author: By the Court—Bosworth, Ch. J.

text:
      William J. Barnes, Plaintiff and Appellant, v. Edward Roberts, Respondent.
    1. A motion for a new trial on the ground of surprise, cannot be made as a matter of right, after judgment has been perfected.
    2. A real estate broker, employed by the defendant to effect or negotiate an exchange of certain of the defendant’s real estate for other specified property, at given prices, does not become entitled to commissions until he obtains a contract which his employer accepts, or such a contract as his employment authorizes him to negotiate, made with some third ' person, which the latter is able and ready to perform, or the specific performance of which can be compelled.
    (Before Bosworth, Oh. J., and Hoffman and Moncrief, J. J.)
    Heard, April, 11;
    decided, June 25, 1859.
    This is an appeal by the plaintiff from a judgment of nonsuit ordered at a trial had before Mr. Justice Woodruff and a jury, in November, 1858, and also from an order denying a motion made for a new trial on the ground of surprise.
    The substance of the complaint is, that in May, 1854, the defendant “ employed one Joshua Barnes as a broker to negotiate a purchase for, and a sale to the said defendant of certain lots of land situate on Forty-fourth and Forty-fifth streets, in the city of New York, of great value, to wit, of the value of $22,100,” and. agreed to pay therefor the usual brokerage commissions, at the rate of one per cent on that sum, being $221; that on or about the 24th of May, 1854, Joshua Barnes, as such broker, effected such purchase and sale, and thereby became entitled to the $221, which the defendant refused to pay. The plaintiff sues as the assignee of this cause of action.
    The answer is short. It denies “ each and every allegation contained in the complaint.”
    At the trial the plaintiff produced a written account or bill, in these words, viz.:
    “New York, September, 1855.
    Mr. Edward Roberts
    “ To Joshua Barnes, Dr.

    “House and Land Agent, No. 514 Sixth Avenue, between 33rd and 34th streets.
    “1854. -
    “May—To selling three brick houses and lots, Nos. 168, 170 and 172 West Thirty-ninth street, to Mr. James Travers, at $21,000,..........•............ $210 00"
    Underneath it was a written assignment by Joshua Barnes, dated Sept. 1st, 1855, of all his “ claim 'and interest in and to the foregoing bill against Edward Roberts,” to the plaintiff.

      Joshua Barnes, was examined as a witness for the plaintiff, and testified that the defendant, in or about March, 1854, employed him to sell or exchange some property on the south side of Thirty-ninth street, between Seventh and Eighth avenues, New York city. “ He asked me to sell or exchange for vacant lots ; I showed him some property I had for sale for Mr. Travers in Forty-fourth and" Forty-fifth streets, between Tenth and Eleventh avenuesthat he subsequently introduced the defendant to Travers. He further testified: “ I think it was in March; in April I called to get a proposition in writing; he then made that offer on the card; I wrote it, and he signed it.”
    The said card and offer were then read in evidence, as follows, viz.:
    (Card.)
    “Barnes & Camp,
    “ House and Land Agents,
    “No. 430 Eighth Avenue,
    “between 32d and 33d streets.
    “ Joshua Barnes, j A-r
    A-r “ Theodore D. oImp, | Kew York
    to. “ All business connected with real estate faithfully attended “ Office hours from 7 A. M. to 7 P. M.”
    (On the back of this is written with pencil:)
    “I make this offer for 17 lots on 44th and 45tn streets, subject to $15,000 mortgage, at $1,300 each—give my three houses, 168, 170, and 172, 39th street, $7,000 each—balance on bond and mortgage two years.
    “ New York. 14th April, 1854. “ E. Roberts."
    Evidence was given by Joshua Barnes with a view to prove that the defendant agreed to purchase these seventeen lots from James Travers, and that Travers, as part of such agreement, contracted to purchase defendant’s three houses, 168, 170 and 172, Thirty-ninth street.
    A written and sealed agreement was put in evidence by the plaintiff, dated the 24th of May, 1854, “ between James Travers, of the first part, and Joshua Barnes, acting as the agent of Edward Roberts, of the second part.” It was signed, “James Travers, [l. s.,] Joshua Barnes, Agent for Edward Roberts [l. s.] ”
    By the terms of this agreement “ the party of the first part” sold to “ the party of the second part,” the seventeen lots, for $1,300 each lot, total $22,100, “ to be conveyed by a good and sufficient deed, subject, however, to three mortgages,” for $15,000 in all, and for the balance, viz., $7,100, agreed to take in payment defendant’s said three houses and lots, at $7,000 each, total $21,000, to be conveyed subject to three mortgages, for $10,500 in all; and for the balance of $3,400, that would be coming to defendant, mortgages on said three houses were to be taken, “ each of the said mortgages to be accompanied by the bond of the said party of the first part,” conditioned to pay the last named amount at the end of two years, with interest semi-annually at seven per cent, the deeds to be delivered on or before the 1st of July then next.
    * Evidence was given on both sides as to what occurred between the parties prior and subsequent to the making of this agreement,' which is sufficiently stated in the opinion of the Court.
    When the plaintiff rested, a nonsuit was asked, because, (1.) “ the complaint states J. Barnes caused the seventeen lots to be sold—variance in the proof; (2.) That the plaintiff’s assignor cannot act as agent of both parties; (3.) That plaintiff has not shown title in Travers.” “ Motion denied, and plaintiff allowed to amend the complaint, to conform to the proof.”
    In the course of the trial, the defendant claimed that James Travers, on the 1st of February, 1854, conveyed the seventeen lots by deed to his daughter Hester Ann Travers, and James Travers having left Court during the trial, (it occupying over a day,) by stipulation in open Court, the defendant was allowed to read as evidence the notes of Mr. Daniel Lord, taken by him, of J^rnes Travers’ testimony in relation to this matter, given on a trial theretofore had between the defendant and said Hester Ann Travers; the plaintiff’s counsel insisting that the whole of such testimony should be read, to which the defendant assented, and the plaintiff’s counsel then read the same to the jury, in the following words:
    “James Travers, plaintiff—Deed to Hester Ann Travers— Assignment to his daughter: These papers were signed; the deed was signed in Mr. Fowler’s office, a commissioner; the assignment in Anthon’s office; after they were signed, delivered them—the deed to my daughter, the other deed to me.
    “ Q. At what date did you sign the deed?

      “A. In February, 1854; I lost the deed from Engs; Engs would rather have my bond and mortgage than my daughter’s; the deed to my daughter was signed about the same day; delivered it the same day; the foreclosure—I forget the time; Roberts told me he would do what he said to Mr. Barnes, and let Mr. Barnes finish it up, and he would do nothing else; at Mr. Roberts’ house; he alone present; this before the contract signed.”
    The deed from James Travers to Hester A. R. Travers, dated February 1st, 1854, was read in evidence.
    Proof was given of judgments docketed in the County Clerk’s office against James Travers, viz.: one March 25, 1853, for $78.24; one January 8,1851, for $76.81; one January 3, 1852, for $35.10; one December 2,1851, for $137.94; and one December 20, 1851, for $147.63.
    When the testimony was closed, the defendant’s counsel moved for a nonsuit, “ on the ground that Travers had no title to the seventeen lots when the agreement to exchange was made.” The motion was granted, and the plaintiff excepted.
    The plaintiff, after judgment was perfected, moved for a new trial on the ground of surprise, on affidavits, the particulars of which are sufficiently stated in the opinion of the Court. That motion was denied, and from the order denying it, and from the judgment, the plaintiff appealed to the General Term.

      P. Y. Cutler, for appellant.

      L. J. Goodale, for respondent.
   By the Court—Bosworth, Ch. J.

It is important to determine preliminarily whether the order appealed from was properly denied, for the reason that a motion for a new trial, on the ground of surprise or of newly discovered evidence, cannot be made after judgment perfected.

The trial of the action was concluded on the 17th of November, 1858, and judgment was entered on the 9th of December, 1858, its entry until that time having been delayed at the request of the plaintiff’s attorneys. A notice that the plaintiff appealed from that judgment, was served on the 23d of December. On the 11th of January, 1859, notice of a motion for a new trial, “ on the ground of surprise and newly discovered evidence,” was served.; the notice stating that the motion would he made on the 19th of that month. From the order denying that motion, the plaintiff has appealed to the General Term.

