text:
    James Flanagan et al. plaintiffs, vs. Peter P. Demarest et al. defendants.
    1. When a contract, for the sale and delivery of goods, is divisible, and capable of a separate physical performance, a delivery and acceptance of part is sufficient, under the statute of frauds. But when the contract is indivisible, and cannot, by its terms, or physical or other impossibility, be performed in separate parts, the whole contract must be performed at one time, and there can be no such thing as a part performance.
    2. A contract for the sale and delivery of a “ cargo,” or “ boat load,” of barley, of about 9000 bushels, is an entire, indivisible contract. It cannot be separated into parts, and is incapable of part performance. Neither less nor more than a “ cargo of barley” can be tendered as performance, by the vendor. Nor is the purchaser bound to accept a cargo of less than about 9000 bushels.
    3. If, in sucha case, a cargo of 5070 bushels of barley arrives, and is tendered to ■ the purchasers, they may reject it, as not being in performance of the contract. Upon their refusing it, no right of action will accrue to the vendors. Upon a demand by the purchasers, of a cargo “ of about 9000 bushels,” the vendors, on a neglect or refusal to deliver, will be liable for a breach of the contract. But if the purchasers accept and pay for, a cargo of 5070 bushels only, this will be deemed either a waiver of the right to object or insist that it is not a full and complete performance of the contract, or the making of a new contract.
    4. The delivery and acceptance of a part of the goods, to take a case out of the statute of frauds, must be a part of a known and defined quantity, which can be disjoined or separated from the whole; not a part of an entire thing which it was intended should be delivered in bulk.
    5. If goods tendered, in full performance of a contract, do not correspond with the description of them in it, the purchasers should reject them. They cannot qualify their acceptance, so as to make such a delivery a mere part performance. The very act of acceptance determines the completeness of the performance.
    (Before Robertson, Ch. J., and Moncrief and Moneli, JJ.)
    Heard January 10, 1865;
    decided March 4, 1865.)

      The action was to recover damages for the non-delivery of a quantity of barley.
    On the 24th of October, 1862, the defendants verbally agreed to sell to the plaintiffs a cargo of Jefferson county barley, of about 9000 bushels, to be delivered before the close of navigation, at White’s malt house, in the city of New York, at $1.30 per bushel, payable on delivery. On the 18th of November, 1862, the defendants notified the plaintiffs of the arrival of a cargo of barley, Mr. Simons, one of the defendants, saying to the plaintiffs, “ the barley, is in.” The plaintiffs sent a measurer to measure the barley. The defendants delivered the cargo of barley at White’s malt house, and a bill for the cargo, according to the measurer’s return, which was paid by the plaintiffs, and which was as follows :
    “ New York, Nov. 19, 1862.
    M. Flanagan, Wallace & Co. bought of Demarest & Simons, commission merchants in grain, flour, feed and provisions, 32 Moore street,
    5070 bush, barley, $1.30,.....$6591.05

      \ meas. ..... 12.56
    .■6605.61 '
    5 days demurrage, ...... 80
    $6683.61
    Eec’d payment, Demarest & Simons.”
    At the time of paying this bill, the plaintiffs told the defendants that they did not accept it as a fulfillment of the whole contract, but only'in part delivery of the contract. Nothing was said by the defendants. They took the. money, and receipted the bill. The plaintiffs demanded the balance of the barley, and on refusal they sued the defendants to recover the difference between the contract price and market value. One of the plaintiffs testified that he called upon the defendants after navigation closed ; that one of the defendants talked about the parties whom they sold for, and said he would write to them, and that he, the plaintiff, agreed to wait until he heard from them.

      The judge dismissed the complaint, and the plaintiffs excepted. Judgment was suspended, and the exceptions directed to be heard, in the first instance, at the general term.

      8. P. Nash, for the plaintiffs.
    I. The statute of frauds did not invalidate the contract, though it was not in writing, for the reason that the buyers did “accept and receive part” of the barley agreed to be sold. There can be no question but that the barley delivered, was delivered under the bargain made at the Corn Exchange. No other bargain had been made. The. barley was delivered at the “ malt house,” and the bill was rendered at the contract price of $1.30. It is true that this court seems to have held, that to escape the statute, the partial delivery must be made at the time of the bargain, (Seymour v. Davis, 2 Sandf. 239,) but a verbal contract substantially like this was held by the Court of Appeals to be taken out of the statute, by a subsequent partial delivery of the goods, in McKnight v. Dunlop, (1 Seld. 537;) see also Boutwell v. O’Keefe, (32 Barb. 434;) Sale v. Darragh, (2 Hilt. 184.) It seems entirely clear, that if the barley delivered was delivered under the bargain previously made, and there was certainly sufficient evidence to justify the jury in so finding, the bargain was made valid for the full amount.
    II. It may be said that the plaintiffs, by proving the bill rendered to them, with the barley actually delivered, proved a written contract, which prevented them from going beyond it. (Whitwell v. Wyer, 11 Mass. R. 6.)
    (1.) But it is settled that a bill of parcels is not a written instrument, which excludes parol evidence of other matters not contained in the bill. (Harris v. Johnson, 3 Cranch, 311. Filkins v. Whyland, 24 N. Y. Rep. 338.)
    (2.) In this case the bill was not given in evidence to prove the contract, as it was in Whitwell v. Wyer. The contract was established, if it was established at all, by the evidence of the original bargain, made October 24th, and of the part delivery on the 18th November, The subsequent delivery by the defendants of the hill dated on the 19th Novembér, and receipted the 22d, could not change the rights of the plaintiffs. (Schuchardt v. Allens, 1 Wall. U. S. Rep. 359, 369.)
    (3.) The bill of parcels was not a memorandum that would have taken the case out of our present statute, and, therefore, the case of Whitwell v. Wyer cannot apply. The present statute requires the memorandum to be subscribed by the party to be charged. The defendants’ bill was never subscribed as a memorandum. It was delivered without any subscription, and the signature was simply a receipt. (James v. Patten, 2 Seld. 9.) There is no color for the pretense that the bill was ever delivered, or received, or put in evidence, as being, or as being proof of, the original bargain.
    III. The plaintiffs were ready to receive and pay for the barley not delivered, and the evidence was sufficient to justify. the jury in so inferring. The plaintiffs had paid promptly for the quantity delivered, being the larger portion of the quantity contracted for, were anxious for the residue, and frequently demanded it. As the exact day of payment was to depend on the arrival of the barley, an act for which the vendors were responsible, it was not necessary to show a sum continually on hand to meet the contract. Any evidence justifying the inference that the plaintiffs were willing to receive, and able, to pay for .the barley was sufficient. (Vail v. Rice, 1 Seld. 155.)
    IY. The bargain, as proved, was for 9,000 bushels. No particular cargo being specified, by the name of the vessel, or otherwise, the expression, “ A cargo of 9000 bushels,” or “ containing 9000 bushels,” was equivalent to load, lot, or quantity of 9000 bushels, and amounted to an undertaking that the cargo to arrive should contain that quantity. (Gorissen v. Perrin, 2 Com. B. N. S. 89 E. C. L. 681. Havemeyer v. Cunningham, 35 Barb. 515. Hale v. Rawson, 4 Com. B. N. S. 93, E. C. L. 85. Cleu v. McPherson, 1 Bosw. 480.)
    Where a particular cargo is specified, the quantity may be mere matter of description, and the purchaser be obliged to take the cargo, whether it exceeds or falls short of the quantity named. But here, if the sellers were not bound to deliver nine thousand bushels, they were not bound to deliver any quantity whatever. Had two cargoes, one of five thousand, the other of 12,000 bushels, arrived the same day, unless the purchasers could claim, at all events, the quantity contracted for, they could claim nothing, neither cargo containing the precise quantity named.
    There was in the bargain an implied warranty, by the sellers, that the cargo contemplated should contain 9000 bushels, or at least the question whether such a warranty was not implied should have been left to the jury. (See Hoe v. Sanborn, 21 N. Y. Rep. 552.)
    V. There was nothing in the evidence to justify a ruling by the court, that the acceptance of the lot delivered was a waiver of all claim for an additional quantity. When the arrival of the barley was notified to the plaintiffs, the quantity was not reported to them. It was measured as delivered, and when received, and paid for, the plaintiffs notified the defendants that it was not received in fulfillment of the contract. The cases are clear that this is no waiver. (Catlin v. Tobias, 26 N. Y. Rep. 217.) But if there was any ground for saying that there was evidence of an acceptance by the plaintiffs of the lot delivered, in full performance of the contract, the sufficiency of that evidence should have been submitted to the jury.
    YI. The point that Smith and Gilbert should have been sued instead of the defendants, is untenable. The defendants made the contract in their own names, and the plaintiffs did not know for whom they were selling, until a month after the contract. (Mills v. Hunt, 20 Wend. 431.)

