firm.
“ And I do further find that the plaintiff is the lawful owner by assignment of the claim against the defendant in this suit.
“ And I do find as matter of law, that there is nothing due and owing by the defendant to the plaintiff, and that the plaintiff’s complaint should be dismissed with costs.”

On the argument of this appeal, an admission or statement was also made to the court by the counsel for the respondent, in his brief or points, as follows: “It seems to the defendant’s counsel that the evidence shows pretty clearly that Bull winkle did not assent to the disposition which Merrill made of the check. Bnllwinkle gave the check to Merrill with the understanding that it should be loaned to the defendant to enable him to take up the note, and upon condition that the defendant should give a "new note in renewal. Merrill diverted the check from the purpose for which it was intended by his partner, and used it for the payment of his own debt. These seem to be the facts (very different from what is assumed in the opinion of the learned referee).” And the sole point made by the counsel for the defendant (if that can "be called a point which states no proposition of law or fact, "but merely asks a question), is contained in the words following:

“The only question here presented is, can money so paid be recovered back in face of the additional testimony that the check was signed by Bullwinkle himself, and not'by Merrill, and that the defendant received it not as a loan to enable him to take up his note, but in performance of his, Merrill’s, own individual obligation to meet the note at maturity, and in entire ignorance of the understanding between Merrill .and his partner in regard to its disposition? ”

The admission before the court on the part of the plaintiff that Bullwinkle gave the check to Merrill to loan to the defendant upon condition that the latter should give a new note in renewal, and that Bullwinkle did not assent to the disposition which Merrill made of the note, is of the highest importance, inasmuch as it fully establishes a very material fact which the referee might well have found upon the evidence, but which he had failed, through inadvertence or otherwise, to find.

In the case of Geery v. Cockroft (33 Supr. Ct. 146), it was held by the General Term of this court that where goods belonging to a mercantile firm had been delivered by one of the partners, in payment of his individual indebtedness to the defendant, without the consent of the other partners, and without any knowledge on the part of the defendant that the goods belonged to the firm, no title whatever passed by such delivery, and that the firm were, consequently, entitled to recover from the defendant the value of the goods ; and the opinion of Mr. Justice Stoby in Rogers v. Bachellor (12 Peters, 229) is to the same effect.

In this case it is clear that Merrill was, as between himself and the defendant, primarily bound to pay the note; and although the same was held by a firm of which he was himself nominally a member, yet he was indebted thereupon to the extent of the real ownership and interest therein of Bullwinkle. The delivery of the check, therefore, and the moneys or credits belonging to the nominal firm against which the same was drawn, to the defendant by Merrill, for the purpose of paying the note was an attempted appropriation of partnership property to the payment of the individual indebtedness of Merrill alone ; and as the assent of Bullwinkle was not given to such appropriation, no title to the check or the money drawn .thereon passed to the defendant by such delivery ; and it follows that the plaintiffs, as assignees of the firm of Bullwinkle & Merrill are entitled to a judgment.

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


source: Caselaw Access Project

author: By the Court.—Van Vorst, J.

license: Public Domain

text:
    LOREN JONES, Plaintiff and Respondent, v. JAMES O’BRIEN, Sheriff, etc., Defendant and Appellant.
    Before Barbour, Ch. J., and Monell and Van Vorst, JJ.

      Decided May 3, 1873.
    Where the evidence to some degree tended to show concurrent possession of the property by the judgment debtor, and the alleged purchaser (the plaintiff) of the same, the burden of proof would seem to rest upon the plaintiff, to rebut the presumption of fraud arising upon the relations of the vendor or debtor with the vendee (the plaintiff), and the subject of the sale, and the refusal of the judge under these circumstances and facts to charge the jury, “ That a joint possession by buyer and seller after the sale, will not amount to an actual and continued change of possession, within the meaning of the statute,” was erroneous.

    Appeal from judgment.

      The facts in the case appear in the opinion of the court.
    This action was brought to recover against the defend'ant for taking and converting a quantity of liquors on the 3d August, 1870, at 147 Duane Street, New York.
    The defendant justified the taking under an execution issued upon a judgment of the Court of Common Pleas, in favor of Julia M. Foster, and others, against David M. Hollister, recovered February 28th, 1870. Upon the trial it appeared that Hollister had carried on the wine and liquor business at 147 Duane Street for a number of years. On the 22d of January, 1870, he was indebted to various persons and firms, and suits, including the one in favor of Julia M. Foster, were pending against him. On the day last named, he executed a bill of sale of all his stock and fixtures to the plaintiff, who paid, therefor, $700 in cash, and gave his notes for the balance of the purchase-money, $1,378.66, at six, nine, twelve, and fifteen months, two of which notes only, amounting to $475, have been paid. After the execution and delivery of the bill of sale, the property sold remained on the premises. Hollister remained there with his son, as did the plaintiff, attending to the business. The signs of Hollister were not removed, but after the sale Jones put up an additional sign above that of Hollister, having his own name and the words “ successors to,” printed thereon. On the day of the sale an agreement was made between plaintiff and Hollister as to his position in the store: it was verbal. There is some discrepancy in the plaintiff’s statements as to the precise form of the agreement. On his direct examination he says, “it was for him (Hollister) to have a commission “ on the sales, or an amount equal to one-half of the net 1 £ profits of the business ; he might take his choice. He “ elected, I believe,, to take the amount equal to one-half “ of the profits. That was a compensation for his services “ and those of his son, a young man who was there.”

      “ On his cross examination his evidence was as fol-4‘lows :
    “Q. Did you make any agreement with Mr. Hollister “ in regard to his position.
    “A. Yes, sir.
    “ Q. What was the agreement ?
    “A. To give him a portion of the profits for his ser- “ vices, and his son’s.
    “ Q. What portion of the profits.
    “ A. One-half of the net profits.
    “ Q. Has Mr. Hollister drawn out money under this “ agreement; if yes, how much %

    “A. Yes. I cannot say, without referring to the “"books. Hollister says that the amount he drew in six “months after the 22d of January, was about one thousand dollars.” The place of business was his headquarters ; he sold goods from, and bought goods for, the store. He asked for money as he wanted it, and sometimes expended money he had collected, and then reported it to the store. John W. Calvert, a witness for the defendant, testified that after February, 1870, Hollister, who had traded with him before, bought goods of him in the name of Loren Jones. He had never heard of Loren Jones before; Hollister did all the purchasing in Jones’ name during the year 1870.
    On the 22d of July, 1870, an agreement in writing was entered into between Jones and Hollister, in these words: “ Whereas Loren Jones and David M. Hollister, both of the city, county, and state of Hew York, did enter into an agreement as follows: to wit: That, said Hollister and his son should give their services in aiding said Jones to carry on the wine and liquor business at 147 Duane Street, and in compensation for such services, said Hollister was to receive, and said Jones was to pay to said Hollister, at the end of one year from that date, an amount equal to one-half of the net profits of the business, it is now hereby mutually agreed that the foregoing agreement is at an end, and no longer binding, and it is now hereby agreed that in place of the aforesaid agreement, and in fnll payment for the services of said Hollister and his son, said Jones is to pay monthly to said Hollister, at the rate of two thousand dollars per annum, from the 22d day of January, 1870, to the 33d day of January, 1871.
    In May, 1870, Hollister had been examined in proceedings supplementary to execution returned unsatisfied.
    After the sale to him of the goods, on the 33d of January, Jones took out a lease in his own name, of the premises, and, in his own name took out a liquor-dealer’s license, and insured the goods and merchandise bought and paid for in his name.
    After the case was closed, the learned judge, among other things charged the jury in these words: “ Fraud against creditors always consists in the corrupt intention of the parties to the transaction. It is never presumed, but must be proved. It must be clearly established by facts and circumstances at least, which carry conviction to the minds of the jury, and it must be thus established by the party that asserts it, and relies upon it, which in this case is the sheriff. If, therefore, you should find upon the evidence, that the goods in question were not purchased and owned as the plaintiff testified, but that they were purchased with funds out of a business carried on for the benefit of David M. Hollister, and carried on with an intent on the part of both the plaintiff and David M. Hollister, either to hinder, or to delay, or to defraud the creditors of David M. Hollister; if, in short, you should find that the manner in which the business was carried on was but a mere cover or contrivance on the part of David M. Hollister, for the purpose of keeping the creditors of Hollister at bay, then the defendant is entitled to your verdict.
    “In such case the law will not protect the mere paper title of the plaintiff, no matter how great a consideration he may have paid for it. So, if you should find upon the whole evidence that the plaintiff and David M. Hollister were actual partners between themselves, and interested not only in the profits but also in the losses of the business, then in that case the defendant is entitled to your verdict.”
    The counsel for the defendant requested the court to charge the jury “that a joint possession of buyer and seller after the sale will not amount to an actual and continued change of possession within the meaning of the statute.” The court refused so to charge, to which refusal the defendant by his counsel excepted. The counsel excepted to that portion of the charge which states that fraud was never presumed, but1 must be proven, and to the instruction to the jury that the burden of proving fraud in this case was on the defendant.
    The jury rendered a verdict in favor of the plaintiff for the sum of $1,262.31.
    A motion was made by defendant for a new trial on the judge’s minutes, which was denied, and this appeal was taken both from the order denying a new trial, and from the judgment entered upon the verdict.
    A. J. Vanderpoel, for appellant.