Prior to the Code, it was settled that a motion for a new trial on the ground of newly discovered evidence or surprise, could not be made after judgment perfected. (Roosevelt v. The Heirs of Fulton, 7 Cow., 107; Jackson v. Chace, 15 J. R., 354; Rapelye v. Prince, 4 Hill, 125.) Neither could it have been made on a case after judgment perfected. It became necessary for a party wishing to make such a motion, to obtain a stay of proceedings so that judgment could not be entered until the motion was made.

A bill of exceptions, per se, stayed proceedings and prevented the entry of judgment. It was only necessary to obtain a stay of proceedings by order until the settlement of- the bill. This was the rule in force when the Code took effect, except that the act of 1832 (chap. 128, p. 188,) allowed judgment to be perfected, although a bill of exceptions had been settled, (unless a stay of proceedings was granted,) and the bill of exceptions to be argued, notwithstanding judgment had been perfected. (Graham’s Pr., 329.)

This practice, in force when the Code took effect, is as much the practice now as previously, when not inconsistent with the Code itself or the rules adopted under it. (Code, §§ 46.9, 470.)

The Code provides, in cases tried by jury, for “ a motion for a new trial, on a casé or exceptions, or otherwise,” (§ 265,) and for an appeal from the order granting or refusing it, (§ 349,) and for an appeal from a judgment, as a substitute for a writ of error. (§§ 323, 348.)

Section 265 contains no provision allowing a motion for a new trial to be made under circumstances which, by preexisting practice, would preclude a party from making such a motion. Now, as before the Code, a party wishing to make a motion for a new trial, on the ground of newly discovered evidence or surprise, must obtain a stay of proceedings to secure that right.

In Mersereau v. Pearsall, (6 How. Pr. R., 293,) the preexisting rule was admitted to be such as I have stated, but the opinion was expressed that, under the Code, such a motion could be made after judgment perfected. That opinion seems to rest on the considerations due to the supposed fact that prior to the Code judgment could only be entered in term time, and a defendant had four days in term, after rule for judgment had been entered, to make his motion, whereas judgment can now be entered in vacation; and to the idea that if not now permitted to move “ after judgment, the defendant would practically be denied the benefit of such motions in all cases.” (Id., 294.)

With reference to the assumption that judgment could only be entered in term, it may be observed, first, that in the case of trials in circuits held in term time, the prevailing party could file his circuit roll and postea at once, enter a rule for judgment, and four days thereafter perfect his judgment. -The terms of the Supreme Court, for all purposes of entering rules' for and perfecting judgments, continued four .weeks. (2 R. S., 197, §6.) The same difficulty attended the making of motions for new trials in such cases, as in actions tried under the Code.

But as early as June, 1840, judgments could be “ entered and perfected at any time in term or in vacation.” (Chap. 386 of Laws of 1840, p. 327, §§ 23 and 41.) The case of Rapelye v. Prince, (4 Hill, 125,) was tried in 1842, and the rule previously enforced was in no way modified or relaxed, because when that action was tried, judgments could be entered in vacation. The judgment in that case was perfected in vacation.

If a party is surprised by anything to his prejudice occurring at the trial, or if on the whole case he thinks injustice has been done to him, he knows it, at least, as soon as the verdict is rendered, and should apply for a stay of proceedings.

I think there is no just ground of complaining that such orders are not granted with sufficient facility to enable a defeated parly to obtain a further hearing.

In the present case there is, properly speaking, no surprise. The defendant at the trial found himself without any evidence to prove that “James Travers had no title to the seventeen lots when the agreement to exchange was made,” except such as by the plaintiff’s permission he was permitted to give. That evidence was in writing. Before consent to its being read was given, the plaintiff knew what it was, and for what purpose its introduction was sought.

The plaintiff was nonsuited solely or partly in consequence of the evidence being given, which he consented might be so read. Under such circumstances there is no ground for expressing surprise at anything except the decision of the Court. That was excepted to, and, if erroneous, will entitle the defendant to a new trial, not on the ground of surprise, but because it was error to grant the nonsuit.

If the defendant could make such a motion, even after judgment perfected, when his delay to move earlier was excused, no reason is shown why James Travers was not immediately applied to for information as to the time he delivered the deed to his daughter,- and notice of the motion sooner served.

This Case furnishes no reasons for departing from the previously well settled practice, which we regard as being now in full force, that a motion for a new trial, on the ground of surprise or newly discovered evidence, must be made before, and cannot be made after, judgment perfected.

When, as a condition to staying proceedings, security is required to be given, and judgment is permitted to be entered, not absolutely, but as security merely, it is reasonable to hold that such an entry of judgment is not a bar to such a motion. (Benedict v. Caffe, 3 Duer, 669; Superior Court Rules adopted Jan. 18, 1851, Rule 8, p. 660 of 5th ed. of the Code.) In such a case the judgment is not absolute when it is entered nor so long as it stands as security only.

A motion for a new trial is not different in any of its material incidents from the like motion under the practice as it existed when the Code took effect. (Morgan v. Bruce, 1 Code R., H. S., 369.) The considerations or facts which, prior to the Code, would be a bar to such a motion, are so now, unless there be special cases which, by the Code itself, cannot now have that effect. If there be any such cases, newly discovered evidence, or surprise, as the ground of a new trial, is not among the number.

In a case tried by a jury, an appeal from the judgment under section 348, brings under consideration only questions of law. (Code, § 348.)

It follows, if these views are correct, that the order appealed from must be affirmed, and that in considering the appeal from the judgment we can look only at the exceptions taken by the plaintiff during the progress of the trial. The affidavits on which the order was made, and the facts stated in them, should be as absolutely excluded from the mind, in considering and determining the appeal from the judgment, as if made in some other cause between other parties.

Was the plaintiff rightly nonsuited? is the only question raised by the appeal from the judgment.

The paper of the date of the “14th April, 1854,” did not authorize Barnes to execute, as agent of Roberts, the agreement of the 24th of May, 1854. At the most it authorized him to negotiate or effect such an exchange as that paper described.

There is no pretense that Roberts assented to the agreement of the 24th of May, 1854, as it was drawn.

Barnes testifies that Roberts, on being shown and furnished a copy of that agreement, said, “ that he had painted his house in Thirty-ninth street, and had put in the gas, and that if Mr. Travers would pay for these, it would be all right.”

There was never any agreement signed by Travers or Roberts, expressing this modification, even if it be true that Travers assented to it. It was not, therefore, in the power of Roberts to compel Travers to perform, specifically, the agreement as Barnes says it was assented to even if the title to the seventeen lots had been in Travers, because Travers never signed any such written agreement.

He never tendered a deed of the seventeen lots executed by himself or any one else, to Roberts. The seventeen lots were encumbered by judgments against James Travers. There is no evidence that Roberts knew this, when the agreement of the 24th of May, 1854, was shown to him, and these Travers neither discharged nor offered to discharge. He never offered to pay for painting the house in Thirty-ninth street, or for putting in the gas.

On the evidence contained in the case, he was unable to perform the contract, at any time after the negotiations with him were commenced. There is no pretense that these were commenced earlier than in March, 1854.

James Travers bought these lots for his daughter, of P. W. Engs, and took a deed of them, dated the 1st of February, 1854, executed his bonds and mortgaged the lots, to secure the purchase money in whole or in part, and by a deed of the same date, conveyed them to his daughter.

Barnes admits that he knew, on the 24th of May, 1854, that Travers had bought these lots for his daughter, but says he did not then know whether she owned them or not. He says he did not know that Travers had a lot of judgments against him.

The defendant testified, that near the 1st of May, 1854, he went to Barnes’ office several times “to see if arrangements were to be carried out.” Barnes told him, “ he supposed Travers had backed down.” After that the defendant rented his house, and conditionally sold one. After this and about the 22d or 23d of May, 1854, Travers called on him to see whether he “ would not do a little better with the trade.” Roberts told Travers he “supposed the trade had been all given up, and that he had promised one lot to another party, and that if I (Roberts) did anything, he must take another house and pay for my expenses, and that the terms I had given to Mr. Barnes were the best terms I would trade upon.”

