author: By the Court.—Sanford, J.

text:
    MICHAEL H. CASHMAN, Executor, &c., Plaintiff and Appellant, v. JOHN F. HENRY, et al., Defendants and Respondents.
    MARRIED WOMAN—HER LIABILITY AND DISABILITY, Mortgage, covenant op grantee to pat.
    Where a grantor of an equity of redemption in mortgaged premises is not personally liable to pay the mortgage debt, and has no legal or equitable interest in such payment, except so far as the mortgage may be a charge upon the lands mortgaged, his grantee thereof incurs no liability to the holder of the mortgage by reason of a covenant on his part, contained in the deed, to assume and pay the mortgage (King «. Whitely, 10 Paige, 465; Vrooman ®. Turner, 69 N. T. 280).
    Under the statutes as they now exist, a married woman, as incident to her right to acquire real and personal property by purchase, and hold it to her sole and separate use, may purchase property upon credit and bind herself by an executory contract to pay the consideration money, and her contract may be enforced against her in the same manner and to the same extent as if she were a feme sole, and her liability in such case does not depend upon the proof or existence of special circumstances, but is governed by the ordinary rules which determine the liability of persons sui juris upon their contracts. (This last point or head-note is based upon the decision of the court of appeals in this case on December 10, 1878, reversing the conclusion of this court at general term, in regard to the personal liability of the parties defendant for any deficiency, '&c. The opinion of the court of appeals follows that of the superior ■ court.)
    Before Curtis, Ch. J., and Sanford, J.

      Decided May 6, 1878.
    Appeal from so much of a judgment in foreclosure as declares that three defendants, the appellants Henry, Curran, and Bowen, are not personally liable for any deficiency in the proceeds of sale to pay the amount reported due to the plaintiff.
    The facts of the case, as found by the learned judge before whom the trial was had, at special term, without a jury, are, briefly, and so far as material, as follows :
    On October 1, 1872, Samuel Simon, Jr., made and delivered to the plaintiff his bond for $40,000, conditioned in the payment of $20,000, on October 1, 1875, with interest. At the same time, and as collateral thereto, he executed and delivered to the plaintiff a mortgage, bearing even date therewith, whereby lie granted and conveyed to the plaintiff certain land and premises in the city of New York, upon the same condition as that expressed in the bond. Such bond and mortgage were given to secure payment of part of the purchase money of said premises, on the simultaneous conveyance thereof, by the plaintiff, to the said Simon. By deed, dated June 20, 1873, Simon conveyed the mortgaged premises to Kate M. Cormac, wife1 of Francis Cormac, for the expressed consideration of $31,000, subject to the said mortgage. The deed contained a claim referring thereto, in the following terms, viz. : “ Subject nevertheless to a certain mortgage now on said premises, amounting, in the aggregate, to the sum of $20,000 with interest thereon, which the said party of the second part hereby assumes and agrees to pay, the same forming part of the consideration money hereinbefore expressed.” The said Kate M. Cormac accepted such conveyance, and, by deed, dated May 1, 1874, for the expressed consideration of $30,000, conveyed the mortgaged premises to the defendants Henry, Curran, and Bowen, subject to the said mortgage. The deed contained a clause, in all respects similar to that above set forth as contained in the deed of Simon to Kate M. Cormac, and the said defendants accepted such conveyance, and were the owners of the premises when the action was commenced. At the dates of the said conveyances to and by her, respectively, Kate M. Cormac was the wife of Francis Cormac, who joined with her in the execution of the deed to said 'defendants.
    There was due to the plaintiff, upon such bond and mortgage, at the commencement of the action, $20,000, with interest from April 1, 1877.
    No evidence was offered tending to show that Kate M. Cormac was ever engaged in any trade, occupation or business, or ever had any separate estate, legal or equitable, except as above stated.
    As conclusions of law, the judge held that the plaintiff was entitled to judgment for the foreclosure of the mortgage and sale of the mortgaged premises ; but that the defendants Henry, Curran and Bowen were not, nor was either of them, personally liable for the payment of any deficiency upon the sale of the said premises pursuant to such judgment; and that they were entitled to recover from the plaintiff their costs.
    Exception was duly taken to the ruling of the court in holding that the said defendants were not personally liable.
    Judgment was thereupon rendered for the foreclosure and sale of the mortgaged premises ; and in and by such judgment the said defendants were expressly exonerated from personal liability.
    No personal judgment was demanded in the complaint against Kate M. Cormac. The appellants answered, admitting the validity of the mortgage, but controverting their personal liability thereon by virtue of the assumption clause in their deed.
    The plaintiff appeals from so much of the judgment as declares that the respondents are not personally liable.

      Jacob F. Miller, for appellant.

      George Q. IIoll, for respondent.
   By the Court.—Sanford, J.

Where the grantor of an equity of redemption in mortgaged premises is not personally liable to the holder of the mortgage for the payment thereof, and has no interest in such payment, legal or equitable, except in so far as the mortgage may be a charge upon the mortgaged lands, his grantee thereof incurs no personal liability to the holder of the mortgage, by reason of a clause contained in the deed, whereby the payment of such mortgage, is, in terms, assumed and agreed to be paid by him as part of the consideration of such conveyance (King v. Whatly, 10 Paige, 465 ; Vrooman v. Turner, decided by the court of appeals, April 10, 1877, but not yet reported, vide 4 N. Y. Weekly Dig. 504; N. Y. Daily Register, June 2, 1877). The case last cited carefully and clearly distinguishes the principle upon which exemption from liability is accorded to the grantee of mortgaged premises, under the circumstances above stated, from the rule adopted in that class of cases of which Lawrence v. Fox (20 N. Y. 268) is an example, and in which it has been held that' an action sometimes accrues in favor of one, for whose benefit a promise has been made to another, against the promisor, upon the breach of such promise. It holds that, in order to give the third party, who may derive benefit from the performance of the promise, a right of action against the promisor, there must be in him a legal right to adopt and claim the promise as made for his benefit, founded upon some obligation or duty on the part of the promisee toward himself.

Where no such obligation or duty exists, as, for instance, when a grantor of mortgaged premises is not personally bound for the payment of the mortgage debt, the rule adopted in that class of cases cannot be invoked. The principle upon which a grantee, who assumes payment of a mortgaged debt for which his grantor is personally liable, may be directly pursued by the mortgage creditor, or held for any deficiency in the proceeds of a sale of the mortgaged premises, is involved in, and grows- out of the equitable doctrine of subrogation, whereby a creditor is entitled to the benefit of any security held by a surety for the payment of the debt due him. As between the grantor, liable for the payment of a mortgage, and his grantee, who assumes and agrees with him to pay it, the latter becomes, in equity, the principal debtor, the former a surety for the payment of the debt. The creditor, under the rule of subrogation, may resort to the rights and remedies available to the surety, who is charged with an obligation or duty towards himself, and may enforce them in the same manner, and to the same extent, as the surety himself may do. But, if the grantor be not chargeable with any liability tó the holder of the mortgage, no relation of suretyship exists as between him and his grantee, and the rule of subrogation is, therefore, wholly inapplicable to any promise or undertaking made by the grantee in his favor.

It would seem to follow from these premises, that unless Kate M. Cormac was personally liable to the plaintiff for the payment of the bond and mortgage in suit, or for a deficiency upon the sale of the mortgaged premises, no right of action accrued to him, or exists in his favor as against her grantees, the present defendants. In other words, unless the plaintiff’s claim can be enforced against her, neither can it be enforced against those to whom she may have recourse by way of indemnity, in case of its enforcement against herself. He can only be entitled to subrogation to her rights and remedies, by reason of her obligation or liability to himself.

We have, therefore, to inquire and determine, whether, under and by virtue of the assumption clause contained in the deed to herself, Kate M. Cormac, the defendant’s grantor, became personally liable to the plaintiff for the payment of his mortgage, or so charged her separate estate with liability for its payment, as to be legally or equitably interested in having it paid, after she ceased to have any interest in the lands upon which it was a specific lien. If she was under no obligation to the plaintiff in respect to it, and had no interest in securing its payment, except to the extent it charged those lands, the plaintiff acquired no right, and can enforce no remedy against the defendants, under and by virtue of their covenant of assumption contained in the deed from her. It affirmatively appears that she was a married woman at the date of the conveyance to herself. Her coverture precluded her from contracting, and her disability rendered her contracts void, except in so far as the provisions of the married women’s acts imparted validity to them. The onus of establishing the validity of a contract made by a feme covert is upon Mm who asserts it. It was earnestly insisted, upon the argument, that the burden of proof was upon the defendants, to show that their grantor was not liable. Such is not the correct view to take of the relations subsisting between the parties. The plaintiff claims that the defendants are liable to him. To establish such liability, he must show that the defendants’ grantor, with whom they contracted, as he alleges for his benefit, was under some obligation to him, from which it can be inferred that the contract with her was intended to have that effect. The plaintiff was therefore under the necessity of proving against them, the same state of facts which would have been requisite, if he had sought to establish the liability of their grantor against herself. To establish her liability, it would have been essential that he should prove, not only a contract, but a contract within the statutory exceptions. As no intention to charge her separate estate was expressed in the instrument or contract by which her liability is supposed to have been created, it should have been made to appear by proof, on the part of the plaintiff, either that such liability was assumed in the prosecution of a trade or business carried on by the wife, or that it had relation to, and was incurred for the benefit of the wife’s separate estate (Manhattan B. & M. Co. v. Thompson, 58 N. Y 80). No evidence was adduced tending to establish either of these conditions. As was said in Nash v. Mitchell (MS. opinion of court of appeals, reversing 8 Hun, 471, vide Alb. L. J. December 15, 1877), “The law does not authorize the presumption, and courts cannot assume without evidence, that a simple contract without anything on its face to indicate the fact, was made for the benefit of the estate of a married woman.” The same case is full authority for the proposition, that the burthen of proof is upon him who asserts, and not upon him who impugns the validity of a contract made by one under the disabilities of coverture. The proofs would not, in my opinion, have warranted a finding that Mrs. Cormac ever became personally liable to the plaintiff for the payment of his mortgage, or ever charged the payment thereof upon her separate estate.

