text:
    George Bowman, plaintiff and respondent, vs. William M. Tallman, defendant and appellant.
    1. In the absence of any special agreement to the contrary, the person, who employs an attorney or counsellor, as such, is prima facie personally responsible to Mm for professional services rendered upon such employment.
    2. A trustee or guardian is personally responsible to an agent or attorney employed by him, professionally, in the execution of his duty, and not the estate or fund under his care.
    3. The general agency of an undivided estate, and the entire control of its funds and concerns, together with ati. agency for its owners in relation thereto of the defendant, after a prior employment by Mm of the plaintiff as an attorney and counsel to transact business for those of such owners as were infants, nonresidents and irresponsible, are not sufficient to relieve the defendant from personal responsibility to the plaintiff for his compensation for professional services for the benefit of such estate, without notice that the defendant did not mean to make himself personally liable.
    4. The mere refusal of a court to compel a purchaser to take title, under proceedings instituted under a statute authorizing the sale of the estates of infants on the ground that the rights or interests of unborn children, who might be entitled under the instrument, under which such infants derived title, were not cut off by such sale, is not sufficient of itself to deprive one who took such-proceedings as attorney and counsel, on an employment to take such steps as he should deem advisable to relieve such estate from onerous assessments, of all compensation for such proceedings, notwithstanding he adopted subsequently other proceedings for this same purpose; whether such refusal was justifiable as matter of law or not; and
    6. There is no implied guaranty by a counsel when employed by a client, of ultimate success. The only contract which is implied is that of ordinary skill, attention and diligence.

      It seems that although there are contingent interests of unborn children limited upon the estates of infants, proceedings under the statute for the sale of such estates are valid; and the after bom children in such a case would take the same interest in the substitute for the land as they would have had in the land. (Per McCuiín, J. Robertson, Ch. J. contra.)
    (Before Robektson, Oh. J., Babbovb and MoCunn, JJ.)
    Heard June —, 1864;
    decided June 30, 1864.
    This is an appeal from a judgment entered upon the verdict of a jury in favor of the plaintiff, and also, from an order denying a motion for a new trial, made upon the justice’s minutes, in an action brought to recover an alleged balance due for professional services, claimed to have been rendered by the plaintiff, an attorney and counsellor at law.
    Tallman, the appellant, was executor of his father’s will. The latter died in 1849, leaving certain real estate situate in the city of Hew York, and which, by his will, was to be divided among the appellant’s sisters, and their issue, and his wife, the mother of the appellant. In 1859, there being large assessments on a portion of this real estate, it became necessary to sell and convert into it money; which, by the terms of the will, Tallman, as executor and trustee, was empowered to do. The heirs at law of the testator, interested in this property and its proceeds, were Tallman’s three married sisters, their infant children, and the infant child of a deceased sister. Tail-man, personally, had no interest whatever in it. The fact of there being infant heirs, rendering it necessary that legal proceedings should be taken to effect the desired sale, Tallman, at the request of his sisters, applied to Bowman, who had been an attorney at law in this city for nearly thirty years, and who had previously conducted some legal business for him, to take the necessary steps to effect this object. He brought him a copy of the will, which Bowman examined, and stated fully to the latter the facts of the case. Bowman informed him that “ one of two courses would be taken. Either to institute a partition suit, or to apply for a sale under the statute y that the proceeding under the statute promised to be the cheapest and shortest.” Tail-man, knowing nothing about law, being a merchant, and not wishing to incur unnecessary expense, left it to Bowman, “to take any means he knew best that would bring about the desired result in the easiest and best way.” This was June or July, 1850. The amount of the assessment was over $1600. Bowman continued his examination of the facts from this time, prepared some papers to. obtain a sale under the statute, and on February 2, 1860, procured ex parte an order, without calling the attention of the judge who granted it to its contents, appointing Tallman special guardian of the infant heirs, and directing a sale under the statute. A Mr. Wintjen agreed to purchase the property for $14,000, paying ten per cent cash, but his counsel advised against the title, on the ground that the statute, under which the proceedings were had, did not authorize the sale of the infants’ estate, and he refused to complete, and Tall-man refunded the advance. One Wilson, who had no notice of the objection by Wintjen, then agreed to purchase the property, and paid $2000 to Tallman, through Bowman, as an advance; $300 of which Bowman retained by way of personal remuneration. At the instance of Messrs. Barrett ¡& Brinsmade, his counsel, Wilson refused to complete his purchase on the same grounds that Wintjen did, and then Bowman moved to compel him. Justice Sutherland denied the motion, and Bowman advised an appeal by Tallman to the general term of'the Supreme Court, which was taken and argued, and the order appealed from affirmed. Pending the appeal, Wilson sued Tallman to recover his $2000 advance paid. Bowman, acting for Tallman, advised a defense, and interposed an answer. The case was kept at issue during several months, and finally was settled by Tallman’s paying back the $2000, and interest. Finding that the statutory proceedings taken were ineffectual to accomplish a sale, Bowman, finally, in February, 1861, brought a partition suit. By way of guarding against any one “ turning up that might think he had an interest,” to use his own language, he included in it Tallman, and several others not interested in the suit or its result, as defendants. Judgment was obtained in September, 1861, but, like its predecessor, proving erroneous in form, was finally amended by the court February 16, 1863, three years and six months from the time When Tallman first applied to Bowman, and a proper sale and investment of the proceeds by Tallman, as executor and trustee under the will, directed. By that judgment, 01023.32 was awarded to Bowman and his office, as costs. The property was sold for 019,000, and the expenses, including these costs, amounted to 03936.29. No personal promise or agreement was ever made between the parties that Bowman should be paid for his professional services by Tallman, irrespective of the estate. On May 16, 1863, Bowman sent Tallman a bill for 01396.28, for alleged services and disbursements, over and above taxable costs and allowances, which the latter refused to pay, and the present suit was then brought. The first count of the complaint is for an alleged balance of 0956.06 for costs, counsel fees and disbursements in the nugatory statutory proceedings, on account of which Bowman had received in all 01423.12. The second count is for 0150, for services in the Wilson suit; and the third count is for 0533 42, services in the partition suit, over and above taxable costs and allowances ; and the complaint closes with a general count for services from July, 1859, to May, 1863, claiming therefor 0150,- and claiming a balance of 01341.18 on the whole. The answer sets up the defense of ignorance and negligence in the institution of the proceeding under the statute as to infants’ estates denies the personal liability of Tallman, and counter claims 0450 advanced by the latter to Bowman in the matter. On the trial of the cause before Justice Monell and a jury, when both sides had rested, Tallman’s counsel moved for a nonsuit, which was denied ; the court ruling that the defense of ignorance and negligence was not sustained ; and that the only question for the jury was, “ whether Tallman intended to make himself personally liable, and whether Bowman, so understood him.”
    The jury rendered a verdict in favor of Bowman for the balance claimed and interest, 01411.06, upon which judgment was subsequently entered. A motion for a new trial on the minutes was made and denied, and Tallman appealed.

      C. J. & E. De Witt, for the appellant.

      Geo. Bowman, respondent, in person.
   McCunn, J.

This is an action brought by the plaintiff against the defendant to recover the sum of $1341.18, for professional services rendered as an attorney and counsellor at law. The complaint is in the usual form, setting forth that by reason of certain retainers, on the part of the defendant, he, the plaintiff, performed certain professional services, as an attorney and counsellor at law, and that he is justly entitled to recover a fair compensation therefor. The answer does not deny the rendering of the services, nor the value thereof, but sets up as a defense a want of retainer of the plaintiff on the part of the defendant, and avers that the alleged services were performed for other parties, and when so performed were entirely worthless ; and charges the plaintiff with? a want of knowledge of his professional duties, and alleges that owing to such want of knowledge and neglect on his part, he is not entitled to recover.

On a careful examination of the case, I think there are but two questions for the court to consider :

1. Was there such a retainer, or an agreement,- on the part of the defendant as would entitle the plaintiff to recover in this form of action ? And 2. Is the charge of professional ingnorance sufficient to preclude such a recovery as claimed ?

It is a well established elementary principle of law, that the party employing an attorney or counsel to perform any service in his professional capacity, in the absence of a special agreement to the contrary, is personally responsible for any such services rendered. (Wilson v. Burr, 25 Wend. 386. 2 Shaw, 421, marginal reference. 2 Chitty’s Plead. 69, and note D. Hill v. Tucker, 1 Taunt. 7 and 5 id. 46.)

The general rule is, that the party employed looks to the employer for payment; and where a trustee employs an agent, in the execution of his trust, such agent must look to the person employing him, individually, for his payment, and can have no claim on the trust funds. (Noyes v. Blakeman, 2 Seld. 580.)