Travers does not deny that these conversations were had. After this the contract of the 24th. of May, 1854, was signed. Roberts says he immediately went to Barnes’ office and told Camp, a person there, and Barnes, that he would not act on the contract. That Travers called on him again in a few days, when he told Travers the same thing, and on Travers denying his statements he showed him the door, and heard no more of the matter until the 29th of June, 1854, when he received the note of Joshua Barnes, which was produced on the trial, to which he paid no attention. That note reads thus:

“ Dear Sir—I am requested to state that Mr. James Travers will be ready on 1st July, ’54, to complete contract.
“Your ob’t,
Joshua Barnes,
“Agent for James Travers.
“ To Mr. Edward Roberts.”

Travers does not deny any of these matters, which Roberts testifies occurred between them.

The evidence furnishes some grounds for inferring that Barnes and Travers were not deceived or misled, but were conscious, ' when they signed the paper of the 24th of May, 1854, that Roberts supposed the whole negotiation was at an end, and knew he would not assent to a contract on those terms, but had some idea that the writing of the 14th of April, 1854, put it in the power of Barnes to bind Roberts by the contract.

Roberts’ signature to it might as well have been had as Barnes’, if he was willing to enter into such a contract; and Mr. Chamberlin suggested to them, when preparing, or about to execute it, that Roberts had better be there."

The evidence does not justify the conclusion that Barnes had accomplished any result for which it was agreed he should be paid, or which entitled him to commissions.

He never obtained from Travers any written contract to which Roberts assented. He did not, therefore, either effect a sale or exchange of any lots, nor any agreement for a sale or exchange, which his principal accepted.

He never made any contract, verbal or written, or partly verbal and partly written, which Travers is shown to have been able to carry into effect. On the contrary, the evidence shows that he was not able to perform, on his part, the contract which Barnes says he assented to; and he never contracted in such form that he could have been compelled to perform it, even had the title been in him, and the lots been free from the incumbrance of the judgments.

A broker, like any other person who seeks to recover a fixed sum on the ground that he was employed to do a particular thing for a stipulated compensation, must allege, (and prove, if his allegations be denied,) what it was that he was employed to do, and that he has done it, as the terms of the agreement between him and his employer required.

The complaint alleges that he was' employed to negotiate a purchase for and sale to the defendants of seventeen lots of ground.

If it is clear, upon the evidence, what precisely he was to do, to earn his commission, then I think it must be admitted that he was to negotiate the exchange which Roberts, by his offer of the 14th of April, 1854, written on the back of one of Barnes’ cards, consented to make.

It is one thing to agree with a broker to pay him a stipulated sum to obtain from a third person a valid contract to make a prescribed exchange, and another thing to agree to pay a fixed sum to effect or negotiate an exchange which will vest in the employer a good title to designated lots, subject only to specified incumbrances.

In the latter case, the commissions are not earned until the broker finds a person able and ready to make the exchange and convey to his employer the title, which alone, by the terms of his offer and of the broker’s employment, the principal of the latter agreed to take and has a right to demand.

Barnes gave no evidence on his behalf justifying the conclusion, nor does all the evidence given justify the conclusion, that he negotiated an exchange with any person who was able to convey such a title to the seventeen lots as Roberts ever agreed to take.

Nor does it warrant the conclusion that he ever obtained a contract obligatory upon Travers to which Roberts ever assented, much less one which Roberts agreed with Barnes to accept as performance by the latter of the services which he was to render as a condition to his right to be paid commissions.

There was, therefore, no question of fact to be submitted to the jury.

The plaintiff was permitted to amend his complaint, (as I understand the object of the amendment,) to enable him to prove that he was employed to negotiate an exchange of enumerated lots, and that he had done all he was employed and undertook to do, and therefore had earned the stipulated compensation.

As the evidence was not sufficient to warrant a verdict finding that he had negotiated an exchange upon the terms that he was authorized to negotiate it, or that he had succeeded in inducing any person, having a title to the seventeen lots which, if the exchange was effected, were to be conveyed to the defendant, subject to specified incumbrances only, to make a conveyance which would vest such a title in the defendant; or that he had made a valid contract with any person to exchange on the proposed terms who was able and ready to perform such contract on his part; or that he had made any agreement with any person which Roberts accepted as performance by the broker of the stipulated services which he was to render, the plaintiff was properly nonsuited.

Whatever may be the ground on which the nonsuit was asked, yet, inasmuch as it does not appear that the judge assumed to nonsuit on any one specified ground only, I think it a just view to take that he granted the motion because he was clear that, on the whole case, the plaintiff was not entitled to recover.

If the views above expressed are correct, it would be our duty, if he had refused to nonsuit and his decision had been excepted to, and he had submitted the cause to the jury and a verdict had passed for the plaintiff, to grant a new trial.

I think the judgment should be affirmed.

Hoffman, J., dissented from the conclusion above expressed in relation to the appeal from the judgment. Monceief, J., concurred with the Chief Justice.

The order and judgment appealed from were affirmed.


source: Caselaw Access Project

author: By the Court—Woodruff, J.

license: Public Domain

text:
    William Rider and Jona. Trotter, Assignees, &c., Plaintiffs and Respondents, v. The Union India Rubber Company, Defendants and Appellants.
    1. Where the chattels of one, by his consent, come to the possession of and are used by another until worn out and rendered valueless, the owner may recover the fair value of such use, unless it be proved that the permission was given and accepted as a gratuity, and without any expectation of reward therefor.
    2. The owner may recover for such use, although it was begun and continued in the mutual expectation that the party so using the chattels would purchase them, and notwithstanding the managing agent of such party, under whose direction the use was made, in good faith believed that his principal had purchased them.

      3. But the statute of limitations is a bar to a recovery for the use for any period antecedent to six years before action brought.

      4. When an agent or officer of a corporation, in good faith, in the proper discharge of his duty, applies his own money or makes use of his own chattels for the proper uses of the corporation, he may recover for such money or such use.
    5. Although an agent or officer cannot, as such, make a contract with himself, and so bind his principal to himself, his principal is nevertheless bound to pay for property used by his agent, in the faithful discharge of his duty, for purposes within his authority, and the measure of compensation is the fair value of the property so used.
    6. Although the by-laws of a corporation require the officers and agents to enter all the business of the Company in its books, their neglect to do so (though it may subject them to liability if the Company sustain damage from such neglect) will not operate as a forfeiture or otherwise to deprive such officers of a just compensation for the use of chattels" furnished by them to the corporation for the purposes of its business.
    (Before Bosworth, Ch. J., and Woodruff and Moncrief, J. J.)
    Heard, June 6th;
    decided, July 9th, 1859.
    The judgment recovered by the plaintiffs in this action having been reversed and a new trial ordered at the February Term, 1859, the action was again brought to trial on the 20th of April, 1859, before Mr. Justice Slossoh and a jury. The pleadings and most of the facts appeared as stated in the former report. (4 Bosw., 169.)
    The plaintiff formally waived any claim to recover the value of the chattels mentioned in the complaint, and sought to recover so much as the use thereof by the defendants was reasonably worth.
    It was shown that the plaintiffs, at the time the articles went into the possession of the defendants, were two of the five trustees mentioned in the defendants’ certificate of incorporation, by whom the Company was controlled and managed, and the one was also President and the other Treasurer of the corporation. Emory Rider was also a trustee, and was the manager of the manufacturing department of the Company’s business, and he took possession of and used the articles in question, with the knowledge and assent of the plaintiffs, to whom they belonged, as assignees of a former firm of Goodyear & Ely. Emory Rider knew that the articles never belonged to the firm of Rider & Brothers, and that they were not included in the purchase made by the defendants when they (through their President) bought the machinery, tools, &c., of that firm for $30,000. But Emory Eider, the managing agent, also knew that it was the expectation of the plaintiffs, as assignees of Goodyear & Ely, to sell these articles to the defendants, and supposed that the defendants had purchased them from the plaintiffs.
    The defendants objected to any oral testimony that the property in question was not included in the purchase from Eider & Brothers, and also to any testimony to prove what the use of the articles was worth.
    The record of a former judgment between the same parties, in which it was found and adjudged that the defendants did not purchase the property from the plaintiffs, was given in evidence. The defendants waived any claim that they ever purchased the property from the plaintiffs, -but insisted, (notwithstanding the testimony of Emory Eider, above mentioned, and that of other witnesses to a similar purport,) that the articles were included in their purchase from Eider & Brothers, made December 4th, 1848.
    The by-laws of the Company were given in evidence. The 5th and 8th contain the following provisions:
    “ 5th. The duties of the President shall be to preside at all meetings of the corporation and trustees, sign all certificates of stock, make all purchases for the corporation, superintend the sale of all the goods of the Companyfor cash, or on time, according to his best judgment, and turn over the proceeds as fast as received, whether in cash or paper, to the Treasurer; employ and pay such persons as may be necessary to carry on the business in his charge, and discharge them at pleasure. * *