The costs of the issue tendered by the answer were in the discretion of the court below. I am of the opinion that such discretion was wisely and properly exercised.

'“The judgment, so far as appealed from, must be affirmed, with costs against the appellants.

Curtis, Ch. J., concurred.

       The reporters, deeming it advisable that the opinion of the court of appeals reversing the judgment in above case should be at once published, have obtained the kind consent of Mr. Sickles, reporter of the said court, thereto.
      Andrews, J.—This court, in Vrooman v. Turner (69 N. Y. 280), affirmed the doctrine of King v. Whitely (10 Paige, 465), that where a grantor, of an equity of redemption in mortgaged premises is not personally liable to pay the mortgage debt, and has no legal or equitable interest in such payment, except so far as the mortgage may be a charge upon the lands mortgaged, his grantee thereof incurs no liability to the holder of the mortgage by reason of a covenant on his part, contained in the deed, to assume and pay the mortgage. The grounds of this doctrine are fully stated in the opinion in the cases cited, and need not be here adverted to. The defendants claim the benefit of the rule, and they were by the judgment of the court below exonerated from liability for the deficiency arising on the foreclosure sale in this action on the ground that Mrs. Cormac, their grantor, was not personally bound or liable to pay the plaintiff’s mortgage. The mortgage was executed by one Simon to the plaintiff, in 1872, to secure the payment of his bond for $20,000. In 1873, Simon, the owner of the equity of redemption in the mortgaged premises, conveyed them by deed to Kate M. Cormac, a married woman, for the consideration, as expressed in the deed, of §31,000. subject to the mortgage, which the grantee, by the terms of the deed, assumed and agreed to pay as a part of the consideration of the conveyance.
      In 1874, Mrs. Cormac, together with her husband, deeded the premises to the defendants, subject to the mortgage, which they, in turn, assumed and agreed to pay. It was not shown upon the trial that Mrs. Cormac when she purchased the lands had any separate estate, or that she was engaged in any trade or business on her own account or otherwise. The purchase comprised four city lots, but it does not appear for what purpose they were brought, whether for use or resale. The finding of the court that Mrs. Cormac was not personally liable to pay the plaintiff’s mortgage notwithstanding her express agreement contained in the conveyance from Simon was put upon the ground that a married woman has no general capacity, under the acts of 1848, 1849, 1800 and 1862, to bind herself by a contract to pay the purchase price of land bought by and conveyed to her, and that her common law disability attaches to and makes her contract void, unless it appears that the purchase was made and the liability incurred in the prosecution of a trade or business carried on by her on her separate account, and that to charge her estate in equity for the debt, there must have been an antecedent separate estate capable of being charged, and the intention to charge it expressed in the contract, or the consideration must be one going to the direct benefit of such estate.
      The question presented is one of considerable importance, and not free from difficulty. The case of Yale v. Dederer (18 N. Y. 265; 22 Id. 450), arose under the acts of 1848 and 1849, and it was determined in that case that the statutes then under consideration did not remove the common law disability of a married woman to contract debts or bind herself by a personal obligation, and that her engagements in any case could only be enforced by way of equitable charge upon her separate estate, and that such charge could only be created by an intention declared in the contract which is the foundation of the charge, or when the contract was for the direct benefit of her estate, and it was held that her estate was not charged by the execution of a promissory note which she had signed in the ordinary form of such a contract as surety for her husband. The construction put upon the acts of 1848 and 1849 in Yale v. Dederer has been followed in other cases, and the decision in that case is controlling as to the construction of these statutes, and in respect to cases coming within the same principle.
      It is difficult to hold, in view of the decision in Yale v. Dederer, that under the acts of 1848 and 1849 the contract of a married woman to pay for land purchased by her is valid, either in law or equity, or enforceable against her estate, when she receives no other benefit from the transaction than the benefit implied from the acquisition of the title to the land purchased, at least when the land purchased constitutes her entire estate. This view of the statutes does not, however, involve the injustice of allowing a married woman to obtain the title to land upon- a promise to pay the purchase price, and then to hold it free from any claim or lien for the purchase money. Upon the well settled doctrine of equity, if her bond or other security for the payment of the consideration is void, the land would be subjected, upon principles quite independent of any doctrine appertaining to the separate estates of married women, to a lien in favor of the vendor for the unpaid purchase money. The act of 1848, as amended in 1849, so far as it authorized a married woman to take by gift or grant from any person other than her husband, real or personal property, was not an enabling statute. This capacity she had at common law (Derby v. Callaghan, 16 N. Y. 71; Knapp v. Smith, 27 Id. 278). The new capacity given to a married woman by that act was to hold the estate or property acquired by her in any of the modes designated therein as her separate property without the creation of a trust, or the intervention of trustees, free from the control or power of disposition of the husband, with the right to convey and devise it as if she were a feme sole.

