author: Piebbepont, J.

text:
    Henry Young, Plaintiff, v. Sigismund M. Peyser, Defendant.
    1. Where the lessee 'of a term for years, the rent heing payable quarterly, assigns his property (including the lease,) to -a trustee for the payment of his creditors, and the assignee enters in the middle of a quarter and occupies the premises until the rent of the current quarter becomes payable, the assignee is hable for the rent of the whole quarter.
    2. In such case where the assignee continued to occupy for fourteen days after such rent became payable, and then surrendered to the lessor, who accepted the surrender and took possession, such assignee is not liable for the rent of the premises, for the said fourteen days.
    (Before Hoffman, Slosson and Pierrepont.)
    Heard, April 9th;
    decided, July 3d, 1858.
    This cause came on to be heard at General Term, upon a case agreed upon between the parties, pursuant to § 872 of the Code, as follows, to wit:
    “By an indenture of lease, dated the Sd day of April, 1857, executed by and between the plaintiff as lessor, and William and Marcus Fñedlander as lessees, the plaintiff demised and rented to said lessees all the lofts above the first or principal story of the brick store number twenty-two, on the south side of John street, in the city of New York, for the term of one year, from the first day of May, 1857, at the yearly rent of fourteen hundred dollars, payable quarterly on the first days of August, November, February and May, for which the lessees bound themselves and their assigns. The said lessees entered in and upon possession of the demised premises under said lease, and remained in possession thereof until the 18th day of September, 1857, when they by an instrument under seal, and then and there delivered to the defendant, assigned to him in trust for the benefit of creditors all the property of said lessees, including the lease aforesaid.
    “ The defendant in and by the terms of said assignment of said W. & M. Fñedlander, was preferred as a creditor to a considerable amount. The defendant accepted the said assignment, and by virtue thereof entered into the said premises and took possession thereof, and actually used and occupied the same thenceforth and until the 14th day of November, 1857, at which time said defendant surrendered the lease and premises to the plaintiffs, who accepted the same.
    “No part of the quarter’s rent of said premises, which became due and payable by the terms of said lease on the 1st day of November, 1857, has been paid by the defendant or any other person.
    “ The question is now submitted to the Court whether the defendant is or is not personally hable for the payment of the rent of said premises, according to the terms of said lease, which accrued and became payable on the 1st day of November, 1857, and whether he is or is not also liable in addition to pay a proportionate part of the rent, from the 1st to the 14th day of November, 1857, until which time he was in the actual occupation thereof.
    “ If the defendant is personally liable for the rent which accrued on the first of said November, the Court will render judgment against him for the sum of three hundred and fifty dollars, and interest from November 1st, 1857. And if the defendant is liable for the additional rent up to the 14th of November, 1857, the Court will render judgment for the additional sum of fifty-eight dollars and twenty-five cents.
    “ The prevailing party is to recover fifty dollars costs.”

      Jno. E. Burrill, for the plaintiff.

      James L. Bhelps, for the defendant.
   By the Coubt.

Piebbepont, J.

—The defendant was not obliged to enter under the léase assigned; he might have caused a removal of the goods of the assignor, without any act indicating an acceptance of the lease assigned, and thus have prevented any personal liability had he so desired. He however chose to accept the assignment, and to enter and enjoy the premises. He afterwards surrendered to the landlord. He is clearly liable for the quarter’s rent due November 1st, 1857; but not for the fourteen days following. {Martin v. Black, 9 Paige, 643.)

Judgment must be entered for the plaintiff as stipulated in the case.

Judgment accordingly.


source: Caselaw Access Project

author: Woodruff, J.

license: Public Domain

text:
    John Purchase, Plaintiff, v. Mahlon Mattison et al., Defendants.
    The acceptance of the note, bill or check of a third person from the payee, in payment of a precedent debt, and giving an unqualified credit therefor in extinguishment of a corresponding amount due is receiving the same for a valuable consideration, and the holder is entitled to recover thereon although the drawer or maker has received no consideration therefor, but advanced the same for a special purpose, under such circumstances that the payee could not recover thereon.
    (Before Slosson and Woodeükf, J. J.)
    Submitted, July 11, 1857;
    decided, July 3d, 1858.
    This case came before the General Term upon a verdict for .the plaintiff, taken subject to the opinion of the Court, and upon a hearing thereof, judgment was ordered for the plaintiff on the verdict at the March Term, 1857.
    The report of the case as disclosed upon that hearing is contained at length in 6 Duer, 588.
    After the decision, an application was made by the defendants for a resettlement of the case upon grounds which were deemed sufficient, and the case was resettled, and upon the case as resettled it was submitted to the Court for further consideration.
    The alterations made in the case, appear fully in the opinion of the Court, and the report of the case in 6 Duer renders it unnecessary to repeat the statement of facts here.
    ff. Stevenson, for the plaintiff.

      John Graham, for the defendants.
   By the Coubt.

Woodruff, J.

— Since the decision of this case at the General Term in March 1857, an application was made for a resettlement of the case. That application was granted, and the case has been resettled and again submitted. It now appears that the late Chief Justice, who presided at the trial, while the defendants were giving evidence in relation to the origin and consideration of the checks, and the habits of dealing between the defendants and Solinger and others, the parties to whom the cheeks were advanced, stated to the defendants’ counsel that it was unnecessary to pursue that branch of the case further. That it was evident that Solinger and the parties concerned with him could not recover upon the checks, and that no further testimony was requisite upon that point; from which suggestion there was no dissent by the plaintiff’s counsel.

It is not very elear that this alone renders any further consideration of the case on our part necessary. It may be conceded that, as between the defendants and Solinger and others, the checks were purely accommodation checks, upon which the latter could not recover as against the makers, and yet their transfer in payment of a debt which they owed be perfectly good. It is we apprehend settled, that the holder of an accommodation note or check may use it either to pay or secure what he owes, and with the same validity and effect as if he borrows money and uses it for the like purpose. Indeed the view we have taken of this branch of the case on the former hearing, is not materially altered by the amendments, save only that the concession that Solinger and others could not themselves recover on the checks, seems to have been assumed before the close of the trial.

But it further appears by the case as now resettled, that the Chief .Justice, before receiving the verdict, stated “ that, in his opinion, there was but a single point in the case, and that was whether,—notwithstanding Solinger and the others concerned with him could not recover upon the checks,—the plaintiff was a holder for value from them, in such a way as to entitle him to recover upon the checks?” and thereupon he directed the jury to find for the,plaintiff, subject to the opinion of the Court; and although he is stated to have reserved the point whether, under the evidence, the plaintiff is entitled to recover, the indication is, as the case is now settled, that he contemplated the one question above stated, as the only material question to be considered by the General Term.

Payment of a pre-existing debt is a sufficient consideration to constitute the recipient of negotiable paper made by a third person, a Iona fide holder for value. Whatever doubt was thrown upon that question by one of the opinions in Stalker v. McDonald (6 Hill, 93), is removed by the case of Youngs v. Lee (2 Kern., 553), where it is held that a note received by the plaintiffs, in extinguishment of a demand upon a note not yet due, such latter note being surrendered, constituted the plaintiffs holders for value; and that they were entitled to recover, although the note so received was an accommodation note, and had been diverted from the purpose for which it was made.' In White v. Springfield, Bank (3 Sandf. S. C. R., 222) the subject is fully discussed ; there the note in suit was diverted from the purpose for which it was made and delivered to the payees—the payees delivered the note to the defendant, and received from the defendant their own draft held by the defendant. The latter was adjudged a holder for value, and entitled to recover on the note.

In The Bank of Sandusky v. Scoville (24 Wend., 115) the plaintiffs had discounted a note to extinguish a debt due by one Ward to the hank, and the avails went so far to discharge his liability to them. Practically, they took the note in part payment of Ward’s liability to them; it did not appear that the bank gave up anything, and yet the bank was held a holder for value.

The acceptance of the note of a third person as payment of a debt, when so agreed, is an extinguishment of the previous demand; and unless the debtor in some manner continues his liability, by indorsement or guarantee, recourse to him is lost. (Noel v. Murray, 3 Kern., 168.)

