author:
By the Court, Barbour, J.
      Robertson, J. (dissenting.)

text:
    William and Thomas W. Birdsall, executors, &c. plaintiffs, vs. Salem T. Russell, defendant.
    1. The rule that a purchaser of negotiable securities payable to the holder, gains a valid title thereto, although they were stolen or fraudulently obtained by the seller, only prevails where the purchaser has no such notice, either from the appearance of the document itself or therwise, as would put an honest, careful man upon inquiry in regard to the true ownership.
    2. Appearances indicating the probability of an alteration in the number inscribed upon a negotiable bond; which was one of a limited series numbered consecutively and issued by a corporation, is sufficient to put a purchaser of such bond upon inquiry as to the seller’s title. (Bobebtsoít, J. dissenting.)
    8. In an action by one claiming to be the true owner of such bond, to recover possession of it from another person who had purchased it in the due
    1 course of business, after a similar bond had been stolen from such claimant, and while there was another bond of the same series in existence held by others, numbered the same as the bond in question, but whose number had not been tampered with, evidence that the number of the bond- held by the defendant exhibited while in his hands appearances of alteration capable of detection, even without any evidence that he had made such alteration, is sufficient to go to the jury, upon the question of notice of want of ownership from the seller to the defendant, and it is error in such cases to direct a verdict for the defendant. (Bobebtsoít, J. dissented.)
    (Before Robertson, White and Barboub, JJ.)
    Heard June 12,1863;
    decided December 26, 1863.

      Exceptions taken on the trial, and directed by the court to be heard in the first instance at general term.
    The action was brought by William Birdsall, jr. and Thomas W. Birdsall, as executors, &c. of William Birdsall, deceased, to recover the possession of two railroad bonds, which the plaintiffs alleged had been wrongfully taken from their possession, had been altered in the numbering, and had come to the possession of the defendant.
    The cause was tried before Justice Robeetson, and a jury.
    The material parts of the evidence are fully stated in the opinions.
    At the close of the testimony the counsel for the defendant moved to dismiss the complaint.
    The plaintiffs’ counsel claimed and insisted that the court should submit to the jury' as questions of fact whether the bonds, for the recovery of which the action was brought, originally belonged to the plaintiffs, and whether the defendant’s brokers, (Thomas Denny & Co.) from the condition and appearance of such bonds, and patches of paper claimed by the counsel to be pasted behind some of the numbers thereon, and the thin and scraped appearance of the paper where other numbers occurred, as claimed by such' counsel, had notice sufficient to put them on inquiry as to the title to said bonds.-
    The court, after an inspection of the bonds, refused to. submit any question of fact to the jury; decided that there was no evidence to go to the jury, and dismissed the complaint. To which refusal and decision the plaintiffs’ counsel excepted.
    The judge directed the exceptions taken at the trial to be heard in the first instance at the general term, and judgment in the meantime to be suspended.

      William Allen Butler, for the plaintiffs.
    I. There was sufficient evidence to go to the jury on the question whether the two bonds, held by the defendant, were two of the five bonds belonging to and stolen from the plaintiffs. The bonds being in the possession of the defendant, and asserted to be genuine and original as respects their numbers as well as their signatures, it was for him to satisfy the jury that they had not been tampered with. This is the rule where an instrument under which title is claimed has been the subject of apparent alteration or spoliation. (Bailey v. Taylor, 11 Conn. Rep. 531. Jackson v. Osborn, 2 Wend. 555.)
    II. Assuming that there was evidence to go to the jury as to the identity of the bonds in the defendant’s possession with two of those stolen from the plaintiffs, there was no further question of fact for the jury. The plaintiffs' were entitled to a verdict, even if th¿ defendant, through his brokers, purchased them in open market and in good faith. 1. Title to a chattel ■ can not be derived through a thief. The exception in favor of negotiable paper does not extend to instruments of the description of the bonds in question here, especially if, as in this case, they have been feloniously altered. (Andrew v. Dieterich, 14 Wend. 31. Robinson v. Dauchy, 3 Barb. 20. Brower v. Peabody, 3 Kern. 121.)
    III. The court erred in refusing to submit to the jury, as prayed by the plaintiffs’ counsel, as a question of fact, whether the defendant’s brokers, (Thomas Denny & Oo.) had notice, from the condition and appearance of the two bonds, sufficient to put them on inquiry in reference to the title thereto.
    1. The court could not- take this question from the jury unless, in fact, the bonds bore no suspicious marks. The extent to which" a careful broker, accustomed to dealing in such securities, and conversant with their appearance, should have been put on his guard' by their appearance, was for the jury.
    2. The court, after merely inspecting the bonds, decided .that question of fact, thereby assuming the province of the jury. The question was peculiarly one for the jury, to be submitted with proper instructions from the court as to the principles of law applicable to it. (Snow v. Peacock, 3 Bing. 406. Pringle v. Phillips, 5 Sandf. 157, and cases cited in the elaborate and conclusive opinion of Duer, J. p. 163, et seq.)

    IV. The question does not, in any of its aspects, depend upon the weight of evidence, provided there was any evidence, however slight, to go to the jbry. If there was any evidence from which the jury might have found a verdict for the plaintiffs, then there was error in the refusal to submit that question to the jury. (Lord Hood v. Kendall, 17 Com. Bench, 260. Demyer v. Souzer, 6 Wend. 436. Rudd v. Davis, 3 Hill, 287, and cases cited by Cowen. J. p. 288. Lewis v. Few, 5 John. 1. Smith v. Sanger, 3 Barb. 368.)

      W. C. Russell, for the defendant.
    I. There was no evidence tending to prove that the bonds in suit ever belonged to the plaintiffs.
    1. The entire issue of bonds was proved to have been numbered from 1 to 525, and filled up by the officers of the company. Those in suit were proven to be genuine bonds, part of that issue. Prima facie, they are in the condition in which they were issued, and there is no evidence of any alteration, or that the numbers are not in the handwriting of officers of the company.
    2. The existence of two other bonds similar in all respects to these, does not prove that these are not the" original numbers; The appearance of duplicate coupons with the same numbers did not prove that the bonds of the defendant were not "genuine. Coupons and bonds are different things. Duplicate coupons from number 1 to number 525 would not have proved any thing as to bonds, nor that the defendant’s coupons were not filled up and numbered by the officers of the bank as they now appear.
    3. There is nothing, then, to disturb the presumption that these are in their original condition in which they were numbered and filled up, and if they are, they are not the plaintiffs’ bonds, for theirs were numbered differently.
    4. The duplicate coupons may have come from the surplus bonds spoken of by Boalt and Kittridge, or they may have been altogether forged, or they may have been altered from other coupons, or the coupons may have been erroneously numbered with duplicate numbers. The witnesses all insist that there were no duplicate bonds, but say nothing about duplicate coupons. *

      There were coupons without any numbers, and it is not violent to suppose that some may have had duplicate numbers.
    II. The securities sued for are negotiable paper, and the defendant having bought them in the usual course of business, without any notice sufficient to put him upon inquiry which would lead to a knowledge of an adverse title, can retain them, even as against the owner. ' (State of Illinois v. Delafield, 8 Paige, 527. S. C. 2 Hill, 177. Gould v. Town of Venice, 29 Barb. 452. Bank of Rome v. the Village of Rome, 19 N. Y. Rep. 20. Morris Canal and Banking Co. v. Fisher, 3 Am. Law Reg., p. 423. White v. Vermont and Mass. R. R. Co., 21 How. U. S. Rep. 525.)
    III. The question whether the bonds on their face showed any defect of title in the party offering them for sale, was properly withheld from the jury. It was a question of law, which the court was bound to determine. “ When the supposed defect or infirmity of title on the instrument appears on its face at the time of the transfer, the question whether the party who took it had notice or not, is in general a question of constrtiction, and must be determined by the court as matter of law.” (Goodman v. Simonds, 20 How. U. S. Rep. 365. Fowler v. Brantley, 14 Pet. 318. Wiggin v. Bush, 12 John. 306. Ayer v. Hutchins, 4 Mass. Rep. 370.)
    1. It was a question as to the relevancy of the circumstances sought to be submitted to the jury, the plaintiffs’ counsel claiming that there was something in the - appearance of the bonds calculated to induce suspicion. But as matter of law the appearance of the paper at the trial could have no bearing on the transaction pf over two years before. The right to presume that it was unchanged in two years, would justify the presumption that it was unchanged since it was issued.
    2. Moreover there was nothing in the appearance of the paper calculated to put a purchaser upon an inquiry, within the proper meaning of the rule. Circumstances sufficient to put one upon inquiry and to charge him with knowledge, must be circumstances necessarily in the natural order of things, pointing to an inquiry, which if honestly pursued,’ will lead to a discovery of the defect of title. (Williamson v. Brown, 15 N. Y. Rep. 354.)
    3. There must be a necessary connection between the circumstances proved, and those of which they are to be constructive notice. ■ But there was no connection between erasures on the bonds (if there were any such erasures) and the loss of the bonds by the plaintiff. Erasures do not naturally point to larceny.
   By the Court, Barbour, J.