      “ 8th. All business done for the Company by any officer, agent or servant of the Company, shall be done in the name of the Company, and entered on the books of the same.” * *
    Other facts also appearing on the former trial will be found noticed in the opinion of the Court.
    The defendant’s counsel then moved that the complaint be dismissed on the grounds:
    1st. It is in proof that the defendants commenced using the property in November, 1848, and demand was made October 1st, 1855 or ’56, and therefore no action could be brought for the property.

      2d. There is no proof of hiring, and no rent or value of use can b,e recovered unless there be a hiring.
    Sd. The plaintiffs not being able to recover the property, cannot recover for the rent.
    The motion was overruled, and an exception taken upon each ground by defendants’ counsel.
    After counsel had summed up the case, the Judge charged the jury as follows:
    The defendants claim that they took possession and have used the property as purchasers thereof from Rider & Brothers, under the resolution of November, 1848, that they took possession as purchasers, with the consent of the plaintiffs 'and of Rider & Brothers, in the belief that all such articles were included in the purchase from Rider & Brothers.
    If the plaintiffs included in their purchase from Rider & Brothers the articles in, question, or if they acquiesced in the payment of the $80,000 by the defendants, and consented to their taking possession and using the articles under the belief that such articles were included in the purchase, they are now estopped from claiming title in themselves as assignees of Goodyear & Ely, and cannot recover for the articles, and the defendants will be v entitled to a verdict.
    If, on the contrary, the articles were not included in the purchase, and the plaintiffs did not acquiesce in the payment of that sum by the defendants, nor consent to their taking possession of and using the articles under a belief that the ■ articles were included in the purchase, then the plaintiffs are entitled to recover the value of the use for the period during which the property was used, within six years anterior to the commencement of this suit, (October 10, 1856,) as you shall find that value to be under the evidence, with interest from the commencement of suit.
    The defendants except to that part of the charge which allows a recovery for the use for any portion of time—more than six years having elapsed since they began the use, and also as to that part which allows the jury to find interest, it being an unliquidated account.
    The jury found a verdict for the plaintiffs, assessing their damages thus:

      For the use of the property,....................... $500 00
    For interest thereon,............................. 88 50
    $588 50
    The defendants moved for a new trial, which was denied, and from the order, and also from the judgment entered on the verdict, the defendants appealed.

      A. Thompson, for the defendants, (appellants.)
    I. It is clear that the plaintiffs were the assignees of Goodyear & Ely, and that the property named in the complaint was in the possession of the plaintiffs as such assignees prior to the incorporation of the defendants; that part of it was on Rider & Brothers’ premises at Harlem, intermixed with their property, and more or less used by Rider & Brothers, till the defendants purchased from Rider & Brothers all the property used by them, through their president, Trotter, December 4, 1848.
    It is also clear that the residue of the property was in Rider & Brothers’ possession, 71 Liberty street, and that the same was removed to the defendants’ premises by the plaintiffs.
    II. It is also clear that the defendants were incorporated September 29, 1848.
    That all the stock taken at its formation, and up to December 4, 1848, was taken by Trotter and Rider & Brothers, being $170,000, and which was paid for in property purchased by resolution of November 15, 1848, and that Jonathan Trotter was the President, William Rider the Treasurer, and Emory Rider the Factory Manager, and John Rider the Assistant Factory Manager, and that the defendants never purchased or hired any part of said property from the plaintiffs, (assignees of Goodyear & Ely;) but that Trotter, William Rider, Emory Rider, and John Rider, shortly after the defendants’ incorporation, (they being then the virtual owners of the incorporation,) commenced using the property named in the complaint that was at Harlem, and continued its use till after they had sold out their stock, and that they wore out the property by such use, (except what Trotter took and sold in October, 1855,) before the plaintiffs ever raised any question respecting the property, and then by their suit of October 2d, 1854, they claimed, as assignees of Goodyear &Ely, to have sold it to the defendants in January, 1849, which was decided against them.
    III. The defendants claim that the articles were obtained by them under the purchase of 4th December, 1848, but that, if not so purchased, the plaintiffs are estopped from denying a purchase ; and this claim is well founded. Because:
    1st. The plaintiffs originated the incorporation of the defendants for the purpose of disposing of their India rubber property; put out their prospectus, and did, by the resolution of 15th November, 1848, and contract of December 4th, 1848, sell all such property to the defendants, without reservation, “ and other fixtures used by them in and about their rubber manfactory at Harlem.”
    2d. The plaintiffs continued the controlling officers of the defendants, using the same articles, for more than six years, without an intimation that the defendants did not purchase this property. (3 Paige, 554; 18 Barb., 437; 19 Wend., 563; 16 Barb., 613; 1 Johns. Ch., 354.)
    3d. The fifth by-law and eighth by-law show the manner in which purchases should be made; and the defendants purchased by resolution—the parties not .being able to buy and sell to themselves, nor to hire their own property to themselves.' (20 Barb., 468.)
    4th. Rider and Trotter caused a confusion of goods, and if there be a loss they must bear it. (2 Kent, 364, 365.)
    5th. The plaintiffs do not claim to have hired this property to the defendants.
    IV. The part of the charge not excepted to is in accordance with the former decision of this Court on the former appeal, and if the case be looked at, independent of the testimony of Trotter and the three Riders, the two first paragraphs of the charge are clearly made out in favor of the defendants; but the Judge erred in admitting improper testimony to show what the defendants purchased, or believed they purchased, and to which the defendants excepted. Because:
    1st. Corporations can only speak or express their intentions by their corporate seal, or resolution. (2 Kent Com., 289-292.)
    2d. Trotter & Riders knew the by-laws, which prohibited anything ’being done, except it was entered on the books of the Company, and they have entered nothing showing what was included, or intended to be included, in the defendants’ purchase of November 15 and December 4, 1848, except the resolution.
    3d. Those four witnesses are swearing to an intended contract that could not be made in accordance with the by-laws or the law of the land. (20 Barb., 468; 6 Pick., 198; 7 N. H., 446.)
    4th. These four witnesses, while swearing to their own- knowledge or intentions, cannot swear to the knowledge or intentions of the Company, not having obtained' such knowledge as agents of the Company. (20 Barb., 468.)
    5th. There is no proof of ratification by the defendants of any act of these four witnesses, and even ratification would not make a contract which cannot legally be made. (17 N. Y. R., 453.)
    V. The Judge authorized the jury to find for the plaintiffs (in a certain event) the value of the use of this property for six years anterior to the commencement of the suit. This part of the charge was excepted to.
    The Judge refused to dismiss the complaint, which was excepted to.
    The Judge allowed evidence of the value of the use, which was excepted to.
    These exceptions are well taken. Because:
    1st. Value of the use—is, in plain English, rent; and there is no action known in the law for rent or use or value of use, unless there be an agreement creating a tenancy, or hiring, express or implied. (6 Johns., 46; 1 Cow. Trea., 154; 13 Johns., 489; 2 Saun. Pl. and Ev., 78; 13 Johns., 240; 25 Barb., 243; 1 Denio, 37.)
    2d. The facts show there was no hiring.
    3d. There could be no hiring by law. (20 Barb., 468; 17 N. Y. R, 453.)
    4th. There can be no implied contract where there could not be an express contract. (17 N. Y. R., 453.)
    5th. The previous decision of the Court is, that the defendants did not tortiously take possession of the property.
    The proof shows that the plaintiffs caused it to be used; a voluntary courtesy for which they cannot charge. (20 Johns., 28.)
    6th. There being no possibility of a contract, one cannot be made by a demand of the property;. the defendants not being guilty of a tort before the demand, could not be guilty of one till they refused to give up the property; but they gave up the property. (3 Hill, 348.)
    7th. The statute of limitations is well pleaded to the whole complaint, therefore there never was a tortious taking.
    8th. The plaintiffs probably imagine there was a tort committed by the plaintiffs as defendants’ authorized agents upon the property, (2 Kent Com., 284,) which they can waive and bring assumpsit; but there being no tort, they waive nothing.
    The law is uncertain whether assumpsit can be brought in any such case, unless the property be sold and turned into money; but it seems certain that there must be an express or implied contract as well as a tort, before the tort can-be waived, and a suit instituted on the contract, (5 Denio, 370.)
    But there can be no implied contract where there could not be a contract. (17 N. Y. R., 453.)
    VI. The Judge erred also in directing the jury to find interest ; as the claim was in every sense an unliquidated one.