      Bradford Howland, for the defendants.
    I. The contract, as alleged in the complaint, is void by the statute of frauds, there being no memorandum or part delivery made, or any part payment made at the time. The subsequent delivery of the cargo was.not made as a part delivery, but in full completion of the contract. It was not in its nature a part delivery. Under the statute of frauds it is clear that without that delivery there was no contract, and the defendants were not bound to deliver any barley. The delivery •formed a part of the making of the contract, and in their object and intention at the time, by that delivery, the minds of the parties must meet. (McKnight v. Dunlop, 1 Seld. 537.) The plaintiffs, who, without the delivery, are unable to make out any contract, cannot now use that delivery as evidence of an entirely different contract from that which it purports. ( Whitwell v. Wyer, 11 Mass. Rep. 6.)
    II. The contract was not, as the complaint alleges, to deliver “ 9000 bushels, or thereabouts.” Such a contract would be too uncertain as to the quantity for either party to know what were their rights or liabilities under it. Even if there were a contract for 9000 bushels, still the separate delivery of 5070 bushels and payment therefor would be construed as a separate contract. (Deming v. Kemp, 4 Sandf. 147.)
    The expression, “ about 9000 bushels,” was but a description. of the cargo, of its probable size. The contract was simply to deliver a cargo ; it was delivered and paid for. If it did not answer the description, the plaintiffs should not have received it. The rule is well established, that where an article is delivered which does not answer the description in the contract, it must be returned. (Corning v. Colt, 5 Wend. 253.)
    They had no right to accept one cargo and then claim another in addition. The defendants did not. agree to deliver them two cargoes. If the agreement had been to deliver them an ox weighing 2000 lbs., and one weighing 1200 lbs. had been delivered and accepted, the plaintiffs could as well claim that they were entitled to another ox weighing 800 lbs. If the price had fallen, the plaintiffs could not claim that after one cargo had been delivered they would have been bound to accept from the defendants another, containing the difference between 5070 bushels and 9000 bushels. Yet they would have been so bound if the defendants are liable in this action. What was said by the parties after the delivery could have no effect upon their rights or liabilities, which were already fixed and determined. The contract was, in its nature, entire and inseparable, (Clark v. Baker, 5 Metc. 452,) and it was not in the contemplation of the parties to be severed or performed in parts. A delivery of a small cargo on an agreement for a large one, can in no sense be considered a part delivery, even if it were so intended by the parties. In this respect this case is entirely different from that of McKnight v. Dunlop, (1 Seld. 537.) In that case the malt was to be delivered in different quantities, at different times, and no payment was to be made until a certain amount had been delivered, which was not delivered.
    III. No breach of the contract as alleged, has been shown. The plaintiffs have averred, in their contract, a readiness and an offer to perform, on their part, before the close of navigation, and a refusal on the part of the defendants. This was a material averment, and one that the plaintiffs were bound to prove. There is no evidence whatever to show that the plaintiffs were, before the close of navigation, or at any time, ready to perform, or that they ever offered to perform the agreement on their part.
    The covenants to pay and to deliver are mutual and dependent, and the party bringing the action must plead and prove readiness and a tender on his part. (Lester v. Jewett, 1 Kern. 453. Smith v. Wright, 1 Abb. 243. Dunham v. Pettee, 4 Seld. 508. Kelley v. Upton, 5 Duer, 336. Considerant v. Brisbane, 14 How. 487. Williams v. Healey, 3 Denio, 363, Culver v. Burgher, 21 Barb. 324. Crandall v. Clark, 7 id. 169. Van Schaick v. Winne, 16 id. 89. Johnson v. Wygant, 11 Wend. 48. Parker v. Parmele, 20 John. 130. Porter v. Rose, 12 id. 212. Topping v. Root, 5 Cowen, 404. Green v. Reynolds, 2 John. 207. Morton v. Lamb, 7 Term R. 125. Pordage v. Cole, 1 Saund. 319.)
    In Lester v. Jewett, (1 Kern. 453,) the court held that the plaintiff was bound to show not only a readiness, but a tender. The Court of Appeals held the same in Smith v. Wright, (1 Abb. 243,) which was a case originating in the New Y°rk Superior Court. In Considerant v. Brisbane, (14 How. 487,) the court held that “ a transfer of the stock and payment of the money were dependent acts.” “ In a complaint upon such a contract, the plaintiff must allege that he has done the acts required of him by the contract, to entitle him to the money ; this is a matter of substance, and not of form ; the burden of proof is on him to allege, and show, if his allegations in that respect are denied, that he transferred, or offered to transfer, the stock. This is indispensable to make out a prima facie liability against the defendant.”
    In Dunham v. Pettee, (4 Seld. 508,) Ruggles, Ch. J. says : “ If the buyer in a case of this sort fails to pay, or offers to pay within the time specified for mutual performance, the seller is discharged from liability to answer in damages for not delivering the thing sold." “ Whichever party seeks to enforce the contract against the other, must show performance or tender of performance. Until that be shown, he is himself in default. The plaintiffs in this case are seeking to enforce the contract, and the judge should have told the jury, that to entitle them to recover, they were bound to show an offer of performance, whether the defendants were ready or not.” (Porter v. Rose, 12 John. 212. Topping v. Root, 5 Cow. 404.)
    IY. The plaintiffs, by their agent, Yan Yleet, knew at the time of the contract that the defendants were not acting for themselves. Only their principals, Smith and Gilbert, could be liable for any breach of the agreement.
    Y. The action is for a breach of a contract to deliver before the close. of navigation. That alleged breach was waived by the plaintiffs:, and they agreed to extend the time to deliver until the defendants heard from their principals, Smith and Gilbert.
   By the Court, Monell, J.

There is no conflict in the evidence as respects the nature of the oral contract for the sale of the barley. All the witnesses agree, that it was a sale of a cargo of barley of about nine thousand bushels.” One of the witnesses described it as a load” of barley of nine thousand bushels. There is nothing in the case to indicate what was meant or intended by the parties as a “ cargo” or load” of barley, but it is proper to presume that the ordinary or usual conveyance used for transporting cereals from the western states was intended. Hence evidence was given that some canal boats will hold four thousand and some ten thousand bushels, and the plaintiff says the defendants were to let them have a cargo, containing about nine thousand bushels.

By the terms of the contract, the barley was to be delivered before the close of navigation; but there was no evidence given, or offered, to show whether the barley had or had not arrived at the time the contract was made, unless the defendants saying to the plaintiffs, the barley is in,” can be interpreted into meaning the barley has arrived.” But it is not material.

The contract of sale was void by the statute of frauds, unless the delivery and acceptance of the 5070 bushels was sufficient to bring the contract within the exceptions in the statute. On the 18th of November, a cargo or boat load of barley arrived. Notice of the arrival was given to the plaintiffs ; they sent their measurer, and had the barley measured. The barley was delivered at the place designated in the contract, and a bill conformable to the measurer’s return was rendered to the plaintiffs, and by them paid.

If the contract was divisible, and capable of a separate physi-.. cal performance, then, according to the clear weight of authorities, a delivery and acceptance of part would be sufficient. (Seymour v. Davis, 2 Sand. 239. Deming v. Kemp, 4 id. 147. McKnight v. Dunlop, 5 N. Y. Rep. 537. Catlin v. Tobias, 26 N. Y. Rep. 217.) But when the contract is indivisible, and cannot, by its terms, or otherwise, be performed in separate parts, then the whole contract must be performed at one time, and there can be no such thing as a part performance.

The contract was for the sale and purchase of a “ cargo” or “ load”'of barley. It was not a contract for the sale and purchase of either nine thousand bushels, or of about nine thousand bushels of barley. The quantity was merely descriptive of the capacity of a canal boat, some being capable of carrying four and others ten thousand bushels. So far as the vendees had the right to insist upon a “ cargo” of the prescribed number of bushels, namely, about nine thousand bushels, the bulk or dimensions of a cargo was an important part of the contract. For the tender of a cargo of less bulk would not have been a complete performance, and the vendees would have been excused for rejecting it. Had the contract been for a “ cargo of barley,” without specifying any quantity, it would have been as effectual, provided the quantity constituting a cargo was capable of being ascertained by parol proof.

A cargo is the lading of a ship or other vessel, the bulk or dimensions of which is to be ascertained from the capacity of the ship or vessel; and where the name of the ship or vessel is in the contract, her capacity for carrying, or the bulk of her cargo, need not be stated, for the word “cargo” embraces all that the vessel is capable of carrying.

The contract before us, was an entire, indivisible contract. It could not be separated into parts, and was incapable of a part performance. Neither less nor more than a “ cargo of barley" could be tendered as performance by the vendors. Nor were the vendees bound to accept a “cargo” of less than, about 9000 bushels. A vessel with capacity to carry ten thousand bushels, freighted with only five thousand bushels, would not have been a “cargo” within the' meaning of the contract.

The delivery and acceptance of a part of the goods, to take the contract out of the statute, is where by the terms of the contract a part may be delivered. And such are all the cases in the books. In both of the cases arising in this court, (Seymour v. Davis, and Deming v. Kemp, ubi sup.) the contracts provided in terms for partial deliveries. In McKnight v. Dunlop, ubi sup. the contract was for 5000 bushels of barley. Payments were to be made whenever $1000 worth of barley was delivered. 1400 bushels only were delivered, when the vendor refused to deliver any more, and the action was by the vendees to recover the difference. The court held that the delivery and acceptance of the 1400 bushels took the contract out of the statute. The only question, however, discussed in that case, was whether a subsequent part performance was sufficient.

Whether the delivery and acceptance of a part, will render valid a previously void contract, depends upon whether, within the terms of the contract, the vendor can make a part delivery and the vendee can accept such part delivery, as a part performance only.