This case comes here under the direction of the judge, before whom, with a jury, the cause was tried, that the exceptions taken at the trial be heard at general term in the first instance. The most important of those exceptions was one which was taken to the instruction given to the jury, after proofs were closed, to render a verdict for the defendant.

The action was brought to recover possession of two first mortgage bonds, for $1000 each, made by the Toledo, Nor-walk and Cleveland Railroad Company, September 1, 1857, payable to Alfred Kelly and George S. Coe, “ or the holder” thereof, on the 1st of August, 1863, with interest thereon at the rate of seven per cent, payable semi-annually, on the first days of February and August in each year, upon presentation of the coupons annexed; which bonds, the complaint alleges to have been wrongfully taken from the plaintiffs’ possession in November, 1860, and to be detained from him by the defendant. - The answer denies the plaintiffs’ ownership, and avers that the defendant purchased the bonds in his hands through the firm of Thomas Denny & Co. brokers, in the ordinary course of business, in good faith, without any knowledge or notice of the alleged interest of the plaintiff therein.

Evidence was given upon the trial which was sufficient, I think, to warrant the jury, if the case had been submitted to them for their determination, in finding the following facts: Five hundred and twenty-five bonds of the description mentioned in the complaint, and no .more, were issued by the company; they were numbered consecutively front one to five hundred and twenty-five inclusive; and, annexed to each, and upon the same paper, were twenty-four interest coupons, marked with corresponding numbers; which numbers- upon the bonds and coupons, respectively, constituted the only difference between them each, and each of the others. ! Taking bond number two hundred and twenty-five and one of its coupons, as samples, they were of the form following:

“ United States of Amebica, State of Ohio. $1000. Ho. 225. Toledo, Horwalk and Cleveland Bailroad Company. Bond. Secured by lien on the whole road. The Toledo, Horwalk and Cleveland Bailroad Company acknowledge to owe Alfred Kelly and George S. Coe, or bearer, one thousand dollars for money borrowed to aid in the construction. of their railroad,- which sum said company, promise to pay to the said Alfred Kelly and George S. Coe, or the holder hereof, at the office of the Ohio Life Insurance and Trust Company, in the city of Hew- York, on the first day of August, 1863, and also interest thereon at the rate of seven per cent per annum, semiannually, on the first days of February and of August of each year ensuing the date hereof, until the said principal sum shall be paid, on the presentation of the annexed interest warrants, at said office.; and said company further agree, that this obligation, and all rights and benefits arising therefrom, may be transferred, by general or special indorsement, or by delivery, as if the same were a note of hand, payable to bearer, and hereby waive all benefits from valuation or appraisement laws,

IrL testimony whereof, the said company have hereunto caused to be affixed their corporate seal, and [L. S.] these presents to be subscribed by their president, the first day of September, 1851.
C. L. Boalt, President
The Toledo, Horwalk and Cleveland Bailroad Company will pay to the holder hereof, at the office of the Ohio Life Insurance and Trust Company, in the city of Hew York, on the first day of August, 1863, thirty-five dollars interest due on that day, on their bond Ho. 225. '
C. L. Boalt, President”

In November, 1860, the plaintiff, who was then the owner of five of those bonds, with their coupons, numbered from 336 to 340, inclusive, placed them in a tin box and deposited the same in a bank for safe keeping until the next day> whence such box, with its contents, was surreptitiously taken by some thief, or person other than the owner. The plaintiff immediately published a notice of his loss in several newspapers, and also distributed among bond dealers and brokers of the city and elsewhere, a handbill to the same effect; but neither the defendant nor his brokers saw such notice.

Up to the time of the loss, the semi-annual coupons had been regularly presented to the agent of the company, and pasted into a book in consecutive order according to their numbers; no duplicates ever having been offered during that period. But, on examining the paid coupons for February, 1861, it was found by the company that three of the coupons due that month and so paid, and numbered respectively 225, 238 and 445, were duplicates of three others, bearing the same numbers, which had also been presented and paid. Two of those six coupons, numbered 225 and 238, thus duplicated, had been cut by the defendant from the bonds so purchased by him through Denny & Co. and had been paid to him by the company’s agent. The numbers of those coupons corresponded with the numbers upon the bonds in the hands of the defendant, and the two coupons of which those were duplicates had been taken from other bonds bearing the same numbers. In few words, the evidence so given, it appears to me, would have authorized the jury, if they believed the testimony to be true, to find that two of the- four bonds numbered 225 and 238 belonged originally to the plaintiff.

But that was not enough to entitle plaintiff to a recovery, It was also incumbent upon him to prove, by the testimony of experts, or by the exhibition of the papers themselves or otherwise, such facts as would authorize the jury to find that the numbers of the particular bonds in controversy had been changed. Nor would that have been sufficient. The plaintiff was also bound to show that the bonds, at the time they were purchased by Denny & Co. or came to the hands of the defendant, presented such an appearance as ought to have created a suspicion in the minds of prudent, careful experts engaged. in the businesss of dealing in such securities. For, although these bonds, payable as they are to the holder, and being by their terms, transferable by delivery, are so far negotiable as to be covered by the rule which protects bona fide purchasers of negotiable securities, even though stolen or fraudulently obtained; (State of Illinois v. Delafield, 8 Paige, 527 ; Gould v. The Town of Venice, 29 Barb. 452 ; Mor. Can. and Banking Co. v. Fisher, 3 Am. Law Reg. 423 ; White v. Vermont and Mass. R. R. Co., 21 How. U. S. R. 525 ; Mechanics’ Bank v. N. H. R. R. Co., 3 Kernan, 599;) yet it is only a purchaser in good faith, one having no such knowledge or information, either from the appearance of .the document itself, or otherwise, as would put an honest, careful man upon inquiry in regard to the real ownership, who is thus protected. It may be added in this connection, that the determination' of all questions of fact touching the bona or mala fides of such a purchase is exclusively within the province of the jury. (Williamson v. Brown, 15 N. Y. Rep. 354. Tuttle v. Jackson, 6 Wend. 213. Ayer v. Hutchins, 4 Mass. R. 370. Cone v. Baldwin, 12 Pick. 545. Grant v. Vaughan, 3 Burr. 1516. Peacock v. Rhodes, 2 Doug. 633. Fowler v. Brantley, 14 Peters, 318.)

The question then is, did the plaintiff prove such facts upon the trial as would have justified the jury, had the evidence been credited by them, in finding that the bonds in question ever belonged to the plaintiff, and that they presented such an appearance, when bought by Denny & Oo. for the defendant, as ought to have put them or the defendant upon their inquiry ?

Neither of the four bonds appears by the case to have been shown to the jury; and, of course, they could have no knowledge as to the appearance of the instruments from occular inspection. Indeed, the only ■ evidence given upon the trial, which is now claimed by counsel to have tended, even remotely, to prove that the bonds and coupons in the hands of the defendant were not, in appearance, perfectly correct, and precisely like all the others of the same class issued by the company, is found in the testimony of Mr. Luce, the treasurer, who superintended the payment and registering of the coupons. That witness, after stating that he saw and examined the two bonds held by the defendant, in the winter of 1861, and that “ on seeing them, there appeared to be no evidence of their being counterfeits,” that he then “ looked at the numbers, and concluded it was possible the numbers might have been changed,” was further interrogated and testified as follows *.