      John T. Hoffman, for the plaintiffs, (respondents.)
    I. This is a fair case of bailment of chattels for a compensation, and possesses all the ingredients which are essential to a contract for hire. (Story on Bailments, ch. ent. “ Contracts of Hire.”) The defendants used and enjoyed the plaintiffs’ property. And the law implies a promise on their part to pay for the use, in recognition of that “ universal obligation which rests upon every man to render a just equivalent for the use of that which does not belong to him.”
    II. The defendants insisted that no hiring was proved, and, therefore, no “ rent or value of use could be recovered,” and thus confound “rent” which is a profit issuing out of lands, &c., with “ value of use,” which appertains to a bailment of chattels. The cases cited showed that rent could not be recovered unless the relation of landlord and tenant was proven to exist. It is needless to say they have no bearing upon the point in question.
    III. Because the law would hot recognize a purchase by Rider and Trotter as trustees of the Company of themselves as trustees of Goodyear & Ely, it does not follow that it will permit the Company to have the gratuitous use of the property, and deny all relief to the estate to which it belongs.

      IY. Interest was allowed from the commencement of the action. The demand was no more unliquidated than any demand arising upon a quantum meruit or valebant. The defendants were in default from the commencement of the action. The verdict which fixed the amount of value related back to that period, and interest from that time is essential to plaintiffs’ indemnity. (McIlvaine v. Wilkins, 12 N. H., 474; Doyle's Adm'rs v. St. James' Church, 7 Wend., 178; Feeter v. Heath, 11 id., 479; Rens. Glass Factory v. Reid, 5 Cow., 587.)
    Y. The questions of fact in the case were submitted to. the jury precisely in conformity with the opinion of the Court rendered on the previous appeal, and the finding of the jury was fully warranted by the evidence.
   By the Court—Woodruff, J.

It must be deemed established that the defendants did not purchase the articles for the use of which a recovery has been had by the plaintiffs.

That those articles belonged to the plaintiffs, as assignees of Goodyear & Ely, is not controverted. It is not claimed by the defendants that they made any purchase thereof from the plaintiffs. There was no evidence given on the trial that the articles were in fact included in the purchase made by the defendants from Rider & Brothers: on the contrary, the proof is full and uncontradicted that they were not included in that purchase. The jury have found that the plaintiffs did not include them in that purchase, and did not acquiesce in the payment to Rider & Brothers of the purchase money, consenting that the defendants take possession thereof, and use them under the belief that they were included in such purchase.

There was no evidence given on the trial that any agent or officer of the defendants ever supposed that the defendants ha,d in fact purchased the articles in question from anybody, except in the testimony of Emory Rider, who says he expected the Company would buy it, and supposed that the Company had bought it from the plaintiffs, having himself proposed to do so to the plaintiff Trotter. If the judgment record in a former action which was read on the trial be regarded as showing that the plaintiffs once claimed that they had sold the articles to the defendants, the entire record conclusively establishes that they had not.

The main fact stands, therefore, prominent and free from doubt.

The defendants came to the possession of the plaintiffs’ goods, and by the plaintiffs’ consent have used them for many years, until in fact they are worn out or nearly so.

There is no ground for saying that either the possession or use of the property was tortious, for the owners were consenting to both.

Upon this fact alone, if the question arose between two individuals, it would not be doubtful that the party so using the other’s property was bound to pay what such use was reasonably worth, unless it was clearly shown that the permission to use was "given and accepted without any expectation of reward therefor.

Here there was, on the part of the plaintiffs, and on the part Of such agents of the defendants as are shown to have been aware of what was done, an expectation that the defendants would purchase the articles; so that there is no ground for saying that the plaintiffs or the agents of the defendants at any time supposed the plaintiffs were not to receive an equivalent for the property. Fo purchase having been actually made, the property was used by the defendants, the plaintiffs consenting to such use. "

It is, however, insisted that the relation which the plaintiffs bore to the defendants forbids the idea that the defendants contracted with them to pay for the use of the property; that if there could be no express contract, none can be implied; that the plaintiffs, by voluntarily suffering their property to be used in common with the property of the defendants, and without any express contract for payment, have only confused their goods with those of the defendants, and must bear the loss, or, at most, it should be treated as a voluntary courtesy, out of which no claim to compensation arises.

The act of incorporation declares that the Company (the defendants) “shall be under the control of and be managed by five Trustees, and the first Board of Trustees shall be composed of the following persons, viz.: Jonathan Trotter, Elihu Townsend, Fichólas Dean, William Rider, and Emory Rider, who shall manage the affairs of this Company until the third Monday of January, A. D. 1849, and until others are elected in their stead.”

In the arrangement of their business under the by-laws, a manager and assistant were to be appointed, who should “have the entire management of the manufacturing part of the business, under the direction of the President,” &e.

The plaintiffs,' Jonathan Trotter and. William Rider, were appointed, the former President and the latter Treasurer of the Company. Emory Rider was appointed Factory Manager and John Rider Assistant Factory Manager, and one Bellows was appointed Secretary.

In this state of the organization, the articles in question being held by the President and Treasurer, as assignees, and being at the Company’s manufactory at Harlem, it is shown that the Company had use for the machinery, &c., (constituting the articles referred to,) for the purposes of their manufacturing department. Emory Rider, the Managing Agent of the Company, (knowing that the property was fbr sale, expecting that the Company would buy it, and, indeed, supposing at the time that the Company had purchased it from the plaintiffs, he having proposed to one of the plaintiffs that the Company should do so,) took possession of the articles and used them in the manufacturing business of the Company—the articles being-such as are used in that business, and the Company having use therefor.

John Rider, the Assistant Factory Manager, was aware that the articles belonged to the plaintiffs as assignees of Goodyear & Ely. He was aware of the use thereof in the business of the Company. Whether the Secretary of the Company (Bellows) had any knowledge on the subject does not appear.

Three of the five Trustees of the Company under whose control and management it was, and their Assistant Factory Manager, knew the fact and assented to it, and although the other two Trustees are not shown to have been consulted, it is only just to presume that during the eight years the property remained in the use of the Company, they did their duty, so far, at least as to inform themselves on the subject, when nothing appears to have been clandestinely or fraudulently done.

Having thus had the beneficial use and enjoyment of the property by the owners’ consent; there being no evidence of any expectation on the part of any one that such use was gratuitously furnished without expectation of reward, there seems no good reason why the defendants should not pay the fair value of such use. On the contrary, it is obviously just that they should pay such, value unless there is some principle of law which deprives the plaintiffs of the power to demand compensation.

We perceive no rule of law which prevents the agents of the Company acting in good faith, charged with the conduct of the manufacturing department, making a necessary and proper use of the machinery in question, for the purposes of the business, merely because it belongs at the time to some other officers or agents of the Company. Had the managing agent of the Company so taken and used the property of a person having no connection with the Company, with the owner’s consent, and such use had been actually known to and approved by several officers of the Company and acquiesced in by all, and had continued for several years, without dissent or objection, it would be rather late to raise the objection of want of power in such agent to bind the Company to pay a fair and reasonable compensation for such use.