It seems to me there can he no part performance of an entire, inseverable contract, and the exception in the statute was intended to apply to contracts capable of severable performance. Thús the contract for the sale of 5000 bushels of barley, in McKnight v. Dunlop, was capable of a part delivery. In all contracts intended to be aided by the exception in the statute, the possibility of performing it in parts becomes the material question. If the goods sold and bought consist of several, part of which may be separated from the rest and delivered, and the contract does not require the whole to be delivered at one time, the part delivery brings the contract within the exception. But where there can be no separation, and the contract and the parties contemplate one delivery of the entire purchase, a part delivery will not do. A contract to sell a cargo,” or “ boat load,” does not admit of the delivery pf less-than a cargo or boat load, irrespective of any quantity which' constitutes its bulk.

It is well settled in this state, that a vendor of goods cannot recover, either the contract price, nor upon a quantum meruit, for a part of the goods delivered, even although accepted by the vendee. (Champlin v. Rowley, 13 Wendell, 258. S. C. 18 id. 187. Mead v. Degolyer, 16 id. 632. McKnight v. Dunlop, 4 Barb. 36. Oakley v. Morton, 11 N. Y. Rep. 25. Catlin v. Tobias, ubi sup.) The reason of the rule is, that full performance of such contracts by the vendor, is a condition precedent, and must.be averred and proved.

The contract, in the case before us, was for a cargo ” of barley. Doubtless it was contemplated by the plaintiffs, possibly by both parties, that the cargo would contain about nine thousand bushels. 'But the sale was not of that quantity^ although the plaintiffs were not bound to accept less ; and looking at the contract as it is, it is impossible, I think, to say that the delivery and acceptance of a cargo containing less of bulk than intended by the parties, as expressed in their contract, would take it out of the statute.

When the cargo of 5070 bushels of barley arrived and was tendered to the plaintiffs, they might have rejected it, as not being a performance of the contract. It was not a cargo “ of about 9000 bushels.” Upon refusing to receive it, no right of action would have arisen to the defendants; and upon a demand by the plaintiffs of a cargo “of about 9000 bushels,” the defendants, on a neglect or refusal to deliver, would have been liable for a breach of the contract. But by accepting and paying for a cargo of 5070 bushels, it seems to me, the plaintiffs waived the right to object or insist that it was not a full and complete compliance with and performance of the contract. By such acceptance, the plaintiffs put their construction upon the contract, namely, that a delivery of a cargo of less than 9000 bushels satisfied its terms. Their neglect to avail themselves of their right to reject a cargo of a less number of bushels is to be deemed an admission, by them, that the quantity was not the essential part of the contract, and after accepting they cannot claim that it was a part performance only.

Suppose, after the delivery and acceptance of the 5070 bushels the defendants had tendered another cargo of 4000 bushels, would the plaintiffs have been bound to receive it ? I think not. They could have said, you tendered and we accepted a “ cargo which, although it contained less in quantity than was intended, was nevertheless a cargo, and we received it as such, and as a fulfillment of the contract.

The delivery and acceptance of a part of the goods, to take a case out of the statute, must be a part of a known and defined quantity, which can be disjointed and separated from, the whole; not a part of an entire thing which it was intended should be delivered in bulk. A parol contract for the sale and purchase of a “ steamboat,” would not become valid by the delivery and acceptance of a part of the machinery; or of a “ wagon,” by the acceptance of the wheels only. Hone of the cases go so far. Indeed I have not found any case taken out of the statute, where the contract itself did not in express terms, of by necessary implication, admit of a partial delivery. In this case there was an acceptance of a cargo,” as bargained for; and although it did not reach the quantity intended, or answer the description in the contract, nevertheless it was accepted by the plaintiffs as such.

In Clark v. Baker, (5 Metc. 452,) the sale was of a cargo of corn, on board of a schooner lying at Boston, at 76-^ for the yellow corn and 73J for the white corn. The quantity of corn was not known, but proved to be between 2000 and 3000 bushels. The plaintiff received a part and refused the remainder. The court held that the contract was. entire. Hubbard, J. says : The bargain was not for 2000 or 3000 bushels of corn, but it was for the cargo of the schooner Shylock, be the quantity more or less.” He says it cannot be regarded as a separate bargain for each separate bushel. “ This separation into parts so minute, of a contract of this nature, can never be admitted. * ® As well might a man who sold a chest of tea by the pound, or a piece of cloth by the yard, or a piece of land by the foot or by the acre, contend that each pound, yard, foot or acre was the subject of a distinct contract, and each the subject of a distinct action.”

In Whitwell v. Wyer, (11 Mass. Rep. 6,) the contract was by parol for the sale of 25 hogsheads of rum. T'he vendors were to furnish the casks, but nothing was said about their size. The vendors selected hogsheads below the customary size; they were filled, and notice given to the purchasers that they were ready for delivery. At the same time a bill for the 25 hogsheads was presented. The purchasers remarked that the hogsheads were small, but did not object to receiving them. They paid $1000 on the bill, and accepted the 25 hogsheads. The court held that the delivery and acceptance of the 25 hogsheads, without objection, was a complete performance of the contract, notwithstanding the hogsheads delivered were not of the description named in or intended by the contract.

It is said that the acceptance was qualified ,' that the plaintiffs refused to receive the cargo as a full performance of the contract, But they did receive it, and they had no power to make a new contract without the consent of the other party. If the thing tendered for their acceptance did not answer the description in the contract, the only right of the plaintiffs was to reject it. (Corning v. Colt, 5 Wend. 253.) They could not qualify their acceptance so as to limit it to a part performance, when the very act of acceptance determined the completeness of Ü0 performance.

It is not, perhaps, too much to say that there has been an inclination in the courts to stretch the statute to cover contracts which it was intended to exclude. The statute was enacted for wise purposes, and we should stop some where short, I think, of legislating it quite out of existence, by making the exceptions the rule.

In the view I have taken of the question, it has not become necessary for us to examine, at any. length, another objection taken by the defendants. The plaintiffs averred a readiness and an offer to perform before the close of navigation. There was no proof of this, nor of a readiness to perform at any time. The covenants to pay and deliver were mutual and dependent covenants, and the plaintiffs should have proved not only a readiness to perform, but a tender of performance on their part. (Kelley v. Upton, 5 Duer, 336. Williams v. Healey, 3 Denio, 363. Lester v. Jewett, 11 N. Y. Rep. 453.)

Upon the whole, I am of opinion that the exceptions should be overruled, and judgment ordered dismissing the complaint.

Robertson, Ch. J.

The vagueness of the terms of the verbal contract in this case has produced all the difficulty. If it had been to sell a certain quantity of barley of a particular kind, before the close of internal navigation in this state, in the year 1862, at a certain price, there could have been no question raised. The complaint only alleges that it was an agreement to sell nine thousand bushels of barley, or thereabouts. The evidence, however, seems to show that it was of some undefined cargo, on its way to New York in a canal boat, and that the precise bulk was not fixed, but an approximation to it agreed upon. The agreement was made between the defendant Simons and the plaintiff Flanagan. The latter testified that no particular bulk was mentioned ; it was thought to be the average quantity that came by (canal) boats. * ® Some held four and some ten thousand bushels.” Simons was to let him have a cargo of nine thousand bushels.” It was so arranged because the former wished to specify the quantity. He also added that such amount was not the 'average run of the boats ; it was what the latter.thought it would be. Another witness (Van Vliet) testified that the quantity stated was a' cargo containing about nine thousand bushels, ® ■ * to be delivered before the close of navigation.” Simons told Flanagan he presumed such barley would be along in a very short time.” It was spoken of as a cargo of barley containing about nine thousand bushels. Other witnesses spoke of it as a (boat) load of barley.

Whatever else was indefinite in such contract, it was evidently an agreement to sell, not so much barley generally, but a cargo of so much then on its way in canal boats, If the defendants, without any fault on their part, never received such barley, they would not have been bound to procure it in the market. The whole contract was made in reference to the arrival of the barley and the facilities of navigation. The amount was determined by the average bulk of cargoes in canal boats. The particular boat or cargo was not named. The defendants had therefore a right to select the one they chose to tender ; and the plaintiffs had a right to refuse any which did not correspond with the description by not having the requisite quantity. But its being one cargo was to govern, unless both parties agreed to carry the agreement out by two. The defendants selected and delivered, as a performance of the contract, a cargo of much less quantity. The plaintiffs had a right to refuse it as a performance, because not corresponding in quantity ; but they received it, paid for it, and accepted a receipt for it as being such quantity, although they insisted it was not a performance. The defendants did not propose to divide the contract by such delivery, and leave a part unperformed. They proposed to perform it fully, and the plaintiffs by accepting the thing offered acceded to the proposal. They could not divide the contract alone, and claim the delivery of a second cargo or a part of one, as a part of the contract remaining unperformed. Their remedy was to object to and refuse the receipt of a smaller cargo than was bargained for, as a performance. A boat load or cargo described as containing a certain quantity, is as definite, indivisible and entire, as an animal of a certain weight, strength or speed, a steam engine of a certain power, or any indivisible article of merchandize of certain dimensions or weight. The delivery of an animal of less weight, strength or speed, a steam engine of less power, or article of merchandise of less dimensions, and its acceptance by the vendee, satisfies a contract to sell one greater in all such respects, when delivered in performance of it. Such a delivery and acceptance would not leave any thing definite to be performed under such contract, certainly not the delivery of a second article of the same kind, with a supplemental amount of qualifications to make up the deficiency.