      In Huyler v. Atwood (26 N. J. Eq. 504; S. C., 28 Id. 275), a case almost identical in its facts with this, the same question arose as to the liability of Jlie grantees of a married woman, who in the conveyance to them had assumed the payment of a mortgage on the land, which she had likewise assumed in the conveyance from her grantor, to pay a deficiency arising on the foreclosure of the mortgage.
      Section 3 of the New Jersey statute of .1852, relating to married women, is in nearly the same words as the same section of our statute of 1848, and the court affirmed the liability of the defendants for the deficiency, upon the ground that the covenant of their grantor to assume and pay the mortgage in the conveyances to her was valid, notwithstanding her coverture, and the conclusion as to the validity of her covenant was reached upon the ground that the legislature, by giving to married women the capacity to acquire real estate by grant, impliedly authorized them to enter into a contract of purchase, and to bind themselves to pay the purchase money. The limited construction put upon our statute in Yale v. Dederer, would not probably justify us in adopting, in its full extent, the view of the New Jersey court, but this court, in Ballin v. Dillaye (37 N. Y. 35), which arose under the acts of 1848 and 1849 and 1860, went very far towards holding a married woman liable on her bond, given on her purchase of land, for the payment of the purchase money. In that case, the question was whether the defendant, Mrs. Dillaye, a married woman, was liable on her bond for a deficiency upon a foreclosure of a mortgage executed by her to the plaintiffs. She obtained title to the premises by purchase at a foreclosure sale of a mortgage, held by a bank. The plaintiffs, at the time, held a junior mortgage on the same premises, and intended upon the.sale to bid to the extent of their mortgage. Mrs. Dillaye wished to prevent their ^bidding. A written agreement was accordingly executed between her and the plaintiffs, by which, in substance, the plaintiffs agreed to advance §7,000 to clear the title, and not to bid at the sale, and she agreed to recognize their mortgage as valid, and to give them, on her purchasing the premises, her bond and mortgage on part of the premises, to secure the payment of their mortgage debt, and the §7,000 advanced.
      Pursuant to the agreement the plaintiffs advanced the money and refrained from bidding, and the defendant bought the premises and executed to them a bond and mortgage covering the advance and the amount of their original mortgage.
      On the trial of the question of Mrs. Dillaye’s liability for the deficiency, the plaintiffs offered to prove that at the time of the transaction she had a separate estate. There was no offer to prove, nor did it appear, that Mrs. Dillaye had any interest in the mortgaged premises prior to her purchase on the foreclosure of the bank mortgage, or that her antecedent separate estate was pledged for the mortgage debt or had any relation to the mortgaged premises.
      The special term rejected the proof offered, and held that the defendant was not liable for the deficiency, and the decision of the special term was affirmed by the general term. This court reversed the judgment and directed a new trial.
      It is a little difficult to ascertain the precise grounds upon which the decision in this court proceeds. The court, in reference to the fact that Mrs. Dillaye had a separate estate, say that it was relevant and material, and in view of the offer on the trial to prove the fact, it is assumed in the consideration of the case. But I do not understand that her liability is put upon the ground that she had a separate estate at the time of the purchase—certainly it was not put upon this ground alone. It is not perceived how Mrs. Dillaye’s liability at law or in equity for the deficiency could be affected by the fact that she had a separate estate at the time of the transaction, unless it was connected by contract or otherwise with the property purchased. But the court seem to hold that as she by the purchase on the foreclosure of the bank mortgage acquired not only the property included in the plaintiff’s mortgage, but other lots in addition, the obligation entered into by her was for the benefit of her estate, and that her whole estate was therefore chargeable with the deficiency.
      It is claimed on the part of the plaintiff that the case of Ballin v. Dillaye decides in his favor the question now presented. But without considering whether the circumstances under which the bond in that case was given distinguish it in principle from this, I am of opinion that the covenant of. the defendant’s grantor to assume and pay the Simon mortgage, was binding and valid on the ground that under the acts of 1860 and 1863, in connection with the previous, a married woman may purchase property on credit and bind herself by a contract to pay the purchase money, and that it is not a material circumstance in respect to her liability, whether she had any antecedent separate estate, or whether the contract on her part was a prudent, wise and advantageous one.
      The act of 1860 greatly enlarged the civil capacity of a feme covert beyond what was conferred by the previous legislation. By section 3 she is empowered to bargain, sell, assign and transfer her separate property, and carry on any trade or business and perform any labor or services on her solo and separate account. Section 3 authorizes a married woman possessed of real estate as her separate property, to bargain, sell and convey the same, or to enter into any contract in reference thereto, with the assent in writing of her husband, or by authority of the court, obtained as provided in the section. Section 7 provides that she may sue and be sued in all matters having relation to her separate property, or in relation to property which might thereafter come to her by descent, devise, bequest or gift of any person, except her husband, in the same manner as if she were sole. Section 8 declares that the husband shall not be bound by any bargain or contract of the wife “in respect to her sole or seperate property, or any ¡n-operty which may hereafter come to her by descent, devise, bequest, or the gift of any person except her husband,” or by any bargain or contract entered into by her in or about the carrying on of any trade or business under any statute of the State or render him or his property in any way liable therefor.
      The authority given to a married woman by this statute to carry on any trade or business on her own account, and to have and control her own earnings, whether living with her husband or living separate from him, worked a radical change in the pre-existing law, and it has been held by this court in several cases that as incident to her authority under this statute to carry on a trade or business a married woman may enter into any contract in respect thereto. She may purchase real or personal property on credit for the purposes of the trade or business into which she is about to enter, and bind herself by contract of payment, and also by her contracts made in the course of the business in which she engages (Bodine v. Kelleen, 53 N. Y. 93; Frecking v. Pollard, Id. 423). In the case last cited it was said, “ The power to carry on a separate trade or business includes the power to borrow money and to purchase upon credit implements, fixtures and real or personal estate necessary or convenient for the purpose of commencing it, as well as the power to contract debts in its prosecution after it has been established.”
      The limitation upon the power of a married woman to deal with her real estate contained in section 3 of the act of 1860,—which made the assent of her husband, or the order of the court, necessary to the validity of her conveyance of her lands, or her contracts in respect thereto,—was removed by the amendment of 1862, and a clause was added to the section, expressly authorizing her to enter into any of the usual covenants for title, in her contracts in relation to, or her conveyances of, her real property, which covenants the section declares shall be obligatory to bind her separate property.
      It will be observed that these statutes confer upon a married woman the broadest and most comprehensive powers over her separate real and personal property. Her power of disposition is absolute and unqualified; she may sell or give it away. She may enter into any contract in respect to her separate real property “ with the same effect and in all respects as if she were unmarried,” and this court has held that as incident to her separate ownership, she is liable for torts committed in its management and for the fraud of her agynt in dealing with third persons in respect to it (Rowe v. Smith, 45 N. Y. 130; Baum v. Mullen, 47 Id. 577). She may engage in business and incur the most dangerous and even ruinous liabilities in its prosecution, and they will be enforced against her to the same extent as if she were unmarried. She is no longer regarded as under the tutelage of the court, but the new legislation assumes that she is capable of managing her own interests.
      But it is insisted that she may not bind herself by a contract for the purpose of land, if she has no antecedent estate to be benefited, or if the purchase is not made for the purposes of a trade or business. The policy of such special limitation, in view of the general scope of our statutes and the conceded power of married women to charge and dispose of their property, and incur liabilities in its management, is not apparent.
      In Stewart v. Jenkins (6 Allen, 300), the supreme court of Massachusetts, under a statute of that State which provides, “ that a married woman may bargain, sell, and convey her separate real and personal property, enter into any contract in reference to the same, carry on any trade and business, and perform any labor and services on her sole and separate account, and sue and be sued in all matters having relation to her separate property, &c., as if she were sole, ” held that a married woman was bound by a note given as the consideration in part of a conveyance of real estate, on the ground that it was a contract in reference to her separate estate within the statute, and the court rejected, as too narrow, the construction insisted upon by the defendant, that the power given to a married woman by the statute to enter into a contract in reference to her separate estate was limited to the estate owned by her when the contract was made.
      The section of the Massachusetts statute considered in Stewart ®. Jenkins is very nearly like the third section of our statute of 1860, as amended in 1862. But the intention of the legislature to confer upon a married woman the general capacity to enter into a valid executory contract to pay for property purchased by her is indicated by sections 7 and 8 of the act of 1860, as amended in 1862. Section 7 of the act of 1860 was amended by the act of 1862, by inserting the word “ purchase ” in the first clause of the section, so that it should read: “Any married woman may, while married, sue and be sued in all matters having relation to her sole and separate property, or which may come to her by descent, devise, bequest, purchase, &c.” And section 8 was amended by inserting the same word in that section so as to embrace in the exemption of the husband, exemption from liability on the contracts of the wife made in respect to property coming to her by purchase.
      These amendments indicate that the legislature had in view the acquisition by a married woman of the title to property by purchase and the clear implication from the provision in section 8, exempting the husband from liability upon the wife’s contracts or bargains in respect to property purchased by her, is that she may bind herself personally by such contracts, and a contract to pay the consideration of land conveyed to her is, I think, a contract in respect to property coming to her by purchase, within the meaning of the statute.
      The conclusion is that under the statutes as they now exist a married woman, as incident to her right to acquire real and personal property by purchase and hold it to her sole and separate use, may purchase property upon credit, and bind herself by an executory contract to pay the consideration money, and that her bond, note or other engagement given and entered into to secure the payment of the purchase price of property acquired and held for her separate use may be enforced against her in the same manner and to the same extent as if she were a feme sole, and that her liability does not depend upon the proof or existence of special circumstances, but is governed by the ordinary rules which determine the liability of persons sui juris upon their contracts.
      The judgment should be reversed and a new trial ordered.
      All concur. Miller and Earle, JJ., absent at argument.


source: Caselaw Access Project

license: Public Domain

text:
    JOHN C. HOLLEMBAEK, Trustee, &c., et al., Plaintiffs and Appellants, v. JOHN H. MORE, et al., Defendants and Respondents.
    TRUSTEE AND CESTUI QUE TRUST.
    The estate of a cestui que trust is liable and can be held for the fraud of a trustee, by a purchaser of the trust property itself for a full and fair price without notice or knowledge of the trust.
    The contribution of trust property to the capital stock of a copartnership at the time of its formation, by a trustee, as his own property, and so contributed without notice or knowledge to the other copartners of the fact of its being trust property, is closely analogous to its sale and purchase. There is but little if any difference in principle.
    In such case the cestui que trust, seeking his property (thus converted) from copartnership assets, can only claim and take therefrom what his trustee would be entitled to take had he been vested with absolute ownership of the funds invested by him in the copartnership, instead of holding the same as he did merely in trust.
    The equities of the copartners of a trustee, dealing with him as the absolute owner of the property contributed by him to the copartnership, and without notice or knowledge of any trust relations in regard to the same, are paramount to those of the cestui que trust, in regard to such property.
    Before Curtis, Oh. J., and Saweord, J.

      Decided May 6, 1878.

    This is an appeal from an order overruling the plaintiff’s demurrer to the second and third defenses set up in the separate answer of the defendants, Thomas B. and John H. Band.
    It appears from the complaint, that the plaintiffs are the trustees and cestuis que trust, under the will of Noah Burnham, late of Concord, in the county of Merrimac, and State of New Hampshire, deceased, who died in August, 1857, leaving a will, whereby his residuary estate was devised and bequeathed to his executors, therein named, in trust to pay over the income thereof to his widow, during her life, and under certain conditions therein named, to pay certain portions of said estate to his children, Andrew J., Martha L. and Elizabeth A., and, upon the death of the said widow, to pay the same to his said children, and to the survivors of them. The will was duly proved by the executors and trustees therein named, who thereupon assumed the duty of executing its provisions. Such executors and trustees were afterward duly and legally removed from office, without having fully executed such trusts, and are now deceased. Andrew J. Burnham, one of the children of the testator, and a beneficiary under the said trusts, • is also deceased. On November 22, 1863, the defendant, John H. More, was appointed administrator de bonis non, of the estate of the said Noah Burnham, deceased, by the judge of probate of the county of Merrimac, in the State of New Hampshire, and by virtue of such appointment acquired possession of the estate, so far as it then remained unadministered. No debts of the testator remain unpaid. The specific legacies have been discharged, and all the. residue of the estate, which came to the hands of the defendant, More, was, and is, chargeable with the trusts created by the will.
    On December 5, 1868, More, and one Holly, purchosed the unexpired lease, furniture and business of the St. Cloud Hotel, in the city of New York, and thereafter, as copartners equally interested, carried on the business of said hotel until September 17, 1869. All, or nearly all, of the capital invested by More in such purchase and business consisted of the trust funds, to the income whereof, under the will of Noah Burnham, deceased, his widow was, and is, entitled, during her life, and to which his surviving children are, or will be, entitled upon her death.
    On September 17, 1869, the interest of Holly in the property and business was transferred to the defendants Rapd. More still retained the undivided interest therein, which he had acquired by virtue of his joint purchase with Holly, and the business was afterward carried on by More and the two Bands, as copartners ; but under an agreement, whereby their respective interests in the copartnership property were defined and limited, as follows, viz. : the interest of the said John H. More was to be twenty-nine undivided sixtieths, and the interest of the Bands was to be thirty-one undivided sixtieths. The business of the said hotel was carried on by the defendants, More and Band, joiPtly, for some time ; but, before the commencement of this action, a suit was instituted between them by More for a dissolution of their copartnership and the distribution of its assets.
    On September 22, 1876, the plaintiff Hollembaek, was, by an order of the supreme court of the State of New York, duly appointed trustee of the trust estate created by the will of Noah Burnham, deceased. The said trust estate is capable of being traced to, identified and distinguished in, the investment made by More in the said hotel and in the business carried on by him in connection with the defendants Rand.
    The plaintiff, Hollembaek, as such trustee, claims to be entitled thereto, and to such a proportionate share of the profits of the said business as the trust estate represented in the enterprise ; or, at his option, if for the interest of his cestuis que trust, to be repaid the amount of the said trust funds invested therein, with interest thereon.
    The complaint contains no allegation impugning the ■ action of More in making the purchase of the hotel property with the funds of the trust estate, as a misappropriation thereof, nor is it averred that the Rands had any notice or suspicion, or reason to suspect or believe, when their interest in the said property and business was acquired, and when their partnership relations with More were entered into, that the interest of More had been purchased with money which he held in trust, or that he was not the absolute and bona fide owner thereof, in his own right.
    The second and third defenses set up in the separate answer of the Rands, state in substance that they acquired this interest in the property, in good faith, under a written contract with More and Holly made on September 17, 1869, and paid to Holly $31,000 as the consideration of the transfer to them of his undivided share therein, without any knowledge or notice that More was not the true and absolute owner 'of the interest therein to which he claimed to be entitled.
    The defendants Rand further allege that they were induced to make such purchase, and to enter into the said agreement of September 17, 1869, under which they acquired title and became interested in the property, and copartners with More in the business, by false and fraudulent representations made by More, as to the profits of the said hotel business previously realized, as well as by certain promises and agreements in reference to the conduct thereof which he wholly failed to perform, and that but for such representations, promises and agreements, they would not have made such purchase, nor entered upon the said business. They further allege that by reason of the premises they have sustained great loss and damage. And they claim that if the plaintiffs are entitled to any relief in this action, they can-only reach the interest of More, in the copartnership assets and effects, after the same shall have been equitably determined upon an accounting as between him and themselves, in which the damages thus sustained by them shall be allowed to enter.
    To the second and third defenses thus set up, the plaintiffs demurred, on the ground that they were insufficient in law to constitute a defense or counter-claim.
    On the trial of the issue of law thus raised, it was ordered that the said demurrer be overruled with costs.
    From that order the plaintiffs appeal.