      Joseph M. Dixon, for respondent.
   By the Court.—Van Vorst, J.

It is a fair inference from the facts in this case that Hollister executed the bill of sale of his merchandise to the plaintiff on the 22d day of January, 1870, to avoid its seizure for his debts, some of which were then in suit. Without doubt, even in his then circumstances, he was not prohibited from making a fair sale of his property for a good consideration to a tona fide purchaser.

The avails of such sale in his hands could be reached by his creditors.

But the fact that a vendor or assignor of property sold under such circumstances, remains on the premises in the possession of the property, solely or in connection with the vendee or assignee, and deals with, collects, sells, and disposes of same, has always been regarded as a badge of fraud, and properly casts suspicion on the good faith of the transaction. The language of the learned judge in his charge on the subject of fraud is ordinarily correct beyond controversy. “It is not presumed, but must be proven,” and the burthen of proving fraud in any transaction rests upon the person who impugns it. The sale of property by one man to another, in the ordinary way, and according to the accustomed forms, would be presumed to be valid. But it may be accompanied with such circumstances inseparable from it, as at once to rebut the presumption of its validity, and on the other hand raise such probability of fraudulent design as to cast the burden on the other side to explain or remove the presumption of wrong.

In Randall v. Parker (3 Sand. 69) it was held that a party asserting the validity of a sale of goods, where there has been no actual and continued change of possession, must prove affirmatively that the sale was made in good faith and without any intent to defraud creditors or purchasers, and he must prove both conditions, and if no such evidence be given, the law pronounces the conclusion of fraud.

“ Every sale made by a vendor of goods and chattels “in his possession, or under his control, and every assignment of goods and chattels by way of mortgage “or security, or upon any condition whatever, unless ' ‘ the same is accompanied by an immediate delivery, “ and be followed by an actual and continued change ! 1 of possession, shall be presumed to be fraudulent and “void, as against the creditors of the person making “such assignment, or .subsequent purchasers in good “faith, and shall be conclusive evidence of fraud, un- “ less it shall he made to appear on the part of the per-‘1 sons claiming under such sale or assignment that the same was made in good faith and without any intension to defraud such creditors or purchasers” (3 R. S. [5th ed.] 322, § 5).

In this case the vendor, contemporaneously with the sale made by him, entered into an arrangement with the vendee to continue on the premises with his son, and to have such relation to the business to be prosecuted with the merchandise he had sold as to be paid out of its net profits. According to one version of his testimony, he had a direct interest in the business; as modified by another statement, he was to be compensated for his service out- of the net profits—the amount of his pay depending upon the extent of profits.

In any view, he had a direct interest to continue and increase the business and its profits.

The evidence to some degree tended to show concurrent possession of the property by plaintiff and Hollister. It discloses a dealing by the vendor with the stock after the 22d day of January 1870. He disposed of it by sale, and added to it by purchase; he personally received and appropriated to himself its proceeds in part at least. Whatever position he occupied to the business, was not only with the vendee’s consent, but was in pursuance of an agreement between them.

While the evidence shows that the vendee came into possession after the sale, and performed acts of ownership, it does not show an exclusive possession and control in him. The evidence reveals acts of the vendee consistent with a joint interest and possession by himself with the plaintiff. It would seem that under such conditions the burden of proof, would rest upon the plaintiff to wholly rebut the presumption of fraud arising from the relations of the vendor with the plaintiff, and the subject of the sale, and that so much of the judge’s charge as suggested that the fraud be established by the defendant by facts and circumstances to carry conviction to the minds of the jury, is erroneous. There was enough in the case from the facts and circumstances alluded to, unless satisfactorily explained by the plaintiff, to justify the jury in holding the transfer void as to the creditors of Hollister. And for a like reason, growing out of the facts and circumstances proven on the trial, the refusal of the judge to charge “that a joint possession by buyer and seller after the “sale will not amount to an actual and continued ‘1 change of possession, within the meaning of the stat“ute,” was erroneous.

A joint possession by two, is the possession of each, and neither is entitled to exclusive control.

If the possession, on and after the 22d January, was joint, it would manifestly be presumptively fraudulent, for it would tend to show that there was no point of time when the vendor was wholly out of possession.

In Butler v. Stoddard (7 Paige, same case ; 20 Wend. 507), it was held that the appointment of the seller, as agent of the buyer to retain the possession, and retail the goods, and collect the debts, is not a change of possession, and will be deemed fraudulent; concurrent possession of personal property by the vendor and vendee will not protect it from (the creditors of the vendor (Braun v. Keller, 43 Penn. 104; Oren v. Sherman, 27 Wis. 501).

The charge of the learned judge, being otherwise so faultless, and so clearly and explicitly presenting the questions involved to the jury, that we reluctantly hold the exceptions of the defendant, in these respects, to be well taken. But as these errors may have misled the jury, and given them a mistaken judgment as to which party should assume the burden of proof with respect to fraud in the case, and as to the consequences of a joint possession (if there were such), although a partnership might not actually have existed between plaintiff and Hollister—we think that the judgment should be reversed, and a new trial granted, with costs to the appellant to abide the event, which is so ordered.

Barbour, Ch. J., and Monell, J., concurred.


text:
    WILLIAM VAN DER MINDEN, Plaintiff and Appellant, v. MEYER ELSAS et al., Defendants and Respondents.
    Before Barbour, Ch. J., and Monell and Van Vorst, JJ.

      Decided May 3, 1873.
    In an action for the claim, and delivery of personal property, the allegation “ That the defendants home become possessed, of, and wrongfully detain from the plaintiff, the following goods and chattels of the plaintiff ” (describing them), is sufficient to allege that the ownership of the property described was in the plaintiff, under the decision of the Court of Appeals (Levin v.

    Russell, 42 N. Y. 251; referred to, and approved, in the opinion of the court in the case of Schofield v. Whitelegge, 49 N. Y. 259), and therefore should be sustained on demurrer.
    Appeal from the decision of the Special Term sustaining a demurrer to the complaint.

      Lawrence & Waehner, for appellant.

      L. Ansbacher, for respondent.
   By the Court.—Van Vorst, J.

The action is for the claim and delivery of personal property. The allegation in the complaint or the subject of the plaintiff’s cause of action is as follows :

“ That the defendants have become possessed of, and “wrongfully detain from the plaintiff, the following “goods and chattels of the plaintiff, that is to say, two “ cart wheels,” etc., etc., “of the value of,” etc., etc.