How then does the fact that Trotter & Rider, the owners of the property, were at the time President and Treasurer of the defendants, affect the question?

In the first place it was not their sole act. The very person who, by express appointment of the Trustees under the by-laws, had the “entire management of the manufacturing business,” took the articles for use and used them for the Company, and the continued acquiescence of the Company for several years, so far as appears by any proofs given by the defendants, sufficiently indicates approval, unless they be assumed to have been grossly inattentive to their duties. So that in this aspect Emory Rider must either be taken to have acted in pursuance of authority sufficient to bind the Company; or if his powers did not extend to the use of machinery of a third person under an implied obligation to pay for such use, then the continued use and the enjoyment of the benefit thereof by the Company are sufficient to amount to a ratification.

But secondly. Viewing this transaction as the act of the President and Treasurer, in connection with the Managing Agent, the result is the same.' It may be conceded for the purpose of this present point, that Trotter or Trotter & Rider as assignees, could not contract with Trotter as President of the defendants, nor with Trotter & Rider as President and Treasurer of the defendants; upon the principle that no person can make a contract with himself, or that an agent cannot bind his principal to a contract with himself, or that a trustee cannot bind the trust estate by a contract for the benefit of himself in his own right nor in any other capacity.

What follows? Not necessarily that, when he in good faith, in the proper discharge of his duty, parts with money or property which the purposes of the principal, or the exigencies of the trust estate require, such principal or such trust estate may have the use and benefit of such money or property without paying or allowing any compensation.

When an agent or trustee so acting makes a claim, it must undoubtedly appear that what was done was done in good faith, and for the benefit of the principal or of the trust estate. And where the nature of the transaction is such as to allow it, the principal or the cestui que trust has an option to disaffirm the transaction and restore the benefits derived therefrom. But moneys expended and property applied by the agent in the faithful discharge of his duty, and for purposes within his authority, must be paid for by the principal; and the claim of the agent to be paid therefor is as clear as his right to require for his services what they are reasonably worth, or as the right of a third person would be from whom the agent procured like property. It is true that the agent cannot by an express contract fix the price and terms, &c., with himself, and therefore all he could claim would be the fair value.

So here Trotter & Rider could not, on behalf of the Company, agree to pay Trotter & Rider a fixed sum for the use of the articles in question and bind the Company to pay that price, but if the articles were needed and were in good faith used for the benefit of the Company in the proper conduct of the business, we have no hesitation in saying that the Company was bound to make fair and reasonable compensation therefor.

The various questions of law urged upon our attention on the argument of the appeal, are chiefly in entire consistency with these views; the difference between our conclusions and the claim of the appellants lies chiefly in determining what rules of law are applicable to the facts proved and found.

It is doubtless true that a corporation cannot ratify an act of its agents which the corporation itself had no power to do. Nor an act which it could only do in a particular manner, where that mode is not pursued. This was held by us in Brady v. The Mayor, &c. (2 Bosw. R., 178.)

But here we perceive no want of power in the Company to procure and .use any machinery necessary for the conduct of its manufacturing business, and, when so procured by its agents, to accept, approve, or ratify the act directly or by acquiescence.

It is true that the by-laws require that the agents enter all the business of the Company in its books, but their neglect to do so, (however it may subject the agents to censure or to damages if the Company suffer injury by the neglect,) does not make the act void.

. So the law will not imply-a contract where the corporation had no power to make an express contract to the same purport. (Brady v. The Mayor, &c., supra, and Peterson v. The Mayor, &c., 17 N. Y. R., 449.) But here no want of power in the corporation is shown, and the procurement and use of the property in question might be done by the agents of the corporation and might be approved or sanctioned in any of the modes in which a corporation may act in the exercise of its ordinary powers for the' purposes of its legitimate business.

The previous decision in this case at Greneral Term, (February 19, 1859,) sustains the. charge of the Judge on the trial in all respects which relate to the question of title to the property itself, and the circumstances under which the plaintiffs would be estopped, to claim title to the property.

The exception to so much of the charge as allows a recovery for the use of the property, (which exception seems to proceed on the idea that because the use commenced more than six years before suit brought there can be no recovery for the use during any subsequent years,) was not strenuously urged on the argument. We perceive nothing in this part of the charge of which the defendant can complain. If one has by the consent of the owner had the use of another’s property for ten years, no compensation being stipulated, certainly the statute of limitations, if it has barred the recovery of any part of the value oí the use, cannot affect the liability for any sum which has accrued within the six years. (Davis v. Gorton, adm., 16 N. Y. R., 255.) No part of a debt is barred by the statute which if a suit had been brought six years earlier might not then have been collected, that is to say, which was not then payable.

The exceptions to the admission of evidence do not seem to us well taken.

The first is to the question put to the factory manager, whether, at the time the Company purchased from Rider & Brothers, he pointed out to the President the property held by him and Rider as assignees ?

This question was proper, as tending to show that that property was not, as the defendants now claim it to have been, included in the defendants’ purchase from Rider & Brothers. A similar observation may be made of the testimony of William Rider, that he knew what the Company bought of Rider & Brothers, and that that purchase did not include the property in question. This, also, went directly to one of the grounds of defense, and tended directly to establish the title of the plaintiffs to recover for the use of the property.

The objections taken to proof of the value of the use of the property are sufficiently disposed of by what has already been said. In the absence of an express contract fixing the price of the use, its fair and reasonable worth was the measure of the plaintiffs’ recovery.

An exception was also taken to the ruling by which the record of a former judgment between these parties was admitted in evidence. We find nothing in the appellants’ points in support of this exception. The record was competent evidence that although the defendants did not now claim to have purchased the property from the plaintiffs, the claim now in controversy was not a stale claim made after the lapse of many years under circumstances indicating that the plaintiffs were conscious either that the property was included in the sale of the machinery, &e., of Rider & Brothers, or that there never was any expectation on the part of either that the defendants should make any compensation for the property.

We think? the order denying a new trial was properly made, and that there was no error committed on the trial.

The j udgment, and the order denying a new trial, must both be affirmed.

Judgment and order affirmed, with costs.