      Robert B. Oreen, for appellants.

      Bandford R. Ten Eyck, for respondents.
   By the Court.—Sanford, J.

The matters set up in the second and third separate defenses of the answer of the defendants Rand, to which the plaintiffs demur as insufficient, either by way of defense or counterclaim, are not asserted as constituting a cause of action against the plaintiffs, or as affording good ground for any affirmative relief. They are relied upon as constituting equitable defenses against the demand of the plaintiffs to be indemnified out of the partnership assets and effects, for the entire amount of the trust fund invested by More in the partnership business, with interest thereon, irrespective of any question of profit or loss in said business, and without regard to the rights and interests of the defendants Rand in the partnership assets and effects, as between said defendants and their copartner More. The plaintiffs contend that they are entitled to be repaid from the partnership property of the defendants, the amount of the trust fund invested therein by More, with interest, or that, if they shall so elect, they may take, at their option, such proportionate share- of the property and profits as the trust estate represented in the enterprise. The defendants Rand, on the other hand, insist that as they acquired their interest in the property and business at More’s instance, and upon his representations and agreements, without any knowledge or notice of the rights or claims of the plaintiffs to the moneys invested by him, their equities are paramount, and that, in the adjustment and distribution of the partnership assets, their rights and claims as against More should be fully protected, before those of the plaintiffs are allowed to be enforced. The facts alleged in the defenses demurred to were intended to raise this question, and it is this question, principally, which has been presented and discussed on the argument. If, upon the facts stated, the plaintiffs’ claim to the trust moneys invested in the partnership property by More, is to be subordinated to the rights of the defendants Rand, as between More and themselves, then those facts are properly averred by way of equitable defense, and the demurrer cannot be sustained. If, on the other hand, the plaintiffs are entitled to trace their funds into the assets of the partnership to their full extent, or even to the extent of the nominal share or interest therein of More, irrespective of any settlement and accounting as between him and the defendants Rand, then the claims of said defendants, founded on his alleged frauds upon, and his breaches of contract with them, are irrelevant and immaterial. In an action for an accounting between f he defendants More and Rand with respect to the co-partnership between them, the facts averred in the separate defenses now under consideration, were held by the court of appeals to be available in favor of the Rands by way of counter-claim against More, for the reason that the action was, in a general sense, founded upon the contract of September 17, which provided contingently for the copartnership subsequently created, and the fraud of More, in inducing'the defendants Rand to enter into that contract, might be regarded as a cause of action in their favor against the plaintiffs, arising out of the contract upon which the action was founded (More v. Rand, 60 N. Y. 212).

The court declined to consider whether independently of the code such a cross defense would be entertained by a court of equity in an action for the dissolution of a copartnership, but cited authorities tending to support the affirmative of this question, and asserted, broadly, that the policy of the law in recent times allows parties to bring into a single action, so far as it can conveniently be done, all the controversies between them, for final and complete adjustment. An examination of the authorities so cited has satisfied me, that the facts alleged in the defenses demurred to would be good in equity, as constituting a proper and available cross defense as between the defendants and More, in a suit for the settlement and adjustment of their partnership affairs, and that the exclusion of those facts from consideration in such a suit would result in hardship and injustice (See especially McKenna v. Parker, 36 L. J., Eq., 366). The same must be true, with reference to the claim of the plaintiffs in this suit, unless the equities in their favor are paramount to those of the defendants. It is conceded that the estate of a cestui que trust is liable and can be held for the fraud of Ms trustee, by a purchaser of the trust property itself for a full and fair price, without notice of the trust. The contribution of trust property to the capital stock of a copartnership at the time of its formation is closely analogous to its sale and purchase. The other partners make their contributions and enter into their engagements on the faith of it. They become vested for a good and valuable consideration with the legal title to it. There would seem to be but little difference, in principle, between a contract of sale and a contract of partnersliip, upon this particular question. The equity of the defendants arises out of the fact that More had the legal title and possession, with all the evidences of absolute ownership, and that the defendants Eand were not only Avithout actual knowledge or notice of the trust upon Avhich he held the property, but were in no Avay put upon inquiry Avith respect to his title to it.

In such case, the same principle Avould seem to be applicable which has controlled in bankruptcy, Avhere I he general rule is, that if some of the members of a firm apply moneys, which they hold in trust to partnership purposes, with the knowledge of the firm, the trust still attaches ; the firm are responsible for the transaction and hold the moneys either as trustees or as debtors to the cestui que trust. In cases of this nature, the cestui que trust has a right to have the subject of the breach of trust restored to him in the manner most beneficial to himself, and consequently to consider it either as a debt of the firm from the time the breach of trust took place, or to be made good in specie, as he shall elect (Collyer on Par in. § 456). But Avhere a partner lends trust money to his firm, his cestui que trust do not become creditors of the firm, and are not entitled to share as such in the distribution of its assets unless the fact of its being trust money is knoAvn to the other parties (Jacques v. Marquand, 6 Cowen, 497; Exp. Heaton, Buck, 386; Exp. Apsey, 3 Br. Ch. 265 ; Exp. Watson, 2 Ves. & Beam. 414 ; Willett v. Stringer, 17 Abb. Pr. 152).

. The individual interest of the partner who has been guilty of the breach of trust can alone be resorted to, and that is only to be ascertained upon a final settlement and adjustment of the partnership estate as between the partners. The equities in favor of the other partners are stronger where the trust funds are not merely loaned to the partnership, but are contributed as capital upon a good consideration ; and, especially, where, as in this case, the right of the partner to appropriate them is not in terms impugned, and no breach of faith, or misappropriation is charged upon or imputed to him. The action of More in originally investing the trust moneys in the joint purchase with Holly of the St. Cloud Hotel is not disaffirmed by the plaintiffs, nor do they in anywise repudiate or disavow (he contract of September 17, between More and Holly and the defendants Rand. I am of opinion, that they are bound by the terms of that contract, and that, inasmuch as the Rands, in an action founded upon that contract, may avail of the facts alleged in the defenses demurred to, by way of defense or counter-claim against More, so should the plaintiff be held in the present action, so far as the partnership property is concerned, to a like accountability for the frauds of More, in inducing the defendants to enter into that contract. In other words, they should only be permitted to withdraw from the copartnership assets what More might have withdrawn had be been vested with the absolute ownership of the funds invested therein, instead of holding them, as he did, merely in trust.

The order appealed from should be affirmed with costs.

Curtis, Ch. J., concurred.


author: By the Court.—Saneord, J.

text:
    SARAH A. CHAMBERLIN, Administratrix, &c., Plaintiff and Appellant, v. AMOS S. CHAMBERLIN, Impleaded, &c., Defendant and Respondent.
    COPARTNERS, EQUITY BETWEEN.
    Redemption op mortgage, who can claim it.
    If a partner take a lease of lands in his own name for the purposes of the partnership, he will be considered in equity a trustee of such lease for himself and his copartners (Oolhjer on Part. § 160, and cases there cited). But in Otis v. Sill (8 Barb. 102), where a lease was taken by one member of a firm in his own name, there being no evidence that it was taken for the firm and with express reference to its business, beyond the facts that the partnership commenced at the date of the lease and was carried on upon the demised premises, it was held that the lease did not belong to the firm, and it was also held that parol evidence was inadmisible to show that the lease was executed for the benefit of the firm, for the reason that by such evidence it was sought to create a trust in real estate by parol, which was prohibited by statute (2 It. 8. 135, § 6).
    There is no presumption that a leasehold, standing in the name of one of several copartners, and used by the firm for their business, constitutes partnership assets. The presumption is otherwise. Its mere use for partnership purposes does not operate to divest or affect the legal title.
    If, however, it be made to appear that real estate and chattels real standing in the name of one of a firm, does in fact belong to the partnership, equity will treat it as such, and will decree the person holding it to be a trustee for those beneficially interested, but it must appear that such real estate has been so treated, and was purchased and held for partnership purposes and account, or in some form voluntarily subjected by the legal owner to the equitable rights and liens of all the partners and partnership creditors.
    No person can invoke the aid of a court of equity lor a redemption of a mortgage, except he who is entitled to the legal estate of the mortgagor or who claims a subsisting interest under him (Grant v. Duane, 9 Johns. 591).