Q. Look at the bonds now produced by the defendants counsel, and shown you, being numbered 225 and 238, and state whether or not they are the bonds which the defendant exhibited to you at the interview you have spoken of.
A. They are.
Q. State whether or not they were in the same condition then as now, in reference to the paper pasted behind “No. 238,” in the bond of that number, and the pieces of paper pasted behind the coupons of August 1, 1863, in each bond.
A. I can’t state specifically as to the coupons, I remember there were pieces of paper pasted back of one of the bonds, and some of the coupons.
Q. Did you hold them up to the light to examine the coupons ?
A. Yes, sir, I did.
Q. What did you discover by such examination ?
(Objected to. Withdrawn in consequence of the objection.)
Q. State how the appearance of the coupons as then held up to the light by you corresponded with their present appearance when held up to the light ?
A. It was the same.
Q. State what you refer to as this appearance of the coupons ?
A. The thinness of the paper where the number is; the brightness of the ink, with which the numbers are made, and the paper pasted on the back.

I think we may safely assume that the papers thus produced by the. defendant were the bonds purchased by him through Denny & Co,, and, also, that the bonds so exhibited to the witness and placed in his hands, were then in the condition and exhibited the appearance indicated in the second of the above questions put by the plaintiff's counsel, without objection, and tacitly assented to by the responsive answer of the witness ; as well as the further fact that when such bonds and coupons were held up to the light, it clearly appeared that the paper was thin where the number was placed.

It appears to me, too, that, inasmuch as the defendant had offered no proof to show that the bonds and coupons had been altered in his hands, the jury had reason to believe the documents were in the same condition when purchased which they exhibited at the time of the trial. They would, therefore, have been justified in finding that, when the purchase was made, a paper was pasted behind the number upon one of the bonds, and another paper was similarly pasted behind the number on each of the coupons which became due on the same day, to wit, the 1st of August, 1863 ; as well as that the papers were thin where the numbers were placed.

Those facts, if the jury had been permitted to find them, would, in the absence of all evidence that the other two duplicates had been altered or changed from their original condition, have authorized the conclusion that the bonds held by the defendant were a portion of those which had been stolen from the plaintiff; and, it seems to me, they would likewise have been sufficient to sustain a finding that the bonds and coupons, when purchased, presented such suspicious marks, or rather, exhibited, of themselves, such evidence that they had been tampered with, as ought to have put the buyer upon his guard, and induced further -inquiry.

I am, therefore, of opinion that when the case was closed and submitted, there was-enough evidence before the jury to have authorized a verdict for the plaintiff; and that the direction to render a verdict for the defendant was, consequently, erroneous.

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

Robertson, J. (dissenting.)

Two issues of fact were presented in this case. 1st. The former ownership, by the plaintiffs’ testator, of the bonds bought by the defendant. 2d. Notice from the appearance of such bonds, when bought, sufficient to make the defendant suspect the ownership of the seller.

Dr. Kittredge, a witness for the plaintiffs, who was secretary and treasurer of the company issuing such bonds, testified that only five hundred and twenty-five similar bonds were issued, which he received in blank from Mr. Coe, the mortgagee in trust, with the certificates signed by the latter; the written part of such bonds and their numbering, with that of the coupons, was done by himself and by a Mr. Baldwin, under his immediate supervision. They were numbered consecutively, from one to five hundred and twenty-five; he repeatedly read the numbers on each bond both in the sheet and after they were folded and numbered on the back; the reason why he did so was to be certain that no mistake was made in their numbers. They were read consecutively, beginning at No. 1 and going through the whole series of five hundred and twenty-five ; he made a corresponding memorandum in a pocket book at the time. He further testified there was only one bond of each number ; he canceled two blank bonds by lines across them and destroyed all others printed. He also, stated there were no duplicates of bonds or coupons issued ; he kept all the blank bonds and the seal of the company in his possession; from the care used in counting and numbering such blanks and bonds, no duplicates could have been issued without it having been detected at once. This testimony as to numbering of the bonds, the number issued and the destruction of the remaining blanks, was fully corroborated by other witnesses.

The testimony of Mr. Line, a treasurer of the company, and others, tended to show that after the loss of the bonds by the testator of the plaintiffs, no coupons had been paid or presented corresponding in number with the lost bonds, while duplicates of coupons numbered to correspond with those held by the defendant, had been paid. But it was also established by him that duplicates of three other numbers had been paid; and Mr. Sebring, an employee of the company," testified that some coupons of similar bonds had been paid without any number.

The evidence, therefore, to go to the jury to establish that there were not four bonds issued originally, numbered in duplicate corresponding with «those of the defendant, was quite strong. But there was no evidence offered to show in which of the four produced the numbers had been written by Kittredge or Baldwin> The latter was not examined at all, and neither the former nor any one else was interrogated as to the handwriting of the figures. There was nothing to show whether any thing remarkable in the appearance of the bonds did not exist when they were first numbered. There was no evidence what was the appearance of the duplicate bonds, which were exhibited on the trial to Mr. Ooe, one of the witnesses. The evidence therefore was clearly defective, and could not prove that the bonds held by the defendant were lost by the testator of the plaintiffs, when the evidence was the same against two other bonds. Ueither Kittredge, Baldwin nor any one else, was examined as to the handwriting of the figures in the duplicate coupons paid, which were in Ohio, to show that either of them had been altered. The evidence, therefore, to go to the jury on the question of the ownership of the bonds in question was incomplete.

But even assuming that there was sufficient evidence of the former ownership of the bonds in controversy by the testator of the plaintiffs, it still remains to be determined whether there was enough evidence of something in the appearance of the bonds, when bought by the defendant, to warn him that the seller had not lawfully come by them, and was not the owner. It is conceded that the only thing altered on the face of the bonds were the numbers. The body of the instrument, the signatures and certificate of the trustee, remained untouched. Keither such certificate nor the mortgage, to which it refers, mentions any thing of numbers! They were, therefore, no essential part of the obligation. They seem to have been inserted principally for the benefit of the company, to prevent their paying spurious bonds or coupons or more than they intended and agreed to pay. They were equivalent to devices, or colored inks used in printing promissory notes to prevent counterfeiting. The bonds were legally binding, with or without a number. The company was bound to pay to the true owner, although he erased the number. It. was, therefore, not one of those things which the defendant was bound to examine, to ascertain if the company would be liable, and it was fair to presume he did not do so, rather than deprive him of what he has paid for. In order to charge the defendant, therefore, with notice of any thing so wrong in the number as to induce suspicion of want of ownership, the appearance of the bond where the number is written should be at least such as to induce an ordinary observer to suspect an attempt at concealment or imposition.

The bonds are capable of being transferred by delivery, and are payable to the holder. (Brainard v. Harlem R. R. Co., Ct. of Ap,, N. Y., 1862, December. Same v. Same, N. Y. Supr. Ct., March G. T. 1863. White v. Vermont & Mass. R. R., 21 How. U. S. Rep. 525. Bank of Rome v. Village of Rome, 19 N. Y. Rep. 20. Gould v. Town of Venice, 29 Barb. 452. Delafield v. State of Illinois, 2 Hill, 177. S. C. 8 Paige, 527. Morris Canal and Banking Co. v. Fisher, 3 Am. Law Reg. 423.) The purchase of them in market overt, in the ordinary course of business, without notice of any infirmity in the ownership of the vendor, vests a good title in the purchaser. The only evidence as to the appearance of the bonds, was that of Luce, who testified that one of them had a piece of paper pasted on its back when he examined them, sometime before the trial. He also testified, that on their holding the coupons to the light he discovered the paper to be thin where the numbers were; the ink was bright and a paper was pasted on the back. But he also stated he was not then positive in his views concerning the bonds, when he so examined them, that he did not blame the agent of the company for paying coupons numbered in duplicate even after examining the bonds, and that with the limited knowledge both possessed, he should have paid them himself at the time. The defendant, at the time of the examination, claimed they were duplicated by some clericalerror, to which the witness made no reply, in order to avoid being mixed up'in-the matter, and because hé was not certain him,self as to the fact of the alteration of the numbers. This was strong evidence- to show there was nothing in the appearance of the bonds to awaken the suspicion of the defendant’s agent at the time he bought the bonds, when an intelligent person, who had a suspicion of something being wrong, could find nothing in the ■ appearance of the bonds after a close examination of them, to warn the company or himself that such an alteration had been made as cast doubt upon the ownership.