There was no evidence in this case of any arrival of a cargo of nine thousand bushels of barley, consigned to the defendants, for the non-delivery of which the plaintiffs could recover, even if they had not precluded themselves therefrom by acceptance of the cargo delivered.

I think, therefore, without regard to the statute of frauds, the plaintiffs have no right of action, having accepted a cargo delivered in performance of a contract to deliver one, though of'less bulk. No mere dissatisfaction or notice of not accepting it as a performance could vary the effect of its delivery as such and acceptance, because there was nothing left under the contract in a definite shape to be performed.

I concur in thinking judgment should be given for the defendants, and the exceptions overruled.


source: Caselaw Access Project

author: Monell, J. Robertson, Ch. J.

license: Public Domain

text:
    Thomas Morton, plaintiff and appellant, vs. Roderick W. Cameron, defendant and respondent.
    1. A party to an arbitration may resort to the original cause of action embraced therein, where the award of the arbitrator is void.
    2. A lessor may maintain an action on a covenant in a lease of a furnished house executed by the lessee, to pay all damages accruing to the house or furniture during the term, notwithstanding an agreement contained therein, that such damages should be determined by a named person, where his appraisal of such-damages may be void for want of notice of time or place of such appraisement.
    (Before Robertson Ch. J. and Moncrief and Monell, JJ.)
    Heard January 11, 1865;
    decided March 4, 1865.
    The action was to recover damages for injury to a house and furniture. In July, 1858, the plaintiff leased to the defendant a furnished house for the term of nine and a half months. By the lease the defendant agreed to pay all damage or abuse to house and furniture, &c. which might occur to or on the premises and furniture while in his possession, whether caused by himself, family, servants, &c. from neglect or otherwise, reasonable use and wear thereof, and damages by the elements excepted. It was mutually agreed that Thomas D. Hughes, Jr. should determine, at the expiration of the lease, the amount of damage, &c. to house, furniture, carpets, &c. and that the defendant would pay to the plaintiff the amount of damages (if any) assessed by the said Thomas D. Hughes, Jr. The lease was executed by both parties under their seals, and had annexed to it a schedule of furniture, &c.
    After the expiration of the term, Hughes made an assessment of damages to the house, furniture, &c. amounting to $750.
    The complaint alleged two causes of action: First. Upon the covenant in the lease, to pay for damages or abuse which might occur to the house or furniture, and Second, upon the assessment of Hughes. To the first cause of action the defendant answered denying any damage done to the house or ftirniture ; to the second cause he denied any knowledge, &c. of the assessment.
    Evidence was given on both sides as to the alleged damage to the house and furniture. The plaintiff proved that Hughes notified the defendant of the time and place when he would assess the damages. This was contradicted by the defendant. Hughes assessed the damages at $750. His assessment was given in evidence. The justice charged the jury, in substance, that if they should find that notice of the time and place when Hughes would make the appraisal of damages was not given to the defendant, he. would be entitled to their verdict. He further charged that if they should find that notice was given and an appraisal was made, and that in estimating the damages Hughes included any thing not contemplated by the agreement, their verdict must be for the defendant. That by the terms of the agreement the defendant was only liable .for such damage as was. done to the house and' furniture, and if in estimating the damage, Hughes included more than that, his award was void, and the plaintiff could not recover. The plaintiff excepted to these several propositions. The jury rendered a verdict for the defendant. A motion was made at special term on a case, for a new trial, which was denied, and judgment entered on the verdict.
    The plaintiff appealed from the judgment and order.

      S. P. Nash, for the appellant.

      J. Slosson, for the respondent.
   Monell, J.

The theory of the charge was, that unless the jury should find that notice of the time and place of the appraisement was given to the defendant, the plaintiff could not recover. In other words, that the only cause of action upon which the plaintiff could in any event recover, was the award made by Hughes, the chosen appraiser.

If notice of the time and place of the appraisement was necessary, there was sufficient conflict of evidence to render it proper to submit that question to the jury. Under the view of the learned justice, notice was necessary, and if it was not given, the appraisement would be utterly void, and of no effect. The jury, by their verdict, have found that such notice was not given. The question, then, is, whether the award being void, the plaintiff can resort to the original cause of action, which was intended to be liquidated and disposed of by the appraisement.

The lease contained an independent covenant on the part of the defendant to pay all damage to the house or furniture. This was followed by a further agreement, that Hughes should determine the amount of the damage ; which amount, when assessed, the defendant agreed to pay to the plaintiff.

It has repeatedly been decided that provisions in agreements for the appraisal of damages, or the ascertainment of value, are revocable by either party, and except where, as in this case, there is an express promise to pay, are not conclusive upon either party. (Hays v. Hays, 23 Wend. 363. Brady v. Mayor of Brooklyn, 1 Barb. 584.) And it has also been repeatedly decided that where the award is void, resort may be had to the original cause of action. (Mayor of New York v. Butler, 1 Barb. 325. Haggart v. Morgan, 5 N. Y. Rep. 422, and cases there cited. Hart v. Lauman, 29 Barb. 410.)

It is clear, I think, that irrespective of the award, and regarding it, as we must, as utterly void, the action is maintainable upon the covenant to pay damages. It was, therefore, error to instruct the jury to find for the defendant, if they found the award to be void, by reason of no notice having been given. By such instruction the other cause of action of the plaintiff was excluded.

The only difficulty that has presented itself to me in the case is, that it does not appear that the plaintiff claimed at the trial to recover irrespective of the award, or that the attention of the learned justice was called to any other cause of action than the award. Some evidence was given of the amount of damage to the house and furniture, and it would have been competent for the jury to have given their verdict for the plaintiff.

If this case came to us upon exceptions only, I should be inclined to refuse a new trial. The objection that the charge excluded a recovery upon the other cause of action ought not to be taken now, for the first time. But this is a .case, and we must look into the evidence to see if it sustains the verdict. There was uncontradicted evidence that the house and furniture were damaged to some extent, and the plaintiff was therefore entitled to a'verdict in some amount.

For this reason there must be a new trial, with costs to the appellant to abide the event.

The judgment and order should also be reversed.

Robertson, Ch. J.

There were two distinct causes of action set out in the complaint, in this case; one for breach of the covenant in the original agreement to pay the damages for the injury to the articles leased, and the other for not performing the award, and there was some evidence to sustain the former. Unless there was a valid award under the covenant to submit to arbitration, the plaintiff could not lose his right of action under such first covenant. It was error, therefore, to instruct the jury that “ their verdict must be for the-defendant,” if they found from the evidence “ otherwise” than that notice of the appraisement was given to the defendant, and that the arbitrator, in estimating the damage to the house and furniture, included only injury to it over and above the reasonable use and wear thereof. And that' the plaintiff could not recover,” if the arbitrator, in estimating the damages, included more than the excess of such injury, beyond such use and wear. To both of which instructions, the plaintiff excepted. It is evident that the learned judge who gave the instructions, either ignored the existence of a claim beyond the award, or that by the making of the award, although void, he lost such claim.

I think, also, there was error in submitting the question of notice of the appraisement to the jury, and instructing them to find for the defendant in case they found there was no such notice given. No such question was made by the pleadings. The answer did not set it up, and the complaint only alleged the making of an award in writing after a due and proper examination of the premises in question, and the answer took issue both upon the making of such award and such examination, but on them only. Prima facie, every decision of an arbitrator, upon any question submitted to him, is binding, and at common law is conclusively so. (Owen v. Boerum, 23 Barb. 187.) Any partiality, unfairness or misbehavior, on his part, is only a matter of relief in a court of equity, where the specific acts of misconduct must be set up. And although such acts may form the subject of an equitable defense, such a right will not render it unnecessary to set up such acts by way of defense, specifically. Besides, a want of proper notice to either party is only a matter to be taken advantage of by him who is so neglected; and which he may waive. (9 Loud, 691.) As to him, the award is voidable only, and not void. It is only void for errors on its face at common law, as in case of exercise of other common law powers. The plaintiff could not tell, in this case, until the trial, whether the defendant meant to rely on the award as a bar to an action on the covenant to pay for injuries, or to avoid the award for want of, notice.

But, in fact, there was no conflict of evidence as to notice. After the parties had agreed upon the day of meeting, the arbitrator testified that he wrote to the defendant proposing a later hour than one previously proposed by the latter, delivered the letter containing such proposition to the latter, who read it, and assented to the time, saying he would be on hand. The only evidence to combat this is the defendant’s testimony, that he had no recollection of an appointment made, except in his first proposal, or belief in any subsequent appointment of one. He admitted the receipt of such a letter, but had no recollection of answering it. The subsequent answer, to a question by the court, that he did not agree upon any time, was evidently founded, not upon recollection that he did not make any, but upon want of recollection that he did. There was, therefore, no conflict of evidence to be submitted to the jury. Informal notice of an informal appointment was all that was to be expected, and the positive testimony of the arbitrator is not to he weighed with the want of recollection of the defendant.

Eor these reasons, I concur in thinking the judgment, and order denying a new trial, should be reversed, with costs.

Moncrief, J. also concurred.