The defendant demurred to the complaint, and assigned as causes of demurrer :

First. ‘1 That the complaint does not contain facts or •allegations sufficient to constitute a cause of action.”

Second. “The said complaint does not show that the ■plaintiff is or ever was the owner of the property in the complaint claimed, nor that he had any interest in the same, or any part thereof, nor that he is or ever was lawfully or otherwise entitled to the possession of the same, nor that he has any interest in the same, "by reason or virtue of any special property therein, nor does it show the actual value of the same.”

In support of the demurrer we were referred on the argument to the case of Schofield v. Whitelegge in the Court of Appeals, reported in 12 Abb. N. S. page 820, S. E. 49th N. Y. 259.

But the complaint in that case, which was held to "be insufficient, alleged “that the defendant had "become “possessed of, and detained from the plaintiff, the foliow“ing property,” etc. The words “ the goods and chattels of the plaintiff” were omitted. On this point the complaint in the case of Levin v. Bussell, 42 IF Y. 251, was referred to "by the learned judge who delivered the opinion in Schofield v. Whitelegge• with approval. In the case of Levin v. Bussell the words of the complaint were “ the following goods and chattels of the plaintiff,’’ which were held "by Judge Folger to be in conformity with the precedents in such cases, and to impart ownership in the plaintiff*.

In Pattison v. Adams, 7 Hill, 127, Mr. Justice Beardslee says: ‘ ‘ The usual allegation is, that the goods taken or detained were the goods of the plaintiff, and. that words of equivalent import might be substituted.”

We are of opinion that the allegation in the complaint is sufficient and imparts ownership in the plaintiff of the-goods. The value of the property is sufficiently stated..

The order and judgment appealed from is reversed,, and judgment ordered in favor of the plaintiff on the demurrer, with costs of the demurrer and appeal, with liberty to defendant to answer in twenty days.

Barbour, Ch. J., and Monell, J., concurred.


author: By the Court.—Vah Vorst, J.

text:
    E. M. BAILEY, Plaintiff and Respondent, v. ALMON W. GRISWOLD, et al., Defendants and Appellants.
    In an action brought by the endorsee and holder to recover the amount of a promissory note of the maker and the payee as first endorser, the answer alleged that the plaintiff purchased the note with notice and knowledge of all the facts and circumstances attending the making and delivery thereof by the defendants, as in the answer thereinafter set forth, and thereafter the defendants set up and alleged matters that were a good defence in the action as against the person who 'endorsed the note to plaintiff, if the plaintiff was not a bond-fide 7iolder, etc. The facts proved on the trial established the making and delivery and endorsement of the note to one Gustavus D. Dows, the plaintiff’s endorser and vendor, by defendants. It was for §2,000, dated March 10, 1870, and fell due November 15th thereafter. Dows held the note until about the 7th day of October, and then sold the same to the plaintiff for one thousand dollars in cash and §1,000 in a note payable at four months with interest. That the latter note had not been paid. That the plaintiff was in the employ of the firm of which, said Dows was a partner, at a salary of $15 per week. The sale was negotiated and perfected between Dows and said plaintiff by a brother and agent of said Dows and a member of the same firm by whom plaintiff was employed, and also the father-in-law of the plaintiff. After the sale and transfer of the note to the plaintiff, he returned it to the safe of the firm where it had been deposited before its sale, and there it remained until he sent it to New York, by express, to one D. G. Wild for collection, an attorney who had had the same in his possession before, as the attorney for said Dows.
    The defendants on the trial claimed that these facts established that the plaintiff was'not a bond-fide holder of the note, and offered to _ prove the other facts set forth in his answer as a defence ; also claiming that if the court held that plaintiff was a bond-fide holder, the facts set forth being proved that the plaintiff could only recover $1,000, the amount of cash he paid for the note. The court below excluded the evidence proposed, and also refused to allow the defendants to go to the jury on the question as to whether plaintiff was a bond-fide holder, and directed the jury to find a verdict for the plaintiff on the testimony.
    Before Barbour, Ch. J., and Monell and Vah Vorst, JJ.
    Decided, May 3, 1873.
    Held by the General Term, That under these facts and circumstances the question as to whether the plaintiff was a bond-fide holder of the note was a proper question for the consideration of the jury, and should have been submitted to them by the court, and that it was error to refuse so to do.
    This action is brought by the plaintiff, the endorsee, against Griswold, as the maker, and Dickinson, as the -endorser, of a promissory note for $2,000, payable in gold. The date of the note is March 10,1870, and it was payable on the 15th November, 1870.
    The answer of the defendants alleges that the note in suit was one of four notes made by Griswold and endorsed by Dickinson, three being for $2,000 each, payable in gold, and the fourth for $1,600. That the four notes were all endorsed over and delivered to Gustavus D. Dows on the same day. That the four notes were •obtained from the defendants by Dows through false representations made by him to Griswold, the maker, the particulars of the fraudulent statements and inducements being set up in the answer.
    That the notes, including the one in suit, were made and delivered to Dows without consideration, were obtained through his fraudulent statements, and are void.
    The answer also alleges that the plaintiff took the notes from Dows with knowledge of the facts and circumstances attending the making and delivery of the same to Dows, and without consideration.
    Upon the trial it appeared that the plaintiff became the purchaser of the note in suit from Dows on the 7th October, 1870, the note then having less than forty days to run, and being endorsed over to plaintiff by Dows, at the time of the .purchase. That the consideration given by the plaintiff on the purchase was one thousand dollars in currency, and his own note for one thousand dollars, payable in four months, and which, though past due, has not been paid.
    That the plaintiff is a mechanic in the employment of the firm of which Dows is a member, and was so at the-time of the purchase of the note, superintending a soda apparatus factory, earning wages at the rate of $15 per week, payable weekly. That he had received no compensation during the year other than his salary, except for some over-work which amounted to one hundred dollars.
    That the plaintiff was first asked to buy the note by the brother of Gustavus D. Dows, at the office of the firm in Boston, in September, 1870, his reply being that he would see to it.
    That on the 7th October following he was again asked to buy the note, and he made the purchase, paying the money and giving his note for $1,000 above mentioned.
    After the purchase, the plaintiff put the note in the safe in the office of his employer, with other papers. There it remained until he transmitted it to blew York, shortly before it was due, to an attorney for collection. The attorney to whom the note was sent was also the-attorney of Gustavus D. Dows.
    It appears by the evidence that two of the notes made-by Griswold and endorsed by Dickinson, and delivered to Dows, falling due before the transfer to the plaintiff of the note in suit, had matured while in the hands of Dows, and had been sued by him, and that the defendants had interposed a defence to the same, which actions are pending.
    After the plaintiff had rested Ms case, the defendants claiming that the plaintiff was not a bond fide holder of the note, “offered to prove the facts set forth in the fourth subdivision of the answer,” being the facts and circumstances referring to the fraud by Dows in obtaining the note, and claimed that if a bona fide holder, the facts set forth in the answer being proven, plaintiff could recover only to the extent of one thousand dollars, with interest, the amount he had paid in cash on the note.
    The court excluded thé evidence, to which the defendants excepted.
    The defendants further requested to be allowed to go to the jury on the question whether the plaintiff was a bond fide holder of the note, which was refused, and the defendants excepted.
    The court thereupon directed the jury to render their verdict for the amount of the note and interest in currency, the plaintiff having waived the demand for gold or gold value, to which ruling the defendants excepted.
    The jury found a verdict for the plaintiff for $2,330 in currency. The exceptions were directed to be heard in the first instance at General Term. Judgment meanwhile suspended.

      D. G. Wild and Sidney S. Harris, for plaintiff.

      J. C. Darrow, attorney, and Aaron J. Vanderpoel, of counsel, for defendants.
   By the Court.—Vah Vorst, J.

The answer of the defendants alleges matter which, if satisfactorily established, would constitute a complete defence to the action on the note.