• The main evidence relied upon by the plaintiffs to prove notice to the defendant’s agent of want of title in his vendor, ho.wever-, was the appearance of the bonds themselves, which their counsel claimed had patches of paper pasted on their back, behind some of the numbers, and were thin and rubbed where- other numbers occurred. Paper pasted on the back of an obligation, could hardly be notice of any thing to a purchaser. He would only be supposed or required to examine the face, and then- only as an ordinary careful observer would, without using-the.utmost vigilance. There is no reason why he should be bound or. supposed to have "held the- instrument to the light in order to. ascertain if there- were any erasures, or if he found theray to ■ suspect a larceny of the bonds on that account. It would -be very rare that in the ordinary course of dealing, such a- scrutiny -would be made, the only examination usually being of. the signatures, the writing or printing of the obligation and its general appearance. Eot a-witness was asked to state what 'there, was in the appearance of the bonds in question, to awaken a- suspicion of any thing wrong, in the minds Of any ordinary observer..-- Luce, the only person -who testified-as to their appearance,, could not satisfy himself that an alteration had been made, after a minute examination, and believed the company justifiable in paying the altered, coupons.

= The true rule in regard to notice is that the circumstances must be such as.not only to lead to, but to direct the course of inquiry, which would, if pursued, end in a discovery of the defect. (Williamson v. Brown, 15 N. Y. Rep. 354.) How could an alteration of a number do this in a bond more than in the case of a hank note ? It might have been altered when it was first issued, or by a prior owner, who had a perfect right to blot it out without impairing the obligation of the bond. Such a change implies neither concealment nor imposition, and does not raise a doubt of ownership. It was not notice of any infirmity of title. It is not enough that something strange or unusual should appear on the face of the instrument; it must be something which affects the contract or its title.

But there was no evidence in the case that the appearance of the bond was different from what it was when issued ; any of the numbers might have originally been written on an erasure. If an inquiry had been made of the officers of the company, they could have given no additional information, except that bonds with such numbers had been issued. There was no other direction given to any inquiry. Possibly Mr. Kittredge or Mr. Baldwin might have informed the purchasers of an alteration, if there was one, but the defendant knew nothing of their agency. The jury could not determine, therefore, by mere inspection that there had been any alteration.

But a mere alteration was not enough, unless done in a manner to attract attention and create a suspicion of concealment. The court was fully as proper a judge to decide whether the .mode of alteration was sufficient prima facie evidence of notice of some infirmity of title to go to the jury, as the latter were to pass upon it. Both merely relied on the evidence of their own senses. No rule of law can permit a jury to find from the mere appearance of an instrument, alone, that it furnishes evidence of having been stolen; otherwise every one could be submitted to a jury on such an allegation. It is for the court first to pass upon the question of relevancy, or else there must be some oral evidence of defects or appearances. But the question in this case was not merely the fact of alteration, but its being done in such a manner as to create suspicion in the mind of an intelligent observer using the attention exercised by a prudent man in his own affairs as to the infirmity of the vendor’s title. We have no evidence before us of the nature of the alteration, except what tends to establish that it was not attractive, glaring or striking, and, therefore, there was no error in refusing to submit the question to the jury.

Upon full reflection and examination, therefore, I feel confirmed in the view that there was not sufficient evidence on which to submit any question of fact to the jury on the trial. The admission of similar evidence to that offered in this case to overthrow the title to a negotiable instrument would.terminate the negotiability of such instruments for all practical purposes. Weighing such evidence by the closest scrutiny after a discovery of a loss and a supposed alteration, is entirely different from the reasonable examination and observation to be practised, when a negotiable instrument is offered for sale, by the vendee. It would be unfair to make the former a standard for the latter, and unless we do so, there is nothing.in this case to sustain the plaintiff’s cause of action.

The newspaper notices and handbills were not brought home to the defendant or his agents. (Vernon v. Manhattan Company, 22 Wend. 182. S. C. 17 Wend. 524, per.Cowen, J.) The police detective was not such an expert as to entitle him to pass upon an alteration not apparent upon bare inspection.

Upon'the whole, I feel satisfied no errors were committed on the trial; the motion for a new trial should be denied, with costs, and the defendant permitted to enter up judgment of dismissal of the complaint, with costs to be adjusted.

Hew trial granted.

       This decision was afterwards reversed by the Court of Appeals, on appeal. (29 N. Y. R. 220.)


source: Caselaw Access Project

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

license: Public Domain

text:
    Ellen Burns, by her guardian, plaintiff, vs. Charles Erben, who was impleaded with Thomas Frost, defendant.
    1. A complaint which only alleges, in substance, that the defendants maliciously, and with intent to injure the plaintiff, illegally and without warrant, arrested and by force compelled her to go to a police station, and there restrained her of her liberty, merely states a cause of action for illegal arrest or false imprisonment, and not one for malicious prosecution.
    2. In such action the question of prohable cause does not arise. If the arrest was made by competent authority, there was no trespass; and the action would not lie even were the arrest maliciously procured and without cause. Per Mokell, J.
    8. The Metropolitan Police of New York are authorized by law to arrest persons suspected by them, without a warrant, where there is reason to believe a felony has been committed.
    4. A private person who merely states to the officers of police what he knows of the offense, and his opinion that there is ground for the arrest, but without making any charge or requesting an arrest, does not thereby render himself liable to an action for illegal arrest.
    (Before Moncrief. Robertson and Monell, JJ.)
    Heard October 21, 1863;
    decided December 26, 1863.
    Exceptions taken on the trial, and directed by the court to be heard at general term in the first instance, judgment meanwhile to be suspended.
    The plaintiff, by her guardian, (Mr. Chester,) brought this action» against the defendants (Erben and Frost,) to recover damages for her arrest on a charge of felony.
    The complaint alleged in the following terms, that on a day named, “at the city of New York, the defendants maliciously and with intent to injure said plaintiff, illegally and without warrant,” arrested “said plaintiff, by force,” compelled her “to go with them to a certain police station house in said city, and detained her there restrained of her liberty, for a long space of time, without reasonable cause, and without any right or authority so to do, and against the will of said plaintiff, to her damage,” &c.
    The defendant Frost, who was a policeman, suffered judgment by default. The defendant Erben answered, denying
      each allegation of the complaint, and set np as a justification that a quantity of silver had been stolen from his father’s house. That the plaintiff was at the time within the house, and was reasonably liable to be suspected and was suspected of being guilty of, or privy to, the felony. That complaint was made by the defendant Frost, accompanied by Erben, to a captain of the police, who directed him to bring the plaintiff to the police station; that he, Frost, requested the plaintiff to go with him to the police station; that she went voluntarily, and, after being examined, was suffered to go at large.
    The cause was tried on the 14th day of May, 1863, before Justice Mohell and a jury.
    It appeared by .the evidence, that on the evening of the 6th of July, 1861, a quantity of silver of the value of about $200, belonging to Mr. Henry Erben, was stolen from his dwelling house, between the hours of eight and ten o’clock. The defendant Erben was the son of Mr. Henry Erben, and at the time mentioned, was residing with his father. On that evening, no stranger othek than said Ellen Burns was known to have been within such house. She came to the house about eight o’clock and left it about half past nine o’clock, about which time the commission of the felony was discovered. The silver was in a sideboard in the basement, at the time she entered .the house.
    The defendant Erben stated the suspicious circumstances to a sergeant of the metropolitan police at the station house; and the defendant Frost, after personal investigation at the dwelling house where the felony was committed, and by direction of his superior officer, arrested the plaintiff. The defendant Erben accompanied the officer, but had no other participation in the arrest than as above stated.
    The court, after hearing the evidence, ordered the action to be dismissed as to the defendant Erben, and six cents damages against Frost, on the ground that the evidence showed probable cause for the arrest, and that it was the province of the judge and not of the jury to judge whether the evidence did establish such cause.

      The court further directed the plaintiff’s exceptions to be heard in the first instance at general term, and judgment to be suspended.

      E. W. Chester, for the plaintiff.
    I. When the question arises on evidence as to probable cause or reasonable grounds of suspicion, it is the province of the jury to decide the facts, under the charge of the court. (Barb. Cr. Law, 544. Beckwith v. Philby, 6 Barn. & Cress. 637.)
    II. In this case the want of reasonable ground of suspicion was distinctly proved.
    III. The question is not here whether the officer had reasonable grounds of suspicion, Ije having confessed by his default that he had not, but whether the party who caused the arrest had. He had the means of knowing, and did know from his own witness, that he had none.
    IY. The officer who acts upon a complaint may be justified, but the party who makes the complaint, if false, will be liable. (Samuel v. Payne, Doug. 359. Hobbs v. Branscomb, 3 Camp. 419.)