      Before Curtis, Ch. J., and Saneorjo, J.

      Decided May 6, 1878.
    Appeal from a judgment entered in favor of the defendant, and against the plaintiff, for $654.56 costs, on a dismissal of the complaint, after a trial of issues of fact at special tern, by the court without a jury.
    The action is in the nature of a bill in equity, filed by the plaintiff as administratrix of her deceased husband, to have the right, title, and estate of the defendant in and to certain renewal leases, the originals whereof were held by him under an assignment absolute on its face, adjudged and declared to be defeasible by redemption ; and for the redemption of such leases on payment by the plaintiff to the defendant, of whatever, if anything, upon an accounting, should be found to be due from the estate of plaintiff’s intestate to the defendant, as the mortgagee of said leases.
    It appeared, by the evidence, that the leasehold premises in question were demised to Elijah Chamberlin, by two indentures of lease, bearing date July 19, 1844, for the term of twenty-one years from August 1, then next ensuing. The said Elijah Chamberlin and his son, John P., the plaintiff’s intestate, were then copartners in business, and upon the execution and delivery of such leases they entered upon the demised premises, and continued in possession thereof, carrying on the copartnership business until August, 1859, when the right, title and interest of Elijah Chamberlin in said leases and the premises thereby demised were sold, under decree in foreclosure, to Messrs. Cain, Ward, Cole and Jessup, creditors of Elijah Chamberlin, and lienors upon the demised premises, two of whom, Cain and Ward, were plaintiffs in the foreclosure suit.
    Prior to such sale an oral agreement was made between the said purchasers, John P. Chamberlin, the plaintiff’s intestate, and the defendant, to whom at the time, Elizabeth and John P. Chamberlin were largely indebted, that the said purchasers or one of them should buy in the property at the sale, hold it for five years or until their claims were sooner discharged in full by the payment of $200 per month, as rent, or otherwise; and, at the expiration of five years, or earlier at his option, transfer the leases to the defendant, upon payment by him therefor of any sum that might remain unpaid of their claims ; after, which the „ defendant should hold the property, until reimbursed for his outlay, if any, and until his own then existing claims against John P. Chamberlin were discharged, when the leases were to be transferred to him. Pursuant to this understanding, the purchasers named bought the two leases and the right, title and interest of Elijah Chamberlin in the premises, at the foreclosure sale, and acquired title thereto, by deed, absolute on its face, dated August 18, 1859. Their claim against the property then exceeded $11,000. The defendant then paid them $2,000 on account, reducing it to about $9,000. On September 27, 1859, they entered into an agreement in writing with the defendant, whereby they promised, at any time during the term, to assign to him or his legal representatives the said leasehold premises, for a sum equal to $9,670, with interest from August 1, 1859, and upon such sale to allow, as part of the purchase money, all payments of rent which he might make for the use of the premises, from August 1, 1859, with interest on such payments, first deducting therefrom, however, all taxes, assessments, and expenses, incurred by them, with interest thereon. On July 26, 1864, the said purchasers, Cain, Ward, Cole, and Jessup, assigned to defendant the said leases.
    At the time of such assignment there was due to his assignors, of the money for which they held the leases as security, $4,000, and this amount the defendant paid. John P. Chamberlin was then in possession ; and, as the tenant of the defendant, at a rental of $900 per month, continued to occupy the premises until his death. He never paid to defendant the indebtedness due him, and which existed when the said oral agreement with respect to the transfer of the leases to defendant was made ; nor the $4,000 advanced by the defendant on receiving the assignment of said leases, in August, 1864. He was never able to make such payment. He owned no property, left no estate, and died insolvent on November 9, 1867. The defendant paid $200 per month to his assignors of the leases, for five years, to August, 1864, for which, however, he was reimbursed by plaintiff’s intestate, and paid ground rent to the lessors, up to the time of commencing this action. In August, 1864, there was due to the defendant, from said intestate, about $15,000.
    The findings of the judge before whom the cause was tried, were substantially in accordance with the facts as above stated, so far as these facts are necessary to support the judgment. He also found, specifically, that the leasehold estate mentioned in the complaint, was the individual property of Elijah Chamberlin, until August, 1859, when his interest therein was sold under foreclosure. His conclusion of law was, that the defendant should have judgment that the complaint be dismissed.
    The plaintiff filed exceptions (1) to the finding of fact, that the leasehold estate mentioned in the complaint was the individual property of Elijah Chamberlin, until August, 1859 ; and (2) to the said conclusion of law.
    The defendant now appeals from the judgment.

      Clifford A. 3. Bartlett, for appellant.

      James M. Smith, for respondent.
   By the Court.—Saneord, J.

The evidence in the case sustains the finding of the learned judge, that the leasehold premises in question belonged to Elijah .Chamberlin, and were his individual property, until August, 1859. The demise was to him, his executors, administrators and assigns, from August 1, 1844; for the term of twenty-one years thence next ensuing. William S. Chamberlin, a brother of the defendant, and of the plaintiff’s intestate, testified, positively and without objection or contradiction, that his father, Elijah Chamberlin, owned the leases. There was no evidence to the contrary, unless it be by way of inference from the fact, not established by the evidence, but averred in the complaint and not denied in the answer, “ that before and at the time of the execution and delivery of said leases, a copartnership existed between the said Elijah Chamberlin, and his son, John P. Chamberlin, and upon the execution and delivery of said leases, the said Elijah Chamberlin and John P. Chamberlin entered - upon the said demised premises and occupied the same, for the carrying on, in and upon said premises, of the partnership business.”

There is no evidence in the case, nor does the complaint aver, that the leases were taken by Elijah Chamberlin for the firm, or with express reference to the partnership business ; nor does it appear what were .the precise relations of the copartners to each ■other with respect thereto, nor whether the rent thereby reserved was paid out of copartnership funds, nor what credits, if any, were made to Elijah, on the partnership books, for the use of the property.

In Coltyer on Partnership (§ 160) it is said that if a partner take a lease of lands in his own name, for the purposes of the partnership, he will be considered, in equity, as a trustee of such lease for himself and his copartners, the lease being deemed an incident of the copartnership. Forster v. Hall (5 Ves. 308), is cited in support of the proposition. In that case, Lord Alvanly held, upon evidence afforded by letters of the lessee, and entries in the partnership books, that there had been a declaration of trust for the partnership, in writing, within the requirements of the statute of frauds ; and he, therefore, declared the lessee to be a trustee for himself and his copartners. The decree was affirmed, on appeal, by Lord Lougkhbo rough, who proceeded, however, upon different grounds. He considered the evidence which had been adduced for the purpose of raising a trust in the lessee for himself and the plaintiffs, as conclusive of the existence of a partnership between them, and, the fact of partnership being established, that the lessee having taken the lease for the purposes of the partnership, took it as trustee for himself and his copartners, by operation of law, uncontrolled in any manner by the statute.

But in Otis v. Sill (8 Barb. 102), where a lease was taken by one member of a firm in his own name, there being no- evidence that it was taken for the firm and with express reference to its business, it was held that the lease did not belong to the firm, although it appeared that the partnership commenced at the date of the lease, and that the partnership business was carried on upon the demised premises. It was also held that parol evidence was inadmissible to show that the lease was executed for the benefit of the lessee and his son, who was his copartner, for the reason that ■by such evidence it was sought to create a trust in real estate by parol, which is prohibited by the statute of frauds (2 R. S. 135, § 6).

There would, accordingly, seem to be no presumption that a leasehold, standing in the name of one of several copartners, constitutes partnership assets, notwithstanding that the partnership business is carried on upon the demised premises. The legal presumption is otherwise, and it must expressly appear that such was the purpose and intent of the parties, before a trust for all can be inferred. If, however, it be made to appear that real estate, including chattels real, does, in fact, belong to a partnership and constitutes part of its assets, in whosesoever name it may stand, equity will treat it as such, and will decree the person in whom the legal estate vests to be a trustee for those beneficially interested. But real estate, to be so treated, must have been purchased for partnership purposes and on partnership account, or must in some form have been voluntarily subjected by the legal owner to the equitable rights and liens of all the partners and of the partnership creditors. Its mere use for partnership purposes, by the sufferance of the legal owner, does not operate to divest his title. While one of several copartners may not, during the existence of a continuing partnership of undetermined duration, secure to his individual use and benefit, without the knowledge of the others, the renewal or continuance of a lease of premises held and used by the firm (Struthers v. Pearce, 51 N. Y. 357), no principle of law „ or equity precludes copartners from severally taking title to land, either in fee or for a term of years, in respect to which no fiduciary relation between them exists ; and neither nor any of them can claim the right to share with the other or others in the benefits to be derived from the purchase or tenancy of such land. Land thus acquired by one of several copartners may be appropriated, at his option, and during his pleasure, to the use of the copartnership upon such terms and conditions as may be agreed upon, but no inference is to be deduced from such use adverse to the title of him in whom the legal estate is vested. To defeat his apparent individual right it must affirmatively appear that he acquired and holds the title under circumstances upon which equity will fix its grasp for the purpose of declaring and enforcing a trust in favor of others beneficially entitled.