The concurrence of the two essential conditions, the obtaining the note by Dows through fraudulent inducements and without consideration, and the purchasing of same by plaintiff with notice of the fraud, or without paying therefor a valuable consideration, would avail to prevent a recovery Tby him. As Dows himself could not, Tby reason of the fraud alleged, have acquired a valid title to the note, or have recovered thereon, neither could he place any other person, Tby a transfer of the note, in any "better position than himself, unless such person acted in good faith, and parted with a valuable consideration.

When an action is brought by an endorsee of a promissory note, the plaintiff is not bound in the first instance to prove the consideration paid for the note, nor the circumstances of good faith on his part in taking same.

The note imports by its terms to have been given for a good consideration, and the fact that he holds the same property endorsed, proves his legal title.

But the maker is entitled to prove, on the trial, fraud and total want of consideration at the time of the making and delivery of the note, and upon such proof being made, the burden is then cast on the plaintiff, to show that he was a bona-fide purchaser for a valuable consideration.

A reason for this rule is stated by Parke, B., in Bailey v. Bidwell (13 M. & W. 76), who says “that if the instrument in question was proved to have been obtained by fraud, or affected by illegality, that affords a presumption that the person guilty would dispose of the bill or note, and would place it in the hands of another person to sue upon it.” Here the plaintiff did not rest his case upon his presumptive legal rights as a holder for value arising from his possession under a claim of ownership, but affirmatively, before resting, offered evidence showing the consideration paid by him, and the circumstances under which he had taken the instrument.

This is, however, a question of order in the taking of proof on the trial, and to which no objection was made in this casé. But it had the effect, from the view taken by the judge of the plaintiff’s evidence, to entirely ex-elude the evidence of the defendants in respect to the fraud and want of consideration in the making and delivery of the note.

According to the plaintiff’s evidence, the consideration paid by him was $1,000 in currency, and his own note at four months for an additional one thousand dollars. As the note purchased was by its terms payable in gold? the consideration paid, conceding that the one thousand dollar note was good and collectable, was about $250 less than the face of the note.

The case shows that on an inquiry by the court after the plaintiff had rested, the defendants’ counsel admitted that they had no further evidence to offer as to the transfer of the note to the plaintiff, but they claimed that the plaintiff was not a boná-fide holder of the note, and offered to prove the facts set forth in the fourth subdivision of the answer, and asked to be allowed to go to the jury on the question whether the plaintiff was a bona-fide holder.

The learned judge, without doubt, as the grounds of. his refusal of these offers and requests, regarded the ■consideration paid by plaintiff as good and valuable, and the evidence as establishing the good faith of the plaintiff, and accordingly held that under such circumstances no fraud of Dows’ could defeat the plaintiff’s right to recover.

But it seems to us that the question as to whether plaintiff was a bona-fide holder was, under the circumstances of this case, a question for the jury.

The payment of a valuable consideration tends to show good faith. It is, however, only presumptive, not conclusive, evidence.

There were considerations arising from the evidence which might have been properly considered by the jury in determining the good faith of the plaintiff. He was an employé of Dows’ at a small weekly salary ; before taking the note he made no inquiries. The transaction took place in the employer’s office : for one-half of the face of the note he gave his own unsecured obligation at four months, when the note he bought had less than forty days to run. The note was left in the safe of his employer, until forwarded to Mew York to the attorney of his employer for collection, and when Ms own note matured it was not, and is not yet, paid, while the note he purchases has the security of the endorsement of his employer. These considerations are entitled to some weight on the subject of good faith. They may be consistent with a fair and boná-fide sale, but we apprehend that they are for the consideration of the jury. From the nature of the transaction, and the relation of plaintiff and Dows, all the evidence of the transfer which took place in the Boston office, would be substantially limited to their, own version of what transpired on the occasion. In Harger v. Nelson (63 Barb. 250), Taloott, J., says: “We think the price paid on the purchase of the note may go to the jury on the question of good faith.” In that case, a note for one thousand dollars, obtained from the maker through fraud, had been purchased by the plaintiffs, who were bankers and brokers, for $900.

It may reasonably be urged that in all judicious inquiries- where the “ good faith ” of a party in his action and conduct is a substantive matter, the determination of such question upon all the facts and circumstances is for the jury.

The payment by the plaintiff of one thousand dollars in currency, and the giving of his note, payable at a subsequent day, for a like amount, may have proceeded from a collusive understanding between the parties, not expressed in words perhaps ; for to persons standing to-each other in the relation in which plaintiff was placed to Dows, words may not have been necessary. A desire that plaintiff should purchase, simply expressed, might prove both significant and sufficient. That Dows had a motive to get rid of the note, and to place the same in the hands of a third party "before maturity, so as to deprive the maker and endorser of their defence, may he inferred, without violence, from the fact that it was claimed by them that his possession was fraudulent, and that in the two actions which he had commenced on similar notes his fraud had been set up.

This case cannot be dismissed without alluding to the defendants’ claim that in no event should the plaintiff be allowed to recover more than $1,000, the currency claimed to have been paid by him. The character, quality, and value of the consideration paid, is involved in, and affects, the question of good faith.

The jury might have attached little value to the plaintiff’s unsecured and unpaid note given on the purchase.

It has been repeatedly adjudicated that a bona-fide holder of commercial paper, to which as between maker and payee there is a good defence, is entitled to be protected only to the amount of the value which he has paid. (Stalker v. McDonald, 6 Hill, 93 ; Cardwell v. Hicks, 37 Barb. 458; Huff v. Wagner, 63 Barb. 215; Harger v. Nelson, supra).

The verdict should be set aside and a new trial ordered with costs to abide the event.

Barbour, Oh. J., and Monell, J., concurred.


text:
    ADAM BROWN, Plaintiff and Appellant, v. SIGMUND P. WINDMULLER et al, Defendants and Respondents.
    Referees:—Their fees maybe fixed by the agreement of parties at the trial, entered upon the minutes at an amount in excess of the allowance made bylaw (Thurman v. Fiske, 30 How. Pr. 397; Code, § 313 ; Philbin v. Patrick, 22 How. Pr. 1).

      Before Barbour, Ch. J., and Monell and Van Vorst, JJ.

      Decided May 3, 1873.
    In all cases of taxation of referees’ foes, when opposition is made, the disbursements for referees’ fees should be supported by affidavit, beyond the ordinary general affidavit of the attorney of the disbursements in the action, for such an affidavit is not the best evidence of the facts.
    Proof by affidavit should clearly show the time spent by the referee "in the business of the reference,” and that this time was necessarily required.
    Such explicit proof is more necessary in a case similar to this, where it appears that the referee interrupted one of the counsel in his summing up, after he had been speaking only ten minutes, with these words : “ You have already read from your brief long enough to call this a sitting, and we will now adjourn; and I hope you will make the reading of your brief occupy as many days as possible, as I am sure of getting paid for the time by the defendants; for whenever I send to them for a check for my fees I always get it.”
    A charge as for aday, at $15.00 for each of the hearings so interrupted, and a continuation and repetition of which were so boldly requested, is not allowable. For these reasons the adjustment of costs is vacated and a re-adjustment ordered, and upon the hearing the clerk should require satisfactory proof of affidavit, of
    1. The number of days the referee necessarily attended and spent on the hearing before the submission of the case.
    2. The number of days spent in the examination and decision of the case after submission.
    Appeal from an order confirming the adjustment of costs.

      A. H. H. Dawson, for appellant.

      James Taylor, for defendants.
   By the Court.—Van Vorst, J.

By the agreement of the parties on the trial, an entry of which was made in the minutes, the fees osf the referee were fixed at an amount per diem largly in excess of the allowance made "by law.

The parties could so agree (Thurman v. Fiske, 30 How. 397 ; Philbin v. Patrick, 22 How. 1; Code, § 313). There is a conflict in the affidavits used before the taxing officer on the adjustment of the costs, as to the number of days spent by the referee in the hearing and determination of the case.