In this case the proof was unqualified and uncontradicted, that these checks were received by the plaintiff in payment; and he gave an unqualified credit of the amount in extinguishment of a corresponding sum due to him. The evidence thus shows a taking of these checks as so much cash, without recourse to his debtor, and at his own risk as to the solvency or insolvency of the drawers.

In The New York Marbled Iron Works v. Smith (4 Duer, 362), the proof was that the note was made for a special purpose; that it was diverted from that purpose, and that the maker received no consideration therefor; and that the plaintiffs received it in payment for goods previously sold and delivered to the payee of the note. The plaintiff was held entitled to recover. The language of this Court in General Term is as follows (p. 377): “ Since our judgment in White v. The Springfield Bank, . . . the law, at least in this Court, must be considered as settled, that the satisfaction of a precedent debt is as truly a valuable consideration for the transfer of a negotiable bill or note, as the advance in cash of its amount at the time of the transfer.”

This decision of our own General Term we should not feel at liberty to disregard, if the various conflicting dicta to be found in other cases made us otherwise doubtful of the plaintiff’s right to recover on this ground.

Upon- the whole case we conclude, as before, that the plaintiff is entitled to judgment upon the verdict. Many of the points discussed on the former argument are not affected by the resettlement of the case. The opinion then given must be taken as our opinion herein, so far as the case is unaltered.


author: Slosson, J.

text:
    Frank Wilbrand, Plaintiff and Respondent, v. The Eighth Avenue Railroad Company, Defendants and Appellants.
    1. Where a city railroad company, by authority of the corporation of Hew York, and with the sanction of the Legislature, has constructed a , railroad, and is running cars thereon through the streets of the city, the public have nevertheless the right to drive upon and across their track; but 1. not so as to interfere with the proper business of the company.
    2. If an individual sees fit to run his carriage or wagon upon the rails, he is bound to exercise more care and diligence and keep a better look-out, than he would be if he was not upon the track, to avoid collision.
    3. The company is entitled to the unrestricted use of its rails for the progress of its cars, within that limit of speed which the law allows them, and the driver of any other vehicle, being unnecessarily on the track, is bound to exercise greater care, than if upon the common pavement, to see that an approaching car is not impeded, and if through negligence or willfulness in this respect, a collision ensues, he should not have damages against the company, even though the servants of the latter are also in fault.
    (Before Hoffman, Slosson and Pierrepont, J. J.)
    Heard, April 9th;
    decided, July 3d, 1858.
    This cause came on to be heard at General Term, upon an appeal from the judgment rendered for the plaintiff, on a verdict had on the trial before Mr. "Justice Bosworth and a jury, on the 20th day of October, 1857.
    The defendants are a corporation, who are engaged in carrying passengers on a railroad, constructed through certain streets and the Eighth avenue, in the city of Hew York, under the grant of a privilege for that purpose, obtained from the corporation of Hew York and the further authority of the Legislature sanctioning the same.
    The action is brought to recover damages for the alleged negligence of the defendants’ servants, in driving the horses and car of the defendants, while the plaintiff was traveling with his horse and wagon through the Eighth avenue, by reason of which negligence the pole of the car was driven with violence against the plaintiff, and against his wagon, so that the plaintiff suf- ■ fered great bodily" injury and his wagon was broken, &c.
    The answer denied the plaintiff’s allegations, and charged the accident, if any, and its consequences to the plaintiff’s own reckless carelessness and fault.
    The plaintiff testified that he drove through one of the intersecting streets to the Eighth avenue and turned up that avenue, driving upon the railroad track, immediately behind a long lumber wagon which was going up the avenue on the track of the railroad; that he saw no car coming up the avenue; that he did not look; that he could have seen the car coming if he had looked; that he drove as close behind the lumber wagon “ as the pole of his wagon would let him;” that he was driving at the rate of at least five miles an hour when, after passing a few streets, the lumber wagon turned off to the right; this stopped his progress, and he also turned to go off to the right; just at this time he heard some one cry out “halloo” and then the tongue of a car which was behind him on the track (but had not been seen by him) struck the seat of his wagon, threw him out and broke the wagon; that the reason the pole so hit the wagon-seat was that in the endeavor of the driver of the car to stop his car, when he paused to turn, the pole of the car was thrown upwards and hit his wagon; that if the lumber wagon had not been there he should not have been hit; and if the lumber wagon had continued up the avenue the car would not have hit him; that after he heard the halloo he had not time to drive a foot; that he commenced turning his wagon when he heard the halloo, but the hindwheels were on the track. It was admitted that the Eighth avenue is 100 feet wide, and that the carriageway on each side of the railroad track is twenty feet wide; and there was no evidence that the car was driven faster than the usual and legal rate of speed.
    The defendants moved for a dismissal of the complaint upon the grounds (among others): 1st. That there was no evidence of negligence on the part of the defendants; and, 2d. That the plaintiff was himself in fault, and the injury was caused by his own negligence.
    The motion was denied, and the defendants excepted.
    After the cause had been summed up by the respective counsel, the Judge charged the jury, among other things, as follows:
    “ The fact that the plaintiff was driving on the railroad tracks of the defendants, was not such a wrong or fault on his part as will prevent his recovering in this action, if he was injured by the carelessness or negligence of the driver of the car, without any negligence on the part of the plaintiff, which contributed to produce the injury.
    “ If an injury is produced by the concurring negligence of the party injured, and of a third person, the one who is injured cannot recover.
    “It was the plaintiff’s duty to turn off the track, so as not to interfere with the cars making their trips, or making them within the time required by the articles which prescribe how often they shall be run.
    “ But if the driver of the car should see a cart on the track, and that the driver of the cart did not mean to turn off, the driver of the car would have no right to run deliberately into or against the cart. For such improper conduct of a person on the track, other redress should be sought.
    “ If there was negligence in the plaintiff in the management of his wagon in turning off the track which contributed to the collision, and if there would have been no collision had there been no carelessness in that respect on his part, then he cannot recover.
    “ But if he would have been run into if he had not turned ofij and if there was no negligence in the mode of managing his cart which contributed to the injury, and if it was produced by the negligence of the driver of the car, the plaintiff may recover.
    “Although the plaintiff did not look back, and therefore did not see the car (if you shall believe that to be the fact), yet if you believe that by the exercise of ordinary care on the part of the driver of the car, either by slackening his speed or applying his brakes, there would have been no injury, the defendants would be liable, if there was no other fault on the part of the plaintiff than mere negligence in not seeing the car until it was too late to get out of its reach, so as to avoid being injured by it.”
    The Judge also instructed the jury in relation to the damages, and the rules by which they were to be governed in determining the same, in case they should find for the plaintiff.
    The defendants’ counsel then requested the said Justice to charge the jury; (among other propositions,)

      “ That from the fact of the plaintiff having driven his wagon upon the railroad track in front of the cars, and continuing thereon without any apparent necessity, he was bound to use more care and diligence, and keep a better look-out than he would have been if he had not been on the track, that he might avoid any collisionwhich the said Justice declined to do, on the ground that the charge as made, properly presented that matter to the jury, and the defendants’ counsel then and there excepted.
    To the charge as made, no exception was taken. The jury found a verdict in favor of the plaintiff for $250, damages. The defendants appealed from the judgment entered on the verdict.

      Mott & Cary, for the defendants (appellants).
    1. The question of carelessness or negligence becomes a question of law when there is no dispute about the facts, and a non-suit should be ordered when the proof, as a matter of law, is not sufficient to establish such negligence or carelessness, as to warrant a recovery against the defendants. (Terry v. The New York Central R. R. Co., 22 Barb. R., 575; Willetts v. The Buffalo and Rochester R. R. Co., 14 id., 585; Spencer v. The Utica and Schenectady R. R. Co., 5 id., 337; Brown v. Maxwell, 6 Hill R., 592; Hatfield v. Roper, 21 Wend. R., 615; Brownell v. Flagler, 5 Hill R., 282; The Tonawanda R. R. Co. v. Munger, 5 Denio R., 255, 268; 4 Comst. R., 359; Haring v. The New York and Erie R. R. Co., 13 Barb. R., 9.)
    II. The Court should have nonsuited the plaintiff on his own proof:
    1; Because there was no proof whatever to show that the defendants or their agents were guilty of carelessness, negligence or fault.
    2. The defendants were on their own track, using it in the ordinary way, as they had a right to do.
    3. The plaintiff by his -own acts caused or brought about the collision he complains of, and which caused the injury.
    III. Before the plaintiff can recover, he must establish these two propositions:
    1. That the defendants’ agents were guilty of negligence. This is charged in the complaint.