■ Whether Tallman had, or had not, in his case, authority to make an agreement with the plaintiff, is immaterial; that was a question between Tallman and the heirs., and could not, in the slightest degree, affect the plaintiff's claim. Moreover, the parties for whom the defendant was acting, were minors, and non-residents of the state.

The defendant was the general agent of the property, and acted for all the heirs. That the defendant had previously been a client of the plaintiff, and employed the plaintiff to do business for the infants, and non-residents, who were irresponsible parties, without suggesting or agreeing that he should become individually responsible for the same, ór without notifying the plaintiff he would not be responsible, and this, taken together with the fact that the defendant controlled the entire .business funds and all the other concerns gf the estate, warrants me in concluding that the defendant is clearly responsible.

I find, on examining the case, that the defendant himself even agreed to pay the plaintiff out of the trust funds, when he obtained the same, and in this there is a good and valid promise when there was a strong moral obligation to pay before.

The theory, that a promise, though the party making the same may not be legally bound, can be supported by a moral obligation, is not a modern principle of law. It has long been established that where a person is morally and conscientiously bound to pay a debt, though not legally bound, a subsequent promise will give a right of action, (Lee v. Muggeridge, 5 Taunt. 46.)

I am clearly of opinion that the learned justice who tried the case, would have been justified in taking the .question of employment or. retainer entirely from the jury, and directing a verdict for the plaintiff for the amount claimed.

He, however, left the question to the jury as to whether Mr. Tallman employed the plaintiff individually or not, and whether ’ he agreed to pay for such services ; and inasmuch as the jury found only such a verdict as the court should have directed, the defendant has sustained no injury by the ruling of the court. There was no conflict of testimony as to the fact that the defendant personally employed the plaintiff without any lawful authority to fyind any one but himself, and there being no dispute about the rendering of the services, or the value of the same, this disposes of the first proposition.

The remaining question to he disposed of is, “ whether the plaintiff was right in advising the proceedings first undertaken, to sell the property, under the statute, or if not right in that respect, whether he was so far wrong in such advice as to preclude him from recovering in this case.

“ It has been suggested that however clear the power of a court of general equity jurisdiction would be under the circumstances disclosed in this case, to sell the property in question, yet the proceedings, which were resorted to, were not in an action, were solely authorized by statute, and that such statutory provisions must be strictly followed, or the sale will be void."

As to this I concur; moreover, I hold that the authority must be found in the statute, but I think the statutory provisions as applied to the case are clear and ample.

It is conceded by all that the statute was intended to furnish a cheap and prompt mode of selling infants’ estates where such sale is necessary. If the statute did not apply, it failed of its object, in a case, calling most pressingly _for its action.

But the statute did not fail. The statute expressly provides for selling interests of all infants who were seised. All the infants who were seised applied for the sale, and I think the courf, to whom the application was made, was bound to sell without hesitating upon the objection, that if they did not sell, other 'interests might hereafter spring into existence. This was an additional reason for prompt action, in order that a just, necessary and beneficial sale might not be delayed or prevented.-

The infants before the court (in connection with owners of life estates) held and owned for the time being the whole estate, and that was sufficient under the statute to authorize the sale. The interests of the infants involved in this case were not extraordinary or uncommon.

The will under which the estate was devised contained no extraordinary provision, and none, whatever, which was violated in the sale. Such cases seem to have been expressly contemplated by the legislature, when they provided for the preservation of the proceeds of the sale as real estate ” to which the interests of unborn children will attach, and not to the real estate sold. Public policy forbids any other course in such a case. Supposing the theory to be correct that this property could not be sold for the purpose of paying this assessment, the entire estate would have been in jeopardy, perhaps lost to all the parties concerned. Moreover, the necessity of such a sale in this case has not been disputed.

It has not been argued, nor does it appear that there is any substantial difference between an application for sale under the statute and a partition sale, and the court in the case of Mead v. Mitchell, (17 N. Y. Rep. 216,) expressed the opinion that a sale in partition binds after born children, on principles of equity independent of the statute. (Cheesman v. Thorne, 1 Edw. C. R. 630. Wills v. Slade, 6 Vesey, 498. Baker v. Lorrillard, 4 Comst. 257.)

If the interests of children in existence attach to the fund in court as real estate, most certainly can the vague interest of' unborn children attach to the fund in court as real estate.

I hold, that a sale of the estate under the statute would have been a sale of the whole interest, entirely freed from the danger of any interest thereafter, and which would follow the estate where it lawfully had gone, that is to the fund in court, as real estate to be preserved for just such contingencies. (7 Paige, 185.) It would be absurd to think that a property of this kind could be liable to extinguishment by this assessment, when we have the parties in court who held the whole estate, and could not dispose of any portion of the property for the purpose of preserving the rights of all interested.

If the contrary was the rule, how long then must this estate continue to be inalienable ? Infants unborn are not seised; hence courts cannot sell their interests, because such interests do not exist; they can sell only interests existing. If a child should be born, it will be vested with the interest in the share substituted for real estate and held by its co-heirs. The whole interest must exist somewhere, and this being the rule, it is of course subjected to legal control, and the reason why the interest of an unborn child cannot be sold, or why it cannot have a guardian appointed, is because there is no such interest in existence.

I repeat, however, that if such unborn infant have such an interest as an infant in existence, not only are they identical, but they demand the interposition of the court, especially in such a case as this, where, without such interposition, the interests of all must perish.

The counsel objecting to the title on'the sale of the property under the statute, show no reasonable grounds for such objections, and the law deems every one satisfied, when he shows no such reasonable grounds. (Baker v. Jones, 2 Car. & P. 743. Perkins v. Wash. Ins. Co., 4 Cowen, 645.)

The opinion of the learned judge at Supreme Court, special term, touching some of the points in the case, does not in the slightest degree impair my belief, that the court of last resort would have compelled the purchasers to receive the property under the order of sale, made by the court; nor does it shake my opinion; that a sale under such an order was proper, and sustained by law, and I think the Supreme Court, at general term, must have considered the interests involved of but little importance, from the fact that I find the questions were passed upon by the learned judges of that bench without a single expression of opinion from any of them.

Notwithstanding the decision of the Supreme Court, I am still fully of opinion that the advice given by the plaintiff to the defendant was proper, and that the learned justice who tried the case below was justified in holding that the plaintiff was right in the course which he pursued, or at least that he was not so far wrong that he should be deprived of a fair compensation for his services.

The judgment below should be affirmed with costs.

Barbour, J. concurred,

wwo

Robertson, Ch. J. The answer in this case sets forth at length the proceedings taken by the plaintiff for the sale of certain real estate devised by the father of the defendant, the decisions of the Supreme Court against the sufficiency of one, the abandonment of another, and the success of a third. It also makes a separate submission of certain questions apparently as matters of law, one of which is, that “the plaintiff is not entitled to recover for services in the nugatory and useless proceedings set forth in the complaint,” which are the same as those set forth in the answer. It does not contain any allegation that the worthlessness of such proceedings was caused by any incompetence, ignorance or neglect on the plaintiff’s part, or that he might, with due diligence, have ascertained that the advice given by him on which such proceedings were taken was erroneous, or that the contrary advice would have been free from any reasonable doubt by any prudent and skillful member of his p'rofession. The main defense on the trial was, as alleged on the motion for a dismissal of the complaint, pursuing the theory of the answer that the services of the plaintiff were “worthless,” and in the requests to charge the jury “ worthless to accomplish the purpose intended to be effected by them.” What such purpose was, was not stated.