But if the only question raised was as to the number of days necessarily spent by the referee, and there was a conflict in the statements, the decision of the clerk on such question of fact might not be disturbed.

But it is claimed by the plaintiff’s counsel that it is not shown that the number of days charged were necessarily devoted to the reference.

Section 811 of the Code provides that the clerk shall insert in the entry of judgment the “necessary disbursements,” including “fees of referees,” and that the disbursements shall be stated in detail and verified by affidavit.

In all cases, therefore, where opposition is made, the disbursement for referees’ fees should be supported by affidavit, and a general affidavit of the disbursements made by the attorney is not sufficient. His affidavit is not the best evidence of the fact.

In Shultz v. Whitney (9 Abbott 71), it is suggested that such affidavit be made by the referee himself. The referee only can know the number of day's spent in the case after its submission, and should furnish the evidence. The parties might, without doubt, waive this affidavit and accept the certificate of the referee of the days necessarily spent in the reference.

The fees of the referee in this case amount to the extraordinary large sum of three thousand and sixty dollars, and, under the objections made, should be established by legal satisfactory proof.

The affidavits of the plaintiff’s attorneys allege that from the stenographer’s notes of the trial the total number of meetings before the submission of the case was ninety-five, and that there were afterwards twenty sittings to hear arguments, and twenty adjournments, making in all one hundred and thirty-five sittings.

The affidavit of the defendants’ attorney fixes the number of sittings from his register at one hundred and fifty-two, but does not satisfactorily state the number of days spent by the referee in the examination and decision of the case after it was submitted. On the argument, however, it was stated that some fifty days were claimed by the referee to have been spent in examining the evidence and making his report. There is nothing before us to sustain a charge for any such number of days.

The certificate of the referee made after the delivery of the report cannot be regarded as legal evidence to justify the taxation of these fees. Proof by affidavit should show the number of days “ spent in the business of the reference,” and that they were so necessarily.

Such proof by affidavit is the more necessary in this case, where it appears by the uncontradicted affidavits of two of the attorneys of the plaintiff, that the referee interrupted one of the plaintiff’s counsel in his summing up, after he had been speaking only ten minutes, with these words: “You have already read “from your brief long enough to call this a sitting, and “we will now adjourn, and I hope you will make the “reading of your brief occupy as many days as possible, “ as I am sure of getting paid for the time by the defendants, for whenever I send to them for a check for “ my fees I always get it.”

It can scarcely be urged that a charge of fifteen dollars a day for hearings so interrupted and invited to be protracted, was allowable, or the hearing itself necessary. It clearly was not.

There is no affidavit to support the item, “costs allowed on amendment of complaint, $25.00.” There'is no statutory allowance for such charge, and if they were costs imposed by some order, the evidence should be produced. -Before allowing the term fees charged in the "bill, the clerk should "be satisfied that the cause was “ necessarily on the calendar” for these terms before the reference was ordered.

For these reasons the adjustment of the costs and disbursements made by the clerk is set aside, and the costs are directed to be re-adjusted by him. The re-adjustment may be had upon a notice of three days by either party.

The clerk should require satisfactory proof by affidavit of the number of days the referee necessarily attended and spent on the hearing before the submission of the case, and the number of days so spent in the examination and decision of the case after submission. And if, as is alleged, the plaintiff himself has paid to the referee for any part of the attendances charged, such sum should be deducted from the amount.

And should the bill of costs be reduced on the readjustment, the amount of the reduction should be taken from the judgment if it is already entered.

Barbour, Ch. J., and Monell, J., concurred.


author: By the Court. Van Vorst, J.

text:
    JOHN L. TURNURE, Plaintiff and Respondent, v. SOLOMON L. HOHENTHAL, Defendant and Appellant.
    Under an agreement of suretyship, where the surety bound himself that in case default shall at any time be made by his principals in the payment of the rent and in the performance of the conditions contained in the lease (which was the subject-matter of the suretyship) on their part to be paid and performed, that he, the surety, will well and truly pay the said rent or any arrears thereof : and also all damages that may arise in consequence of the non-performance of the covenants, without requiring any notice of any such default, from the lessor, etc.

      Held, That no demand was necessary to be made of the tenant by the landlord for the rent, before proceeding against the surety on his agreement. The landlord was under no obligation to attempt to collect the rent or enforce the covenants against the tenants (McKensie v. Farrell, 4 Bosw. 204; Chace v. Hinman, 8 Wend. 458; Trinity Church v. Higgins, 48 N. Y. 532).
    Before Barbour, Ch. J., and Monell, and Van Vorst, JJ.
    Decided May 3, 1873.
    Appeal from an order of the Special Term granting a new trial.

      Simon Stern, for appellant.

      Lauterbach and Spingarr, attorneys, and II. Morrison,, of counsel for respondent.
   By the Court. Van Vorst, J.

The answer admits the agreement made by the defendant with the plaintiff, and no formal proof of it on the trial was necessary.' It was entitled to be read under the admission. In addition, its execution by the defendant was satisfactorily proven by the certificate of the notary public attached,, and for that reason also it was entitled to be read in evidence.

Ho demand from English & Hobbs to pay the rent and taxes was necessary as a condition to a recovery of the defendant on his covenant. It was incumbent on the tenants to seek the landlord and pay without demand. Such was the duty resting upon them under their agreement, by which they had any right to the engagement of the premises, and for the failure of the tenants in making their payments, the defendant is liable under his agreement.

There was nothing in the defendant’s agreement by which his liability was made dependent upon a previous demand of the rent and taxes by the plaintiff from English & Hobbs. The court must give effect to the contract as made by the parties, and can regard no conditions except such as the parties have themselves by terms created.

Besides, English & Hobbs left the premises some years before the rent and taxes in question became due and payable, having placed one Henderick in possession, who on demand refused to pay.

On the premises which they had left, it was reported that they had departed the State. They had placed themselves inaccessible to a personal demand, and were demand necessary, one made of Henderick on the premises would be sufficient to put English & Hobbs in default, and render defendant liable under his agreement. In McKensie v. Farrell (4 Bos. 204), it was held, Wood-ruff, Judge, delivering the opinion, that under an agreement of suretyship, in its terms much like the one under consideration, no demand was necessary to be made of the tenant for the rent before proceeding against the surety on his agreement.

The defendant’s objection, that plaintiff had proved no attempt to collect the rent from English & Hobbs, nor exhausted their remedies against them, is of no force. Plaintiff was under no obligation to take such steps. The defendant had absolutely agreed to pay the rent, and all damages that might arise in consequence of the nbn-performance by English & Hobbs of their covenants with plaintiff, or either of them, without requiring notice of any default from the plaintiff.

In the failure of English & Hobbs to do what they had agreed rests the defendant’s primary liability, and that without demand of, or suit against them (Chase, Admrx. v. Hinman, 8 Wend. 453 ; McKensie v. Farrell, supra; Rector, etc., of Trinity Church v. Higgins, 48 N. Y. 532), in which case it is said the tenant’s “ covenant is broken when he neglects to pay taxes or assessment duly imposed.”

The last objection of the defendant, as exhibited by the case, is, “That plaintiff has failed to connect the defendant with the plaintiff.”

The evidence shows that the plaintiff was himself under obligation to pay the rent and taxes to the superior landlord, and that when he assigned his lease to English & Hobbs, they undertook to pay the same, and in the event of their default the defendant undertook himself to pay.

As already observed, English & Hobbs left the premises, and a fruitless demand was made of Henderick who succeeded them. The evidence shows that plaintiff himself paid the rent and taxes, for which this action is brought, amounting to §1,407.52.

Such statement would seem clearly to establish the defendant’s liability to the plaintiff under his agreement of the 31st of May, to pay, on the default of English & Hobbs, the rent and all damages that might arise in consequence of their non-performance of their covenants. Plaintiff was damaged to the amount he paid.