      2. That the plaintiff was without negligence and without fault. (Spencer v. The Utica R. R. Co., 5 Barb., 338. And see cases above cited.)
    IY. After the plaintiff had rested his case, there was nothing in the defendants’ testimony that added any strength to the plaintiff’s case. But on the other hand the defense was, as a question of law, made much stronger, and the Court should have charged the jury as a matter of law to find a verdict for the defendants; because:
    1. The railroad was made by and belonged to the defendants absolutely for the purpose and use for which it was made.
    2. The city had granted to the defendants the use of that part of the avenue and streets where the track was located, which grant was afterwards recognized and confirmed by an act of the Legislature. (§ 3, chap. 140, Laws of 1854.)
    3. The defendants afterwards organized under the General Railroad Act. That the grant of the city and the acts of the Legislature have given the defendants all the power and rights of railroad companies.
    4. The corporation had a right to grant the use of so much of the street for railroad purposes. (Drake v. Hudson River R. R. Co., 7 Barb. R., 508.)
    5. Having such right vested in them, any other use of the track would be an infringement and an usurpation, and consequently the plaintiff was, under the circumstances, on the track without right; and the injury he received not being caused by any willful or intentional act of the defendants or their agents, or by any gross carelessness on their part, the judgment ought not to be sustained. (Lane v. Cranbee, 12 Pick. R., 177; 11 East. R., 61; 6 Cow. R., 191; 2 Pick. R., 621; Pluckwell v. Wilson, 5 Carr. and Payne, 375.)
    Y. The Judge erred in not charging the jury as requested by defendants’ counsel in each request.
    The requests of the defendants’ counsel were in every respect in accordance with the well-settled principles of law; and if the Judge had so charged the jury, the verdict would have been for the defendants.

      Chauncey Shaffer, for the plaintiff and respondent.

      I. The nonsuit was properly refused, because a clear case of negligence was made out against the defendants; and for the further reason, that if there was any doubt upon the subject, the whole matter was a question of fact for the jury. (7 Cow. R., 202; 4 Wend., 423; 7 Barb., 271.)
    II. The exceptions taken to the refusal of the Judge to charge are not well taken, because the Judge had already clearly and explicitly charged on those requests, so far as the law would permit him to charge, in favor of the defendants. (See the case of Williamson v. The New York Central Railroad, decided at the November Term of the Court of Appeals, November Term, 1857. See also Heegan v. The Eighth Avenue Railroad Company, 15 N. Y. R., 380.)
    The Court of Appeals have also decided (not officially reported,) that it is not negligence per se to drive a team oh a city railroad, where the cars are propelled by horse-power. (Heegan v. The Eighth Avenue Railroad Company, supra.)

   By the Court.

Slosson, J.

—We are inclined to think, that the motion for a nonsuit might properly have been granted, as the evidence introduced to show negligence on the part of the defendants was very faint, and probably was quite as pertinent to establish negligence on the part of the plaintiff, as of the defendants.

But however this may be, we think the Court should have charged the first proposition, submitted by the defendants’ counsel.

The Judge had charged, that if the plaintiff was not guilty of any greater negligence, than in not seeing the car until too late to avoid the collision, still if the driver of the car, in the exercise of ordinary care, by slackening his speed or applying his brakes, could have prevented it, the defendants would be liable.

The defendants’ counsel then requested the Court to charge, that from the fact of the plaintiff having driven his wagon upon the railroad track in front of the cars, and continuing thereon without any apparent necessity, he was bound to use more care and diligence, and keep a better look-out, than he would have been if he had not been on the track, that he might avoid any collision, which proposition the Judge declined to charge on the ground that the charge as already made properly presented that matter to the jury.

The charge as made, was that it was not negligence in the plaintiff, which would excuse the defendants, that the plaintiff did not see the car in time, the proposition which the defendants’ counsel requested the J udge to charge was, that from the unnecessary and voluntary position in which the plaintiff had placed himself upon the defendants’ track, he was bound to keep a better look-out, than if he had not been on the track. If this proposition is correct, and if the plaintiff’s not seeing the car in time, was in consequence of his not keeping a proper look-out, then it is apparent that the charge was wrong, or that the proposition requested, should have been also charged.

We think the proposition embodied in the request is a sound one. The public have a right, undoubtedly, to drive upon and across the track, but not so as to interfere with the proper business of the company, and if an individual sees fit to run his carriage or wagon upon the rails, he is bound to exercise more care than he would in driving upon the common pavement to avoid collision. Other vehicles may turn out to avoid him, coming or going either way, but a car can turn neither to the right nor left, and if the rule contended for by defendants’ counsel be not true, and if the charge of the Judge be correct, then if the driver of a vehicle sees fit to place himself in front of a car in motion, and willfully to slacken his own speed so as to delay the car, and impede its progress, and restrict its speed within the time allowed by law, he could recover damages in case of a collision, if the driver of the car, in the exercise of ordinary care, either by retarding his own speed or by applying his brakes, could have prevented the injury.

We think such a rule would place our city railroad companies at the mercy of every obstinate or reckless driver in the town, and would lead to disturbances and collisions innumerable.

The true rule is, that the company is entitled to the unrestricted use of its rails, for the progress of its cars, within that limit of speed which the law allows them; and that as between them and the driver of any other vehicle who may be upon their track, in front of one of their cars, the latter, being unnecessarily there, must exercise more care than he would if he were upon a common pavement, to see that an approaching car is not impeded, and if through negligence or willfulness on his part in this respect, a collision ensues, he should not have damages against the company, even if the latter are also in fault.

We cannot say that if the request had been charged the verdict would have been as it is. We think it might have been the other way, and, therefore, feel bound to direct a new trial.

Costs to abide the event.

Ordered accordingly.


author: Hoffman, J. Bosworth, J.

text:
    Maria M. C. Wetmore, Plaintiff (Appellant), v. William H. Kissam and Daniel Holsman, Trustees, and Charles Frederick Wetmore, Defendants (Respondents).
    1 An ante-nuptial settlement made in New Jersey, where the wife resided, conveying a wife’s property, real and personal, to trustees for her separate use during her life and after her death to the use of those who as her next of kin and heirs-at-law may he entitled thereto, as intestate estate, subject to a life estate in her husband if he survive her, will not be set aside on her application during the coverture, after issue born, on the ground that she was an infant when the settlement was made.
    2. Independent of the statutes of 1848 and 1849 for the more effectual protection of married women a female infant is bound by a settlement of her personal estate made in contemplation of marriage.
    3. Such a settlement of her real estate is voidable only, and may be avoided after she becomes of age.
    But whether she could avoid such settlement during the coverture Qucere ?

    That she may with the concurrence of her husband and by deed duly acknowledged. (See opinion of Hoffman, J.)
    4. Whether, since the statutes of 1848 and 1849, she may not avoid any settlement made while an infant? ( See opinion of Bosworth, J.)
    (Before Bosworth, Hoffman and Pierrepont, J. J.)
    Submitted, June 7th;
    decided, July 3d, 1858.
    This is an appeal by the plaintiff from a judgment of Mr. Justice Hoffman, at Special Term, made the 11th of January, 1858, dismissing the complaint.