Judgment reversed.


author: By the Court, Robertson, Ch. J.

text:
    Joseph Levy, plaintiff, vs. The Mayor, Alderman and Commonalty of the City of New York, defendants.
    A mortgagee of land, not in possession, who does not establish any ultimate injury to the security of his debt, by the destruction of a building on the mortgaged premises by rioters, is not entitled to recover the value thereof, in an action against the city in which the premises are situated, under a statute making it liable for injury done by rioters.
    (Before Robertson, Ch. J. and Moncrief and Monell, JJ.)
    Heard January 10, 1865; ;
    decided March 4, 1865.
    On the 15th day of July, 1855, Eobert Sturgeon, and Anna his wife, executed and delivered to the plaintiff a mortgage upon a certain lot of land, situated in West Thirty-second street, in the city of New York ; which mortgage was given as security for the payment of a certain bond for five hundred dollars. On or about the 9th day of December, 1862, the plaintiff commenced an action in the Supreme Court to foreclose this mortgage. On the 22d day of August, 1863, judgment for foreclosure was filed, by which judgment James J. Colwell was appointed referee to sell .the mortgaged premises. The amount due upon the mortgage was $748.42. The mortgaged premises were sold by the referee on the 17th day of September, 1863, and were struck off to the plaintiff for the sum of $1000, subject to a prior mortgage for $1400, with interest from December 1, 1861. On the 7th day of October, 1863, the referee executed and delivered to the plaintiff a deed of the mortgaged premises. Upon this state of facts the plaintiff brings this action, under the act of the legislature of 1855, “ to provide for compensating parties whose property may be destroyed in consequence of mobs or riots,” to recover the value of a building which was standing upon the land covered by the mortgage, and which was burned by the rioters on the 15th day of July, 1863, nearly three months prior to the conveyance to him by the referee.- At the close of the plaintiff’s case, a motion was made to dismiss his complaint, upon the ground “ that the plaintiff, not being the owner of the building at the time of its destruction by the mob, on the 15th day of July, 1863, could not recover in this action. Also that the act of the legislature under which the action was brought, was unconstitutional.”
    The court denied the motion, and the plaintiff had judgment for $3000, that being the value of the building, as assessed by the jury. The court ordered that all proceedings on the part of the plaintiff upon the verdict be stayed, until the • exceptions taken on the trial should be heard and determined, in the first instance, at the' general term of this court.

      A. R. Dyett, for the plaintiff.
    I. At common law a mortgage (mortuum vadium) passed the entire title and possession to the mortgagee, who was not accountable for the rents and profits, the estate being £< dead” to the mortgagor. The mortgage was an invention to secure interest or “use” for the money loaned, when it was unlawful to take it directly. If the money were not paid at the day, the estate became absolute.' The enlightened jurisprudence of a-subsequent period permitted interest for money loaned, .and courts of equity modified the harshness of the common law so far as to permit the mortgagor to receive the rents and profits, and enjoy the possession, and made the mortgagee accountable for the rents if he received them. But this rule prevailed in courts of equity alone, which refused this indulgence to the mortgagor when the premises were an inadequate security, and hence receivers are frequently appointed, of the rents and profits, in foreclosure cases, and they are paid over to the mortagee whenever necessary to satisfy his demand. They belong to him and are - mortgaged to him in terms. By the Revised Statutes, (2 R. S. 312, § 57,) a mortgagee is for-' hidden to bring ejectment, and has no remedy therefore but in equity. With this single exception, at law the rule of the common law still governs the mortgage. ' It is frequently stated that the - mortgagee has but a chattel interest, under the Revised Statutes. By that is meant that that is the effect of the statute. Although the equity of redemption is regarded as the legal estate, for many purposes, it is not the legal estate, after all. The legal estate is in the mortgagee. (4 Kent’s Com. 137, 140, 155 to 162.)
    II. By the judgment of foreclosure the equity of redemption was cut off, and the mortgagor was entitled only to the possession and the rents and profits until the sale. He could redeem only as a matter of favor, upon application, to the court. The plaintiff might have had a judgment of strict foreclosure, instead of a sale, which was merely for the purpose of collecting any deficiency of the mortagaged premises, insufficient to pay his debt. By the sale and purchase by the mortgagee, the title became absolute from the date of the mortgage.

    III. The building was a part of the realty, and as much land as the soil itself. The mortgagor had no right to dispose of it except subject to the mortgage. He could only use and enjoy it. This is an action at law to recover, not for an injury to the possession, nor for mere waste, though such actions have been allowed, even against a mortgagor in possession, (4 Kent’s Com. 162,) but against a third person for . the willful destruction of the building itself, id ést, a permanent injury to the land, committed after forfeiture and a judgment of foreclosure.
    IY. The action was brought after the sale and the referee’s deed to the plaintiff, and if the mortgagor, in such a case, were allowed to bring the action and recover for the loss of the land mortgaged, not only would the mortgagee be deprived of his security,"but the damages in such a case, representing the land itself, would be given to him who has no sort of right to, or interest in, it after the mortgage is executed, and especially after a judgment of' foreclosure, except the sole right to the possession and enjoyment of it. As well might the mortgagor be allowed after the sale to maintain ejectment against a third party, wrongfully in possession, to recover the land itself. Can any one doubt that if the mortgagor had carried off or wilfully destroyed the building, he would have been liable to the plaintiff in an action for its value ? How, then, can he be permitted to recover its value if a third person carry it off or destroy it ? Yet there is no difference in principle in the two cases. If the mortgagee, therefore, cannot recover, nobody can. (4 Kent’s Com. 156, 157. 1 R. S. 750, § 8.)
    Y. The referee’s deed was equivalent to a conveyance by the mortgagor, of the title, and related back to the date of the mortgage which expressly covered the building. . Such a conveyance carried with it the right to the cause of action, and the damages for the destruction of the building. (6 How. Pr. 161. 22 Barb. 110. 17 N. Y. Rep. 466.) It would be a perfect answer to an action to recover' damages for property destroyed, even if brought by a then owner, that before the action was commenced, or even before the trial, he had sold the property or assigned his interest in it to another. The vendee or assignee alone could recover, or nobody could.
    YI. The term “ property,” in the act of 1855, is nomen generalissimum, and is not confined to a title in fee. (Bouvier’s Laio Dic. h. v.) Ho matter what, therefore, the nature of the plaintiff’s estate or interest, if it be such as entitles him to recover, it satisfies the language of the statute.
    YII. If we be right in the foregoing views, all the exceptions taken on the trial by the defendants, except that noticed in the next point, are untenable, for they are- all based on the idea that the plaintiff’s estate or interest in the premises was not of a character to entitle him to recover.
    YIII. The only remaining exception is based upon the ohjection to the constitutionality of the act in question. As that question has been already decided in this court in favor of the plaintiff, it is unnecessary to argue it.

      J. K. Haclcett, for the defendants.
    I. The court erred in refusing to dismiss the complaint upon the ground that the plaintiff was not the owner of the building at the time of its destruction.

      (a.) The plaintiff, as mortgagee, had no property in the mortgaged premises. His interest under the mortgage was a mere chattel interest. (Jackson v. Willard, 4 John. 40, and cases cited in note (a.) Jackson v. Bronson, 19 id. 325. Wilson v. Troup, 2 Cowen, 195.) The plaintiff, as mortgagee, could not convey or transfer his rights and interests Under the mortgage to a third person, distinct from the debt which it was intended to secure. (Aymar v. Bill, 5 John. Ch. 570. Waring v. Smyth, 2 Barb. Ch. 128.) The interest of the plaintiff under the mortgage was not liable to sale upon execution. (Jackson v. Willard, supra. Eaton v. Whiting, 3 Pick. 484. Blanchard v. Colburn, 16 Mass. Rep. 345.) The legal estate in the mortgaged premises was in the mortgagor. (Hitchcock v. Harrington, 6 John. 290. Runryan v. Mersereau, 11 id. 534. Astor v. Miller, 2 Paige, 68. Roosevelt v. Heirs of Fulton, 7 Cowen, 79. Bryan v. Butts, 27 Barb. 503. Willington v. Gale, 7 Mass. R. 138.) The legal estate being in the mortgagor, he could maintain an action to recover the damages occasioned by the rioters in the destruction of the building, and the judgment delivered in favor of the mortgagee would not constitute any defense to the action.

      (jb.) The plaintiff’s* mortgage would indeed be a profitable one if this action could be sustained. He is now owner of the lot upon which the building stood, at a cost to him of $1000, subject, it is true, to a mortgage of $1400. The judgment reimburses the plaintiff the $1000 paid for the lot, and leaves the owner of the lot with $2000 as the net proceeds of his $500 mortgage, upon which there was only adjudged to be due the sum of $748.42.

      II, The court erred in refusing to dismiss the complaint upon the objections taken to the constitutionality of the act of 1855.
   By the Court, Robertson, Ch. J.

There can be no question as to the right of the plaintiff to recover whatever damages he sustained by injury to the buildings or the premises mortgaged to him, so far as he lost or was likely to lose thereby, any part of the debt secured by such mortgage, which he could otherwise recover. But if the evidence in the case can be appealed to, it would show that in the action for the sale of such mortgaged premises, the amount due the plaintiff was about seven hundred and fifty dollars, and he bought them with the buildings destroyed, subject to a prior mortgage, for the sum of one thousand dollars, which exceeded the amount due. That tended to show, and without further explanation would have shown, that as mortgagee he suffered no injury by the destruction of such buildings.