The point of law intended to be thus presented by the answer, motion to dismiss the complaint, and request to charge, was simply that because the statutory proceeding taken by the plaintiff was in law ineffectual to accomplish the purpose for which he was alleged to have been retained to take them, or were made so by the decisions of the Supreme Court, at special and general terms, in such proceeding the plaintiff is not entitled to recover. The principle of professional incompetency and negligence carried to that length I think cannot be sustained. There is no implied agreement in the relation of counsel and client, or in the employment of the former by the latter, that the former will guaranty the success of his proceedings in a suit, or the soundness of his opinions, or that they will be ultimately sustained by a court of last resort. (Lanphier v. Phipos, 8 Car. & P. 475.) He only undertakes to avoid errors which no member of his profession of ordinary prudence, diligence and skill would commit. (Moutrion v. Jeffreys, Ry. & Moo. 317. S. C. 2 Car. & P. 113.) It is not enough that doubts may be raised of the soundness of his opinion or correctness of his course, unless they are accompanied by the absence of all reasonable doubts of the propriety of an opposite course or opinion in the mind of every member of his profession of ordinary skill, sagacity and prudence, caused by a decisiveness of reason and authority in its favor. (Kemp v. Bent, 4 Barn. & Ad. 424.) The practice of the law, in reference to the right of compensation for professional exertions, although dependent on the exercise of intellect and study, as its instruments, is subject to the same rules as any other employment, even where the implements are of a more material kind, and not to any of either greater or less stringency. On the one hand, practitioners are bound to possess the skill and exercise the diligence and attention common to prudent members of their profession; and, on the other, they are released from all liability for consequences, which, considering the fallibility of human reason, must necessarily be sometimes unforseen. They are only chargeable with utter incompetence or want of ordinary care in aparticular case. Therefore, when after using proper diligence, no member of the profession, of ordinary skill and capacity, could entertain a reasonable doubt of the propriety of a contrary view and conduct, if the facts are undisputed, the court can determine, as matter of law, whether, in view of authorities attainable by proper research, any doubt in regard to the law is reasonable. These views are rather sustained than opposed by cases in which attorneys have been denied compensation for services even in an action or proceeding properly begun, but rendered worthless by the mode of conducting them. (Moutrion v. Jeffreys, ubi sup. Hill v. Featherstonhaugh, 7 Bing. 769. Duncan v. Blundell, 3 Stark. 6. Hopping v. Quin, 12 Wend. 517.)

The learned judge before whom the action was tried instructed the jury that the correctness of the course of the plaintiff was a question of law, and informed them that he had already in the course of the trial held that the plaintiff was not so far wrong as not to be entitled to compensation for the services performed, to which an exception was taken. He also refused to charge, as requested, that the plaintiff’s proceedings were worthless to accomplish the desired purpose, whatever it was, or that the decision of the Supreme Court must be taken as establishing such worthlessness. In such instructions and charge, I think he was correct, both because it is not such mere worthlessness which as a fact is exclusively of services alone, but the ignorance, incompetence, and inattention on which it is founded, which should deprive a party, employed to render them, of all compensation, and because there was no direct allegation in the answer of such worthlessness as a fact, but only an argumentative one, founded on the failure and abandonment of the proceedings and the adverse decision of the Supreme Court, both of which fail, - in my view, to establish it as matter of law, which could deprive the plaintiff of compensation.

I have not the slightest doubt of the correctness of such decisions of the Supreme Court, if they are necessarily open for examination in this case. The clear language and sole purpose of the statute, fortified by the two decisions of Baker v. Lorillard (4 Comst. 257,) and Forman v. Marsh (11 N. Y. Rep. 548,) seem to me to set the question at rest. In the former case, J ustice Bronson, in delivering his opinion, expresses certain views consisting of three propositions, in which he says the majority of the court concur; although upon the second one, which was that the contingent interests of certain unborn infants were not bound by a sale under the statute in question, (2 R. S. 194,) he states that some did not “ choose to express opinion but nothing is said indicating that even upon that point a majority did not concur. Justice Harris, in the same case, adverting to the fact that the first taker took a vested estate which would open to let in after born children, suggested the idea, which, on examination, will be found to be unsupported, that the first taker thereby beeame a trustee for those in remainder, and reied upon the 180th section of the statute, (2 R. S. 195,) as seeming to look “ to a state of things where the whole title might be vested in the infant, and yet some other person might have some contingent or beneficial interest in it.” He certainly did not mean to assume that without the statute the first takers had such a legal estate as trustees, that they could sell and bind the contingent remainders ; nor that the law invested those who were not competent to take care of their own interests, and were incapacitated to sell their own estate, by mere force of coming into court to seek its protection and aid in order to procure a sale'of their own interests and property to supply their own wants, or promote their own interests, with the guardianship of the contingent interests of others, which could only take effect by taking away part of their estate, and whose interests and necessities might be diametrically opposed to theirs. Such a doctrine would" break down all the well settled distinctions between legal limitations and equitable interests. He was evidently misled by a hasty or incorrect view of the 180th section. The object of that section was held by Justice Edwards, in delivering the opinion of the court in Forman v. Marsh, (ubi sup.) to be to deprive the (special) guardian of power, either to affect the rights of representatives of infants, or give them a power of testamentary disposition not before possessed,” he declaring in the most emphatic manner “ that such were the only reasons which had been or could be suggested for its introduction.” It is true that Justice Buggies in the last case, overlooking the peculiar force of the exceptive particle “ but,” as used in such section, considered it as divided into two branches, of which he considered only the second to be intended to preserve the character of real estate for the land, and the first as intended to protect the interests of those who might have future estates vested or contingent interests in the land.” Against whom or what, it is to be regretted that he omitted to state. The 180th section was an amendment passed in 1815, (Laws of 1815, p. 104, §§ 5, 6,) of the original act passed in 1814, (Laws of 1814, p. 116, ch. 108,) at the same session with the special act which originally suggested the propriety and necessityof its passage. (Clarke v. Van Surlay, 15 Wend. 443.) If the original act did not authorize a sale which would' defeat future contingent interests, there was no necessity for introducing any restriction in such amendment; and certainly the latter, whatever it might look to, did not purport to confer any new authority. The legislature could hardly he chargeable with the absurdity of imposing a restriction on the right of testamentary disposition of the property by the infant petitioners, and at'the same time giving them power to dispose of the interests of others in one and the same section. The exceptive particle “ but,” makes the whole section read as merely depriving the infant applicants of any “ greater estate or interest in the proceeds ” than “ one of the same nature with that which they had in the property ” sold.

A very cursory examination of the statute itself will suffice to show that there is not another expression in it which looks to the sale of any other interest hut that of the petitioning infants, who are the only applicants and parties to the proceedings. Its first section (§ 170) defines the persons who are' to apply as infants seised of real estate; the object to be attained is a sale or other disposition of their property, the mode of application by petition, by a next friend or guardian* implying living persons, and the kind of disposition is submitted to the discretion of the court. The person whom the court appoints to make such disposition is made special guardian not of the proceedings, but such infants, (that is, the petitioners,) to whom he is to give a bond for the performance of his duties. (§§ 171 to 174, inclusive.) A reference, which is then ordered, is a summary inquiry, not into the propriety of a sale, but “merits of the application.” (Id.) The considerations by which the court is to be governed in directing any disposition of the estate are-there prescribed. (§175.) Those are either the necessities of the infant petitioners in reference to their support and education, or else their interests in reference either to the exposure of the premises in question to waste and dilapidation, or their unproductiveness, or other “peculiar” reasons or circumstances, (§ 175,) and the court is not authorized to sanction any disposition, except such as is required to-meet the exact Case. A mortgage or a- lease is authorized equally with a sale, if answering the desired purpose. In such a case, the court clearly is not to act as a court cutting off contingent remainder men, as by a fine and recovery, which may not be necessary, and clearly would be improper, in order to benefit the first takers, (Cochran v. Van Surlay, 20 Wend. 375, per Walworth, Ch.) but as the representative of the legislature as parens patriae, (Id. p. 373,) as in the precisely analogous proceedings, where infants or others non sui juris hold estates in joint tenancy or in common, (2 R. 8. 330, §§ 86 to 91,) except that their exposure to the expense of a partition suit is made a sufficient necessity. The court is not authorized to inquire into or required to protect the interests of contingent remainder men in the disposition it may make. After the disposition ordered is made by the guardian, the infant applicants alone are máde expressly wards of the court. Any surplus to be invested is to be for their benefit alone. (§§ 178, 179.) And, finally, no greater effect is given to the conveyance by the special guardian than to one executed by the petitioning infants.when they had attained their majority. Even the prohibition of a disposition of the premises contrary to the provisions of the instrument by which the title was acquired, refers to such acquisition by the infant petitioners alone. The statute Speaks throughout only of the “ estate ” of the infant applicants and their “ property,” and says nothing of land, except in regard to leases or of the title to or fee of it. Even the restriction of the 180th section is only upon infants whose “ real estate,” is sold. If the statute gives authority to pass the estates of contingent remainder men, it makes no distinction between the living and the unborn infants and persons of full age. The living contingent remainder man would b.e as much cut off by such a sale as unborn infants. Besides, where are such contingent unborn remainder men to look for protection to their interests ? The special guardian’s bond is not to them ; he is not the protector of their rights ; the first takers are entitled to receive the proceeds of the disposition on coming of age, since the court cannot determine what proportion to keep back, and if the contingent remainder men are not then born, they have nothing afterwards to look to but the responsibility of those who have received such proceeds. Such a proceeding, in case the interests of contingent remainder men are cut off under a sale pursuant to the statute, would, clearly be taking the property of one to benefit another. There is a wide distinction between such a proceeding for the benefit of a living first taker without regard to- other interests, and the representation by the first taker of all future contingent remainders, where their common interest is assailed or required to be protected. (Story’s Eq. Pl. §§ 144-147, 159.) In partition suits, the rights of copartners, joint tenants, or tenants in common, to sever their interests, is the sole ground of such representation, (Wells v. Slade, 6 Ves. 498,) and a sale is only authorized when a partition is impracticable, and the court may protect the intersts of those represented, by retaining the whole share. The whole question in such proceeding is not one of right, but of expediency. It has none of the characteristics' of such fictitious actions as fines and recoveries,” invented to unshackle lands from intricate impediments to alienation. Indeed, the plaintiff himself seems to have perceived the distinction just noted, when he speaks in his testimony of the statutory proceeding not being in the nature of an adverse suit.”