      The plaintiff brought her action to obtain a judgment declaring a certain instrument in writing, or marriage settlement, dated the 15th November, 1855, void and of no effect; that the defendants, Kissam and Holsman (the trustees named therein), might release, convey and deliver over to her all the real estate, situate in the city of New York, whereof she was seised, possessed, or entitled to, at the time of the execution of such instrument, and likewise all the personal estate whereof such defendants have become possessed by virtue of the said instrument, and the proceeds and investments thereof, and to account to her for the rents and profits of such estate.
    The husband and the two trustees were made parties to the action. The husband, and the trustee Holsman, omitted to answer.
    The defendant Kissam stated certain facts in his answer which are admitted by the plaintiff, and he admitted all the other facts set forth in the complaint.
    The case thus made is this: On the 15th of November, 1855, the plaintiff then being an infant, and on the eve of marriage with the defendant, C. E. Wetmore, an indenture tripartite was entered into, in which she was party of the first part, the intended husband Wetmore of the second part, and Kissam and Holsman of the third part. It recited her possession of property, the intended marriage, and an agreement to settle such property to her separate use as thereafter set forth. The instrument then granted, conveyed and assigned to the trustees, the whole of the estate of the plaintiff, real, personal and mixed, whether the same be legal or equitable, situated either in the State of New York, Pennsylvania or New Jersey, or elsewhere. The trusts were:
    First. Until the said marriage took effect, for the use of the said plaintiff, her heirs, &c.
    Next. From and after such marriage, to pay over the net rents, profits and income to the said Maria, during the term of her natural life, to her sole and separate use, discharged of the debts of her husband, and also to pay such rents, profits and income in such manner as the said Maria should direct in writing.
    Third. Upon her death, leaving the said Charles F. Wetmore surviving, and no child or children, or the issue of any deceased child, in trust to pay the said Charles F., the whole of such profits and income during his natural life.
    Fourth. Upon her death leaving the said Charles F., and any child or children, or the issue of such child or children, then to pay a moiety of the same to the said Charles F. during his natural life, then the trustees shall stand seised of the premises, (subject to the life estate of the said Charles F., in the whole or a moiety thereof, as the case may be, according to the contingency aforesaid, in case he should survive the said Maria,) for the use and benefit of such person or persons as might be entitled to the same, at the decease of said Maria as her legal representatives, in case she had died a widow, intestate under and by virtue of the laws of the state in which the said estate or property may be situate respectively. "*á ■
    A power to limit and appoint the estate by last will and testament, subject to the life estate of the intended husband, was also conferred. There was also a power to sell and convey with her concurrence, to reinvest the proceeds, and to hold the proceeds or securities taken, upon the like trusts and conditions, and also a power to repair and improve the real estate, and to carry such authority into effect by borrowing and applying the necessary funds, or otherwise.
    The plaintiff was seised, at the execution of this instrument, of a large amount of real estate in the city of New York, described in the complaint, of certain real estate in New Jersey, and of personal estate invested in bonds and mortgages and otherwise.
    The marriage took place on the said 15th November, 1855; The plaintiff became of age on the 26th December, 1856. Her husband was at the time of the marriage, and continues to be a resident and inhabitant of the State of New York. The contract purports to be made in New Jersey, where the plaintiff resided.
    The trustees have entered into possession of the real estate in the city of New York, and of the personal estate, and taken the rents, profits and income of the same. The defendant Kissam, states in his answer, that there is other real estate out of the-State of New York, which passed by virtue of such conveyance.

      He states also that there has been one child of the marriage born, who is still living.
    The plaintiff states in her complaint, that since attaining her majority, she has learned that the laws of this state secure to her her property, free from the control of her husband, without the intervention of trustees, and she desires so to possess and control it.
    The Judge at Special Term dismissed the complaint, expressing his doubts upon the question, and with a view to have it receive the decision of the G-eneral Term.

      William M. Evarts, for the plaintiff (appellants).

      C. D. & G. A. Sackett, for the defendants (respondents).
   Hoffman, J.

—The rule laid down by Lord Eldon, in Milner v. Harewood (18 Vesey, 275), was not an express decision, but has been often since treated as the law of England. It was, that an infant was not bound by an ante-nuptial covenant to settle her real 'estate; but if she, during coverture, sought to annul it, her husband, if a party to it, could not be allowed to aid in such annulment; and without his concurrence, her act during coverture, would be ineffectual.

Clough v. Clough, (stated in 5th Vesey, 717), is an express decision of Lord Thublow, that an infant could not be bound by articles entered into, during her minority, as to her real estate. The children provided for in the settlement, had filed a bill to enforce it after the husband’s death.

Simpson v. Jones (2 Russ. and Mylne, 377), is a case constantly referred to. Sir John Leach, stated the rule very explicitly that the real estate of a female infant was not bound by a settlement on her marriage, because it does not become the absolute property of the husband, though he takes a limited interest in it. But the general personal estate was bound, because it would otherwise become his, and in truth it is his settlement, not hers. She could not give the trustees power to make sale during her infancy. But a good title could be made by her confirmation, when she attained twenty-one. The subject was leasehold settled to her separate use.

The following later English cases bear also upon the question: In Re Waring (12 Eng. L. and Eq. R., 351); Cava v. Cave, (19 id., 280); Field v. Moore, (35 id., 498,) and In Re Dalton, (39 id., 145). An act of Parliament, of the 18, 19 Vict., cap. 43, also deserves notice. The rule of these cases may be stated in the language of Lord Justice Turner, in Field v. Moore, “no valid settlement of a female infant’s real estate can be made upon her marriage, by virtue of any agreement on her part, or on the part of parents or guardians, or by the authority of the Court of Chancery.” The questions arose after the wife’s death.

The act of Parliament referred to provides, “that it shall be lawful for every infant, with the approbation of the Court of Chancery, to make a valid and binding settlement, or contract for settlement, in contemplation of marriage, of real or personal estate.”

The case of Cave v. Cave deserves more particular attention. The suit was instituted by a married woman against her husband, the trustees in a settlement after marriage, and the children. She had been a ward of the Court, and married without its approval. Articles were executed prior to the marriage, she being an infant. After the marriage further articles were executed, she still being an infant. These were in 1839; and in 1850 a settlement was made executed by both, and acknowledged by the wife. The object of the suit was to obtain the sanction of the Court for the amendment of the two articles of 1839, and the confirmation of the settlement of 1850. It was held that the Court possessed the same power over the parties, notwithstanding the lapse of time, which it would have possessed had the marriage been recent, and which it possesses in every case of a marriage of its ward without its sanction, subject nevertheless to the due protection of the rights and interests of persons who have come in esse since that period. It was referred to a master to ascertain whether the settlement of 1850 was a proper one, or whether it ought to be received. The general doctrine was recognized that the deed of an infant female before marriage did not bind her. I cannot find in this case the doctrine of an obligation upon the Court to rescind articles.

In our own state I find very little of authority upon the subject, Temple v. Hawley, (1 Sand. Ch’y R., 153,) and Strong v. Wilkin, (1 Barb. Ch’y R., 11,) are of importance.

In the former case, the point determined was the invalidity of a deed of settlement executed not by the infant but by a special guardian appointed to approve of the marriage and settlement, and to join in it. The Assistant Vice-Chancellor examines the cases with care. He concludes that a settlement made by a female infant on the eve of marriage, will not bind her. She may disaffirm it, but when she may do so he leaves a doubtful question. After coverture she may do it of course, if she has not affirmed it in the interim. And it can be affirmed by her during coverture, after she becomes of age, with the assent of the husband. He shows that Chancellor Walworth sanctioned this point in his order of June 4th, 1839.

He also considers that the preponderance of authority was, that the wife could not disaffirm the contract during coverture.

In Strong v. Wilkin, (1 Barb. Ch'y R., 11,) the settlement before marriage was of personal property alone. There was in the instrument what was considered a power to make a will. After the marriage, and after the wife had arrived at full age, one of the trustees died, and she-iexecuted an instrument, with her husband, appointing a trustee in his place. She then made a will and died, leaving the husband and several children. The object of the suit was to establish the will, by which a life interest was given to the husband, and then upon his death divided the property equally among her children.

If the ante-nuptial settlement was bad, the will of course was void, and the husband took the whole under the statute of distributions. Thus the main point was the validity of that settlement. The Chancellor recognized the authority of Simpson v. Jones, (2 Russ, and Mylne, 376,) that a female infant is bound by a settlement, made on her marriage, of personal estate, because such personal estate becomes the property of the husband, and it is in truth his settlement, not hers. Having disposed of the other question, viz.: That the woman could make a will under the power, he sustained the will.

As a decision, the case amounts to this: An ante-nuptial settlement of personal estate by an infant is valid, so far at least, as that she may affirm it, and without affirmance that it shall be effectual to sustain what she does under it when of age. I think it is to be deduced that in the judgment of Chancellor WAL-WORTH, she could not disaffirm it even when of age.