text:
    Thaddeus Wilson, Plaintiff and Respondent, v. Edward Roberts, Defendant and Appellant.
    1. Where, by a written and sealed contract between B -and O, B covenanted to furnish the brown stone for eight houses, and set them by a certain time, for $2,000, to he paid in notes of $500 each, to be made by B, and delivered as the work progressed, and 0 agreed to pay therefor in such notes accordingly; and 0 drew an order on B to deliver such notes to B “when the stone is delivered according to the contract, and at such times as therein stated,” and B afterwards accepted such order by an indorsement thereon signed by him, thus: “ Accepted Oct. 17,1856,” the contract of B is one to answer for the debt or default of 0, and the writing so signed by him does not express the consideration thereof, and is void by the statute of frauds.
    2. B, in such a case, is not hound to deliver his notes to B, unless the latter performs his contract according to its terms.
    3. 0 cannot, in such a case, extend the time for B to perform such contract, without the consent of B, without discharging B from liability.
    (Before Bosworth, Oh. J., and Woodruff and Moncrief, J. J.)
    Heard, June 6;
    decided, July 9, 1859.
    This is an appeal by the defendant from a judgment against him, entered on a verdict rendered on a trial had before Mr. Justice Slosson and a jury, on the lith of May, 1858.
    It was commenced on the 11th of April, 1857. The complaint avers that on the 15th of October, 1856, Thomas Beattie and ■ William H. Cronk, by S. W. Cronk, his attorney, entered into a written and sealed agreement, by which Beattie, “ for and in consideration of the covenants and agreements thereinafter contained,” agreed to furnish and deliver the brown stone for eight houses, and complete the houses by the 1st of November then next, for $2,000, and that Cronk thereby covenanted “ to pay for the same as follows: by delivering to said Beattie or his assigns, Edward Roberts’ (the defendant’s) notes at three months from their date, for the said sum of $2,000, as followsone note for $500 when the stoops to four houses are set; one note for $500 when the stoops to four more houses are set; one note for $500 when the doors to four houses are set, and the other note for $500 when the stone for the eight houses is all delivered and set.
    That on or about said 15th of October, 1856, Cronk made and delivered to Beattie an order in writing on said Roberts, reading thus:
    “ October 15, 1856.
    “ Mr. E. Roberts :
    “You will please deliver to Thomas Beattie, or order, the notes specified in the contract hereto annexed, made this day between Wm. H. Cronk and Thomas Beattie, when the stone is delivered to certain eight houses, according to the contract, and at such times as therein stated.
    - “ W. H. Cronk, by his attorney, S. W. Cronk.”
    That “ the defendant afterwards, and on or about the 17th day of October, 1856, duly accepted in writing.” That the time for Beattie to perform the contract was, afterwards, with Roberts’ assent, extended to the 21st of November, 1856, and that Beattie completed it within that time. That there was a failure and refusal to deliver the last note for $500 ; that it was deliverable on the 1st of December, 1856, and would have been due on the 4th of March, 1857; that the defendant on that day became indebted to the said Beattie in the sum of $500 ; and that by writing made and dated April 10, 1857, Beattie assigned the cause of action thus accruing to the plaintiff, and it prays judgment for $500, with interest from the 4th of March, 1857.
    The answer admits the making of the contract between Beattie and Cronk; the drawing of the order on Roberts; but denies due acceptance of it, and avers that the acceptance was indorsed on the order, and reads thus: “New York, Oct. 17, 1856. Accepted : Edward Roberts.” It denies that the time for performance by Beattie was extended by his assent to November 21, 1856, or that the contract was performed by that time; or that the fourth note was deliverable on the 1st of December, 1856; or that the defendant at any time became indebted to Beattie in any sum; or that he assigned the alleged cause of action to the plaintiff. As a second and separate defense, it avers that the alleged acceptance is a promise to answer for the debt or default of another, and that the defendant’s written agreement does not express the consideration thereof; and as a further and third defense, avers that “ the said alleged acceptance was without any consideration, and is void.”
    At the trial, the contract between Beattie and Cronk, and the order on Roberts, accepted in the- form stated in the answer of the latter, were produced and read in evidence. J. 0. Higgins, subscribing witness to the contract between Beattie and Cronk, testified that “ Beattie said he would not furnish stone without Roberts’. notes; he would not sign that contract or do work without Roberts accepted the order. * * Beattie said he
    would not furnish stone unless he had the responsibility of Mr. Roberts.” “ The contract may not have been signed on the day of its date; it was signed before Mr.. Roberts accepted; there may have been two or three days’ difference in their dates.” “ I think the order was attached to contract when delivered 'to Beattie; to the best of my recollection, I delivered both together.” S. W. Cronk, a witness for plaintiff, testified that he signed, as attorney of Wm. H. Cronk, a writing extending the time for Beattie to perform his contract twenty days from Kovember 1, 1856; that this was not done with Roberts’ consent; and that Beattie refused to sign such writing, saying he could not perform by the 20th; that the original contract was signed on the 15th of October, and that Roberts had no interest in it; that “ Mr. Beattie went on and completed the stone work on the 9th December, 1856; stone was delivered on the 8th of December; it was all set on the 9th;’’ and that the witness had “ refused to certify that the work was completed by the 20th of Kovember, 1856.”
    There was some evidence tending to show that the reason why the stone was not all delivered on the 20th, was, that there was no place to dump it in front of the houses where it was to be delivered.
    The Judge was requested to charge that, no consideration being mentioned in the memorandum signed by the defendant, it is void; and .that an extension by Cronk of the time for delivering the stone made a new contract, and discharged Roberts. He refused to charge either proposition, and the defendant excepted.

      He charged that the contract was not within the statute of frauds. To this the defendant excepted.
    He also charged that, whatever Cronk’s rights might be, if Beattie failed to deliver the stone by the 20th of November, and Beattie had not waived such default, it is not a default which affects Roberts. To this the defendant excepted.
    That “ the failure to furnish the stone by the 20th was a default which, in the terms of the contract, does not go to the exoneration of Roberts.” To this the defendant excepted.
    That “ Cronk and Beattie could extend the time of performance, but that would be no defense to Roberts. Roberts was not a surety, but an original undertaker for the delivery of his own notes; and this formed the consideration of the entire agreement of the plaintiff to furnish the stone.”
    “ The plaintiff, when he has established the delivery of the stone and their setting, establishes a right to recover.” The defendant excepted to the charge generally.
    The Jury found a verdict for the plaintiff for $542.08. Judgment having been entered on it, the defendant appealed to the General Term.

      James S. L. Cummins, for appellant.
    I. The order on Roberts by Cronk, and its acceptance by Roberts, is a guaranty. “ A guaranty is an agreement not under seal, whereby one person engages to be answerable for the debt, default or miscarriage of another person.” (Farmer v. Hall, 5 Denio, 487; Rogers v. Kneeland, 10 Wend., 220.)
    1st. The agreement is within the statute of frauds. There was a valid agreement on the part of Cronk to pay these notes to Beattie, and the obligation which this agreement,imposed upon Cronk was not released by Beattie when Roberts accepted the order of Cronk in favor of Beattie, but remained in full force and virtue. Therefore, if Roberts should fail to deliver the notes to Beattie according to the terms of Cronk’s order, Beattie could hold Cronk under his agreement.
    2d. Where the whole credit is not given to the person who is to answer for another, and when any portion of it is given to the person for whom he is to answer, the case is within the statute, and some notes, &c., must be in writing. (Brady v. Sackrider, 1 Sand., 514; Matson v. Wharam, 2 Term, 80; Rogers v. Kneeland, 10 Wend., 248; 13 id., 121.)
    3d. There must be a written memorandum expressing the consideration, subscribed by the party to be charged. (Parker v. Willson, 15 Wend., 347; Brewster v. Silence, 4 Seld., 214, 215; Bennett v. Pratt, 4 Denio, 286; Staats v. Howlett, id., 559.)
    II. The guaranty of Eoberts was without consideration, and therefore void.
    1st. It nowhere appears that Eoberts was indebted to Cronk, or was bound to advance his notes to Cronk.
    2d. It nowhere appears that Eoberts had any interest in the contract to furnish stone to the houses.
    3d. The contract with Cronk was not executed in consideration that Eoberts would give this acceptance; the contract itself shows the consideration on which the stone was delivered, which was the promise of Cronk to procure these notes, and not of Eoberts to give them; and no matter what parol understanding may have existed, it was merged in the specialty. (Schermerhorn v. Vanderheyden, 1 John. R., 140; Allen v. Segrist, 21 Wend., 628.)
    4th. The acceptance was not given until Beattie had absolutely bound himself to deliver the stone by signing, sealing and delivering to Cronk his part of the agreement.
    5th. Even if Beattie had executed the agreement to furnish the stone on his knowledge that Eoberts had accepted this order, yet that would not have been a consideration which would have supported this action against Eoberts; for, to be a valid consideration, it must be “ one that is either a benefit to the party promising, or some trouble or prejudice to the party to whom the promise is made." (2 Kent, 465, marg.; Jones v. Ashburnham, 4 East., 455; Lent v. Padelford, 10 Mass., 236.)
    Beattie is not a party to this acceptance, nor is there any pretense that Eoberts was benefited or Cronk prejudiced by Eoberts’ acceptance.
    IH. If the acceptance is not void under the statute of frauds, and if there was a valid consideration, yet the last note was never due on the acceptance.
    1st. It is a special acceptance to give the notes if the stone is delivered “ according to the contract.” It nowhere appears that the contract was fully executed on 1st November. It was not executed until after 20th of November or 1st of December.
    2d. The contract was never extended beyond 1st November. The contract is under seal, and could not be extended except by a sealed instrument. The extension is not under seal—never executed by Beattie—never went into effect. (Delacroix v. Bulkley, 13 Wend., 71; Eddy v. Graves, 23 id., 82; Allen v. Jaquish, 21 id., 628.)
    3d. The so-called extension, (and acceptance of the work under it,) if properly executed by Oronk, being after a breach, may waive the liability of Beattie for damages; but it is a new agreement, not contemplated by the acceptance. (Delacroix v. Bulkley, 13 Wend., 71; Eddy v. Graves, 23 id., 82; Allen v. Jaquish, 21 id., 628.)
    And in order to hold Boberts, a new promise to deliver notes under the new agreement must be shown, but it was not even done with his consent.
    IY. The claim of Beattie against Boberts, even admitting a valid one existed, is no ground for a recovery by the plaintiff in this cause, for it has never been assigned; it is but a collateral to the principal contract and principal debt, which is the contract of Beattie with Oronk, and that contract is owned by Beattie, and not by the plaintiff in this cause. (Jackson, ex dem. Barclay and Bayard v. Blodget„ 5 Cow., 202; Pattison v. Hull, 9 id., 747; Langden v. Buell, 9 Wend., 80.)
    Y. The Judge erred in refusing to dismiss the complaint.
    YI. The Judge erred in refusing to charge, as requested, “ that there being no consideration mentioned in the memorandum, it is void.”
    YII. The Judge erred in refusing to charge “ that an extension i of the time by Oronk in which the stone was to have been delivered makes a new contract and discharges Boberts, unless he, made a new agreement to give the notes under this extended' contract.”
    YIII. The Judge erred in charging that “this contract is not within the statute of frauds.”
    IX. The Judge also erred in charging thus: “If the stone was not all delivered by the 20th, is the defendant discharged from liability ? - This is a question to be determined by the contract itself. The defendant’s undertaking is to deliver to Beattie a note for $500 when the stone is all delivered and set to complete the eight houses. The failure to furnish the stone by the plaintiff was a default which, in the terms of the contract, does not go to the exoneration of Roberts.”
    X. The Judge erred in charging that, “ whatever rights it might have given Cronk against Beattie, if he had not waived it, it is not a default that affects Roberts. He could not be called on to give his note till the stone was all delivered and set; and when that event did take place, he was bound by the terms of his agreement to give his note whether the stone was delivered by the 20th November or not.” '