      Otis D. Swan, for the defendant.
    I. There being no dispute concerning the material facts in evidence, the question of probable cause was purely a question of law; and inasmuch as upon the uncontradicted' evidence in the case, there was a probable cause for the arrest of the plaintiff, the judge, who presided at the trial, was bound to nonsuit the plaintiff as to the defendant Erben.
    1. A felony had been committed. By express enactment a metropolitan police officer has all the common law and statutory powers of a constable. (Laws of 1857, chap. 569, p. 200, § 8.) The authority of a constable (and perhaps even a private" individual, Holly v. Mix, 3 Wend. 350,) to arrest without warrant in cases of felony, and even upon suspicion that a felony has been committed, though it should subsequently appear that no felony had been committed, is fully established. (1 Hale, P. C. 587. 5 Dane’s Abridgment, 588. 1 Chitt. Cr. L. 15, 17. Beckwith v. Philby, 6 B. & Q. 638. Samuel v. Payne, 1 Doug. 359. Davis v. Russell, 5 Bingham, 354.) The question of the necessity for an immediate arrest, is one to be determined by the officer, and not a question to be reviewed elsewhere. (Rohan v. Sarwin, 5 Cush. 281.)
    2. When there is no dispute about facts, it is the duty of the court on the trial to apply the law to them. Probable cause is a mixed question of law and fact only when there is conflicting testimony in respect to the circumstances adduced to show the existence of a probable cause. In the case at bar, there was no dispute about the material facts, and no impeachment of witnesses. The plaintiff was nonsuited as to the defendant Erben, because the cause of action alleged in the complaint, was not established, viz. want of probable cause. (Masten v. Deyo, 2 Wend. 424. Bulkeley v. Ketteltas, 2 Seld. 384. Besson v. Southard, 6 id. 236.) The gist of. the action is want of probable cause; and the plaintiff must show it to maintain his action. (McCormick v. Sisson, 7 Cowen, 715. Rudd v. Davis, 3 Hill, 287.)
    II. Assuming that the defendant Erben participated in the arrest, by direction of the officer, his act was justifiable to the same extent as that of the officer. (Hilliard on Torts, p. 454. Payne v. Green, 10 S. & M. 507. Elder. v. Morrison, 10 Wend. 128. Oystead v. Shed, 12 Mass. R. 511.)
    III. There was no evidence showing participation by the defendant Erben in the arrest. He did not direct, advise, or request the arrest. He was a mere bystander; and was present when the arrest was made, merely by -reason of his interest in the stolen property of his father.
   By the Court, Robertson, J.

The language of the complaint is susceptible of no other interpretation than a charge of illegal arrest, detention and restraint of liberty. The action is one for false imprisonment, therefore, and not for malicious prosecution, which is a species of slander or libel, leading to peculiar injury, to wit, arrest by process of law. Undoubtedly in the latter case the plaintiff'is to make out the negative, to wit, a want of probable cause; but slight evidence only is sufficient for the purpose. If the facts sworn to by the malicious prosecutor do not furnish prima facie grounds to infer that a crime has been committed, only the magistrate issuing a warrant is guilty of false imprisonment.

The metropolitan police act allows the officers of police to arrest persons suspected by them, without a warrant, where there is reason to believe a felony has been committed, (Laws of 1857, p. 200, oh. 569, § 8 ;) a very dangerous power, unless an immediate investigation is to be had by some magistrate. In this case a felony had been committed, and the plaintiff was arrested on the suspicions of a sergeant of police, by the defendant Frost, who was a roundsman merely.

I do not find evidence enough to implicate Erben in the arrest. He merely disclosed what he knew, and only expressed an opinion that there was enough of suspicion against the defendant to have her examined. He did not request or urge any arrest, but left it to the officer at the station house to decide on its propriety. Nor did he make any charge. Such officer apparently exercised the authority given him by law, of arresting persons suspected by him.

The plaintiff has recovered against the officer nominal damages, which need not be interfered with. But the complaint was properly.dismissed against the defendant 'Erben.

Monell, J.

The complaint in this action alleges that the defendants illegally and without warrant arrested the plaintiff, and by force compelled her to go to a police station house, where they detained and restrained her of her liberty, without reasonable cause.

Upon the trial before me, and also upon the argument of the exceptions at the general term, the action was regarded by counsel on both sides, as one for a malicious prosecution and not for a false imprisonment.

An examination of the complaint, however, has satisfied us that the only cause of action stated therein, is for an illegal arrest or false imprisonment. In such action the question of probable cause can not arise. (Sleight v. Ogle, 4 E. D. Smith, 445. Peckham v. Tomlinson, 6 Barb. 253. Waldheim v, Sichel, 1 Hilt. 45.) If the arrest was made by competent authority, there was no trespass, and an action for false imprisonment will not lie, even though the arrest was maliciously procured, and without cause.

The police of this city are clothed with all the common law and statutory powers of constables, (§ 8, Metropolitan Police Act, Sess, Laws 1857, ch. 569,) who, in case of a felony actually committed, are authorized to arrest the accused without warrant. (Holley v. Mix, 3 Wend. 350. Barb. Cr. Law, 472.) And the police act further authorizes the police, where there is just cause to suspect that a felony has been committed, to take into custody all persons suspected of being concerned therein.

The arrest, therefore, made by the defendant Frost, who was a roundsman of the police force, was lawful, and no action could be maintained against him. He having suffered a default, the plaintiff was entitled to nominal damages, and no more.

The defendant Erben did not make the arrest. He went to the station house and related the occurrence to the sergeant of police, and expressed the opinion that there was ground for suspecting the plaintiff. Upon this the sergeant directed Frost to make the arrest.

Whether there was or not a want of probable cause, it is not necessary to examine, inasmuch, as for the reasons already stated, the action can not be sustained.

I concur in the opinion that the complaint, as to the defendant Erben, was properly dismissed.


text:
    Charles H. Norton et al. plaintiffs and respondents, vs. Joseph Wales et al. defendants and appellants.
    1. The measure of damages for the breach of an executory contract.to sell.and deliver merchandize for a price not to be paid until delivery, is the difference between the contract price and the market value at the time the merchandize was to have been delivered.
    2. Whether the contract either fixes a day for the delivery, or allows a reasonable time, delay of the purchasers in delivering, made at the seller’s request, but without any valid agreement for delay at any time which would preclude the purchaser from bringing an action immediately, does not extend the time, so that an advance in the market price meanwhile can, be considered in computing the damages.
    (Before Robertson, White and Barbour, JJ.)
    Heard June 8,1863;
    decided December 30, 1863.
    This was an appeal by the defendants from an order denying a motion for a new trial, and also from the judgment entered on the verdict.
    The action was brought by Charles H. Norton and Willard Gregory against Joseph Wales and James S. and Peter S. Wetmore. '
    ' The complaint alleged that, on the 8th of August,'1862, an agreement was made between the plaintiffs and the defendants for the sale, by the latter to the former, of three hundred barrels of naptha, at eighteen cents per gallon, to be delivered ten days from that time ; that a portion thereof, fifteen barrels, had not been delivered, although demanded, and that the plaintiff had sustained damage by reason of such non-delivery. The complaint also, as for a separate cause: of action, set up a similar contract, made on the 20th of August, 1862, for the delivery of two hundred barrels of benzole, without delay, at fifteen and a half cents per gallon, and alleged a 'like failure to deliver ninety-nine barrels of the same, although, demanded, and claimed damages thereby sustained.
    The answer was that, at the times when the naptha and benzole were deliverable under the contract, their value in the market did not exceed the purchase price, and denied that the plaintiffs had sustained any damage beyond six cents.
    The cause was heard on the 23d of March, 1863, before Justice Monorief and a jury.
    Upon the trial the plaintiffs proved, without objection, that several times prior to the middle of November, 1862, they requested the defendants to deliver the benzole and naptha, and that the latter in reply, stated that the articles would “be along immediately,” would “ come right along ;” that about the middle of November, a like demand was again made, when the defendants said the plaintiffs had been very lenient with them, that the delivery ought to have been made before, and that if the latter would wait until the following Monday, it would all be made right with them ; that another and the last demand 'was made on the 21s£ of November, 1862, when the defendants again admitted the plaintiffs had been very lenient, and said the goods ought to have been délivered before. The plaintiffs also proved that the market value of naptha and benzole, on the 12si of November, 1862, was eighty cents per gallon. The defendants offered evidence to prove the value of the articles in August and September, and, also, up to and including the 14th of November ; which was excluded and an exception taken.
    The court directed the jury to render a verdict for the plaintiffs for the difference between the contract prices of the naptha and benzole and eighty cents per gallon, to which the defendants excepted.
    The defendants now appeal from a judgment entered upon the verdict rendered, and also from an order denying their motion for a new trial.