In the great case of McCartee v. Teller, (2 Paige, 550; 8 Wend., 290,) it was determined, that an equitable jointure, or a competent and certain provision for the wife in lieu of dower, if assented to by the father or guardian of the infant before marriage, is an equitable bar of dower. The Chancellor appears to consider that a strictly legal jointure under the statute in force in 1817, was a legal bar, without such knowledge or assent, unless some circumstances of fraud attended it.

The Revised Statutes of 1830 (1 R. S., 741, §§ 9, 10,) regulated this subject by providing, that to constitute a valid bar of dower, the provision by way of jointure must be expressly assented to in writing, by the woman if an adult, and both by her and her father or guardian, if she is an infant. And if an infant, her assent is to be evidenced by her joining in the conveyance with her father or guardian.

This appears to be a qualification of the provision in another part of the Revised Statutes, excepting infants and idiots from the power of aliening lands recognized to exist in all other persons capable of holding them. (1 R. S., 719, § 10.)

Again, we find in our state this rule fully established, that every conveyance of real estate made by an infant is voidable only. It is not void. The grantee has a legal estate and right, until something is done sufficient to disaffirm and annul it. (Bool v. Mix, 17 Wend., 130; Eagle Co. v. Lent, 6 Paige, 635; Dominick v. Michael, 4 Sand. S. C. R., 416.)

It appears also to be settled that the deed of an infant cannot be effectually avoided until he come of age, whatever right he may possess to the pernancy of the profits. (Bool v. Mix, ubi supra, Tucker v. Morland, 10 Peters, 73; Roof v. Stafford, 7 Cow., 183.)

But when of age, his power to do so is incontestable.

As to what will amount to a disaffirmance, this at least is clear, that a conveyance of the same property to another after arriving at age, and accompanied with an entry, will have that effect. (10 Peters, 73, and the cases in this state there cited; Dominick v. Michael, 4 Sand., 421; 17 Wend., 119.)

One other rule of our law should be noticed. A married woman of full age may execute a deed of her lands without the concurrence of her husband, without his union in the conveyance. She is only required properly to acknowledge it. (Albany Fire Insurance Co. v. Bay, 4 Comst., 9.)

The statutes of 1848 and 1849 operated to exempt the personal property of the plaintiff as well as the rents of the real estate from the disposal or debts of her husband; to constitute both, as well as the real estate itself, her sole and separate property, as if she were a single female. (Act 1848, § 1.) The act of 1849 (§1) gives full power to convey and devise any real and personal estate held by her. I understand this power to be unlimited, not confined to the property acquired during marriage, referred to in the preceding clause of the section.

But the fourth section of the act of 1848, and the third section of that of 1849, contain this provision: “All contracts made between persons in contemplation of marriage shall remain in full force after such marriage takes place.” Unless this refers to contracts by infants, is it not wholly useless ?

This raises the important question, are infants not included in this provision by reason of their common law disability, or the statutory exception in our Revised Statutes, before referred to ? or does this provision render valid and effectual all contracts and conveyances of this peculiar character, viz., those made in consideration of marriage? I cannot but consider the phrase contracts to comprise conveyances.

And we are brought back in this aspect of the question to the great case of Drury v. Drury, and Chief Justice Wilmot’s opinion in it. (5 Brown’s P. C., 570; Wilmot’s Opinions, 177.) I may first observe that Chancellor Walworth speaks of it “as having exhausted the whole store of ancient learning in respect to the rights and liabilities of infants.” (2 Paige, 558.)

Again, this decision is recognized in the opinions of all the Judges, Vice-Chancellor Edwards, the Chancellor, and Justice Nelson (in McCartee v. Teller), ut supra. Nor does the actual determination in the Court below, or in the Court of Errors, in the least degree affect it, or any of the propositions established in it. The provision was not a strict legal jointure, within the acts, and was so unjust and inequitable, as that it ought not to be deemed an equitable jointure, and so a bar.

Our own statute (1 R. L., 58, §§ 8, 9, 1813 ) then in force was a transcript of that of 27 Henry VIII, ch. 10. (8 Wend., 275.) And Justice Nelson says: “I lay out of the case the question whether an infant is bound by an ante-nuptial contract within the act concerning jointures. The argument of the Chancellor and the authorities relied upon seem to be entirely conclusive, that equally with adults they are bound by the statute.”

Now, a large portion of the celebrated argument of Chief Justice Wilmot was to show that within the general words in the statute of Henry VIH (“every woman married, having such jointure made or hereafter tobe made”), infants were comprised as well as adults. Stowell v. Zouch, in Plowden’s Commentaries, 553, is cited as an express authority to this point. He adverts to cases where the law implies an exception of infants out of general words, and says: “The only rule to be drawn from them is this, that when the words of a law in their common and ordinary signification are sufficient to include infants, the virtual exception must be drawn from the intention of the legislature manifested by other parts of the law, from the general purpose and design of the law; and from the subject matter of it.”

Still, it must be noticed, that the Chief Justice lays much stress upon the difference between the engagement of an infant binding her own estate, and the interest derived from the property of another person. AndLord Mansfield said: “I approve of the distinction taken by Mr. Justice Wilmot between infants contracting for conveying away something of their own, and where for barring themselves of a right which is a third person’s.” (2 Eden, 73.)

The language of our own act perhaps meets this distinction. Every marriage contract is included in its terms, and no distinction is made as to the source of the property. The general line of reasoning of the Chief Justice as to the inclusion of infants in general words, remains unaffected.

I conclude that by the true interpretation of the statutes, infants are comprehended, and their marriage contracts duly made, remain in as full force after marriage as if they had been adult.

But again, the marriage contract of a female adult, fairly and justly made, would certainly bind her, without any saving words. It would operate as a restriction upon her unlimited control of her estate, and in practice as to saving her from her husband and his debts, and securing a provision for the issue, is fully as important now as it was before the statutes. There seems in this strong ground for supposing that the clause referred to was, essentially, to preserve the marriage contracts of infants.

The subject has received much investigation in some of the other states.

In Maryland, the case of Leveridge v. Haight, (2 Md. Ch. Decisions, 81) determined these points. That the doctrine of Drury v. Drury, of a jointure settled on a female infant barring her dower, it might be admitted was the law of Maryland; that with such exception, the marriage settlement of an infant female could not bind her; that it could be disaffirmed by her, when her disability was removed; and that as she had in that case died in her nonage, when she could not have disaffirmed it, no one claiming under her could do so. »

The question whether she could have disaffirmed it, after coming of age, but while still covert, did not distinctly arise.

In Pennsylvania, we have the cases of Shaw v. Boyd (5 Serg. and Rawle, 312), and of Wilson v. McCullough (7 Harris,. 77). In the former, a bond of a female infant, given upon her marriage, conditioned to release her dower upon receiving $500 from the executors of the intended husband was held inoperative. The Court (Ch. J. Gibson) say, that a naked contract to bind real estate was insufficient, except perhaps in favor of the issue where they are purchasers. She might, at the death of the husband, if then of age, confirm or avoid the engagement at her pleasure.”

In Wilson v. McCullough, marriage articles were entered into between the intended husband, and the infant, with the assent of her guardian. He made certain covenants as to her property. Subsequently to the marriage, and after the wife had arrived at age, she and her husband executed a mortgage to secure his debt. This was held inoperative, the mortgagee having notice of the settlement. The husband was prevented from interfering by his contract, and the wife because of her coverture. “ He cannot join his wife in aliening or incumbering the estate, and as she cannot do so without him, therefore the settlement is necessarily operative during his life, not by her contract but by reason of her marital and his contract disability.

The Court add, that they decide nothing as to whether a female infant may bind her real estate in such a way.

McPherson on Infants, 522, and McQueen’s Husband and Wife, 252, are quoted with approbation, and these authors state the rule precisely upon the principle recognized by the Court of Pennsylvania.

The decisions in Virginia deserve much attention. The institutions of its society, as well as the ability of its tribunals, prescribe this.