I have in the preceding considerations assumed what seems to have been heretofore assumed by every one who has had any thing to do with the proceedings set out in the complaint, and as is alleged in the answer, not only that the infant petitioner who had survived her mother had a vested interest in the land, but also the others, whose mothers were living ; but I can find no warrant for it in the eighth clause of the will of the grandfather of such infants (Wm. Tallman, Jr.) which is the only part before us. It contains a reference, to a previous and subsequent “ bequest," the former to his wife, and the latter to three of his daughters, whose names are not given ; but we are not informed of the nature or terms of either. It first “ gives, devises and bequeaths ” a residue of personal estate, the premises in question and other lands, subject to the prior bequest to his wife, and the payment of such subsequent one to the three daughters. It then proceeds as follows : “ All which bequests aire given to them during their natural lives, in equal portions, share and share alike, and after their decease, to their children, the child or children of each to take the share of their mother; ” but concludes by saying: “ And in case any of my said daughters should die without lawful issue, then * * the portion devised and bequeathed to such daughter shall be divided between the remainder of my children in equal portions, share and share alike.” I am unable to perceive how such clause creates a remainder in any grandchild, if its mother should leave descendants, but no children surviving her. To effect such a construction, considerable violence must be done to its language, while words of established different significations used in juxtaposition must be presumed to have been employed to mean the same thing. Thus, for such purpose, not only must the word “ bequests,” when referring to some gift of the testator in which a remainder to children is created, be so far wrested from its legitimate meaning as to include devises, but, in order to be applied to any devise in the will, the employment of the same word in its ordinary sense immediately precedingly to which its accompanying relative pronoun grammatically refers, must be disregarded and overleaped without the slightest necessity or justification. So, too, as the statutory definition of the phrase dying without issue ” is dying without heirs or descendants of the first taker surviving him, (1 R. S. 724, § 22,) the remainder over to all the testator’s children could not, therefore, take effect ; if there should be descendants of any of his daughters living at the time of their death, although their children might all be dead; yet the remainder in the “ bequests ” spoken of was given to children only, and not to issue or descendants. So that if such remainder over were to take effect on the same subject as the first remainder, both provisions would fail, if there were descendants but not children of the first takers living at the time of their death. No different result can be obtained, except by construing “children” to mean “ issue,” which is plainly forbidden both by the meaning of the word, the contrast in its use and the insertion of the words “their mothers.”

If the bequests to the wife and the daughters of the testator, and the remainder to grandchildren, be laid out of view, and the last sentence left to operate as a conditional limitation over on the first devise and bequest only, the meaning is clear. Such devise would create a fee in the four daughters named, (1 R. S. 748, § 1,) subject to be cut down' to a life estate in case of leaving no descendants, (1 R. S. 724, § 22,) surviving them, and their interest would then fall back into the testator’s estate, to be redivided by the same clause absolutely among his other children. While the special bequest would remain a legacy to three daughters for life, with remainders to their children, alone opening to let in any afterwards born. The change of the term share,” if applicable only to an interest in a collateral legacy to three daughters, to “ portion,” as applied to the interests given to four in the bulk of the testator’s property, as well as the contrast of the whole language of the gifts of the two remainders, is very significant. This construction seems to me so consistent with rules of grammar, and so natural and obvious, that I am somewhat astonished that in the legal proceedings in regard to such premises it should have been overlooked, if not knowingly disregarded, for other purposes. As the other construction, which was actually applied, only took from the mothers to give to the children, it was, perhaps, not material that it should have been adopted without much inquiry.

But, as regards the value of the plaintiff’s services, such construction is material, because a conveyance by the testator’s daughters and the defendant, with one by the special guardian of the infant petitioner, who had survived her mother, and thus inherited the interest devised to her, would carry a complete indefeasible title to the whole estate of the testator in such land. The special proceeding was then of use, and even indispensable. And although the plaintiff may have failed to present the proper views to the Supreme Court, in his argument before it, for any cause whatever, that would only affect his right to compensation for such argument, but not for the steps taken in the proceeding.

Independently, however, of the questions of the construction of the statute or will in question, the plaintiff's proceedings would not in any event have proved entirely unprofitable ; the estate of the other infant petitioners, whatever it was, might have been sold as well as that of the petitioner who had survived her mother. Neither the order of the court, nor the contract of the special guardian, is before us. We cannot, therefore, determine whether the latter contracted to convey more than he had authority to dispose of. At all events, a good sale might possibly have been made, and the assessment paid, which was threatening to swallow up tho whole value. The defendant does not appear, even by his own statement to have relied upon any express assurance by the plaintiff that a statutory proceeding would carry the whole title in the land to a purchaser. The court might have thought proper to order only a mortgage to raise enough to pay off the assessment. According to the statements of both parties, cheapness, expedition, and the union of all parties seem to have entered into the resolution to take the proceeding under the statute. The defendant continued to retain the plaintiff to act for him after the refusal by the first purchaser to take, and even after the decision by the Supreme Court, at both special and general terms, and employed him to carry through the final successful action in partition. He was only surprised at the amount of the bill, offered a less amount, and was willing to pay it if he could out of the estate. All this .is hardly consistent with the supposition, that the plaintiffdtad not done what he undertook to do, or had given assurances that were not borne out by the decision of the court, and the abandonment of two sales in succession, op the ground of a defect in the proceeding. There cannot, therefore, well be said to have heen such conclusive evidence of the worthlessness of the proceeding to accomplish every object desired as to require the court to have given the positive instruction asked for on that point. The proceeding may have been an experiment. There is no question before us as to the amount due, if any thing is Rue.

Another defense set up in the answer was, that the defendant had no title nor interest in the real estate in question, and in retaining the defendant acted solely as agent of the owners, and so notified the plaintiff, and it was understood that the latter should be compensated for his services out of the pro-' ceeds of the sale of such estate. On the trial, the learned judge before whom the same was tried instructed the jury, in substance, that if they found from the evidence that the defendant “employed” the plaintiff to render the services for which the action was brought, and agreed to pay him therefor, he was entitled to a verdict for his claim. To which an exception was taken. After the interruption of such exception, the judge proceeded to explain such instruction by a direction to the jury that in determining such question of employment they must believe that the defendant “intended to make himself personally liable,” and that he would not be so liable without an express contract to pay, either if the plaintiff “ knew that he was acting for others in a matter in which he had no interest,” or “ if he did not intend to make himself personally liable, and the plaintiff so understood it.” No exception was taken to instruction as thus qualified. It is to be presumed the defendant’s counsel was satisfied therewith, as being a compliance with his second request to charge, having taken no exception to the refusal of such request. The only proposition involved ip such a request was, that the defendant was not liable unless he either “ made an agreement with the plaintiff (to become personally liable) or intended to make him (the plaintiff) believe, and he did believe and understand, that he (the defendant) would be personally liable.”

The instruction as given, with its qualifications, substantially embraced the proposition so requested to be put to the jury ; at all events, it was correct, for undoubtedly an express promise to pay by the defendant would bind him, even although the plaintiff knew him to be acting for others, and that he only intended to bind them • and if the defendant, with intent to make himself personally liable, the plaintiff understanding such to be his intent, employed the latter, and agreed to pay him for the services to be rendered, he is clearly liable. Employment,” (Monell v. Marshall, 25 How. 425,) and “ retainer,” seem to imply a personal obligation. (Hill v. Tucker, 1 Taunt. 9, per Mansfield, Ch. J. Wilson v. Barr, 25 Wend. 386.) If the defendant was acting as a trustee and not as an agent, he was responsible in the first place, at all events, as principal. (Noyes v. Blakeman, 2 Seld. 580.) Indeed, in regard to attorneys, the presumption as to the person to whom the credit is held to be given seems to be reversed. (2 Chit. Pl. 69, n. d. 2 Show. R. 422. Wilson v. Burr, ubi sup. Hill v. Tucker, ubi sup.) Under the charge, the jury must be presumed to have found either that there was an express contract made by the defendant to pay, or an agreement by him to pay, intending to make himself personally liable, and giving the plaintiff to understand he so intended. And the portion of the plaintiff’s testimony alluded to in the charge was sufficient to sustain it.