      E. & E. F. Brown, for the defendants, appellants.
    I. The plaintiffs, under the complaint, could give no evidence of any rise in the market in the price of oil between the time of the making of the contract and the time agreed on for the delivery, or afterwards, because* not averred in the complaint.

      1. The general rule, as stated, on Chitty on Pleading, (vol, •1, page 386,) is that “ Whenever the damages sustained do not necessarily arise from the act complained of, and, consequently, are not implied by law, in order to prevent surprise on the defendant, which might otherwise ensue on the trial, the plaintiff must, in general, state the particular damage which he has sustained,, or he will not be permitted to give evidence of it. General damages are such as the law implies, and which are seen to be the necessary result of the injury complained of.”
    2. It not being averred that the oil had risen in market, the law could not imply a rise of the oil in market, and damages to the plaintiffs on that account. It at most would imply only nominal damages. What can the law know of the rise in market of the oils in question so as to imply any thing more than nominal damages, no actual payment or loss of profits by a rise in market being averred? The court, therefore, erred in allowing any proof of a rise in the market value of the oil agreed to be delivered under the complaint. (Deforest v. Leete, 16 John. 126, 127. Strang, &c. v. Whitehead, 12 Wend. 64. Slack v. Brown, 13 id. 390, 393. Squier v. Gould, 14 id. 159. Bogart v. Burkhalter, 2 Barb. 525.)

    II. The plaintiffs having counted on the contracts as made, without reference to the extension of the time for the delivery of the oil, could not legally prove that the time for the delivery had been extended, for the purpose of increasing the damages consequent on a rise in the price of oil: and the court erred in allowing proof of the value of the oil on the 21st of November, 1862. (Clark v. Dales, 20 Barb. 42, and cases there cited.)

    But in this case the complaint is on the original agreement, no mention being made of any extension of the time for the performance of the contract; and, consequently, they were not apprised' that the plaintiffs intended to rely on the enlargement of the contract. Had such substituted agreement been declared on, or the enlargement of the time of performance averred, the defendants could have answered and proved, that the defendants’ premise, to .deliver at a subsequent time was conditional,, to. be delivered when the same arrived from Pittsburg, Pennsylvania, they having purchased oil for that ' purpose, and -that the suit was brought before such oil arrived.. (2Q Barb.68.)

    III. The measure of damages is the difference between the contract' price and the market value of the oil when' the same should have been delivered by the terms of the contracts, as set.forth in the complaint. ■ (Dana v. Fiedler, 2 Kern. 40.)
    1. The true inquiry is, at what price the plaintiffs could have purchased the articles in the market when they were to be delivered.. (Id.) If the plaintiffs could, at that time have purchased, the article in market for the same price, they can recover only .nominal damages. (Taylor v. Read, 4 Paige, 561. Vanderslice v. Newton, 4 N. Y. 130. Davis v. Shields, 24 Wend. 322.), The rule of damages adopted by the court was therefore; erroneous.
    2. Had the plaintiffs counted on the agreement as extended in point of time, thus giving the defendants, an opportunity to take issue thereon, and set up the non-performance of the condition attached to the agreement for. extension,-there might have been grounds for claiming damage according to the price when the oil was to have been delivered by the last agreement extending the time. But as no mention is made of any agreement as to extension of time, in the complaint, it is obviously unjust to estimate the damages by the price on the 21st of November, long after the time agreed on for the delivery as charged in the complaint, because the price of oil had advanced.
    3. The cases of Wilson v. Little, (2 Comst. 443,) and the Bank of Buffalo v. Kortright, (22 Wend. 348,) are not applicable to this case.> (See Sedgw. on Dam. 260, 262.)
    .. IV. The court.erred in allowing proof of the increased price of the oil more than fifty days after the time agreed upon for delivery, and in rejecting proof of the value at the time the article was to have been delivered by the contract, as alleged in the complaint and admitted.
    1. If the plaintiffs’ theory is correct, although they may have bought the article in market, the day it should have been delivered, for the same or less than the contract price, still they might delay bringing suit until the article rose in market, although they had sustained no damage in fact, and then sue and recover the difference between the contract price and the increased price at any time thereafter, at which they saw fit to demand it. Such surely can not be the law where there has been no payment of price by the purchaser.
    2. Where a purchaser has paid for the article, or in case of a loan of money, stock is pledged as security for its payment, which is .the same thing as payment, the measure of damages is the difference between the contract price and the price of the article when demanded, (Sedgw. on Dam. 260;) and the reason assigned is, that by payment in advance, the purchaser may be deprived of the means of purchasing the same article in market, on the defendants neglecting to perform his contract. (Id.)

    Y. The charge of the judge to the jury was erroneous; he left nothing to the jury but a mere matter of computation.
    1st. The court erred in not charging that the plaintiffs were entitled to recover only nominal damages, there being no proof that when the oil should have been delivered as stated in the complaint it was worth any more than the contract price. (Bee authorities cited under the third point; also Graham on New Trials, 3d vol. p. 708, 709.)
    2d. The court erred in charging positively that the plaintiffs were entitled to recover the difference between eighteen and eighty cents per gallon, which would be $2926.20, .leaving nothing whatever for the jury as above stated, and which verdict the court told the jury could be corrected by the agreement of counsel if they made a mistake.
    3d. If the charge of the court be a positive direction to find, anew trial will be granted. (3 Gra. & W. on New Trials, 738. Fitzgerald v. Alexander, 19 Wend. 402. Trotton v. Sanders, 7 Marsh. Rep. 321. Fisher v. Duncan, 4 Hen. & Mun. 563. Utica Ins. Co. v. Badger, 3 Wend. 102, Crawford v. Wilson, 4 Barb. 517. Rich v. Rich, 16 Wend. 676.)

      4th. The court should have instructed the jury that the measure of damages was the difference between the'contract price and the price of the article when it should have been delivered. Even had it instructed the jury that the time for delivery was the 21st of November, 1862, and submitted the question of damages to the jury under such instructions, the _ jury would have been justified in finding a less amount as damages, under all the circumstances, than $2926.20. If the jury, from the evidence, had believed the damages were less, and so found, the court could not for that reason alone have been compelled to set aside such verdict. If not, and if the jury had a right to weigh the evidence on the question of damages, and if they had come to the conclusion and belief that the plaintiffs would#be compensated with a less sum, and had the right so to find, the charge of the judge was erroneous; and a new trial should be granted. (Lytle v. Lee, 5 John. 112. Foot v. Wiswall, 14 id. 304. Sayre v. Townsend, 15 Wend. 647. Aylwin v. Ulmer, 12 Mass. Rep. 22. Allen v. Hopman, 2 Dana, 221. New York Firem. Ins. Co. v. Walden, 12 John. 512. Nichols v. Goldsmith, 7 Wend. 160. Dallam v. Handly, 2 A. K. Marsh. 413. Morton v. Fairbanks, 11 Pick. 368. Gains v. Buford, 1 Dana, 481.)