In Tubb v. Archer (3 Hen. & Mumf., 399,) thes.e points were ruled:

First. Marriage articles are not to be rescinded after the marriage, even by consent of the husband and wife, or by any conveyance which they or either of them can make.
Second. The children born of the marriage are purchasers under both father and mother, by virtue of marriage articles.
Third. The husband’s rights as a purchaser for valuable consideration, by the marriage, are not surrendered, except so far as the articles, by a just construction, limit them.
Fourth. The rights of the wife stand upon the same footing precisely.
Fifth. Infants may contract by marriage articles or settlements, and such contracts will bind them when of fall age.

In Leigh v. Stewart (2 Leigh’s Rep., 76,) the husband and wife united in a settlement before marriage, when she was an infant. They joined in a bill to set it aside, and it cannot be doubted that this was after she became of age. In the Court below, she was privately examined as to her consent to the bill, and agreed to its being filed. It was held that the bill could not be sustained; that so far from the Court assisting the husband to frustrate the settlement, it ought to prevent him from attempting to defeat it. If he could not be allowed to do so, she could not do it without him.

In Healy v. Rowen, (5 Grattan, 414,) the Court of Appeals of that state held, that the assent of a guardian of an infant female to marriage articles was totally inoperative, and it was not confirmed by a subsequent deed, (even if that deed was executed after she had arrived at age,) for want of a proper acknowledgment under the statute. But the Court took occasion expressly to reaffirm the doctrine of Tvbb v. Archer. Baldwin, J., delivering the opinion says:

“ The Court perceive nothing to disapprove in the case of Tvbb v. Archer. The essential principle of that case is understood to be, that marriage articles made between an infant femme and her intended husband, beneficial to her and her contemplated issue, are obligatory upon the parties, and will be enforced in a court of equity by a settlement in conformity therewith, on the application of the issue of the marriage. Such a contract is distinguishable from other contracts, voidable on the election of the infant party. The distinction is believed to be wise and salutary.”

In these cases the line of reasoning of Lord Hardwicks, in Harvey v. Ashley, is adopted and carried out. (Stated at length in note to 8 Wend., 331.) Marriage agreements differ from all

others. The principal contract is the marriage; and an infant female may contract at the age of twelve. All other parts of the contract are collateral incidents. As soon as the marriage takes place, the principal contract is executed, and cannot be set aside or rescinded; the state and the capacities of the parties are changed, and children born or to be born are purchasers under it; purchasers both under the father and mother.”

The results of my examination of this important case, may be stated in the following propositions:

The questions are to be considered, first, independently of the provisions of our statutes of 1848 and 1849; next as influenced by those provisions.

First. The question is not, whether in a Court of law, a deed for a valuable consideration, executed and duly acknowledged, by the plaintiff and her husband, accompanied with an entry, would supersede the settlement, and pass a valid title to the grantee. The question is, whether a Court, acting as a Court of equity, will, upon her application, while still covert, and after the birth of issue provided for in the settlement, and when such settlement is a just and fair one, lend its aid to annul and cancel it.

1. There is much authority, both in opinions and decisions, before our Revolution, and in our sister states, for holding that marriage articles of an infant as to her own real estate, equitable and just in their provisions, will be supported. There is not, in our own state, an example of a positive decision to the contrary.

2. There is still more authority for holding that a court of equity, will not interfere with such a settlement of an infant, so long as she remains under the marriage disability.

3. There cannot be found a case in which, during the continuance of that disability, such a settlement has been set aside, upon the application of any one.

4. And as to personal property, the whole stream of decisions is to support the settlement.

Thus in this aspect of the case the complaint should be dismissed.

Second. Next, considering the case as affected by the statutes of 1848 and 1849.

1. If the marriage contract had been made by the plaintiff in New York, and she had been a citizen of New York, the whole of the real estate would have vested in the wife, free from the debts or control of the husband, with full power to convey it. This unlimited authority could have been exercised by her immediately upon coming of age, in favor of her husband, by a conveyance at any rate to another, to be transferred to Mm. (2 Seld., 422.)

In this view the provision, preserving in full force contracts made in contemplation of marriage, must be considered at least, as sustaining all which before the law of 1848 and 1849, would have been sustained, and as sanctioning the non-interference of a Court of equity subsequently, where it would not have interfered before.

2. By the true construction of the clause in the statutes in question, the ante-nuptial contracts of infants are witMn the provision as much as those of adults. If in other respects they are unimpeachable, they are to remain in force.

3. These views equally apply to the personal property of the plaintiff, covered by the settlement.

4. As to the legal effect of the contract being made in New Jersey, when the plaintiff was a citizen of that state, it is sufficient to observe, that it has not been shown to us, that by the law of New Jersey, the plaintiff could sustain this action. Until tMs is done, we are to be guided by the law of our own state, to a tribunal of which the application is made. (Monroe v. Douglass, 1 Seld. R., 447, Willard, J.); Hodges v. The Tennessee Marine Co., 4 Seld., 421, and cases.)

The judgment must be affirmed, with costs.

Bosworth, J.

—The rule seems to be well settled, that, a female infant is bound by a settlement of her personal estate made in contemplation of her marriage. The reason assigned for the rule is that such personal estate becomes by the marriage the absolute property of the husband, and the settlement is in effect his settlement, and not hers. The settlement affects and restricts the interest which he would take in her personal property by his marital right, and does not limit or impair any rights she would otherwise have.

The rule seems to be also established that her settlement of her real estate is not absolutely void, but is voidable on her becoming of age. That she cannot avoid it during coverture without the concurrence of her husband, and that he will not be permitted to aid an effort by her to rescind and avoid it. Such a rule, practically, prevents her from avoiding it, unless she outlives him, and then, only, after his death.

The acts of 1848, (ch. 200, p. 307 of Laws of 1848,) and of 1849, (ch. 375, p. 528, of Laws of 1849) have removed the reason of the rule on which such settlements of personal estate have been upheld. Thefintended husband would not acquire by the contemplated marriage, any right to or interest in, either the personal or real estate, or in the income and profits from either. An ante-nuptial settlement, (made after those acts were in force,) which gave rights to the husband in the property of the wife, would deprive her of interests, which she would not lose by force of the marriage. To such extent they impair rights she otherwise would have.

As those statutes allow her “to convey and devise real and personal property,” . . “in the same manner and with like effect as if she were unmarried,” I think it should be held that she may, during coverture, and on becoming of age, avoid any conveyance made by her during infancy, and which is voidable merely because it was so made. To have the benefit of- those statutes she should be permitted to do such acts, proper in themselves, and equitable in their object and results, as will enable her to give a good title to the property she is permitted to sell, and thus have a fair opportunity to obtain for it a just price or consideration.

But although those statutes have removed the reason of the rule on which settlements of personal estate, made by a female infant have been upheld, still there are difficulties in the way of maintaining this action.

Section 4 of the act of 1848, and section 3 of the act of 1849, are in these words, viz.: “All contracts made between persons in contemplation of marriage shall remain in full force after such marriage takes place.”

Although this cannot mean that all such contracts shall be valid and incapable of being rescinded, whether procured'by imposition and fraud, or made by an infant or an adult, or whether grossly inequitable or not; yet it may be fairly construed to mean, that all such contracts as may be made, and would be valid, if these statutes had not been passed, shall be held valid notwithstanding anything contained in the statutes themselves.

It may possibly have been the purpose of that section, to save ante-nuptial contracts already made from the effect of the 2d section of the act of 1848, the terms of which were comprehensive enough, to divest her real and personal estate, of any claims of her husband in or to it.

But I think it quite clear that it refers to contracts to be made, whether it includes those previously made or not.

If so the deed of settlement is valid and unimpeachable on the mere ground that the plaintiff was an infant when she executed and delivered it.

That deed declares that she was at the time a citizen of New Jersey. It was executed on the day of her marriage. In the absence of any allegation to the contrary, it is a fair presumption that the terms and provisions of the deed were agreed upon and the deed executed and delivered in New Jersey, and the marriage solemnized there. If so the validity of the marriage contract itself, and of the deed of settlement, depend on the laws of New Jersey, "and what they are is neither alleged nor proved.

If the statutes of this state to which reference has been made, had not been passed, the courts of this state would decide the case, presuming the laws of New Jersey to be like those of New York, and refuse to rescind the contract. I am not satisfied that this Court is at liberty, to act on the presumption that the New Jersey Legislature have altered what was otherwise settled law, as it has been altered by the Legislature of this state.