The defendant’s counsel on the argument suggested that the plaintiff may have been furnished with the money for the purpose of paying the rent and taxes by English & Hobbs, and that it was presumptively their money with which they were paid.

This, under the facts and circumstances, is a violent-presumption. In his answer the defendant states that in 1866, English & Hobbs sold out all their interest in the lease to Henderick, who was to pay the rent.

The evidence shows that English & Hobbs could not be found, and that Henderick would not pay.

The presumption is rather the other way, than as urged. The answer sets up no such defence.

The complaint was improperly dismissed, and the order of the Special Term granting to the plaintiff a new trial is affirmed, with costs to respondent to abide the event.

Barboxje, Ch. J., and Monell, J. concurred.


text:
    JACOB SCHNEIDER, Plaintiff and Appellant, v. PATRICK McCABE et al, Defendants and Respondents.
    Before Barbour, Ch. J., and Monell and Van Vorst, JJ.

      Decided May 3, 1873.
    New trial for excessive verdict.
    'Where the verdict is clearly not justified by the evidence, and it clearly appears that the jury, in determining the amount of the same, or the value of the property which is the subject of the action, has gone outside the evidence upon the trial, and found a verdict for a larger sum or value than the evidence will justify; the verdict is excessive, and a new trial should be granted.
    Appeal from an order of the Special Term, granting a new trial.

      J. H. Whitelegge, for appellant.

      J. B. Bullock, attorney, and T. C. T. Buckley, of counsel, for respondents
   By the Court.—Van Vorst, J.

We cannot hut think, after a careful examination of the evidence, that the jury have rendered a verdict which in amount is clearly not justified by the evidence.

Exhibit 0 was not in evidence for the purpose of furnishing any guide to the jury in arriving at the value of the property.

Yet the approval or estimate of the jury, substantially corresponds with the aggregate of the values, as contained in exhibit C. There is no other amount in the. evidence to support the verdict.

The witness Hassenpflug claims to speak of all the-articles and their value.

His testimony fixes the value at about $670. He had. originally purchased some at a less valuation, which at the time he supposed to be paid.

The learned judge before whom the trial was had granted a new trial for the reasons that the jury in determining the value had gone outside the evidence, and that the verdict was excessive. We agree with 'the-opinion so expressed.

The order appealed from should be affirmed with costs.

Babboue, Oh. J., and Monell, J., concurred.


author: Barbour, Ch. J. Van Vorst, J.

text:
    JAMES TALCOTT, Plaintiff and Respondent, v. M. M. BELDING, Defendant and Appellant.
    In an action for the recovery of personal property, the plaintiff, for the purpose of proving the character and amount of the property claimed, and that it was identical in character and amount with property described in. the pleadings and the evidence before the court, was permitted to read in evidence, although objected to by the defendant, an undertaking which • had been executed by the defendant, under section 30 of the Code, to enable him- to obtain from the sheriff, a re-delivery of the property, and also an affidavit of the plaintiff, which was referred to in the said undertaking.
    Held,—
    1. That neither the affidavit nor the undertaking was intended to be used before the court upon the trial. Nor did they in any manner affect or concern the issues or the questions involved in the controversy before the court.
    2. The defendant therefore was no more estopped by the recitals in his undertaking from proving or claiming on the trial, that the property which was taken from him, and afterwards returned to him by the sheriff, was not the same property described in the complaint as the subject-matter of the action, than he would have been by a like statement in any affidavit or paper, made or used in' any other litigation or proceeding dehors this action.

      Before Barbour, Ch. J., Monell and Van Vorst, JJ.

      Decided May 3, 1873.
    3. The statement in the affidavit is too indefinite and uncertain to make the recital in the defendant’s undertaking, referring thereto, full and competent evidence, even as an admission of the defendant, that the whole or any considerable portion of the property described in the complaint, had ever been in his (defendant’s) possession.
    Van Vorst, J. (concurring opinion), Held, substantially, that the undertaking and affidavit were incompetent and insufficient as evidence of the facts sought to be established thereby, and should have been excluded also. That the plaintiff was, under the facts and circumstances established at the trial, bound to make a demand of the defendant for the property before bringing suit, and a demand being necessary, and not having been alleged nor proved, the plaintiff could not recover.
    Appeal from a judgment.
    The facts in the case appear fully from the opinions rendered.

      Putney and Adams, attorneys, and W. B. Putney, of counsel for appellant.

      Brooks and Merrill, attorneys, and John E. Parsons, of counsel for respondent. ,
   Barbour, Ch. J.

This was an action, as in replevin, “for the recovery of two hundred dozen shirts and “drawers, or thereabouts, and forty dozen jackets, more “or less,” alleged in the complaint to be owned by the ■plaintiff, and wrongfully detained from him by the defendant, to plaintiff’s damage $3,000. The answer contained a full denial.

Upon the trial it appeared that, some time prior to the bringing of the suit, J. P. Browner & Co. obtained from the plaintiff, by means of false and fraudulent representations, sundry articles of “hosiery and underwear,” amounting to $2,907.17, and that, subsequently, Browner & Co. made an assignment of their property to the defendant for the benefit of their creditors. For the purpose of proving that the property so assigned included the goods described in the complaint, the plaintiff was permitted to read in evidence an undertaking which had been made and signed by the defendant, under the 211th section of the Code, in order to obtain from the sheriff a ró-delivery of the property to himself, and also an affidavit, made by the plaintiff, which was referred to in the said undertaking.

The undertaking in question recited that, “ whereas “the plaintiff in this action has claimed the delivery to “him of certain personal property specified in the affi- “ davit made on behalf of the plaintiff for that purpose, “of the alleged value of three thousand dollars, and “has caused the same to be taken by the sheriff of the-“city and county of New York, pursuant to the 2d ‘ ‘ chapter, etc., but the same has not yet been delivered “to the plaintiff, and whereas the defendant is desirous 1 ‘ of having the said personal property returned to him,” etc. ; and the affidavit stated that “the plaintiff is the “owner of the following personal property claimed in “this action ; that is to say, two hundred dozen shirts “and drawers, or thereabouts, forty dozen jackets, more “ or less ; that the said property is wrongfully detained ‘ from the plaintiff by Milo Belding, the defendant, ” etc. The plaintiff also read in evidence the schedule accompanying the assignment of Browner & Co. to the defendant, by which it appeared that forty-four and a half dozen of shirts and drawers, and eleven dozen and three-bundles of jackets, all of the value of $1,126, were covered by that assignment.

One of the defendant’s assignors also testified that his firm purchased a lot of goods from the plaintiff, amounting to about $3,000; that more than two-thirds of those goods, in amount, had been disposed of by them prior to the assignment, and that only about $800 worth were transferred to the defendant, either when the assignment was made, or at any time. Further evidence was also offered "by the defendant tending to prove what portion of the goods purchased "by Browner & Co. from the plaintiff remained in their hands unsold at the time of the assignment, and also offered evidence to prove precisely what goods were taken from the defendant "by the sheriff in this case, "both of which offers were objected to by the plaintiff upon the ground that such evidence would contradict the recital in the defendant’s undertaking ; and those objections were sustained by the court, the defendant excepting thereto. The counsel for the defendant requested the court to charge the jury that the plaintiff was not entitled to recover for any goods except such as were sold by him to Browner & Co., and which were in the defendant’s possession or control at the time of the commencement of this action, and also that, in assessing the damages, the jury could only give the value of the portion of the goods bought by Browner & Co. from the plaintiff which was taken by the sheriff, which requests were refused ; and the court then charged the jury that the defendant was bound by the recitals in his undertaking, and, therefore, was not at liberty to question the quantity of goods that were taken by the sheriff, nor in a position to say that all the goods were not retaken ; and the defendant excepted to such charge and refusals. The jury rendered a verdict for the plaintiff" for $3,361.94, being the amount of the purchase made by Browner & Co. from the plaintiff, with the interest thereon from the date of the sale.