      A. E. Doolittle, for the plaintiffs, respondents.
    I. The measure of damages where a vendor refuses to deliver an article of merchandize sold, and where no money has been paid by the vendee, is the difference between the contract price and the value of the article at the time when it should have been delivered. (Dey v. Dox, 9 Wend. 129. Davis v. Shields, 24 id. 322. Beals v. Terry, 2 Sandf. 127.)
    II. The time of delivery in this case having been extended, at the special instance and request of the defendants, and under their renewed promise to deliver, until the 21st day of November, 1862, and the plaintiffs at that time refusing to extend the time further, that became the day on which the delivery should have been made, and the market price on that day, less the contract price, is the proper measure of the plaintiff’s damages. (Kipp & Brown v. Wiles, 3 Sandf. 585. Wilson v. Little, 2 Comst. 443. Davis v. Shields, 24 Wend. 321. Clark v. Dales, 20 Barb. 42.)
    III. The objection that the allegations of the complaint are not sufficient to admit evidence of the market price of naptha and benzole, on the 21st day of November, to ascertain the measure of the plaintiff’s damages, is not well taken, because: 1st. The defendants were not taken by surprise by admission of evidence to prove the extension of time for the delivery. The complaint' alleges continuous and repeated demands, and the language of the defendants, used on the 21st of November, in answer to the formal demand, fully proves they understood and recognized it as a continuing contract, and their liability to pay the market price, viz. eighty cents, on that day, and urged a rising market as an inducement to the plaintiffs to grant a further extension. 2d. It was not necessary that the complaint should contain an averment that the time was extended, in order to admit evidence that the plaintiffs, at the request and upon the application of the defendants, had consented to, or acquiesced in an extension of the time of delivery. The object of the evidence was not to show that a new contract had been made, but that the contracts as made were kept in force by the parties. The complaint is not that the defendants did not deliver the oil at the time originally agreed upon, but the complaint and breaches assigned are, that the defendants neglected and refused to deliver at any time. (Crane v. Maynard, 12 Wend. 408. Clark v. Dales, 20 Barb. 42. Wilson v. Little, 2 Comst. 443. Kipp & Brown v. Wiles, 3 Sandf. 585.) 3d. The defects, if any, are those which have occasioned no surprise to the defendants, nor prevented them from availing themselves of any defense which they could interpose. If necessary, the court will direct the complaint to be amended, or deem it amended so as to conform to the facts proved. The power of the court, and the propriety of its exercise in this case, can not be doubted. (Code, §§ 169, 170, 173, 176. Field v. Hawxhurst, 9 How. 75. Hall v. Gould, 3 Kern. 127. Howard’s Code, p. 315, note and cases there cited.)

   By the Court, Barbour, J. (After stating the facts.)

The true measure of. dantages in cases of this, character, where the purchase price of the article to be delivered is not paid at the-time or before the’ contract is made, but is to be paid over to the vendor upon the delivery of the goods, is the difference between the contract price and their- market value at the time they, were -to -have beendelivered. (Clark v. Pinney 7 Cowen, 681. Taylor v. Read, 4 Paige, 561. Davis v. Shields, 24 Wend. 322.): • In this case, fifteen barrels of naptha, in addition to-.those actually" handed- -over, were, by the contract, to be delivered, oil the ! 8th of-.August, and the benzole, of-which there Was a .deficiency of -ninety-nine barrels, was to be .delivered without-, delay; ■ or, in other words, within a reasonable ■ time. ,=Ho evidence was given-, to show what would have been a reasonable, time, but, in the.absence of such evidence; it, will; probably, be safe to assume- that upon a contract’-for "the delivery of merchandise of this ■ description, in the city of Hew York, without. delay, a -failure.to deliver within, ten daysshould’ be considered ■ unreasonable. Upon this -assumption, the benzole was,-by the ■ contract, to be delivered on-.-'or before :the 30th of August; and,- as", we have seen,::the naptha was deliverable on the 18th;■ ¡It follows that the' difference between the- contract prices and the value of the articles," respectively,, on those days, formed the true measure of ;the-damages, if..any; to which• the plaintiffs were entitled; because i of .the defendants’ non-performance, -and.: ought to have been Ascertained upon the trial,- unless the period of performance, was extended by.-the.parties-. . . ■

.i .The., doctrine is ¡'well settled that ¡an, extension of ¡the time for, the performance of-a-contract is a new agreement between the-; parties, ■ •" substituted - pro tanto -in* place of the original. (Clarke v Dales, 20 Barb. 42.) --It is not-claimed in this case .that- the; plaintiffs ever. actually agreed'with the defendants to. extend the time of 'delivery,, or; in words, assented to their-request for further, time ;■ and/ it seems tó me, no such agreement can be, implied from -the ■fact that - the plaintiffs repeatedly, asked; «the; defendants to deliver the goods, and the latter as often refused-a-further ,delay. .¡Hothing was said at either of those conversations which would have precluded the plaintiffs from bringing a suit for the recovery of damages immediately afterwards. To put a single instance: there was no such extension of time given, even by implication, in the conversation of the middle of November, as would have prevented the plaintiffs claiming in this action that the 15th of November was the delivery day, with as much propriety as he did insist that the time was extended to the 21st.

For these reasons, I am of opinion that the learned justice erred in excluding the testimony offered to show the market value of the goods, prior to the 21st of November, and in directing the jury to find a verdict for the difference between the market value on that day and the contract price; and that the judgment ought to be reversed, and a new trial granted, with costs to abide the event.

White, J. dissented.

New trial granted.


author: By the Court, Robertson, J.

text:
    Willard H. Smith, plaintiff and respondent, vs. Maria Mulock, defendant and appellant.
    •1. A provision in articles of co-partnership, prescribing a definite period for its continuance, without any prohibition of an earlier dissolution, is sufficient to prevent either party from dissolving it at will.
    2. Where the articles of co-partnership do not give either partner a right to dissolve it at will, an allegation hy one partner, contained in a pleading, which is not responsive to any proposal of his adversary, of his desire to dissolve, is not equivalent to the acceptance by him of an offer to dissolve made by the other party, a month previously.
    3. Where a creditor made a loan to his debtors upon a promise by them that they would either repay it out of the proceeds of a note for a much larger amount which they had procured to be. indorsed by a third person for their accommodation, or would deliver the note to him; and they subsequently delivered such note, without having been discounted, to him, in satisfaction of such loan and a prior indebtedness of them to him;

      Held that the contract was to he regarded as entire, and that he had parted with a new consideration sufficiently to make the indorsement binding.

      It seem that the indorser in such case would not be exonerated by notice to such transferee of the note, subsequently to its date, merely that the partnership between the makers had been dissolved.
    (Before Robertson, White and Barbour, JJ.)
    Heard June 8, 1863;
    decided July 30, 1863.
    Appeal from a judgment entered on a verdict in favor of the plaintiff.
    The complaint in this action, which was by Willard H. Smith against Maria Mulock, alleged, as a cause of action, the malting of a promissory note hy George W. Wood and William G. Mulock, hy their firm name of Geo. W. Wood & Co., for the sum of $2500, which was payable to the order of the defendant, and indorsed h'y her, and subsequently transferred, to the plaintiff before maturity, and for value.
    The answer of the defendant stated that the note was not made or signed hy' the copartners of such firm, or for the business of the firm, hut that the firm name was signed to it hy Wood, for his individual benefit and gain, and in fraud of the defendant and his partner. It further denied that such note was made or signed on or about its date, or that it came into the possession of the plaintiff before maturity, or for value-; or that either after the same was so signed, or on the day of its date, or at any time since the date thereof, the defendant indorsed it in writing, or ever delivered it or authorized it to he delivered to the plaintiff; and that the plaintiff was the lawful holder, or that the defendant was justly indebted. It further. alleged that this action was prosecuted in the name of the plaintiff for the benefit and at the request of Wood, and in fraud of the defendant; that the indorsement was made before the note had any date, time of payment, or signature of maker, was without consideration and for accommodation of the firm named, and was obtained from the defendant by false representations by Wood and another person, a dormant partner! Other facts appear in the opinions.
    The cause-was tried before Mr. Justice Barbour and a jury, on the 5th day of February, 1863. The jury, under the direction of the court, found a verdict for the plaintiff for the amount of the note and interest; "and judgment thereon hav-' ing been entered, the defendant now appealed therefrom.