Issue has been born of a marriage entered into upon the consideration, among others, of this ante-nuptial contract. That contract vests rights in such issue. It is anomalous, if such a contract, entered into without fraud or undue influence, and not inequitable in its provisions, can, after marriage and issue born that is provided for by it, be rescinded merely by reason of the infancy of one party, when it has become impossible to restore any of the consideration which induced it, or to put the parties in statu quo.

I think the judgment should be affirmed.

Judgment affirmed.


text:
    Alexander Heron and William J. Martin, Plaintiffs and Appellants, v. Charles A. Davis, Sydney Brooks, and Theodore Dehon, Defendants and Respondents.
    The defendants in Hew York on a negotiation for the sale of coals which were then at sea on a vessel bound for Panama, received from the owner the bill of lading and agreed to forward it to their correspondents at Panama with instructions that if the defendants’ engineer on board their steamship W. Scott or Cortez “ approves their quality for use on board that vessel they are to receive the same,” and also that “ on learning that the coals are approved by our engineer at Panama, we shall be prepared to pay you,” &c., the price being named. A memorandum at the foot of this agreement stated the coals to be 200 tons Blackheath, 67 6-20 tons of Wyoming. The engineer at Panama did not approve of the coals but certified that the coal “is not suitable for steamship’s use on this coast, it being too hard to burn without the aid of blowers.” Held:
    1. That the defendants were not bound to receive or pay for the coals.
    2. Proof that Blackheath and Wyoming coals were always hard coals arid of uniform hardness did not alter the case.

      3, It was not the duty of the purchasers to put blowers into their steamships to adapt them to burn hard coal.
    4. The question by the agreement referred to the engineer had reference to the fitness of the coals for use on the defendants’ ships, and not merely to their quality in the sense of being good or bad of their kind.
    (Before Woodruff and Pierrepont, J. J.)
    Heard, March 8th;
    decided, July 3d, 1868.
    This action was tried before Mr. Justice Slossoh and a jury the 20th day of October, A. D. 1857, and on the trial the complaint was dismissed on the ground that no cause of action was proved.
    The plaintiffs sued as assignees of one Samuel Churchman to recover the loss sustained by him in consequence of the refusal of the defendants to accept at Panama, in New Granada, and pay for certain coals claimed to have been sold by Churchman to the defendants.
    The facts were briefly these:
    On or about the 1st of June, 1852, the agents of Churchman shipped on board a vessel called the Z. D., chartered by himself and bound for Panama, a quantity of coals. The vessel left New York for Panama on the 14th of June and arrived at Panama about the 14th of October, 1852.
    In September, Churchman had a negotiation with the defendants, which resulted in a contract, which was contained in a writing in the words following, that is to say:
    “ New York, September 24th, 1852.
    “ Mr. Samuel Churchmajst :
    “Dear Sir—We have received from you B. L. 267/5 tons coals, shipped by Marston & Power on board the bark Z. B., Bassett master, for Panama, consigned to order-; bills of lading dated the 1st June, 1852, indorsed to you, and subject to a freight of $3,490.10. These we are to forward on the 5th October to our correspondents at Panama, Messrs. Garrison & Frite, stating to them that if our engineer on board the W. Scott or Cortes approves their quality (for use on board that vessel) they are to receive the same;; we paying for said coals at and after the rate of $25 per ton, say twenty-five dollars per ton delivered at Panama, the delivery to be made from alongside vessel. On' learning that the coals are approved of by our engineer at Panama, we shall be prepared to pay you sixteen hundred dollars on account, and the balance will be -payable here upon notice of the quantity received by our agents at Panama, less the amount of freight money due and payable at Panama, say $3,490.10.
    “ If the quality or condition of these coals be not approved by our engineer as herein stated, we shall hand our shipping documents to your agents, agreeably to your instructions. Should by possibility the coals haye been landed at Panama, any extra expense as compared with that, incident to our receiving, them • from alongside ship, shall be chargeable to you.
    “ Respectfully yours,
    “Davis, Brooks & Co.”
    “ The coal above referred to is
    “ 200 tons Blackheath,) -r, 1

    -r, 1 67^ do. Wyoming, | Pennsylvania.
    “ It is understood the Z. D. sailed June 16th, and that there ' are no tidings of mishap to her.
    “Should our engineer not be in port in time to examine the coal, Garrison & Fritz will appoint a substitute; the coal to be' delivered alongside hulk or otherwise, as Garrison & Fritz may appoint.
    “D. B.'&Co.
    “ I agree to the above.
    (Signed) “ Samuel Churchman.”
    After the arrival of the vessel at Panama, the coals were examined by the engineer designated for that purpose.
    . The result of that examination appears in a certificate signed by the engineer, as follows:
    “ Taboga, Nov. 4th, 1852.
    “ I have examined the coal on board the ship Z. D., at this place, and in my opinion it is not suitable for steamships’ use on this coast, it being too» hard to bum without the aid of blowers,
    • (Signed) “A. J. Shepard,”

      The agents of the defendants thereupon refused to receive the coals, and, after some delay, the coals were sold at auction on account of whom it might concern, and produced $1,740.88, which was received by Churchman, January 17th, 1853.
    The plaintiffs proved that Blackheath and Wyoming coals are hard or anthracite coals, and are and have been so known in the trade and in commerce for many years.' That each of these kinds of coal are always of a uniform degree of hardness; that they differ from other kinds of hard coal in this respect that there is this general character to these coals, that they are uniformly of the same degree of hardness, and the coal dealers understand this. That in respect to hardness, coals of the two kinds mentioned are always the same; though different cargoes may differ in regard to size of the coal, and also in regard to freedom from dirt and slate.
    It was also shown that the defendants’ steamships, W. Scott and Cortes, had no blowers. That there had been about 80 tons of anthracite coal burned on the W. Scott. This was of the softest kind of anthracite or Lackawanna coal; with that exception she burned bituminous coal. That those steamers were not adapted to burning anthracite coal on the Pacific coast. Whether the Cortes had ever burned anthracite coal or not was not shown. The reason why the W. Scott required bituminous coal was that, being without blowers, her draught was not sufficient to make the steam necessary to- keep up her ordinary speed.
    On the defendants’ motion, the Court dismissed the plaintiffs’ complaint.
    The assignment by Churchman to the plaintiffs was duly proved.
    The plaintiffs moved for a new trial at Special Term, which motion was denied, and judgment was entered for the defendants.
    The plaintiffs appeal, from the order denying a new trial and from the judgment, to the General- Term.

      James W. Gerard, for-the plaintiffs (appellants).
    I. The coal in question, being of the kind known in trade and commerce as hard or anthracite coal, and of a uniform degree of hardness, and bought as and for such, by the technical names of Blackheath and Wyoming, the defendants could not reject it because it was hard coal.
    H. The certificate of rejection, coupled with the answer to the second cross-interrogatory by Shepard, shows it was rejected because it was hard coal, and not soft or bituminous coal, which the proof shows is an article of a distinct kind, and so well known in trade and commerce.
    III. The defendants did not pretend to reject said coal on the ground of its being of an inferior or unsuitable quality of Blackheath and Wyoming coal, or on account of its condition; but substantially because it was hard coal, the reason given being “ that it is not suitable for steamships’ use- on this coast, it being too hard to burn without the aid of blowers.”
    Such an objection they are estopped from making under the contract.
    I. A strict if not a literal compliance in the certificate with the condition in the contract is required. The right of rejection reserved was for quality or -condition only, and the certificate does not say anything against the quality of the coal or the condition which it was in.
    2. The certificate is too general; it does not, as the contract requires, specify its unfitness for use on the two steamers (the Scott and the Cortes) therein mentioned, but embraces all the steamers on that coast.

      Non constat that the coal was ever examined in reference to these two steamers at all.
    3. The ground of rejection, specifically assigned, is a ground which defendants had no right to take.
    It appears that neither of the steamers in question had blowers, and that hard coal cannot on that coast be used on steamers without blowers.
    The alleged unfitness was caused therefore not by any unfitness in the coal, but in the equipment of the defendants’ steamers, for which they should have provided.
    When we sold them hard coal for use on steamers on the Pacific coast, where, as the evidence shows, it can only be burned in steamers having blowers, we had a right to suppose, that the vessels for whose use it was intended, were supplied with the requisite machinery to burn it. The absence of such means should no more furnish an excuse for not taking coal which the evidence shows could only be so used, than the absence of the vessels themselves.
    IV. This therefore was a conditional sale, reserving only to the purchaser the power to reject the coal, not for its character as to hardness, but only for being of bad quality, i. e., too much slate or dirt mixed with it, or for the condition in which it might arrive, damaged by water, or having an undue proportion of dust or fine coal.