      B. W. Bonney, for respondent.
    I. The rulings of the Judge at the trial, upon questions of evidence raised by defendant’s counsel, were correct, and the exceptions to such rulings are not tenable.
    II. The motion by defendant’s counsel to dismiss the complaint was properly denied.
    III. There was error in the refusal of the Judge to charge as requested by defendant’s counsel.
    1. The agreement between Cronk and Beattie and the order on Roberts for the notes in the agreement specified and Roberts’ acceptance thereof, were all parts of and constituted one contract, and show a sufficient original agreement for good consideration to deliver the notes.
    Roberts was an original contractor, and not surety for Cronk. (O’Donnell v. Smith, 2 E. D. Smith, 124; Leonard v. Mason, 1 Wend., 522.)
    2. An extension by Cronk of the time for delivering the stone could not affect 'the undertaking of Roberts to give the notes. It in no wise concerned or affected him. (4 Barb., 614, 616.)
    IV. There was no error in the charge of the Judge at the trial, and none of the exceptions thereto are well taken.
    1. The contract of Roberts is not within the statute of frauds. Roberts was an original contractor, and not a surety or guarantor for Cronk.
    2. If the stone was not all delivered by 20th November, 1856, but was afterwards delivered and accepted and used by Cronk, the default in time would not, under the circumstances, exonerate Roberts from his obligation to give the notes.
    V. The exception to the charge generally is not well taken; it is not sufficiently definite to be of any avail.
    VI. The judgment entered on the verdict of the jury should be affirmed, with costs.
   By the Court—Bosworth, Ch. J.

By the contract of the 15 th of October, 1856, between Beattie and W. H. Cronk, the former covenanted, unconditionally, to furnish and deliver certain kinds of stone for eight houses, and Cronk covenanted as unconditionally to pay therefor $2,000, in notes made by the defendant at three months from their date; the notes to.be delivered separately as specified in the contract. By the obvious meaning and clear import of this contract, the stone was to be furnished to Cronk; and by the terms of the contract it is equally clear that Cronk covenants to pay the contract price.

The complaint alleges that the order drawn by Cronk on the defendant “was made and delivered to Beattie” “on or about said 15th day of October, 1856,” “which order the said defendant afterwards, and on or about the 17th day of October, 1856, duly accepted in writing.”

By that order and the defendant’s acceptance of it. the defendant agreed to deliver to Beattie such notes as Cronk had covenanted should be delivered to him, when by the terms of such covenant Beattie should be entitled to demand them.

The liability of Cronk upon his covenant continued unaffected by the defendant’s acceptance of this order. He remained liable absolutely and as principal.

In Brewster v. Silence, (4 Seld., 207,) the defendant, F. Silence, was sued as guarantor of “the payment of a note made by George Silence.” The jury found (3d.) “That the consideration of the note was a pair of horses sold to George Silence by the pajme of the note, and that a condition of the sale was that the note should be guaranteed by the defendant, and that the sale was not consummated until after the execution of the guaranty.”

(4.) “That after the execution of the note and guaranty, the horses were delivered by the payee, Thompson, to George Silence, who at the same time delivered the note and guaranty to Thompson.” (Id., 209, 210.)

In the present case, the "complaint treats Cronk as the principal debtor, as the complaint in that case treated George Silence as the principal debtor.

In that case the defendant was held to be not liable; the present case, if not as clearly within the statute of frauds as that, contains nothing which can exempt it from the operation of that statute. It is quite clear that the defendant’s contract is collateral, and is an agreement to be answerable for the debt or default of another.

In the case of Draper v. Snow, (6 Duer, 662,) the complaint averred extrinsic facts of the same nature as those attempted to be proved in the present case, and with great fullness and precision ; and on a demurrer to the complaint, judgment was given for the defendant.

The proof given in the present case, to the effect that “ Beattie said he would not furnish stone without Roberts’ notes; he would not sign that contract or do work without Roberts accepted the order,” even had it also been proved that he said this to Roberts is wholly immaterial.

If this was in truth the consideration of Roberts’ acceptance, his acceptance does not express that, nor any consideration for it, and is therefore void by the statute of frauds.

There is no averment in the complaint, nor any proof that, by agreement between all the parties, the stone was to be the property of Roberts when furnished. He is not liable for them as for stone sold and delivered to him.

We think Roberts’ agreement is an agreement to be answerable for the debt of Cronk. What was the precise relation existing between him and Cronk, the evidence does not disclose.

The consideration of it may be that which the testimony of Higgins was designed to establish. But though that may be so, the order and acceptance when construed together do not express that to be the consideration. - And-if they do not express that, nor any other sufficient consideration, then Brewster v. Silence and Draper v. Snow are conclusive against the defendant.

For aught that is contained in the order or in the acceptance, the consideration may as well have been some pecuniary compensation paid to Roberts by Beattie or by Cronk, as that which the testimony given by Higgins was introduced to establish. A pecuniary compensation paid by either, would be consistent with anything that is stated in the defendant’s contract.

A contract by one person to answer for the engagement of another, in order to satisfy the statute of frauds, must either state the consideration of it in direct and intelligible language; or its terms must be such as to import what the precise consideration is, as clearly as if formally stated in the most direct and explicit manner. (Union Bank v. Coster's Exrs., 3 Comst., 204; Draper v. Snow, 6 Duer, 665.)

Even if it be true, as the plaintiff contends, that Roberts “ was an original contractor, and not a surety or guarantor for Cronk,” then the time within which Beattie was obliged to perform on his part, as a condition to his right to recover, could not be enlarged without the consent of Roberts. It certainly could not be if the defendant’s position was that of surety.

This proposition is so obvious as not to require the citation of authorities in its support. The jury were instructed “ that a failure to furnish the stone by the 20th was a default which, in the terms of the contract, does not go to the exoneration of Roberts.” To this the defendant excepted.

This instruction withdrew from the jury the question whether Roberts had or had not assented; and by it they were told that any default on the part of the plaintiff was immaterial. If this be so, then Roberts would be liable, though the stone had not been furnished until after the lapse of one or more years.

We think this part of the charge is clearly erroneous.

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

Ordered accordingly.

       See Church v. Brown, 21 N. Y. R., 315, 329.