No question of fact was raised in this case by proof by experts of the views which members of the plaintiff’s profession would entertain of the correctness of his opinion, if given, that the statute gave the court jurisdiction to order a sale of the contingent interests of others not applicants under it, as well as those of such applicants, or, in other words, bind them by the disposition made.

Not being able to find, therefore, any errors in the charge of the learned judge, or his refusals to charge, which seems to be the principal subject of exception, or the reception or rejection of evidence, I concur in affirming the judgment.

Judgment affirmed.


source: Caselaw Access Project

author: Robertson, Ch. J.

license: Public Domain

text:
    Andrew Turnbull, plaintiff and respondent, vs. Mark Bouyer et al. defendants and appellants.
    1. The liability of second indorsers of a check is complete if the check be taken by the holder as a purchaser in good faith, or was indorsed voluntarily for the accommodation of any.one; notwithstanding a prior indorsement of the payees was a forgery.
    2. The forgery of the names of the payees of a check, on the. faith of whose genuineness the holder will be presumed to have taken the check, dispenses with notice of its non-payment.
    3. Where parties who receive a check voluntarily indorse it, and then allow the person from whom they received it to take it back and carry it away, with their names remaining upon the back of it uncanceled, thereby enabling him, on the faith of such indorsement and their responsibility, to obtain money upon it, they will be liable to the holder, notwithstanding a previous indorsement, of the names of the payees, was forged.
    4. By putting their names on the back of a check, the indorsers give it currency. Even if the holder should have reason to believe that a prior indorsement was not genuine, they undertake, by their indorsement, if it is not, to pay what the holder has given for the check.
    (Before Robertson, Ch. J., and Barbour and McCunn, JJ.)
    Heard May 3, 1864;
    decided June 18, 1864.
    Appeal from a judgment rendered at a special term. The action was brought against the defendants as indorsers of a check made by Ball, Black & Co. on the Broadway Bank.for $453.70, dated Eeb.. 23,1863, anddndorsed by the defendants, and purporting to have been previously indorsed by the payees Kirhmonn & Holmes. The case shows a check drawn by Ball, Black & Co. on .the. Broadway Bank, to the order of Kirhmonn & Holmes, and delivered by Ball, Black & Co. to one Miaglia. That this Miaglia had purchased goods.of Ball, Black .& Co., and given them in payment a check of a much larger sum than the amount of the purchase, drawn by John S. Martin on the Ocean Bank, payable to the order of Eichmond & Holman, and purporting to be indorsed by them. That Ball, Black & Co. made their check for the difference, payable to the order of the payees of the first check, as they intended and supposed—but as they did not know the payee, they did not get the names exactly right. This first check of Martin’s had been enclosed and directed to the .payee, and by him deposited in a hotel' letter box. It was next seen in possession of Miaglia. Miaglia, as stated, passed it to Ball, Black & Co. and obtained their check. This check of Ball, Black & Co. Miaglia offered to the defendants, with the names of the payees thereon indorsed, in the purchase of some clothes. The defendants went with Miaglia to Ball, Black & Co., who pronounced it good, and offered, were it not certified, to cash it. The defendants then went to their own bank, (Pacific Bank,) indorsed the check themselves, in order to deposit it, and were about to deposit it, when the teller asked them if they knew the signature of the payees. They said they did not, and thereupon the teller advised them not to take it, and handed the check to Miaglia. Miaglia put it in his pocket, having the defendants’ indorsement, and went off with it, the defendants making no opposition. Miaglia then passed it to this plaintiff, who paid him fuff value for it. The plaintiff passed it to Dick & Fitzgerald, who presented it to the bank, and the bank paid it. ■ It was afterwards discovered that the indorsement of the payees was a forgery. ' Dick & Fitzgerald thereupon reimbursed the bank. The plaintiff reimbursed Dick & Fitzgerald, and demanded reimbursement of the defendants, which was refused. Hence this suit.
    On the trial at special term, before Monell, J. the defendants’ counsel moved to dismiss the complaint, on the ground that the check sued upon is a genuine check of Ball, Black & Co., and the indorsers can only be made liable on showing that the check has been presented for payment and not paid, and that notice of presentation was given to the indorsers. Also upon the ground that the plaintiff sues for money had and received, and has failed to prove the defendants had received any money for the check, either from the plaintiff or any one else. The motion was denied, and the defendants excepted.
    The judge charged the jury that the only question for them-to determine was, whether- the signature of the payees, indorsed on the check of Ball, Black & Co., was .genuine, or a forgery. That there was nothing in the circumstances of the case calculated to put Mr. Turnbull upon inquiry as to the genuineness of the signature. Nor was there any thing in the discrepancy between the names of the payees of the check drawn by Mr. Martin, and the payees of the check drawn by Ball, Black & Co., which it was necessary for the jury to consider. The evidence was very clear that the check in question was drawn payable to the same payees named in the check by Martin; and, although they were differently spelt, yet the evidence was distinct that it was intended to draw the check to the order of the same firm. The evidence on the question of forgery was slight, but it was sufficient to go to the jury for their consideration; and if, upon the evidence, they came to the conclusion that the indorsement of the payees was forged, they should find a verdict for the plaintiff for the amount of the check, and interest. If they found the signature of the payees was genuine, they would 'find for the defendants.
    The counsel for the defendants excepted to the charge.
    The jury found a verdict for the plaintiff for $484.73. The . court directed the exceptions to be heard in the first instance at a general term.

      N. A. Chedsey, for the appellants.
    I. If the appellants could be held at aE, it would only be as indorsers, and after default of the bank to pay the check, and due notice to the appellants of such default to pay.
    II. This case is different from that of a check when the name of the drawer is forged. In the case of the forgery of an indorsement and payment of money, the money paid by an innocent person can be recovered back from the person to whom it has been paid; in this case, nothing was ever paid to the defendants. The plaintiff received the check in order to secure the payment of a pre-existing debt, and, therefore, cannot recover against the defendants. (Holbrook v. Mix, 1 E. D. Smith, 154. Stalker v. McDonald, 6 Hill, 96.)

      III. This action is founded upon a presumption that the appellant received money, which presumption was disproved.
    IV. The respondent took the check under such circumstances as should have put a prudent and careful man on inquiry; and he, not having exercised ordinary care and vigilance, cannot shift his negligence to the appellants’ shoulders, (Gill v. Cubitt, 3 B. &. C. 466. Pringle v. Phillips, 5 Sandf. 157.) The question of negligence is one for the jury to determine. (Goodman v. Harvey, 4 A. & E. 870.)
    V. There was not sufficient evidence to prove that the indorsements on either check were forgeries, and the justice should not have allowed parol evidence as to the intended payees.
    VI. The justice should have dismissed • the complaint on the grounds moved, and should have charged as requested by the appellants’ counsel.