      D. B. Eaton, for the defendants (respondents).
    I. The defendants agreed to take the coal, if their engineers on their said vessels approved the coal for use thereon.
    II. The coal came, was examined, and was found not fit, and was refused under the contract.
    III. It is clear that the defendants did not pretend to judge of the fitness of the coal, and that both parties intended to refer that question to the engineers.
    TV. The defendants only wanted coal suitable to burn on those vessels, and the coal had not been shipped on the faith of any promise to take it, made by the defendants. The coal was shipped in June, 1852, and the contract of sale was not negotiated till September, 1852.
    V. It was necessary for the plaintiffs to show affirmatively that the engineer did approve the coal.
    VI. It was, on the most unfavorable construction for the respondents, only a conditional promise to take the coal if approved; and the absolute right to refuse, if the engineer-decided it to be unsuitable, was reserved by the contract.
    VII. The engineer decided the coal to be unsuitable..
    VIII. .The testimony proves it in point of fact to- have been unsuitable, independent of the opinion of the engineer..
   By the Court.

Woodruff, J.

—The determination- of this appeal depends upon the true construction and- legal effect of the written contract, contained in what is in the form of' a letter from the defendants, dated New York, September 24th, 1852, addressed to the assignor of the plaintiff, and by him assented to by memorandum underwritten.

To the correct interpretation of that letter, it is not only competent but material to take into view the condition of the parties and of the subject of the contract at the time the agreement was made. The circumstances in which the parties were acting may and ought to be considered, and when the true intent and meaning of their agreement admits of any doubt, those circumstances may furnish the key to their true meaning; and it is hardly necessary to add, that when the terms of the agreement, construed by the light thrown upon the subject by the condition and circumstances under which the parties were acting, enable us to determine the true intention of the parties, that must govern.

The plaintiffs in New York were owners of steamships which were on the Pacific coast, running between Panama and California.

On the 14th day of June, 1852, a cargo of coals had been shipped by Mars ton & Power to Panama, and the bill of lading, dated June 1st, 1852, had been indorsed to the assignor of the plaintiffs. The vessel sailed on the first named day (June 14th), and had been more than three months on her voyage.

There is' no evidence that the defendants ever saw the coals, nor reason to believe that they had any knowledge of them until the time when the agreement was made.

The making of the agreement formed no part of the inducement to the sending of the coals to Panama, and their destination was in no wise changed by reason of the making of the agreement ; for the coals had been already more than three months on the voyage, and were within twenty days of their arrival at Panama when the agreement was made.

There is no evidence that'the defendants were dealers in coals beyond the mere fact, that they made the agreement in question; or that they had any knowledge of the various qualities or descriptions of coals, or their fitness for use on board of steamships, unless that is to be inferred from the fact that they owned two steamships then on the Pacific coast.

In that condition of things, the defendants received from the assignor of the plaintiffs the bills of lading of the coals, and agreed to forward them to their correspondents at Panama, stating to them thus “if our engineer on board the W. Scott, or •Cortes” (their steamships) “ approves their quality for use on board 'that vessel they are to receive the same we paying,” &c., and “ on learning that the coals are approved of by our engineer, &c., we shall be prepared to pay,” &c. If not so approved, the shipping documents were to be handed to the agents of the plaintiffs’ assignor.

The agreement thus expressed and describing the cargo, simply by its general designation of “coals” was signed by the defendants.

By the language above cited, according to a reasonable and just construction, the parties intended to refer the whole subject' of the fitness of the coals thus bargained for, to answer the-.purposes for which the defendants made the agreement, to their engineer, the defendants evidently declining to use their own judgment at all in the matter. And had the letter constituting the agreement made no further mention of the coals, probably no doubt concerning the correctness of that construction of the .agreement would have been suggested.

But in a memorandum added to the agreement, it is stated among other additional particulars as follows:

“ The coal above referred to is
“200 tons Blackheath, 67-2-t)- do. Wyoming, 1 Pennsylvania.”

Proof being given on the trial that the coal called Blackheath and Wyoming, is known in trade and commerce as hard or anthracite coal; that both kinds are of a uniform degree of hardness; that there is this general character to this coal, and that the coal dealers understand it as well by name as by its use: and it being shown that the coal when it reached Panama was rejected on the mere ground stated in the certificate read on the trial, viz., that “ in my opinion it is not suitable for steamships’ use on this coast, it being too hard to burn without the aid of ■blowers," and that the defendants’ steamships had no blowers; it is thereupon insisted that the coal was improperly rejected; that the defendants had no right to reject the coal because it' was too hard; that the “ quality ” mentioned in the agreement had no reference to the characteristics of the coal generally, but only to its quality or condition as compared with other Blackheath and Wyoming coals, or in reference to its size, or freedom from dirt or slate: and therefore that, if it was in truth of the best quality of Blackheath or Wyoming coals, the defendants . were bound to receive and pay for it, however hard it was, and whether it could be used on board their steamships or not; that if need be, the defendants must fit up their ships with blowers; or at all events they could not reject the coal because they would be compelled to refit their ships■ before they could use the coals.

This is a harsh and, under the circumstances, an unreasonable construction of the agreement.

To give it plausibility even, it has to assume that the defendants, though not coal dealers, must be taken to have such acquaintance with the innumerable varieties of coals as to know that Wyoming and Blackheath coals are hard coals: and at least as hard as coals which the witnesses speak of by the term hard coal.

But recurring to the terms of the contract, it is apparent that quality for use on board their steamships was in the contemplation of the defendants. This in no wise implied that the steamships were to be altered in order to adapt them to the use of the coal, but the contrary. And “ quality ” in this connection imports adaptedness, suitableness, and fitness for the purpose specified, in their most comprehensive sense. Hay, more, the coals were to be approved of in this respect for such use by the defendants’ engineer.

The language of the instrument shows on its face this intent of the defendants; they were willing to purchase such coals as their engineer approved for use on their steamships; they wanted them for no other purpose than to use on those ships; if they were not suited to such use, they had no use for them; they provided that if not so approved, they should be placed at the disposal of the agents of the vendor, who would then carry out the design of the original shipment.

In this there was no hardship as against the vendor. He had not shipped the coal with a view to this agreement, and when the coal was disapproved by the engineer or agent of the defendants, he could and would be at liberty to prosecute, in his own way, the speculation in contemplation of which he originally shipped the coal.

The term “quality” is not necessarily to- be construed in the limited sense claimed for it by the plaintiff, viz., in reference to other coal bearing the same name; that is only a special and restricted meaning of the word; its proper and general meaning applied to a material subject is its “ property,” its “ virtue or particular power of producing certain effects.” It is at least equally consistent with its proper meaning, so far as it involves the idea of comparison with others, to say that it embraces all other coals in the comparison, as it is to confine it to a particular kind.

Besides, the parties here have explained the word itself by reference to the use of the coal contemplated. This undoubtedly is one restriction of the -otherwise general meaning of the term; but it is a restriction fatal to the plaintiffs’ claim; it is quality for use on board the defendants’ vessels; and, as already suggested, that must control.

Indeed, had the agreement been much more foil and explicit in describing the coal, the result must have been the same. Thus, suppose the defendants had said in terms: “We know that the coal is Wyoming coal; we know that Wyoming coal is hard coal; we know that all Wyoming coal is very hard, and of uniform hardness; nevertheless, if our engineer approves their •quality for use on board our steamships, we will receive and pay for them.”

Under the circumstances in which the present agreement was made, and looking at the object which the parties had in view, the defendants must even then have been excused from receiving the coals if the engineer had in good faith pronounced them too hard for such use.

The judgment dismissing the complaint, and the order denying a motion for a new trial, both of which were appealed from, must be affirmed with costs.

Judgment and order appealed from affirmed, with costs.