      James T. Brady and Francis Byrne, for the defendant, appellant.
    I. The notes were indorsed by the appellant, without consideration, solely for the accommodation of said firm, to be used during its existence, and for its business.
    II. The agreement of partnership did not contain a stipulation (of a negative character) that the copartnership should not be dissolved. “ Either party ” might, therefore, “ by his own act,” dissolve the partnership, “ unless restrained by the compact between them to continue it for a definite period.” (Griswold v. Waddington, 15 John. 57 ; affirmed, 19 id. 538.) Mulock effectually dissolved said firm by the service of his notice and its publication, and Wood assented thereto, by his statement in his answer on-oath in the action brought to dissolve the copartnership, that he was “ desirous of having the partnership terminated and dissolved.” The firm was, therefore, dissolved by mutual consent at the date.
    III. The right of one partner to bind even another by the signature of the firm name is not so much derived from their relation as partners, as from a presumed agency for each other for that purpose ; is limited to the duration of such partnership, and ceases on its dissolution. After that, neither can bind the other by issuing notes, signed with the name of the partnership, (Lansing v. Gaine, 2 John. 300 ;) nor, although authorized to settle partnership debts, indorse notes or bills given to the firm before the dissolution, (Sanford v. Mickles, 4 John. 224;) nor even renew a partnership note, &c. (National Bank v. Norton, 1 Hill, 572. Mitchell v. Ostrom, 2 id. 520. Lusk v. Smith, 8 Barb. 570. Kirby v. Hewitt, 26 id. 607. James v. Pope, 19 N. Y. 324. City Bank of Brooklyn v. McChesney, 20 N. Y. Rep. 241. City Bank of Brooklyn v. Dearborn, Id. 244. Robins v. Fuller, 24 id. 572.)
    IV. But this is not even an action against a partner in a firm, but against an innocent person, whose authority to bind her was given to the firm only, and was limited to its duration. The partnership having been dissolved, the authority expired. (Michigan Insurance Co. v. Leavenworth, 30 Verm. R. 11.)

      V. The plaintiff acted'in collusion with Wood, and took the note sued upon in payment of the protested $2070 note of a previous loan of $500 to Wood. The circumstances, that the firm was insolvent and closing up its business; that the propperty was being removed from the store; that' the safe was being disposed of, and that a lady was the indorser, were sufficient to put him on inquiry.
    VI. The statement in the answer of the defendant George. W.'.Wood produced, was proper evidence of a consent to dissolve the partnership, and ought to have been submitted to the jury, and the exception is tenable.
    VII. The several requests of the defendant’s; counsel to charge should have been acceded to, and the facts should have been submitted to the jury for their determination, and the exceptions to the rulings and direction are valid.- (Bidwell v. Lament, 17 How. Pr. 357.)

      Henry W. Johnson, for the plaintiff, respondent,
    cited, as to the sufficiency of the proof of the note and the authority to make it, Story on Prom. Notes, §§ 135, 380 and 387; Erwin v. Downs, (15 N. Y. Rep. 575 ;). Ogden v. Blydenburgh, (1 Hilt. 183.) And as to the presumption that the plaintiff was a bona fide holder, Vallett v. Parker, (6 Wend. 615 ;) Ross v. Bedell(5 Duer, 462 ;) Case v. Mechanics’ Banking Association, (4 Comst. 166.)
   By the Court, Robertson, J.

The defendant became indorser 'of the promissory note in suit in this action, by writing her name on the back of a piece of blank paper, and deliv-? ering the same to her two sons, with intent that they should write a promissory note on the face thereof, to be used by them for the benefit of the firm of which they were members. She now claims that the firm in which they were partners was dissolved before such note was passed away ; that one of her sons subscribed the name of the firm to such promissory note after the dissolution, and passed the note to the plaintiff in satisfaction of a precedent indebtedness, or ■ with knowledge of such dissolution. • , . . .

The partnership of the defendant’s sons began in January, 1860, to continue three years, under an agreement in "writing. The note in suit came into the plaintiff’s possession in February, 1862. In January previous, one of such sons, Mulock, served upon the other, his partner, Wood, and another person, Ackerman, whom he claimed to be a partner, a written notice that he had dissolved such partnership. A like notice' was published by the same partner in two papers in the city of New York, of large, circulation. Five days previous' to serving such notice, the partner giving it, Mulock, commenced an action against his copartners, Wood and Ackerman, to dissolve such partnership, in which he obtained an injunction.Subsequently, after discontinuing that action, he began a new one for the same purpose. As the. complaint in that last action was not in evidence, it does not appear what allegations were made in it in regard to a dissolution. The answer in it, however, put in on the 1st of February, 1862, contained this phrase : “ This defendant is desirous of having the partnership aforesaid terminated and dissolved.” This is claimed to' have produced an actual dissolution, by construing the notice of the 12th of January to have been an offer, and such allegation an acceptance of it. The original agreement made no provision for a dissolution ; and I apprehend, where such an agreement prescribes a definite period for the continuance of a partnership, it is sufficient, without prohibiting an earlier dissolution in order to deprive the parties to it of the right of dissolving at will. (Griswold v. Waddinyton, 16 John. 438. S. C. 15 id. 57.) The announcement to the court by a party to an action, in a pleading, when not responsive to any proposal of his adversary, of a readiness, or even of the most earnest desire to dissolve a partnership, can not be converted into a contract in pais, or stipulation of record, in the former case, to be enforced by a specific performance, or in the latter by a decree without further" litigation. Still less could it be construed into the acceptance of an offer to dissolve, made a-month before; if the notice in January was such,1 and not a mere notification of the determination of the party notifying, whatever his partner might say. This, therefore, not creating a dissolution, and there being no other evidence of one, there was no question upon it for the jury; a mere willingness to dissolve being no evidence of a previous dissolution.

The consideration given for the note in question, according to the plaintiff’s testimony, was a loan of $500, a few days before the 14th of February. This loan was made upon a promise either to repay the same out of the proceeds of the note in suit, if it could be discounted, or to deliver that note. It was not discounted, but was delivered to the plaintiff in satisfaction of such loan, and. a prior note of the same firm held by him; This testimony is not contradicted even by the partner who delivered it, Wood. The promise to deliver the note or its proceeds in consideration of the loan, entitled the plaintiff in equity to one or the other ; and the time of the application of the residue of the plaintiff’s advance, consisting of the prior note, to such new note, whether at the time of the .agreement or when the latter was delivered, was immaterial. The contract was entire, and a new consideration parted with, sufficient to make the indorsement binding on the defendant.

Even if the plaintiff had, or was bound to' take notice of the dissolution of the firm, that knowledge would have an entirely different effect upon the liability of the member of the firm who did not sign the note, and that of the defendant. Without some authority remaining in the partner signing, the other partner would not be liable. But the defendant would be liable as indorser, whosoever’s name-was' subscribed to the note, unless the purchaser had notice of the limitation of the authority to make a note, to drawing one made for the benefit of the firm, and signed by it. The note in this case was delivered by one of that very firm to a purchaser, to discharge a liability incurred by it. The partner delivering it was responsible, at .all events, and it was not incumbent on the plaintiff to inquire who else was, provided the defendant was.

But in fact the case does not disclose any very clear request to submit any controverted question of fact to the jury, or to give them any instruction as to any point of law. The request to submit the question, Whether the plaintiff parted with value, without notice sufficient to put him upon inquiry as to the liability of the indorser or the validity ofthepaper,” was not sufficiently definite or pointed. The liability of the indorser, or the validity of the paper, was a question of law, and not of fact alone. The facts which were to absolve the defendant from liability, were either the dissolution of the firm, and knowledge of it by the plaintiff, or some limitation of the use to which the note was to be applied, transgressed in passing it to him. , The notice necessary thus to absolve the defendant, was, of course, of evidentiary facts, leading to the discovery of such ulterior facts. A mere notice to the plaintiff, that the indorser would not be liable, without knowledge of the facts by which she was to escape liability, would not acquit her ; and an inquiry which would end in that information alone would be of no avail. Of course, if that information, when obtained, would not render the note void in the hands of the plaintiff, notice of facts leading to an inquiry for it would be immaterial. But there was no evidence of any facts constituting notice of any thing to put the plaintiff on his guard. Notice that the makers of a note, signed with their firm name, had dissolved partnership, formed no ground for suspecting that such note, dated six months previously, was about to be diverted from the use for which it was intended, when employed by a partner in paying that firm’s debts. The defendant’s counsel did not disclose in his request what those facts were, of which he considered there was no evidence, and which he claimed to be equivalent to a notice of something which would relieve the defendant from liability, because it was sufficient' as 'matter of law, to put the plaintiff on inquiry after that which would produce such relief if known. Such request was therefore properly refused, not only as being too indefinite or irrelevant, but also as not having any basis in the evidence. There was, indeed, no evidence of any knowledge by the plaintiff of a misapplication of the note, or of a want of a new consideration for it, and the plaintiff was therefore entitled to judgment.

The judgment must be affirmed, with costs.