The uncontradicted evidence given upon the trial was sufficient to establish the fact that not much, if any, more than one-third of the goods originally obtained from the plaintiffs by Browner & Co., by means of the fraudulent representations charged in the complaint, ever came to the hands of the defendants ; and yet, notwithstanding that fact, thus proven, the plaintiff has been permitted, to recover a judgment, upon what is, at best, but a mere technical question in the rules of evidence, some three times greater than he would have been entitled to, either in law or equity, except for such technicality.

It is claimed on the part of the plaintiff that the recital contained in the defendant’s undertaking, is, in effect, an admission or averment by the latter that the goods described in the plaintiff’s affidavit, had been in the hands of the defendant and were taken' from his possession by the sheriff, and that the defendant is, in law, estopped by such admission or averment to prove or claim that any part or portion of those goods had not been in his hands nor taken from him.

ISTeither the affidavit nor the undertaking was intended to be used before the court upon the trial, nor did they in any manner affect or concern the issues or the questions involved in the controversy before the court.

The Code empowers the plaintiff in an action of claim and delivery, to make and execute a certain affidavit and undertaking, and thereupon to issue his own precept, requiring the sheriff to take the property described in the affidavit from the possession of the defendant, if found there, and, in like manner, the defendant is authorized, upon making such an undertaking as is particularly described in the -statute, to require the sheriff to return to him the property so taken; thus substituting his own personal responsibility, with that of his sureties, for the property itself. The intervention of the court is not required in either case, nor, even, is it necessary to file the papers, but it is merely a proceeding of the parties themselves under the statute, affects only the actual possession of the property, and, as has already been said, in no way concerns the issues or the litigations before the court, except in so far as concerns the form of the verdict in case of a recovery by the plaintiff. The defendant, therefore, was no more estopped by the recitals in his undertaking to prove or claim upon the trial that the property, or any portion thereof which was taken from and returned to him by tlie sheriff, was not the same property that was described in the complaint as the subject-matter of the action, than he would have been by a like statement or admission in any affidavit or paper made or used in any other litigation or proceeding dehors this action.

Besides, it is to be considered that it was the intention of the legislature to give to all defendants in actions of replevin the right to compel the return of all property taken from them by the sheriff on a requisition of the plaintiff, and that the 211th section, which confers that right,- requires the undertaking to contain just such a recital in all cases as was inserted in that paper in the case before us. .To hold, therefore, that such a recital is not merely a statement or admission of a fact for the purposes for which the undertaking is executed, but a complete estoppel in the law which debars a defendant from proving or claiming upon the trial that the property taken by the sheriff, or any part of it, is not the same property that is described in the complaint, or that the property taken by the sheriff is the whole of the property sued for, would be to defeat the main object and intention of the legislature. For, a defendant thus situated could not execute the necessary undertaking without destroying his claim of title, and that, too, by availing himself of the only means given to him by the statute for the recovery of his property.

Again: the statement in the affidavit touching the property alleged to be in the possession of the defendant, is quite too indefinite and uncertain to make the recital in the defendant’s undertaking, referring thereto, competent evidence even of an admission or statement by the defendant that the whole or any considerable portion of the property covered by the complaint had ever been in his possession. For the only description of property which the affidavit contains is in these words: “two hundred dozen shirts and drawers, or thereabouts, forty dozen jackets, more or less.” The plaintiff may well have supposed, from the fact that Browner & Co. were merchants, and purchased the goods to sell again, that some of them had been disposed of prior to the making of the affidavit, and therefore described the property therein so indefinitely and generally that he could, without violating the truth, reclaim such of the goods as then remained in the possession of the defendant. However that may be, it is evident that the words “thereabouts” and “more or less,” so far qualify the allegation as to quantities as to make the figures almost valueless, and render the recital in the undertaking, in that regard, nothing more, at best, than an admission that some indefinite portion of the plaintiff’s goods, described in the complaint, had been in the defendant’s possession, and had been taken from him by the sheriff. The court erred, therefore, in excluding the proof offered, as well as in the charge and refusal to charge as above noted.

The judgment must be reversed with costs, and a new trial granted.

Van Vorst, J.

I agree with the chief justice in opinion that the defendant was not estopped by the execution and delivery of the undertaking to the sheriff from showing the true amount and value of the goods taken by the sheriff and re-delivered to him. In fact I think it was incumbent upon the plaintiff, before resting his case, to have given affirmative evidence of the facts, and that neither the plaintiff’s affidavit nor the recital in the undertaking were sufficient for the purpose of showing the actual value, or properly identifying the goods as to quantity.

The allegations in these papers, if admissible, were too indefinite and uncertain to justify a verdict for any precise sum as the value, or any correct estimate of the number of articles in the defendant’s possession. So much so, that it would be difficult to enforce by execution a judgment establishing the right of property and premium to specific personal chattel. This action is to some extent of the nature of a proceeding in rem.

The execution in cases of this character must particularly describe vthe property of which possession is to be delivered. “Two hundred dozen shirts and drawers, or thereabouts, forty dozen jackets, more or less,” is not such a particular description as the law requires (Code, § 289, sub. 4). In De Witt v. Morris (13 Wend. 497), the goods and chattels were described as about 400 tons of iron ore. The court held the writ defective in not being more specific as to quantity, and that the sheriff could have refused to execute the writ.

The learned judge, by his rulings and in his charge to the jury, held that the defendant was bound by the recitals in the undertaking, and was not at liberty to question the quantity of goods taken by the sheriff, or re-delivered to Mm.

Now, in order to properly construe the recitals in the undertaking, they must be read in connection with the plaintiff’s affidavit, to which it refers, and its statements in respect to the goods of which delivery was sought, are uncertain as to quantity and inconclusive as to value.

Its want of certainty defeats the recital in the undertaking from operating as an absolute estoppel; and it being clearly the plaintiff’s statement, and not the defendant’s, except by a qualified and enforced adoption, with its uncertainties, the defendant should not be concluded from showing the true quantity. Besides, the rules with regard to estoppel by deed do not apply. An undertaking given in this proceeding is not required to be sealed, and is not a deed. Nor does it form any part of the record in the action : it is collateral. As an estoppel in paris it is inoperative. It is not reciprocal, for the plaintiff, notwithstanding his allegation of value .founded upon information and belief, could without doubt prove on the trial that the goods were of greater value, and, if necessary, have his complaint amended for the purpose. And as the plaintiff’s rights were secured by the seizure through the sheriff before the undertaking was given, he is not injured, but rather aided. The giving of the undertaking was not designed to influence the plaintiff to omit any effort, or relax his remedy; he had proceeded as far as he could in the direction of seizure, and the undertaking of the defend-, ant, with sureties, was substituted in the place of the property actually taken. The giving of the undertaking by the defendant should not have the effect to enlarge the advantage secured by the plaintiff by his seizure of the property. The doctrine of estoppel has been guarded with great strictness, because it may exclude the truth.

In addition, I think the objection taken by the defendant on the trial, that no demand had been made of the defendant before suit brought, is fatal to plaintiff’s action. No demand was averred in the complaint or proved on the trial.

The defendant was lawfully in possession of the goods under the assignment made to him by Browner & Co., the vendees of the plaintiff. It is true that the assignment was for the benefit of creditors, but if was such a disposition of property as the assignors could lawfully make. Although they had defrauded the plaintiff, yet until the sale was rescinded by the vendor, or steps taken for . the purpose, the vendees could lawfully dispose of the property for a valuable consideration to a bona fide purchaser, or make other legal disposition of same. There is no pretence that the defendant was at all implicated in, or had any notice of, the assignors’ fraud. Being lawfully in possession of the property at the time of the assignment, the defendant was justified in an honest belief that the assignor had right to sell the same, or dispose of it by assignment for the payment of debts.