Unless the plaintiff’s intestate had some estate or interest in the demised premises under the mortgagor, neither the purchasers under tlie foreclosure sale, nor their assignee, the defendant, ever stood towards him in the relation of mortgagee, and unless that relation existed, there can be no right of redemption. No person can come into a court of equity for a redemption of a mortgage but he who is entitled to the legal estate of the mortgagor, or claims a subsisting interest under him (Grant v. Duane, 9 Johns. 591). In the absence of any such estate or interest, the plaintiff’s intestate, under the oral agreement which existed between the purchasers at the sale, the defendant and himself, occupied no other or better position by reason of his partnership with Elijah Chamberlin, the owner of the equity of redemption, than he would have done, if an entire stranger. As between him and them, the contract was a mere executory contract for the purchase and sale of an estate or interest in lands, and was void by the statue of frauds (2 R. S. 135). No trust attached or was created in favor of the plaintiff’s intestate, when the defendant entered into the written contract with the purchasers at the foreclosure sale, nor when he received from them the assignments of the leases (75.). If, however, the contract were valid, or if, although void under the statute, its specific performance could be enforced in equity, by reason of its part performance by the defendant, of which there is no evidence in the case, unless his payment of rent to the defendant may be regarded in that light, specific performance could not be decreed, and no relief could be afforded to the plaintiff, for the reason that the payments required by the contract to be made, have neither been made nor tendered, nor offered to the defendant. “ He who seeks equity must do equity.”

The case is closely analogous in principle to that of Levy v. Brush (45 N. Y. 589), cited as a controlling authority in the opinicm of the learned judge before whom the cause was tried.

There was no error in dismissing the complaint and the judgment should be affirmed with costs of the-appeal.

Curtis, Ch. J., concurred.


author: By the Court.—Sauford, J.

text:
    LUCY I. SEYMOUR, Plaintiff and Respondent, v. GEORGE A. FELLOWS, Defendant and Appellant.
    husband and wife.
    Assignment direct from former to latter.

      Witnesses, opinion of.—Falsus in uno, falsus in omnibus.

    Transfers of personal property made by husband direct to wife, without intervention of an intermediate party, are valid, as between themselves.
    Choses in action may pass by delivery from one to the other, even without a written assignment (Lockwood ®. Cullin, 4 Bolt. 139; Mack n. Mack, 3 Hun, 333).
    An opinion of a witness as to the value of services, should be based either upon the statement of another witness who has testified as to his actual knowledge of the amount and character of the services, or upon a hypothetical case including some or all of the facts proven (Mercer ®. Vose, 67 N. Y. 56).
    Where the evidence of witnesses requires to be reconciled, because different inferences may be drawn from such evidence, an opinion of a witness as to value, based or founded solely upon the fact of hearing such evidence read, is incompetent.

      The question must be so stated that the witness shall have in his mind a definite state of facts (Reynolds u. Robinson, 64 W. Y. 589). The facts in the present case readily distinguished from those in the last cited case.
    The maxim falsus in uno fahus in omnibus is not of universal application.
    The uncontradicted testimony of even a forsworn witness, if corroborated, must not necessarily be utterly rejected and disregarded.
    The true rule is that the jury is at liberty to reject utterly the testimony of a witness who has deliberately sworn falsely in regard to any material fact in the case, except in so far as he is corroborated by other credible witnesses, or by necessary inferences from undisputed facts.
    Before Curtis, Ch. J., and Sarford, J.

      Decided May 6, 1878.
    Appeal from a judgment entered on a verdict in favor of the plaintiff, and from an order denying defendant’s motion, made on the minutes for a new trial.
    The action was brought to recover the value of work, labor and services, alleged to have been rendered by plaintiff’s husband and assignor to the defendant, at his instance and request; and also a commission of five per cent, upon sales effected by the plaintiff’s husband and assignor for the account and benefit of the defendant, under an agreement between them that he should receive such commission by way of compensation for effecting such sales.
    The defendant by his answer admitted that he agreed to pay the plaintiff’s assignor a commission of five per cent, on sales made by him, but denied all other allegations of the complaint. A set-off to the extent of $500 was averred by way of affirmative defense.
    Exceptions were taken to the rulings of the court during the trial upon questions of evidence. Also to the charge, and to the refusal of the court to charge as requested.
    The jury rendered a verdict in favor of the plaintiff. - Defendant’s motion on the minutes that the verdict be set aside and a new trial granted was denied. The present appeal is taken both from the judgment and from the order denying such motion.

      Scudder & Carter, for appellant.

      G. V. N. Baldwin, for respondent.
   By the Court.—Sauford, J.

The defendant contends that the plaintiff’s title to the claim in suit is invalid, because acquired by assignment directly from her husband. While a different rule might prevail, if the rights of the husband’s creditors were concerned, transfers of personalty made by husband to wife, are sustained as valid between the parties, and dioses in action are held to pass by delivery from one to the other, even without a written assignment (Lockwood v. Cullin, 4 Robt. 129 ; Mack v. Mack, 3 Hun, 323).

The principal issue in the case was whether, by agreement between the defendant and the plaintiff’s assignor, the compensation of the latter, for whatever services he should render, was to be limited to a commission of five per cent, upon the amount of such sales as he should effect, or whether he was to receive such commission upon sales in addition to the fair and reasonable value of his other services. Upon this issue, there was conflicting evidence. The plaintiff’s assignor testified, in substance, that the general charge of the business of defendant, as assignee of the firm of John F. Seymour & Co., of which witness, prior to its failure, had been a member, was for four months and a half entrusted to and devolved upon him, by the defendant ; and that, during that period, he attended to the correspondence and collections, had charge of the money drawer, paid the clerks, and took an account of stock. That the defendant expressed reluctance to paying him a salary, because creditors might object, but nevertheless agreed to pay Mm for his work, and distinctly said that he would do so ; and as a separate matter, also agreed to pay him five per cent, for selling goods.

On the other hand, the defendant testified that shortly after the assignment he informed the plaintiffs assignor, and his two partners in the firm of John F. Seymour & Co., that the stock of goods was small, and that he could pay them no more than five per cent, for selling. That nothing was said about salary, or about any payment for services, excepting such commissions. On his cross examination, he testified that he told them positively, he would pay only five per cent, commission for any services they rendered. The defendant was corroborated, in respect to the alleged arrangement between himself and the members of the firm of John F. Seymour & Co., with respect to commissions, by two other witnesses, one a member of that firm, each of whom testified, in effect, that the compensation of the former partners was by express agreement to be limited to a commission of five per cent, upon sales, but it appeared that compensation, in excess of such commission was, in fact, paid by defendant, to one or more of them, and was charged as so paid upon the defendant’s books. Moreover, the plaintiffs assignor testified, without contradiction, that after the suit was brought the defendant- said to him : “I did enough to pay you for your first month’s work. I think that is all you ought to have asked.” It appeared, in evidence, that the defendant had retained, on account of his services, §358.15, out of cash that came to his hands in the course of the business, as appeared by entries in defendant’s books.

The court submitted to the jury the question of fact involved in this issue, directing their attention to' the numerical excess of witnesses in behalf of the defense, but observing that there were facts and circumstances, which rendered it eminently proper that the question of the credibility of all the witnesses should be disposed of by them. There is nothing in the case to warrant or suggest a suspicion that in arriving at a conclusion the jury were biased ór prejudiced, or that their deliberations were conducted otherwise than in perfect fairness and good faith. The verdict should not be disturbed as unsupported by, or as against the weight of evidence. Testes ponderantur non numerantur. The value of the plaintiff’s services was proven by himself and by two other witnesses, each of whom testified that they had heard his testimony as to what he did. They were then asked, what in their opinion his services were worth. Objection having been taken to the question, because the witness was asked to fix the value from what Seymour said the services were—the witnesses were instructed to leave out of view the estimate of value given by Seymour, and from his statement of the services, to say what they were worth. The objection is that the question was not based upon a hypothetical statement of facts, but that it accorded to the witness the province of determining wrhat services were rendered, and then of fixing their value. An opinion as to the value of services should be based either upon a witness’s knowledge of the facts, or upon a hypothetical case, including some or all of the facts proven (Mercer v. Vose, 67 N. Y. 56). Where the evidence of witnesses requires to be reconciled, and when different inferences may be drawn from such evidence, an opinion as to value, founded solely upon hearing-such evidence read, is incompetent- (Reynolds v. Robinson, 64 N. Y. 589). The question must be so stated that the witness shall have in his mind a definite state of facts, so that the province of the triers shall not be interfered with (76.).

I am of opinion that this salutary rule was not infringed by the questions now under consideration. In the case last cited, the.witness had heard the testimony of two physicians, in regard to a malady with which the defendant’s testator was afflicted, and had heard read the testimony of the plaintiff’s wife in regard to the nature and extent of her care, nursing and attendance upon him, during the last six years of his life. The question contained no reference to any particular portion of the evidence, and called generally for the witness’s opinion as to the value of the services rendered by plaintiff’s wife in nursing said intestate during that period. Under the particular form of the question addressed to him, the witness was called upon to determine, from the evidence, and in view of the testimony of a medical expert, the nature, extent and importance of the services which had been rendered, and thereupon to estimate their value. In the case at bar, the testimony of the plaintiff’s assignor as to his services was very brief and direct. The witnesses were particularly directed to confine themselves to that testimony, and upon that basis to express an opinion. This was equivalent to an inquiry as to the value of certain services, supposing them to have been rendered as stated. It did not devolve upon the witness the duty of determining whether they were so rendered or not. In the case of McCollum v. Seward (62 N. Y. 316), a witness was asked, “What were his (the^ plaintiff’s) services; as he describes them, worth a month, taking.the whole year round?” The court of appeals was of opinion that an objection, similar to that now taken, was not tenable ; although it recognized and affirmed the principle upon which that objection was urged. It held that the witness was not called upon to determine the truth of the facts deposed to, before giving an opinion, but only for an opinion to be given hypothetically, upon the assumption that the facts stated were true. I think the present case precisely analogous, and that both cases may be readily distinguished from that of Reynolds v. Robinson (ut supra), where the -witness was, in some sense, required to determine from the evidence, first, what services the plaintiff did, in fact, render, and thereupon to estimate their value.