      W. H. Peckham, for the respondent.
    I. Upon the facts the plaintiff is entitled to recover. The check was indorsed by Bouyer & Rontey, and they allowed the check, so indorsed, to go into the hands of Miaglia. They thus became indorsers as to all persons into whose hands the check should thereafter come without notice and for value. The act of indorsement amounts to a contract with every subsequent holder “ that the instrument itself and the antecedent signatures thereon are genuine.” (Story on Promissory Notes, §§ 135, 379, 380-387. Merchants’ Bank v. McIntyre, 2 Sandf. 431. Canal Bank v. Bank of Albany, 1 Hill, 287. Coggill v. Amer: Ex. Bank, 1 Comst. 113.) The indorsement of the payees being forged, this contract was broken so soon as made. The indorsement of the defendants being in blank, their contract is made with any person who may thereafter become the holder of the draft. (Story on Promissory Notes, § 138. Lovell v. Evertson, 11 John. 52.) And the plaintiff having actually paid value for the note, is precisely the same in legal effect as though that payment had been made directly to the defendants.- The defendants, therefore, broke the contract they had made with the plaintiff, and are liable to him therefor.
    II. The action is not brought for money had and received. It is founded on the defendants’ contract of the genuineness of the prior indorsements and the breach of that contract, and for the damage resulting from that breach, the defendants are liable. But even on the theory of money had and received, the defendants are liable, for the plaintiff did actually give value, and being a holder for value, the defendants, as between them, are charged with having received that value, or are estopped from denying that they received that value ; or, in other words, its actual receipt or non-receipt by them, becomes, as between these parties, immaterial.
    III. There was no error in admitting evidence as to the first check drawn by Martin, and its deposit, &c. It was admitted only to show what parties were intended as payees in the check of Ball, Black & Oo., and was directly pertinent to that issue. Moreover, it could possibly have produced no harm to the defendants.
    IV. There was no error in refusing the motion for a non-suit. Presentment and non-payment were not essential to the liability of the defendants. Their liability was fixed before either presentment or payment. Notice of the forgery was given, them so soon as discovered ; but, even had such notice been wanting, it would not have affected their liability. (Goddard v. The Merchants’ Bank, 4 Comst. 147.)
    V. There was no error in refusing to charge the first request of the defendants. Miaglia obtained the check by false pretenses; but there is no pretense that he stole it. A party obtaining property by- false pretenses, can give title to an innocent purchaser. (Keyser v. Harbeck, 3 Duer, 373.)
    YI. There was no error in the refusal to charge the second request of the defendants. The contract of the defendants was simply a warranty of title, and that the instrument was what it purported to be. The genuineness of the signature of the payees is material only in so far as it is necessary to transfer the title, and as giving value to the instrument. If the signature, then, of the payees was not genuine, it matters not whether the forger thought one or another person to be the payee. It is sufficient if the person intended as payee has not indorsed. (Merchants' Bank v. McIntyre, 2 Sandf. 431.)
    .Moreover, the language of this request is so obscure as not to convey any certain meaning, and should therefore be disregarded. (People v. Jacques Monnais’ Transcript of 31st March, 1864.)
    VII. There was no error in the charge of the court. There was nothing whatever in the case to impute negligence to the plaintiff. He did no more than Ball, Black & Co., and the defendants. Even had he supposed or known the indorsement of " the payees to be a forgery, he would have had a right to take the check and rely on the indorsement of the defendants. (Erwin v. Downs, 15 N. Y. Rep. 575.) The liability of the defend ants arises on contract and not on a tort. To screen them from liability, the plaintiff must also have known that the defendants were not indorsers for value, and of such knowledge or of facts sufficient to put the plaintiff on inquiry as to such character of defendants’ indorsement, there is no pretense.
    VIII. Upon the pleadings and proofs there was no issue for the jury but the one as to the forgery.
   By the Court,

Robertson, Ch. J.

The bank on whom the check in controversy was drawn, was entitled to recover from the persons to whom they paid it the amount thereof; in consequence of the names of the payees being forged thereon. (Canal Bank v. Bank of Albany, 1 Hill, 287. Morgan v. Bank of State of New York, 11 N. Y. Rep. 404. Graves v. American Exchange Bank, 17 id. 205.) Those persons, in turn, were entitled to reclaim from the plaintiff the amount paid by them to him for it. By such actual payment by him, he became the owner thereof again, "so far as the liability of the makers of all genuine indorsements after the payees is concerned. The forgery of the names of the payees, on the faith of whose genuineness the plaintiff is to be presumed to have taken the check, dispensed with notice of its non-payment. The liability of the defendants, as indorsers, is complete, if it was taken by the plaintiff, as a purchaser in good faith, for value, or they indorsed it voluntarily for the accommodation of any party.

The plaintiff took this check from a person named Miaglia, partly in payment of a previous debt due from the latter to him, but he advanced the residue in cash ; and thus became a purchaser for value. The defendants’ counsel, on the trial, requested the court to charge, “ that if Miaglia took the check indorsed by the defendants from them, without their consent and feloniously, then the defendants are not liable to the plaintiff,” which the court refused, and the defendants’ counsel excepted. The only evidence in relation to the mode of obtaining the indorsement of the defendants was that of the defendant Bouyer. He testified that after ascertaining the check to be genuine, he took it to a bank, and wrote the name of his firm, on it for deposit merely; he then added, “I handed it to the receiving teller; he asked me if I knew the name of the indorsers ; I said I did not; I knew ‘ the drawers,’ and they said the check was perfectly good. He told me not to take it; then Mr. Miaglia took the check and put it in his pocket, and he went off.” This did not constitute evidence of a felony. So far as the defendants were concerned, they allowed the party from whom they received the check to take it back, with their names voluntarily written and left upon the back of it. Ho false representations were used to induce them to put or keep their firm name upon it. They allowed such check to remain so indorsed, without remonstrance, and thereby enabled Miaglia, on the strength of their responsibility, to obtain money on it.

But it is claimed that the circumstances under which the plaintiff took the check, were such as ought to have created suspicions in the mind of any prudent person as to the rightful ownership of the check. This, of course, would be immaterial, if the defendants voluntarily lent their names to Miaglia, or permitted him to use them. But even if their indorsement was obtained by fraud, and there was evidence in the case to sustain such a charge, no such question was raised or requested to be left to the jury, and it is too late now.

I do not see how the liability of the defendants can be affected favorably to them by the fact of the forged prior indorsement of the payees’ names. By putting their names on the back of the check, they gave it currency, and even if the plaintiff had reason to believe that such prior indorsement was not genuine, the defendants undertook by their indorsement to be responsible that if it was not, they would pay what the plaintiff gave for the check.

On the trial,- the learned judge who presided charged the jury that the only question for them to decide was whether the signature of the payees, indorsed on the check, was genuine or a forgery. This was excepted to. He also charged that there was nothing in the circumstances of the case, to put the plaintiff upon inquiry as to the genuineness of the signature, to which an exception was taken, but which I look upon as wholly immaterial, for the reasons before given. So, too, the question of the discrepancy between the names of the payees of a previous check, and that for which they are in question was given, was equally immaterial. I do not think the first exception sufficient, even if there had been any other question to be passed upon by the jury, besides that stated ; the defendants’ counsel was bound, in such case, to suggest any question omitted, and ask the court to instruct the jury in regard to it. But in fact there was no other question; the defendants had voluntarily furnished Miáglia with their indorsement, and allowed him to retain it, and thereby became responsible for impositions practiced by him by means thereof, on a bona fide purchaser, and the plaintiff was such. I do not even find that any thing in the conduct or relation of Miaglia to the plaintiff when he gave the check, was calculated to create any suspicion in the mind of a prudent person. He had previously dealt with him, although he knew nothing of his business, position, character or antecedents.

I find no error committed in any of the rulings on the trial.-

The judgment should be affirmed, with costs.


author: Barbour, J.

text:
    Isaac W. Edsall, plaintiff and respondent, vs. James Brooks and another, defendants and appellants.
    The refusal of the city editor of a newspaper to publish a retraction of a libel published in such paper, does not tend to prove the animus of the proprietors to have been malicious; and evidence of such refusal is not admissible for the purpose of enhancing the damages in an action against them for the libel.
    (Before Moncrief, Barbour and Garvin, JJ.)
    Heard June 8, 1864;
    decided June 25, 1864.
    Actioh to recover damages for an alleged libel published in the New York Evening Express, a newspaper owned by the defendants. On the first trial, the judge before whom the trial was had, dismissed the complaint. On appeal, the court at general term, granted a new. trial. (See ante, p. 29.) On the second trial, before Judge McCunn and a jury, in March, 1864, Charles E. Manning, a witness for the plaintiff, testified that he knew the city editor of the Evenipg Express on the 24th of April, 1862, and prior thereto; that Clement E. Hopkins (since deceased) was such editor, and had the sole charge of the city item, department in that paper, and the supervision of what was to be published, or rejected, or corrected. That a few days after the publication of the alleged libel, the witness introduced the plaintiff to Mr. Hopkins,, and heard a conversation between them, on the subject of the libel, and an explanation the plaintiff wished to have published. The plaintiff was examined as a witness in his own behalf. He was asked:
    “ Did you have any conversation with Mr. Hopkins, the city editor, on the occasion of your introduction by Mr. Manning, the last witness, touching the alleged libel upon yon, and concerning the card or explanation, and if so, state what it was ?” This question was objected to by the defendants, on the ground that what occurred between the witness and Mr. Hopkins cannot affect the defendants. Objection overruled, and exception by the defendants’ counsel. “A. After being introduced to the city editor, I told him that I had had injustice done to me" by the publication in his paper that has been spoken of here, and that I hoped he would be kind enough to publish that card in the paper. I had copies of the affidavits of those men with me, and I showed them to him. I asked him to publish the correction. He looked at it and read it, and wrote upon it: Mr. Edsall says he was not dismissed for blackmailing, but simply for the violation of a rule,’ and showed it to me, and said we cannot publish that other matter. Ton must get your redress somewhere else.’ I said ‘Very well, sir/ and left the office.”
    ££ Q. Is this the paper or card that you refer to as the one you wished published ?
    A. Tes, sir.
    Q. Did you tell the "city editor for what purpose you desired this card published ?
    A. Of course, to set me right with the public.”
    The paper was then read in evidence, which was in the words and figures following:

      “ Blackmailing bt a Policeman.