Being lawfully in possession of the property delivered in pursuance of the assignment, the defendant could not be placed. in a position in which it could be truly alleged of him that he “ wrongfully detained” the same from the plaintiff, until a demand had been made upon him, and he had refused. Such demand and refusal would constitute a possession, otherwise lawful, unlawful, and render defendant liable to an action for wrongful detention” (Jessop v. Miller, 1 Keyes, 321).

In Sluyter v. Williams, in this court (1 Sweeny, 215), it was held that, where goods were claimed to be “ wrongfully detained,” but which had lawfully come into defendant’s possession, a prior demand and refusal must be proved to sustain the action.

Peirce v. Van Dyke (6 Hill, 613), approving Barrett v. Warren (supra), whilst holding that replevin in the detinet, as well as cepit, will be for a wrongful taking without previous demand, also substantially decides that, if the defendant, an attorney-at-lawj had proven on the trial that he had received the note, the subject of the action, for a lawful purpose, that is, for collection, although the one from whom he received it had tortiously taken it, plaintiff could not have recovered without showing a previous demand.

Here the lawful possession of the defendant under the assignment appears.

In Stevens v. Hyde (32 Barb. 181), it was stated “by the court,” E. Darwin Smith, J., as “a proposition universally true, that no man can be subjected to an action in respect to personal property in his possession, received by delivery, without personal wrong on his part, until he has refused to deliver it, upon a lawful demand, to the true owner.”

The learned judge uses the qualifying words, “received Iby delivery; ” by this he without doubt means that the person has not tortiously, or otherwise against the will of the former possessor, obtained the property, but that he lawfully holds the same by the consent and act of such former possessor (White v. Brown, 5 Lansing, 78 ; Barrett v. Warren, 3 Hill, 348-350).

In Scofield v. Whitelegge (49 N. Y. 259), it was held that, where the plaintiff’s case depends upon a wrongful detention without a wrongful taking, an averment in the complaint of a demand and refusal is necessary.

If necessary to be averred in the complaint, it should be proved on the trial.

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

Monell, J., concurred in the conclusions.


author: By the Court.—Barbour, Ch. J. Freedman, J.

text:
    BENJAMIN G. DUSENBURY, Plaintiff and Appellant, v. MARK HOYT, Defendant and Respondent.
    Before Barbour, Ch. J., and Monell and Van Vorst, JJ.

      Decided May 3, 1873.
    An action brought upon a note against a bankrupt, whose discharge in bankruptcy relieved and discharged him from the indebtedness upon the note, cannot be sustained by evidence on the part of plaintiff, that since the discharge in bankruptcy the defendant had promised, orally and in *■ writing, to pay the sum remaining unpaid on the note.

      Mdd, That the action was founded upon the note itself, and not upon any new promise or undertaking subsequent to the discharge in bankruptcy, and therefore could not be maintained.
    Appeal from a judgment entered upon a verdict ordered by the court in favor of defendant.

      The facts appear sufficiently from the opinion of the court.
    The complaint in this action set up the making of a promissory note for $5,000 in November, 1865, and states that in May, 1867, $5,495.83 was due thereon, and the defendant then paid $3,000 upon it, and in April, 1871, the further sum of $100, leaving then unpaid upon the note the sum of $3,083.76. The answer admitted the making of the note, and the payment in May, 1867, but denied the alleged payment of $100 in 1871 upon the note, and set up as a further defence the fact that the defendant was, in September, 1868, duly discharged from all debts and claims against him by a decree of a United States court in a certain voluntary bankruptcy proceeding. There was no replication.
    Upon the trial the defendant proved his discharge in bankruptcy, and rested. The plaintiff then offered evinence to prove that, subsequent to the decree in bankruptcy, the defendant had, both orally and in writing, promised to pay the sum remaining unpaid upon the note, which was excluded by the court upon the ground that the action was founded upon the note itself, and not upon any new promise or undertaking subsequent to the discharge in bankruptcy.
    There being no farther evidence, the court directed a verdict for the defendant, and the plaintiff had judgment ; and the case comes here on the plaintiff’s exceptions to the charge and the exclusion of the evidence offered, as well as on an appeal from an order on the Judge’s minutes refusing a new trial.

      D. M. Porter, for appellant.

      Cephus Brainard, for respondent.
   By the Court.—Barbour, Ch. J.

The judgment and order appealed from should be affirmed for the reasons stated in the able opinion pronounced by Judge Freedman upon denying the motion for a new trial. The action should have been brought upon the new promise, and cannot be maintained upon the note, which was annihilated as an obligation by the discharge in bankruptcy.

Monell and Van Yorst JJ., concurred.

The following opinion of Freedman, J., before whom the case was tried in the court below, is made (substantially) the opinion of the Court at General Term:

Freedman, J.

It seems to be well settled that different principles apply to cases of defences of the statute of limitations and discharge under the bankrupt act. The former statute operates upon the remedy merely, and does not extinguish the debt; a discharge in bankruptcy absolutely releases and extinguishes the debt.

Under the statute of limitations, where no statutory provision to the contrary intervenes, a new promise may be implied, but after a discharge it must be so express, clear, and unequivocal, as to show that the promisor intended absolutely to waive the protection of his discharge, and to rebind himself legally to pay the old debt (Depuy v. Swart, 3 Wend. 139 ; Lynburg n. Wightman, 5 Esp. 198; Horner v. Speed, 2 P. & H. (Va.) 616; Evans v. Carey, 29 Ala. 99 ; Fleming v. Haynes, 1 Stark. 370; Musklan v. St. John, 4 Tenn. 513; Beach v. Wood, 13 Price, 667; Cambridge v. Littlefield, 6 Cush. 213, per Dewey, J.).

Thus, while in section 110 of the Hew York Code it is enacted that the effect of any payment of principal or interest shall not be altered by the provision ; that no acknowledgment or promise shall be sufficient evidence of a new or continuing contract, whereby to take the case out of the operation of the statute of limitation, unless the same be contained in some writing, signed by the party to be charged thereby. It has been held in cases which arose under the bankrupt law, that partial payments are not a new promise, nor the equivalent of a new promise (Stark v. Stimson, 3 Fost. 259 ; Viele v. Ogilvie, 2 Greene, 326).

And that payment of interest by the maker, on a note from which he had been discharged, did not revive the liability to pay the note (Cambridge, etc., v. Littlefield, 6 Cush. 210).

Upon the question, however, whether a new promise, after the discharge, creates a new and substantial cause of action, or operates merely as a waiver by the promisor of a defence with which the law has furnished him against an action on the old promise or demand, there is a marked conflict of authority. But, upon the principles decided in Depuy v. Swart (3 Wend. 125), and Stafford v. Bacon (1 Hill, 533), under the old practice of this State, and in Stearns v. Tappin (5 Duer, 294, 299), under the Code, and the reasoning of Corson v. Osborn (10 B. Mon. 115), Field’s Case, (2 Rowle, 351), and Graham v. Hunt (8 B. Mon. 7), I feel constrained to hold that in every case the action must be founded upon the precise and positive new promise made after the discharge, and that the original debt is to be considered merely as the consideration that gives validity to the new promise.

From this it follows that, inasmuch as under the Code the plaintiff is required to set out the facts constituting his cause of action, and nothing else, the said new promise must be specially pleaded as the basis of the action.

This not having been done in the case now before me, the rulings made at the trial must be affirmed.

As to the admissibility and effect of defendant’s discharge, I need only point out that the Court of Appeals, in the Ocean National Bank v. Olcott (46 N. Y. 15), express ]y held that, pursuant to the provisions of the Bankrupt Act of 1867, the certificate is conclusive evidence, in favor of the bankrupt, of the fact and the regularity of the discharge, and that the same cannot "be questioned on the ground that it was improperly granted in any other mode, nor in any other court than prescribed in the act.

Motion for a new trial denied, with costs.