The claim made on behalf of the plaintiff is, that he became owner in fee of the land mortgaged and the buildings upon it, either by the judgment of sale thereof in the action to enforce his mortgage, or by his subsequent purchase, or by one or both, assignee of any claim of the owner for damages. It will not be contended that he derived, or could derive, any more benefit, from his purchase at the sale, than any other purchaser, at the same sale would have done. On the contrary, it was not uncommon, formerly, to insert in a decree of sale an express provision permitting-a mortgagee to become a purchaser, as a.favor.

The judgment of sale of the premises, obtained by the plaintiff, was not a foreclosure of the equity of redemption of the owner by its terms, until a sale of the premises took place under it, when, like all judicial sales, the title of all the parties in the action to the premises passed to the purchaser.

The city of New York becomes by law simply the insurer against the destruction by a riot of property brought within its limits ; for damages arising; from which, it is bound to indemnify parties interested, to the extent of their interest only ; although the injury may be done to realty, the cause of action which arises is simply personal, and does not attend upon or pass with the title to the realty. Any sale of the latter will therefore not necessarily pass the right to the former. It is not impossible that as such insurers, that city may be responsible both to an absolute owner and a mortgagee; to the former for injury to his property, and to the latter for injury to his- security. It is possible that in such case, on paying the mortgagee for his damages, which would pro tanto diminish the owner’s debt on the mortgage, the city may be entitled tq be subrogated to his rights, as regards the security for such debt) and to offset the sum so paid against a claim by the owner. But the only question in such action, brought against the city for injury- by a riot, must be the extent of damages to the plaintiff, without regard to the right of any one else.

The doctrine'of the English courts, that a mortgagee isa conditional grantee of the land, who becomes absolute owner at law on the taking effect of the condition by a failure to pay the mortgage at the time fixed, subject only to a right in a court of equity to redeem, never prevailed-in this state. - The case of Kortright v. Cady, (21 N. Y. Rep. 343,) would seem to establish the doctrine that forfeiture by failure to comply with the terms of a mortgage, gives no new right, notwithstanding statements to the contrary in earlier cases. (Peterson v. Clark, 15 John. 205. Aymar v. Bill, 5 John. Ch. 570. Cooler v. Whitney, 3 Hill, 95. Southworth v. Van Pelt, 3 Barb. 347.) It has been always held that the mortgagor was seized and owner as to all but the mortgagee, (Hitchcock v. Harrington, 6 John. 290,) and that the latter had only a chattel interest by way of security. (Jackson v. Willard, 4 John. 41. Clute v. Robison, 2 id. 595.). He is even liable in trespass to the owner, (Runryan v. Mersereau, 11 John. 534;) cannot convey or mortgage his interest in the' land, separately from the debt, (Aymar v. Bell, ubi sup;) and cannot, before forfeiture, maintain an action of trover for trées cut down by the mortgagor, although they were his property as part of the freehold. (Peterson v. Clark, ubi sup.) If the mortgage he forfeited, a stranger cannot avail himself of it as an outstanding title, for a defense. (Jackson v. Myers, 11 Wend. 535. Raynor v. Wilson, 6 Hill, 469.) If legally in possession, the mortgagee or his assignee may, it is true, maintain himself there under his mortgage in order to collect the rents and profits until it is paid, (Munroe v. Merchant, 26 Barb. 383;) and a purchaser on an execution upon a judgment obtained for. the debt, becomes an assignee of the mortgagee for the same purpose. (Jackson v. DeLancy, 13 John. 537.) And, finally, the case of Stoddard v. Hart, (23 N. Y. Rep. 556,) settled that a mortgage is only a lien on, not a title to, lands. A mortgagee, after forfeiture, has been held to be entitled to bring an action of waste against the mortgagor or any one claiming under him, where it impairs his security, and perhaps even before forfeiture, (Southworth v. Van Pelt, 3 Barb. 347; Van Pelt v. McGraw, 4 N. Y. Rep. 110;) but he must show in such action that by reason of the mortgagor’s insolvency, and the inadequate value of the premises, he has been actually damnified. (Lane v. Hitchcock, 14 John. 213. Gardner v. Heartt, 3 Denio, 232. Yates v. Joyce, 11 John. 136.) In Laflin v. Griffiths, (35 Barb. 58,) the plaintiff was mortgagee in possession, and such possession, and the right to the rents and profits of the land, was prejudiced by taking away the fixtures ; his subsequent purchase of the land and merger of the mortgage were held merely not to waive or take away his right of action.

In the present case, the plaintiff was not in possession, and did not establish any ultimate injury to the security for his debt, by the acts of the rioters in question ; he therefore was not entitled to recover.

The exceptions being well taken, the verdict must therefore be set aside, and the case go back for a new trial, with costs to abide the event.


author: By the Court, McCunn, J.

text:
    Edwin Walsh, plaintiff and respondent, vs. The Washington Marine Insurance Company, defendants and appellants.
    1. The implied warranty of the seaworthiness of a ship by the insured is limited to the beginning of the voyage. If she become unseaworthy afterwards, from any cause whatever, the underwriters are liable.
    2. It is a presumption of law that when a vessel is wrecked, or founders at sea, shortly after sailing, without any stress of weather, or storm sufficient to destroy or impair a sound ship, but she founders in ordinary sea-going weather, her loss is to be attributed to decay, or some inherent defect in her material; and the insurers, under such circumstances, are exempt from the risk.
    8. When there is a conflict in the evidence, as to the seaworthiness of a vessel, or the extent of perils encountered, it is proper for the court to submit those questions to the jury, as being questions of fact for them to determine; and if the jury, after passing upon them, finds a verdict in favor of one the parties, that disposes of the case, so far as the question of the weight of evidence is concerned.
    4. Where a policy of insurance was “for the account of whom it may concern,” in case of loss the amount insured to be paid to the plaintiff or order; Held that the action was properly brought in the name of the plaintiff; the contract being, in substance, with him if authorized, for the benefit of all the owners. In such a case he has a right to sue on the policy as trustee for the owners, under the Code of Procedure.
    6. Where the loss, if any, was payable in thirty days after proof of loss'and proof of interest in the vessel insured; Held that it was not necessary that tho particulars of loss should be stated in the preliminary proof.
    (Before Moncrief, Monell and McCunn, JJ.)
    Heard April —, 1865;
    decided-1865.
    This action was brought to recover the amount of a marine policy on the ship Senator.
    The complaint, among other things, alleges that on the 22d of August, 1862, the ship Senator being sound,, staunch and seaworthy, and well fitted and equipped for a sea voyage, sailed from the port of New York for the port of Liverpool, and that while she was proceeding hence she was wrecked and totally lost by the perils of the sea.
    The answer sets up, as a principal cause of defense, that at the time of the sailing of said ship from the port of New York, she was unsound, rotten and unseaworthy, and in other respects unfitted to perform the voyage.

      The jury found a verdict in favor of the plaintiff for the amount of. the policy, with interest. A motion for a new trial upon the judge's minutes was made by the defendant and denied, and judgment entered in favor of the plaintiff upon the verdict; from which, as also from the order denying the motion for a new trial, the defendants appealed.

      Wm. D. Booth and Townsend Scudder, for the defendants, (appellants.)

      Elbridge T. Gerry and Wm. Curtis Noyes, for the plaintiff, (respondent.)
   By the Court, McCunn, J.

In disposing of this case, it will be necessary to give a careful consideration to the question of the alleged unseaworthiness of the ship at the inception of the voyage, as the counsel for the defendants rely principally upon that fact, and also upon the fact, that -the verdict is against the weight of evidence, and is not in accordance with the charge of the learned Chief Justice, who tried the case. ,

■A number of witnesses, and some of them agents and employees of the defendants’ company, who had closely examined the ship before she sailed, testified, as far as they were able to judge, that she was a good, staunch vessel. This the captain also testifies to, and he is corroborated most fully in this respect by the testimony of Mr. Poillon. Mr. Poillon is a most respectable and very intelligent witness, and his testimony should have very great weight in this case; moreover, he is interested as stockholder and director in this very company.

He testifies, the ship was known to him since she was built; that she was one of the best built ships belonging to New York; that he had done a great deal of work on her, from time to time ; that he had bored her timbers through and through in 1860, for the purpose of rebuilding her ; and that he then examined her condition, and she proved to be staunch and sound in every part.

It is also proven that the ship was but fifteen years old; that she was huilt of white oak; that she had been a most successful ship, in all her previous voyages; that she was stout, staunch and sea worthy; that on her previous voyage across the Atlantic, six weeks before this unfortunate voyage was undertaken, her cargo, of salt in bulk, was delivered in the very best condition. . • ■

That Captain Walsh, Mr. Poillon’s foreman, and Mr. Poillon himself, again examined her in April, 1862, by cutting out some of her bends, in some ten places, and looking at her timbers, and they were then found to be sound.

That the ship was recaulked, and her beams and bolts were examined in Liverpool, before sailing on her last return voyage, and she was found at thisi late period to be staunch and strong. Besides, the company had every opportunity to examine the ship ;. they knew her age : they saw the cargo go pn board; they closely scrutinized and examined her, when the stevedores were at work; in fact, from all that appears in the evidence, they knew, or might have known, as much about the ship as the owners did, and the insuring of her under these circumstances, was one of those reasonable risks incident to this kind of insurance.