      Messrs. Editors: My attention has been called to a local in the Express of Thursday, entitled as above, wherein I am the policeman referred to. Blackmailing is a heinous crime— a state’s prison offense. It is extortion by threats, and none but the vilest could be guilty of it. Tou will see by inclosed affidavits, which I send merely for your perusal, that the facts in my case do not in any possible way justify such an injurious and degrading imputation. The affidavits were taken before the police commissioners, and you can ascertain from Commissioners Bowen and Acton, before whom my examination was had, how utterly unfounded is such imputation; for both will say that there- was nothing whatever in the ease to warrant it.
    I was simply charged with violating that rule of the department which prohihits members of the force from receiving money as a gratuity, without permission of the board. This permission I neglected to secure. I had aided in recovering for two parties some f 114, of which they had been fleeced by the Funks, and they, feeling grateful, without any solicitation by, or expectation from me, tendered me $9 as a present. I declined its receipt, but they insisted that • I should take it, which I finally did.
    These parties neither initiated or made any charge against me.
    You can readily ascertain the correctness of the foregoing at headquarters, Broome street, and your sense of justice will, I have no doubt, induce you cheerfully to correct the scandalous and utterly unfounded imputation which your reporter has so gratuitously attached to me of blackmailing.
    Respectfully,
    Isaac W. Edsall.”
    The plaintiff rested. The defendánts’ counsel moved to dismiss the complaint in this action upon the grounds following, .namely: ' “ The plaintiff is not represented in his complaint as belonging to any trade, calling or profession. Nor was the publication complained of made of the plaintiff in any particular character. And that the complaint contains no allegation of express malice, nor special damage, nor is there proof of either; thát the words complained of are not actionable without such proof of malice and damage, and consequently no cause of action has been stated in the complaint, and none proven.” Which motion was denied by the court, and the defendants’ counsel-excepted to the decision.
    The jury found a verdict ip favor of the plaintiff, for $300, and from the judgment entered thereon, the defendants appealed to the general term.

      A. Oakey Hall, for the appellants.

      Addison Sanford, for the respondent.
   By the Court,

Barbour, J.

As no evidence was given upon the trial of this action showing that the defendants directed the publication in their newspaper of the alleged libelous matter complained of, or, even knew of its insertion,' no malice could have been imputed to them beyond that which the law implies, from the fact that they were the proprietors of such paper, and had the power to withhold the publication. No actual malice was , proven against them, and, of course, the plaintiff would have been entitled to such judgment only, if any, against the defendants, as the evidence would have warranted, under that state of facts. The testimony of Mr. Manning touching the declarations of Hopkins, the city editor of the defendants’ newspaper, and his refusal to publish a retraction or explanation of the libelous article, must have been offered for the purpose of inducing the jury to believe that the city editor and employee of the defendants was actuated by malicious motives, not only in refusing to insert the explanation in the paper, but in publishing the libelous article originally, and that the defendants were legally chargeable therewith, in the same manner as if they had themselves refused. The admission of this testimony, we think, was improper. The object of the plaintiff’s counsel in offering the evidence, must have been to enhance damages against the defendants because of the malice which the juiy would naturally infer from the refusal of the editor, who was under the defendants’ control, and for whose wrong in publishing they were legally responsible, to right such wrong ; and the evidence, it may fairly be presumed, produced the effect upon the minds of the jurors which the plaintiff designed, and increased the damages awarded. Had the defendants, themselves, refused to make a retraction, when convinced of the injury that had been done to the plaintiff, the jury, probably, might legitimately have arrived at the conclusion that they were chargeable with actual malice in permitting the publication to be made ; as it would have tended to prove a general design to injure the plaintiff. But the refusal of their employee to insert the retraction did not tend to prove their animus to have been malicious. Indeed, there is no reason for supposing that the defendants would not have published it, had they been, personally, requested to do so.

Without considering any further point presented upon the argument of the appeal, we are of opinion that, for this reason, the judgment should be reversed and a new trial granted, with costs to abide the event.


text:
    The Weedsport Bank, plaintiffs and appellants, vs. The Park Bank, defendants and respondents.
    1. A bank is discharged from all liahility to a person for whom they have collected a sum of money, after they have paid it upon the checks of a third person to whom their original employer had directed them, hy letter, to “ deliver ” such sum.
    2. Such right is unaffected by the purposes for which the money was collected, or any orders for the disposition of the money after it had been paid away.
    (Before Moncrief, Barbour and Garvin, JJ.)
    Heard June 15, 1864;
    decided July 2, 1864.
    On the 23d and 28th April, 1861, the Weedsport Bank sent to the Park Bank two drafts on the Mercantile Bank, N. Y.; one for $2000, the other for $3000, for the purpose of paying two notes of Cook, Evarts & Co. for those amounts, falling due at the Park Bank. The drafts were accordingly collected by the Park Bank, but the notes were either paid by the makers or protested and returned. The proceeds of the drafts ($5000) were therefore credited by the Park Bank to the Weedsport' Bank. On the 2d of May, 1861, the Weedsport Bank, by its cashier, wrote to the Park Bank a letter or order of that date, the body of which was as follows :
    “Please deliver to C. W. Kellogg, Escp or order,
    . Cook, Everts & Co/s note, 23d April, paid, - - $2,000
    £$ « « « “ - - 2,000
    Also:
    Our draft on Mercantile Bank, 2146, - - - - $2,000
    " “ “■ “ 2168, - - - - 3,000
    If the two drafts are to our credit, then deliver to Mr. Kellogg the cash, and oblige.”
    The Park Bank obeyed the directions contained in said letter . or order, and immediately, on the 4th May, 1861, delivered to C. W. Kellogg the two paid notes therein mentioned, and placed to the credit of said 0. W. Kellogg the $5000, which were the aforesaid proceeds of the two drafts. Kellogg was then a dealer and depositor with the Park Bank, and so continued to be until the 6th of June, 1861, when his account was closed. Kellogg checked or drew against this credit, and against his deposits, so that on the 7th of May, 1861, the entire amount of all the $5000 was drawn out by and paid to him. On the 9th of May, 1861, the cashier of the Weedsport Bank wrote to the cashier of the Park Bank as follows : “ I have drawn on you this day for the amount of the drafts, $5000, in favor of E. J. Blake, Esq. cashier, which please honor, unless you have already paid the amount on our order to O. W. Kellogg.” This letter was received by the Park Bank, on the 11th May, 1861. On the 15th May, 1861, the cashier of the Weedsport Bank wrote to the cashier of the Park Bank, thus: “ Please inform me whether you have paid our draft for $5000 to O. W. Kellogg, and oblige.” The latter cashier, on the 17th May, 1861, answered thus : “ We gave credit, 4th inst. to O. W. Kellogg, $5000, upon your order, of course.”
    In March, 1863, this action was brought. The complaint alleged a demand for the money on the 18th May, 1861. At that time Kellogg had not only drawn out all of said $5000, but also all his other deposits, except $1716.64, as appeared by his account. On the 31st of May, when his book was balanced, he had a credit of $326.70, and this he drew out, so that his account was closed 6th June, 1861.
    The defendants, for answer, set up that Kellogg was one of their depositors, and aver payment of the $5000 to the plaintiff, by the above credit to Kellogg, in account, on the 4th of May, “ and by paying out the said sum within a short time thereafter to the said Kellogg, upon his checks drawn upon the defendants therefor.”
    The referee found, as conclusions of law, that the credit given by the defendants and the withdrawal of the amount by means of checks or notes charged as aforesaid, was a compliance with the order of the 2d day of May, 1861, and the same was delivery or payment of the proceeds of the drafts to said Kellogg. He accordingly directed that the complaint should be dismissed with costs, and judgment having been entered accordingly, the plaintiff appealed.

      B. W. Huntington, for the appellants.

      E. L. Fancher, for the respondents.
   By the Court,

Barbour, J.

The order of May 2d, 1861, is sufficient, it appears to me, to establish the fact that the §5000 which is the subject matter of this controversy, was not then in the hands of the defendants as mere custodians of a fund belonging to the plaintiffs as owners, but that, on the contrary, such sum had been received by the defendants in the ordinary course of their banking business and passed to the plaintiffs’ credit, prior to the transaction with Kellogg; for that order directs the delivery of the cash to the latter, “ if the two drafts are to our credit,” and only in that case.