The evidence of both witnesses upon their cross examination, under hypothetical questions addressed to them by the defendant’s counsel, was highly favorable to the defense, and on the whole, could not have prejudiced the defendant. I think the ruling was not erroneous, but even if technically it were so, the error is not one which under the circumstances warrants a reversal.

In response to a specific request on the part of the defendant to charge that if the jury believe the plaintiff’s assignor has willfully testified falsely in any particular, he is unworthy of credit,” the court charged that undisputed testimony was always entitled to credit, but that the credit of a party (witness) would be destroyed by a willfully false statement, important to the case.

Exception was taken to this qualification of the defendant’s request. The proposition contended for, without any qualification, was untenable. The maxim “falsus in uno, falsus in omnibus,” is not of universal application. The jury are to be the judges of the credibility of witnesses, and the uncontradicted evidence of even a forsworn witness, if corroborated, is not necessarily to be utterly rejected and disregarded. The true rule is, that the jury are at liberty to reject utterly, the testimony of a witness who has deliberately sworn falsely in regard to one material fact, except in so far as he is corroborated by other credible witnesses, or by necessary inferences from undisputed facts. It should appear that a witnesss has committed, or is capable of perjury, before it can be said that he is unworthy of any credit. The jury are not absolutely bound to reject undisputed evidence, duly corroborated, or which accords with the probabilities of the case, because it comes from the mouth of a witness, who, upon a collateral question, not material to the issue, has been guilty of willful misrepresentation. While such a misrepresentation may affect credibility, it will not necessarily entirely discredit a witness.

The materiality of the matter as to which one shall willfully and corruptly swear falsely, is essential to constitute perjury (2 R. S. 681). The court qualified the defendant’s proposition, by charging that the credit of a party (witness) would be destroyed by willful falsehood, “if important (that is, material) in the case.” There was no error in the rule as adopted and laid down by the court (Wilkins v. Earle, 44 N. Y. 172, 182; Brett v. Catlin, 47 Barb. 404, 407; and see authorities collected in note to Koehnecke v. Ross, 16 Abb. Pr. N. S. 345).

Other exceptions referred to in the points of counsel are not deemed tenable.

The judgment and order appealed from must be affirmed with costs.

Curtis, Ch. J., concurred.


text:
    HERBERT B. FREEMAN, Plaintiff and Respondent, v. JOHN M. FALCONER, Impleaded, &c., Defendant and Appellant.
    PROMISSORY NOTE, LEGAL OWNER OF.
    'OPARTNERSHIP, LIABILITY OF FORMER MEMBER THEREOF, WHO
    ALLOWS HIS NAME TO BE USED AND CONTINUED AS IF HE WAS AN
    ACTUAL MEMBER OF THE FIRM.
    In the absence of malafldes in a plaintiff’s possession of promissory notes, indorsed in blank or specially to himself or his own order, the legal title is in him, and he is legally the real party in interest, and can maintain an action on the same, even though it appears that the transfer is merely colorable as between the parties (See cases cited in Hays v. Southgate, 10 Hun, 511; also Sheridan «. The City of New York, Court of Appeals, see 4 N. Y. Weelcly Big. 28).
    Where the relations of a partner to his copartners have been terminated, yet his name was continued in the name and style of the firm formed by his former copartners with his knowledge, sanction and approval,—Held, that he was liable on the contracts and obligations of the firm so using his name as if he had actually continued as a member and partner thereof.
    Before Curtis, Ch. J., and Sanford, J.

      Decided May 6, 1878.
    Appeal from a judgment entered on a verdict in favor of the plaintiff ; and from an order denying defendant’s motion, made on the minutes, for a new-trial.
    The action was brought upon two promissory notes in writing, made by J. M. Falconer & Co., to the order of Manning, Bowman & Co., and by them specially indorsed to the order of the plaintiff. The separate answer of the defendant, John M. Falconer, who alone appeared, put in issue all the allegations of the com"ilaint, and averred, by way of affirmative defense, that ae notes were the property of Manning, Bowman & Co., who were the real parties in interest, and ought to be plaintiffs.
    Upon the trial it appeared that the notes in suit were made by the copartnership firm of J. M. Falconer & Co., to the order of Manning, Bowman & Co., who specially indorsed them to the plaintiff, and directed payment thereof to his order.
    The defendant, John M. Falconer, offered to prove that the payees named in the notes, Manning, Bowman & Co., were the real owners thereof, and that plaintiff held them merely as their agents, and for the purpose of collecting and. remitting the proceeds.
    The evidence was excluded and the defendant excepted.
    The defendant, Falconer, testified, without contradiction, that he ceased to be a member of the firm of J. M. Falconer & Co., about November 1, 1875, when his partners, Barrowcliffe and Manly, bought out his interest in the firm at a sheriff’s sale, under execution, and afterward continued the business in the same firm name of J. M. Falconer & Co. He further testified, that he was in the employ of the firm, giving it the use of his name and skill, at a salary. The notes were made in February, 1877.
    Evidence was offered tending to show a compliance by Barrowcliffe and Manly with the statute “allowing the continued use of copartnership names in certain cases ” {Laws of 1854, ch. 400 ; 1863, ch. 144); but it did not appear that the case was within the statutory requirements. There was no evidence that the firm of J. M. Falconer & Co. ever had business relations with foreign countries, or that, when the defendant ceased to be a member of it, it had transacted business in this State for a period of five years.

      The defendant requested the court to direct a verdict in his favor, on the ground that he was not a member of the firm of J. M. Falconer & Co. when the notes were made, and was, therefore, not liable thereon. Also upon the ground that it appeared that the notes were the property of Manning, Bowman & Co., some evidence to that effect having been introduced without objection.
    The court refused so to do, and an exception was taken.
    The court charged the jury, in effect, that the statute did not authorize the continuance of the use of John M. Falconer’s name by his former partners, after their purchase of his interest in the firm ; and their subsequent use of his name, with Ms knowledge and approbation, rendered him liable for its use, as if he had used it himself. The court submitted to the jury the question whether the signature to the notes was genuine, charging that if it was, the defendant would be liable for the use of his name, inasmuch as it was used with his approval, in the same manner, and to the same extent, as if he had used it himself. Exception was taken to the charge in this respect.

      Thomas & Wilder, for appellant.

      C. F. Wells, for respondent.
   By the Court.—Sanford, J.

Upon the question of the plaintiff’s title to the notes in suit, and Ms right to maintain an action thereon, the weight of authority is adverse to the position contended for by the defendant. In Hays v. Southgate, 10 Hun, 511, the cases upon this point are collated and commented on, and it is laid down as the settled rule, established by numerous adjudications of the court of appeals, that in the absence of mala Jides in a plaintiff’s possession of promissory notes, indorsed in blank, or specially to himself or his own order, the legal title is in him, and he is legally the real party in interest. The most recent case cited is that of Sheridan v. Mayor of New York, not yet reported, but decided by the court of appeals, December 22, 1876 (4 N. Y. Weekly Dig. 28). It was held in that case, that if plaintiff have a valid transfer as against his assignor, and holds the legal title to the demand, payment to him will protect the defendant against any claim by the assignor. He is, in such case, the real party in interest, under the code, and can maintain the action, even though, as between the parties thereto, it appears that the transfer is merely colorable.

There was no error in the refusal of the court to direct a verdict for the defendant, nor in charging that the defendant’s sanction and approval of the continued use of his name, by his late copartners, rendered him liable for the contracts of the firm. By allowing such use of his name, he held himself out to the world as a member of the firm, and it was wholly immaterial whether, as between himself and Ms co-defendants, there was a community of interest or not. If not partners inter sese, they were such as to all creditors who had dealings with them, without notice of their actual relations to each other. There is nothing in the case tending to show tliat the plaintiff, or the payees of the notes, from whom he derived title, had any notice or knowledge that the plaintiff was not a member of the firm, which carried on business under Ms name, with Ms consent and approval. The continued use of the firm name, by the defendant’s associates, after he ceased to be interested therein,' was not authorized by the statute (Laws of 1863, ch. 144), and the defendant is not protected from liability by the vain attempt of Ms associates to avail of, and comply with its provisions.

The verdict is sustained by the evidence, and the defendant’s exceptions are untenable.

The judgment and order appealed from, should be affirmed with costs.

Curtis, Ch. J., concurred.


text:
    THE SUN PRINTING AND PUBLISHING ASSOCIATION, Plaintiff and Respondent, v. THE TRIBUNE ASSOCIATION, Defendant and Appellant.
    License to enter upon premises for the purpose of shoring up AND SUPPORTING BY PROPER FOUNDATIONS A WALL, IN ORDER TO ENABLE PARTY TO EXCAVATE ADJOINING PREMISES, PURSUANT TO 'HAPTER VI. OF THE LAWS OF 1855.
    The word “license ” imports leave, permission, sufferance, authorisation. It implies only the removal of legal restraint by a grant of permission. The necessary license is granted when it expressly authorizes “such acts to be done as may be necessary to enable the person to whom it may be given, to perform the duty which the statute in such a contingency creates ” (Sherwood i). Seaman, 2 JBosw. 127).
    Exceptions to refusal of the court to charge as requested.

      Labor performed on Sunday.

    A general exception to the refusal of the court to charge as requested is untenable unless each and all of the several propositions submitted are sound in law, and applicable to the facts and circumstances of the case. If either of the propositions be erroneous, the objection is unavailing (See cases cited in opinion of the court).
    Labor performed on Sunday is not ipso facto illegal. The statute excepts works of necessity and charity (2 B. S. 675, § 70. See also Merritt ®. Earle, 29 IF. F". 115).