To establish the unseaworthiness óf the ship, at the time of her departure, the defendants offered the evidence of the first mate, Shute, who testified that he had taken a falsa oath in swearing to the proof of loss, and the evidence of the second mate, Thompson, a person of very bad repute, to say the least. These witnesses, however, did not testify that the ship was unseaworthy when she left the port. They testified, simply, that the weather was moderate, and that the ship was scuttled; and this charge of scuttling, even.if true, could not, in the slightest degree, affect this policy, unless the defendants could prove that there was collusion between the captain and the owners, but of which there is not a single particle of evidence. The jury were justified in not crediting the testimony of Shute and Thompson, and we must assume that they did. not believe their statements either in relation to the vessel or the charges against Captain Cunningham.

From all the testimony in the case, I am clearly of opinion that the plaintiff established the fact that the ship, when she went to sea, was a good, stout, staunch and seaworthy vessel, and that, from her péculiar cargo, and the stress of weather, she foundered.

The carrying of grain, in bulk, on a long voyage over an angry sea, is accompanied with more danger than the carrying of any other kind of merchandise ; consequently the greatest care and skill should be exercised in preparing the bins or compartments for the reception of the cargo; for no matter how well a vessel is stowed, with this kind of merchandise, the planking of the floors and bins will sometimes give away, as the ship lurches or stands away on her new course, and the grain will necessarily run to the pumps, and prove to be most disastrous. This danger becomes more alarming when the vessel is beset with head winds and the crew are called upon frequently to wear ship, as was proven to be the case in this instance.

It is in evidence in this case, that the wind blew from every point of the compáss, sometimes blowing heavy with squalls, and with a heavy cross sea, setting almost always in a contrary direction to the ship’s course.

The protest, or notice of loss of the ship, although only received in evidence as part of the preliminary proof of notice of loss, yet to my mind it contains a true history of the cause of the disaster. This statement of loss was made by the witness Shute, and five of the seamen, immediately after the loss occurred,.and there is no doubt that it was principally made up from the log of the ship. It states that immediately after going to sea, she encountered heavy weather; and some of her sails were carried away; that the sea ran high, and a heavy swell set in; that the ship was placed under double reefed topsails, with staysail and trysail set for the purpose of keeping her head to the swell; on the following day' heavy weather still continued and a leak gained ; the ship’s rudder head broken, and she laboring heavily. The next day (25th) the weather continued about the same ; although both pumps going, the water from the leak was gaining fast; and the ship was headed for St. Johns, Newfoundland. The succeeding day (26th) a vessel came in sight, and the captain and crew of the Senator were taken from the wreck, in half an hour after which the ship foundered.

This is á brief outline of the protest as it was sworn to by Shute, and flatly contradicts his testimony given on the trial of this case, and corrroborates that of Captain Cunningham, and is therefore of vital importance. Captain Cunningham testifies that he took the ship to sea on the 22nd of August. The wind was then southward ; it was raining and blowing a pretty strong breeze, with a very heavy easterly sea. Next day the wind changed to the northward and westward, and blew heavily, and the grwin came up in the pumps. On the third day the pumps were going all the time. The wind had been all around the compass, and the weather squally, with a very heavy cross sea—the ship laboring heavily. That part of the time they were running under double reefed topsails, staysail and reefed spanker.' This certainly was heavy weather. And this statement of the captain, almost identically corresponds with the entries in the log book, which was kept by Shute ; and I can easily conceive how an American ship, fifteen years old, with a cargo of grain, deeply laden, under such a stress of weather, and in such a sea, could founder, in the manner described by the captain.

It is a well settled rule of law, that the assured only warrants the seaworthiness of the ship, at the begining of the voyage; if she becomes unseaworthy after that, from any cause whatever, the underwriters are liable. (Sherwood v. Ruggles, 2 Sandf. 55. Potter v. Suffolk Ins. Co., 2 Sumner C. C. R. 197. 1 Arnould on Ins. by Perkins, § 245.)

And it is also a well settled rule of law, that when a vessel is wrecked, or founders at sea,' shortly after sailing, without any stress of weather or storm sufficient to destroy or impair a sound ship, but founders in ordinary sea-going weather, the presumption is, that the loss of the ship arises from decay or some inherent defect in her material, and that the insurers, under such circumstances, are exempt from the risk; and such the learned chief justice charged to be the rule of law in this, case.

The request of the defendants’ counsel to charge upon the foregoing proposition of law was embraced in the charge of the learned chief justice. The court in charging a jury, is not bound to follow the precise language or words of counsel; it is enough that the propositions of law are fairly laid down, substantially as requested.. (Holbrook v. Utica and Schenectady R. R. Co., 2 Kern. 236. Sperry v. Miller, 16 N. Y. Rep. 413. Bulkeley v. Keteltas, 4 Sandf. 450.)

The only conflict of evidence, I find, is that created by the evidence of Shute and Thompson, in swearing that the ship had moderate weather until she foundered.. This, however, is directly contradicted by the testimony of Captain Cunningham, as to the state of ihe weather, and by other testimony tending to show the vessel was seaworthy at the time she left the port. The chief justice was, therefore, correct in submitting this conflict of evidence to the jury as a question of fact for them to determine ■; and the jury having passed upon such evidence, and having found the question of seaworthiness in favor of the owners, this disposes of the case, as far as the question of the weight of evidence upon that question is concerned.

As to the question of a nonsuit, the plaintiff, when he rested, had clearly made out a case, within the terms of the policy. The action was properly brought, and he had proven sufficient to sustain his right to recover. The policy was in substance with him for the benefit of all the owners, and in this there was no ambiguity. The plaintiff was suing as trustee for others. This he had a right to do, under the Code. (§ U3.)

It was not necessary that the particulars of loss should be stated in the preliminary proof • and there is no variance between the evidence and proof. Therefore the grounds upon which the motion for a nonsuit was based, were not well taken. (Talcot v. Marine Insurance Co., 2 John. 136.)

A large number of authorities are cited by the defendants’ counsel, which do not apply to the questions involved in this case. The case of Warren v. United Ins. Co., (2 John. Cas. 231;) Court v. Del. Ins. Co., (2 Wash. O. C. 48;) Wright v. The Orient Mutual Ins. Co., (6 Bosw. 280;) Kinsman v. The York Mutual Ins. Co., (5 id. 460;) Talcot v. The Commercial Insurance Co., (2 John. 124;) Barnwall v. Church, (1 Caines, 217;) Mumford v. Smith, (Id. 520;) and Watson v. Clark, (1 Dowl. Pr. 336;) are cases where the vessels, after springing a leak, and after being disabled, were brought into a harbor of safety, and the real cause of the disaster ascertained. It is true, that in the case of the Midsummer Bloom, (1 Dowl. Pr. 336,) the captain, after discovering the disaster to the ship, and after making for a port of safety, got upon a reef at the entrance of the Belize river, and was then lost; yet from portions saved from the wreck, the cause of the inherent defect in her timbers was ascertained to a certainty, to exist at the inception of her voyage. It may be urged that in the case of Paddock v. The Franklin Ins. Co., (11 Pick. 227,) and Talcot v. The Commercial Ins. Co., (2 John. 124,) the vessels foundered before reaching a port of safety ; but in both cases the court set aside the verdict, simply on the ground of the very great preponderance of proof in favor of the insurers. In this case the great preponderance of proof is the other way.

The question has been raised, that because a ship’s carpenter was not employed on the voyage, the ship was unseaworthy, and a number of cases are cited as analogous to this case. On short voyages, where extra spars and cordage can be easily carried, a carpenter is 'not necessary. Such is the uncontradicted testimony, in this case, of an experienced ship master, Joseph Webster. The case of the brig Eliza, tried in 1811, and reported, 10 John. 58, was a case of extreme neglect, on the part of the ship’s carpenter. The brig, after being at sea for about six weeks, on a voyage from Hew York to Bordeaux, was found to be without fuel and candles; so that for want of light she could not navigate at night, but was obliged to heave to ; at the same time she was approaching a dangerous coast. There is nothing so necessary on board of a ship, at such a crisis, as, at least, light enough to enable the ship to discover the indications of her compass. Indeed, a ship might as well go to sea without a compass, as go without light; for without the latter, the courses indicated by the compass could not be observed. In the case of The Minorca, (1 Camp. 116,) it was proven, and not disputed, that the sails were so defective that the ship could not keep up with her convoy. And I need not remark, that in those days good sails were the most essential requisite of the ship. The case of the ship Mary, of Stromness, is not a case in point; although it must be admitted, that proper anchors are essential parts of the equipment of a ship, so as to prevent calamities on dangerous lea shores or rocks. The case of the ship Eliza, (Bell v. Car stairs, 14 East, 374,) decided in 1811, has no application. There the owners neglected in time of war to provide the proper neutral papers for the ship; so in the case of the ship Pennsylvania, in 1810, (3 Taunt.) In the case of the ship 11 Holly,” reported, 3 Gar. & P. the question was left by Lord Tenderden to the jury, whether the ship was unseaworthy or not, she having gone to sea without a mate. I cannot find the slightest resemblance in any of the above cases to the one under consideration.