      Before Curtis, Ch. J., and Sanford, J.

      Decided May 6, 1878.
    Appeal from a judgment entered on a verdict in favor of plaintiff, and from an order denying defendant’s motion, on the minutes, for a new trial.
    The action was brought to recover $561.68, as money necessarily paid out and expended by the plaintiff, for the use and benefit, and at the express request of the defendant, in effecting the temporary removal of machinery in the plaintiff’s building, in order to enable the defendant, while excavating the adjoining premises to a depth more than ten feet below the curb, to obtain convenient access to the plaintiff’s wall, for the purpose of shoring it up and supporting it by proper foundations, pursuant to chapter 6 of the laws of 1855.
    The issues raised by the pleadings were (1) whether il the necessary license to enter,” required by the statute above referred to, was afforded—the defendants insisting that the removal of such machinery by the plaintiff was essential thereto ; (2) whether such removal was effected voluntarily by plaintiff, as an essential element of the license to enter required by the statute, or at the request and upon the express or implied promise of the defendant to make compensation therefor ; (3) whether the sum alleged, or any amount whatever, was expended by plaintiff to or for the use of the defendant, in and about the removal of such machinery; and (4) whether or not the services rendered in and about such removal were worth the sums alleged to have been expended therefor, or any sum whatever.
    It appeared, upon the trial, that the plaintiff afforded the defendant license to enter on its premises, for the purpose of supporting the wall, and it was assumed and conceded that such license complied in all respects with the requirements of the statute, unless the removal of the machinery was essential to make it complete. The defendant contended that the license was incomplete without such removal by the plaintiff.
    The court charged the jury, in substance, that if the services in question were rendered by the plaintiff, at the request of the defendant’s business manager, previously made, and upon his promise, on the part of the defendant, to pay for the same when rendered, the defendant would be liable therefor. That if the request was not made before the work was done, the defendant would not be liable. That if entitled to recover, the plaintiff could only recover the reasonable value of such services as were necessary for the removal and restoration of the machinery ; and that no extra compensation should be allowed for work done at night or on Sunday, unless the defendant specially requested that the work should be done expeditiously and at such times. lío exception was taken to the charge as delivered, but the defendant did except to the refusal of the court to charge as requested : (1st) That the statute referred to in this case imposes a burden on the defendants which is in derogation of the common law, and must be construed liberally in favor of the defendant; (2nd) that “the license contemplated by the law, to be complete, must not only give the defendant the right to enter on the plaintiff’s land, but must give the defendant proper and suitable space, without unreasonable obstructions, in which to do the work;” (3rd) that “the removal of the machinery being a part of the duty of the plaintiff, any promise made by the defendant for removing the machinery was without consideration and void ; and (4th) that “ the labor performed on Sunday being illegal and void, no promise to pay for it can be upheld.”

      Exceptions were also taken to rulings of the court upon questions of evidence.
    The jury rendered a verdict in favor of the plaintiff for $250, with interest, $52.50, amounting in the aggregate to §302.
    From the judgment entered thereon, and also from an order denying defendant’s motion, made on the minutes, for a new trial, the present appeal is taken.

      Cornelius A. Burilde, for appellant.

      Willard Bartlett, for respondent.
   By the Court.—Sanford, J.

The general exception taken by the defendant’s counsel to the refusal of the court to charge as requested, is of course untenable, unless each and all of the several proj;ositions submitted are sound in law and applicable to the facts and circumstances of the case. If either of such propositions be erroneous, the exception is unavailing. It presents "no question for review (Keller v. New York Central Railroad Company, 24 How. Pr. 172; Magee v. Badger, 34 N. Y. 247). As the first request involved only proposed instructions to the jury in regard to the manner in which the statute was to be construed, the court very properly declined to comply with it. It was the duty of the court, not of the jury, to construe the statute ; and it would have been error to have devolved upon the jury the duty of determining its import and meaning, with or without instructions as to whether it was to be strictly or liberally construed.

But there was no error in the construction of the statute which the court adopted in refusing the second and third requests preferred by the defendant’s counsel,

“The necessary license to enter on the adjoining land,” which under the provisions of the statute is to be afforded to “ the person causing such excavation to be made,” comprehends and requires no action on the part of the licenser. The word 1 ‘ license ’ ’ imports leave, permission, sufferance, authorization. It implies only the removal of legal restraint by a grant of permission. The necessary license must be deemed to be afforded, when it expressly authorizes ‘ ‘ such acts to be done as may be necessary to enable the person to whom it may be given to perform the duty which the statute, in such a contingency, creates” (Sherwood v. Seaman, 2 Bosw. 127). Any interference with the plaintiff’s wall or with its machinery would have been a. trespass, but for the withdrawal by license of those legal restraints which debarred the defendant from entering the building and doing there whatever was necessary to be done, in order to preserve the wall from injury, and support it by a proper foundation.

It is alleged in the complaint, although the evidence scarcely sustains the averment, that the wall could not be preserved and supported without the removal of the machinery. It appeared in proof that a space of from three to five feet extended along between the machinery and the wall. A witness on the part of the plaintiff testified that it was pointed out to the defendant’s employees that they could have entered and put their needles through, between the machines, without disturbing them at all, but they said they would do as they pleased, and the person employed by the defendants to support and underpin the wall, when asked whether, in his opinion, the work would have been done with the machines there, replied, “I would not have wanted to take the responsibility; no sir, not very well.” The fullest license, however, was accorded to the defendant to do whatever was deemed necessary ; no restriction was imposed, and every courtesy and facility was extended. The objection is, not that the plaintiff did not authorize, but, that it did not effect the removal. Clearly if the removal of the machinery was not a matter of necessity, but merely a convenience to the defendants, the plaintiff was under no obligation either to remove it, or to authorize its removal; but, assuming the necessity of its removal, I am of opinion that all that the statute required, was that such access to the premises should be afforded, as would enable the defendant to do and perform whatever was necessary for effecting the proper preservation and support of the wall. Having such access, the duty devolved upon the defendant of doing all that was necessary, and having afforded such access the plaintiff was entitled to have all that was necessary done. If, therefore, the removal -was effected by the plaintiff, at the request of the defendant and upon the express promise to pay for it, the defendant became liable for the reasonable value of all such work as was necessarily performed in effecting it.

The proposition involved in the fourth request is untenable, for the reason that labor performed on Sunday is not ipso facto illegal. The statute provides that there shall be no servile laboring or working on that day, excepting works of necessity and charity (2 R. S. 675, § 70). There was evidence in the case tending to show some necessity for doing, on Sunday, such part of the work as was done on that day. Again, only part of the work was then done. The evidence does not show that the parties to the contract contemplated or agreed that the work should be wholly performed on Sunday, nor was' it done wholly on that day. Under the construction given to the statute in question, by the court of appeals, in Merritt v. Earle (29 N. Y. 115), I am not prepared to say that the contract was void, or that the defendant’s promise to pay for work done under it cannot be upheld, merely because part of such work was done on Sunday. The court properly charged that extra compensation could not be recovered for work done on Sunday, or at night, unless the defendant expressly requested that it should be so done. The verdict was for less than half the amount claimed by the plaintiff, and less than half the amount that was proven to have been expended. As there rvas no conflict of evidence in regard to the amount expended, or the nature of the work, it may, perhaps, be assumed that the jury rejected the claim so far as extra compensation or compensation for Sunday work is concerned, the abatement being in excess of the amount charged for Sunday work.

It was insisted on the argument that the court erred in permitting evidence to be adduced as to conversations between the agents of the plaintiff and the defendant’s general business manager Mr. Ford.

It appeared from the evidence that Mr. Ford was the general business manager of the defendant; that he was informed by the plaintiff’s agent, that the plaintiff had been requested or ordered by persotis in defendant’s employ to take the machinery out of their way; that its removal would involve considerable expense, and that the plaintiff would look to the Tribune Association for reimbursement of the necessary expense ; that he thereupon directed the plaintiff “ to go ahead and send him the bills.”

The objection is founded upon the alleged insufficiency of the evidence to show that Ford had authority to bind the defendant. It was expressly admitted on the trial that Ford was the defendant’s business manager, and had been such since 1873, and it seems to have been assumed by counsel on both sides that this admission was broad enough to warrant the inference of full authority on his part, to make the contract upon which the action was based. I think it was. At all events, the point was not raised in such form as clearly to apprise the court that it was or would be relied on. The evidence was received upon the understanding that Mr. Ford’s connection with the defendant should afterward be shown, and that unless his authority was shown it should be stricken out. Under the circumstances, its reception was a proper exercise of judicial discretion as to the order of proof. The defendant subsequently made the admission above referred to, which both parties seem to have regarded as entirely adequate. Fío motion was made to strike out the evidence of what occurred between Ford and the plaintiff’s agent; and, when the defendant moved for a non-suit, the grounds urged in support of the motion were, (1) that the license was incomplete until the machinery was removed by the plaintiff; and (2) that, for this reason, any promise made by Mr. Ford would b^without consideration. It was not contended or suggested that any promise made by him was or would be without authority. Objection was also taken to the introduction in evidence of the bills or vouchers for the amounts expended by plaintiffs. I think they were admissible, not as proof of the facts stated in them, but as tending to show that Ford’s instructions to send him the bills were complied with. The services specified in the bills and their value were proved by extrinsic evidence. Evidence of what was said and done about the machinery by the persons employed by defendants to shore up the wall when they first entered the plaintiff’s premises, were admissible as part of the res gestee.

A careful review of the whole case, and a critical examination of the exceptions, has failed to disclose any error for which the judgment and order appealed from should be reversed. The evidence would have warranted a larger recovery.

The judgment and order appealed from must, therefore, be affirmed, with costs of the appeal.

Curtis, Ch. J., concurred.