The case cited, by the plaintiff’s counsel, of Smith and others v. Bissell and others, (vol. 15 of Decisions in Court of Sessions, in Scotland, pp. 617 to 620,) is a much stronger case in favor of the defendant than this case, and yet in that case it was held that the plaintiffs were entitled to recover.

All the evidence in the cáse was properly received. The admission of irrelevant testimony unobjected to, is not ground for a new trial. The evidence of nautical men was properly received. (Duer on Insurance, 683. Arnould on Insurance, 256. Beckwith v. Sydebotham, 1 Camp. 116.)

It is urged that the master was culpable in not heading sooner for land, when he found his ship in a sinking condition. The best built ships often leak for days after going to sea, when they have been lying up in a dry climate. The captain, no doubt, in this case, supposed that after being at sea for a few days, the timbers and planking would swell and the. leakage stop. Besides, the captain was a competent navigator, and the owners are not liable for his error of judgment, if such error took place. (Copeland v. N. E. Ins. Co., 2 Metc. 432.)

For these reasons, the judgment should be affirmed.


text:
    Nathaniel A. Cowdrey, plaintiff and appellant, vs. William A. Coit, defendant and respondent.
    1. Where the owner of land purchases the same upon the foreclosure of a mortgage existing prior to his acquisition of the title, this will only give him a right of action on covenants in the deed to him, to the extent of the amount paid by him to relieve the land from the burden of such mortgage, precisely as if ho foreclosure had taken place.
    2. The obligee of a bond given for the purchase money of land, (or his assignees,) is entitled to recover in an action on such bond, at least the excess of the amount due by its condition, over the sum for which the obligee is liable on the covenants in his deed to the obligee, if no more.
    3. If one in possession of premises under a deed with full covenants, upon a sale thereof under a prior mortgage becomes himself the purchaser, and assigns his bid to another, who obtains a deed of the premises from the sheriff, this is not such an eviction of the original grantee as is produced by the act of the law, or is the necessary and legitimate consequence of the existence of the mortgage foreclosed, and the action upon it; but is the result of the party’s own voluntary sale of his interest acquired by bidding off the premises, and allowing his vendee to take the sheriff’s deed.
    4. Such sale of his interest in the land, to another, will not create anew a liability on the part of the obligee in the bond, to refund the whole pui'chase money, by way of damages for breach of the covenants in his deed.
    (Before Robertson, Ch. J. and Garvin and McCunn, JJ.)
    Heard February 14, 1865;
    decided May 27, 1865.
    This was an action upon a bond given by the defendant upon the purchase of certain land in Brooklyn, to secure payment of the purchase money thereof, of which bond the plaintiff was assignee. Such premises were conveyed in fee by the seller, who was the obligee in such. bond, (Hawke,) to the defendant -by a deed with covenants of seisin, for quiet enjoyment, against incumbrances, for further assurance, and with warranty. They were, when so conveyed, subject jointly with other premises to a prior mortgage not mentioned in such deed. Upon a subsequent foreclosure of such mortgage both parties attended upon the sale of such premises and bid for the same; they were bid off for a certain sum by the defendant, who forthwith assigned his bid to a third person (Hardy) who took the deed directly to himself from the sheriff, and entered into and has since retained possession^ of the premises by virtue thereof. The obligee in such bond and original vendor of the' premises, at the time of their sale by him, delivered to the defendant to sell a certain mortgage by a third person to such obligee, upon certain other premises, in order to have its proceeds applied to paying off the mortgage upon the premises so sold. It did not appear that the defendant was authorized to apply such proceeds to payment; but the first mentioned mortgage was subsequently redelivered to such obligee and canceled. Such obligee testified that by agreement he was to take care of the mortgage on the premises conveyed to the defendant. The defendant testified that when he took the deed to himself, and received the mortgage before mentioned, to sell it, he told the obligee that he could not buy the property and give his mortgage, unless the prior mortgage was paid off, who replied that he gave him (the defendant) such other mortgage to sell, to enable him to pay off the prior mortgage.
    The answer alleges that it was understood and agreed between the obligee and the defendant,, at the time of the execution of the bond in question, that the obligee should pay off the prior mortgage, and that until such mortgage was so paid off, the bond should not become binding upon the defendant. And the defendant claimed that the prior mortgage having been foreclosed, and the land sold, and the defendant ousted, these facts constituted a failure of the consideration for the bond. - On the trial, the court decided that the defendant was entitled to a judgment, dismissing the complaint; and judgment having been rendered accordingly, the plaintiff appealed.

      F. N. Bangs, for the appellant.

      B. W. Bonney, for the respondent.
   By the Court, Robertson, Ch. J.

The liability of the defendant in this action depends entirely upon that of the obligee of the bond, which forms its subject, upon his covenants contained in’ the conveyance by him in the defendant, which formed the consideration of such bond. If, upon any of such covenants, the obligee. in such bond was liable to refund the whole amount of purchase moneys with interest and expenses, the defendant would, of course, not be liable at. all upon a bond which formed the consideration, for-such conveyance; but.if such obligee were liable on such covenants, for a less sum only, the plaintiff would be entitled to recover merely the difference between such sum and the amount-.of such bond. The defense of a- failure of. consideration for a contract is allowed simply to prevent circuity of action, particularly in case of an action.for the recovery of any unpaid portions of-the purchase money of real .estate, where the conveyance to the purchaser contains covenants' respecting it. (Platt v. Gilchrist, 3 Sandf. 118.) Of course, where the amounts of the two recoveries would not.be the same,.a complete defense to a bond for the purchase money would not.be made out,.although by way of recoupment or counter-claim, the, amount paid by the purchaser, to remove the defect covenanted: against, might be deducted from the recovery for the purchase money unpaid.

. :By the purchase. by the defendant of the premises in question, with others, upon the foreclosure of the original mortgage upon .them, if he had taken the deed for them to himself, he would- have become entitled to recover, on the covenant for quiet possession in the conveyance; to him, the proportion of the'amount which he so paid which was. chargeable against the premises in question for their share, of the burden of such mortgage, (Hunt v. Amidon, 4 Hill, 345;) he would have been entitled to recover only the same amount on the covenant against incumbrances. (Hall v. Bean, 13 John. 105. DeForest v. Leete, 16 John. 122.) The rule of damages would, of course, also be the same on the covenant of warranty in such conveyance, although it covers the title as well as the possession ; since a conveyance in such foreclosure suit to the present defendant would equally have prevented his title from being affected by the mortgage foreclosed. Indeed, it is doubtful whether any action could be maintained upon such covenant at all where the defendant had not been actually evicted. (Kent v. Welch, 7 John. 258. Miller v. Watson, 5 Cowen, 195.) If the doctrine laid down in Waldron v. McCarty, (3 John. 471,) as to recovery under a covenant for quiet possession in consequence of such purchase, were applicable to a covenant of warranty, no such action would lie. If the doctrine of equitable or presumptive eviction, first started in Hunt v. Amidon, (ubi supra,) is to govern, the liability upon both covenants would be the same. If that be so, the result of a purchase of land by its owner, upon a foreclosure of a mortgage existing prior to his acquisition of title, would give him simply- a right of action on covenants in the deed to him, to the extent of the amount paid by him to relieve such land from the burden of such mortgage, precisely as if no foreclosure had taken place.

There would be no hardship in applying such rule in this case. The plaintiff attended the sale under the foreclosure, and endeavored by bidding to become the purchaser of the land, and thereby be enabled to complete the title of the defendant, and relieve it from the incumbrance of such mortgage; the defendant thwarted him in such purpose, by bidding against him, thereby compelling him, if he became the purchaser, to pay a larger amount; but by the land being struck down to the defendant, he became the equitable owner of an indefeasible title thereto, and assignee of the mortgage. His subsequent transfer of such right to a third person could not divest the obligee in the bond in question, of the right thereby acquired by him to a reduction of his liability on the covenants in his deed to the defendant, to such'share of the amount paid by the latter as was justly chargeable against the premises, to relieve them from such mortgage. Such being the case, the plaintiff, as assignee of such obligee, would be entitled to recover on such bond at least the excess of the amount due by its condition over the sum for which such obligee was so liable, if no more.

The eviction of the defendant from the premises in question, under the sheriff's deed, to his vendee in the foreclosure suit, was not the act of the law, or the necessary and legitimate consequence of the existence of the mortgage foreclosed, and the action upon it; it was the result of the defendant’s own voluntary sale of his interest acquired under the striking off of the premises to him, and allowing his vendee to take the deed; as much so as if he had taken a deed directly from the sheriff, and executed a new conveyance. By intervening, he lost his right to recover back the whole purchase money, if paid, or resist its recovery, if unpaid, and elected to confine himself to a claim for money necessarily spent to make his title complete. No subsequent sale by him of that title could re-create a liability of the obligee for the whole purchase money, by way of damages for breach of the covenants in his deed.

The preceding view renders it necessary for this case to go back for a new trial, when the questions of any additional consideration having been given for the bond in suit, beyond the conveyance of the land in question, and the right of the defendant to apply the sum paid by his vendee on the foreclosure as damages for breach of the covenant in the deed to him, and the amount taken by the plaintiff, out of court, in satisfaction of any part of,the claim of the plaintiff, as a bona fide purchaser of such bond, may be disposed of. It is not necessary now to express any opinion on those points.

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