This view of the case is also sustained and strengthened by the plaintiffs’ letters of the 9th and 15th of May, in which they speak of the delivery of cash contemplated in the order of May 2d, not as a mere handing over to Kellogg of §5000, but as a payment.

The question for consideration then is, whether the acceptance by the defendants of the order of May 2d, and their transfer of the credit from the plaintiffs’ account to that of Kellogg, was an extinguishment of the debt as between the parties to this action.

Kellogg was not the mere agent of the plaintiffs, even to receive the notes and the drafts; but, as to them, he was clothed with power to direct their delivery, by his indorsement, to such person as he should appoint. If he had, upon the face of the order of the 2d of May, been vested with like authority in respect to the money, it could hardly be claimed that the direction to deliver to Kellogg or to his order, the cash which the defendants owed to the plaintiffs, was not, substantially, a requisition to pay the debt to him or to his indorsee, whoever that might he ; and that the acceptance of the order and such a transfer of credits as was made by the defendants, would have operated as a payment of their indebtedness to the plaintiffs. The word deliver, in the case supposed, would be fully equivalent to the word pay ; and would, I think, have authorized the defendants to treat Kellogg, or his or any subsequent indorsee, as the person entitled to have payment of the debt. The intention of the drawer, in that case, to have the money paid to whomsoever should present the paper, would have been quite clear.

I can perceive no substantial distinction between the case supposed and the facts as they existed. The order, as we have seen, did not direct the delivery of moneys belonging to the plaintiffs, and held by the defendants, but, in-effect, required the latter to pay over to Kellogg a sum which they had received in a certain transaction and passed to the credit of, and for which they then had stood indebted to, the plaintiffs. Kellogg was simply the payee of an order directing the payment of a debt; and so, manifestly, the plaintiffs themselves understood it. For in their letter of May 9th, they inform the defendants that they have drawn for the $5000 in favor of E. J. Blake, and request them to honor such draft, unless you have already paid the amount on our order to C. W. Kellogg and on the 15th they say, by their cashier’s letter, “ Please inform me whether you have paid our draft for $5000 to C. W. Kellogg.” The cognomen “draft,” thus given to the order by the plaintiffs, coupled with the word “paid,” instead of “ delivered,” clearly shows, it appears to me, a design on their part to place Kellogg, by the order in question, precisely in the condition of a payee of a draft for money, and warranted the transaction had with him by the defendants in regard thereto ; and I am, therefore, of opinion that the acceptance of such order, and so far as the plaintiffs were concerned, its payment by a transfer of credits, was an extinguishment of the debt.

The judgment should be arffirmed, with costs.


author: Monell, J.

text:
    Alexis E. McIlvaine et al. plaintiffs, vs. John Egerton, defendant.
    1. On a contract for the sale of goods deliverable át a future day, at the buyer’s option, the vendor, In an action for the price, is not required to prove that he was the owner, or in possession of, the particular goods, at the time of making the contract.
    2. Such a contract is not “per se ” invalid on the mere ground that the vendor was not in possession of the goods at the time of making the contract.
    3. A contract of that description is not necessarily within the statute of betting and gaming (1 R. S. 662,) or Void at common law as being against public policy.
    4. A claim of the defendant not arising out of the contract or transaction set forth in the complaint, or connected with the subject of the action, but arising upon another wholly independent contract made with the plaintiff’s assignor, is not the subject of a counter-claim.

    5. The Code does not allow breaches of contracts with other parties to be set up as a defense by way of counter-claim. Set offs, under the statute, are alone applicable for that purpose; and a claim against the plaintiff’s assignor, if within the provisions of that statute, may be allowed as a set-off.
    (Before Barbour, Monell. and Gabvin, JJ.)
    Heard March 17, 1864;
    decided July 2, 1864.
    This action was brought to recover upon a contract for the, sale of a quantity of pork. The complaint alleged that in May, 1862, one Leaycraft agreed to sell and deliver to the defendants, and that the defendants agreed to purchase and receive, one thousand barrels of mess pork. That the pork should be delivered at the buyer’s option, during the month of July, 1862, the buyer giving five days written notice of delivery, and that an accepted order on any of the regular inspection yards, should constitute a delivery. On the 9th of June, 1862, Leaycraft assigned the agreement to the plaintiffs, of which the defendant had notice. That the defendant did not give any notice to deliver the pork to Leaycraft, or to the plaintiffs, at any time. On the 26th of July, 1862, the plaintiffs gave the defendant notice of their readiness to deliver the pork, and on or about the last day of July tendered the pork to the defendant and demanded payment, which was refused. The plaintiffs demanded judgment for their damages, namely, the difference between the market and contract price of said pork.
    The defendant by his answer put in issue the material allegations in the complaint, and' then alleged, as a separate defense, by way of “ counter claim,” that in January, 1862, he (the defendant) made an agreement with Perdue & Ward to buy and receive from them one thousand barrels of mess pork, deliverable during the month of June at the defendant’s option, he to give five days written notice of his intention to demand delivery. That while such contract was in existence, the defendant sold the same to said Leaycraft, and authorized said P. & W. to deliver the pork to him, according to the terms of the agreement. That thereupon said Leaycraft undertook and agreed with the defendant to perform said contract on said defendant’s part, and to receive said pork, and to pay said P. & W. for the same, according to the terms of said agreement. That Leaycraft did not give the notice required by said agreement, or demand a delivery of said pork. That on the 13th of June, P. & W. tendered the pork to the defendant, who thereupon with them tendered the same to Leaycraft and demanded payment, which was refused. That by reason of such refusal the defendant was obliged to receive from P. & W. said pork, and settle with them therefor at the contract price. That the defendant was thereby damaged to the extent of the difference between the market and contract price.
    The action was tried by Justice G-abvin and a jury.
    The defendant moved to dismiss the complaint, on the following grounds:

      First. That the plaintiffs had not shown a tender of the pork to the defendant. Second. That the plaintiffs had not shown that at the time the contract was made they owned the pork; and Third. That the arrangement was a mere wager upon the chance of a falling market.
    The motion was denied, and the defendant excepted.
    An offer was made by the defendant to prove the facts constituting his “ counter-claim,” which was overruled* and he excepted. Under the direction of the court, the plaintiffs had a verdict.
    Judgment was suspended, and the exceptions ordered to be heard at the general term.

      John E. Parsons, for the plaintiffs.

      Cummins, Alexander & Green, for the defendants.
   By the Court,

Monell, J.

The provision in the contract with Leaycraft, that an accepted order on any of the regular inspection yards should constitute a delivery, rendered a tender of the pork unnecessary, and therefore the plaintiffs’ order upon Amelung & Co., accepted by them, was a literal and sufficient compliance with the contract.

The agreement was to deliver at a future day. On the day of the tender the plaintiffs had the pork ready for delivery.

The objection that at the time of making the contract the vendor was not the owner nor in possession of the merchandise, and that it was a mere wager, does not seem to me to have any force. Indeed there was no evidence to support the objection. The plaintiffs were not required to furnish any proof on that subject, (Dykers v. Townsend, 24 N. Y. Rep. 57,) and the defendants did not prove any thing. But, besides, a contract in May to deliver in July a quantity of mess pork was not invalidated on the mere ground that the seller was not in possession of the goods at the time of making the contract. Such a contract was not within the meaning of the statute, (1 R. S. 662,) nor was it at common law as being against public policy. (Lansing v. Lansing, 8 John. 454.) Hot being opposed by such considerations, it was valid and could be enforced. (Story Contracts, §566 Chitty on Cont. p. 433. Burns v. Riker, 4 John. 426.)

The defense set up by way of counter-claim was properly excluded. It did not arise oút of the contract or transaction stated in the complaint, nor was it connected with the subject of the action. It arose upon another and wholly independent contract made with Leaycraft, the plaintiffs’ assignor. The Code does not allow breaches of contracts with other parties, to be set up as a defense by way of counter-claim. The statute of sets-off is retained for that purpose, and a claim against the assignor, if within the limit of that statute, may be allowed as a set-off. But in this case the subject of the counter-claim is not within the statute of set-off. (2 R. S. 362.)

The defendants may have a cause of action against Leaycraft for damages for non-fulfillment of the contract with Perdue & Ward ; but they have no claim against the plaintiffs arising thereupon. They did not take the contract from Leaycraft burthened with any equities or defenses of that character ; and, therefore, such equities or defenses are not available as a defense to the plaintiffs’ action.

The cases are numerous and uniform. (Dyllaye v. Niles, 4 Abb. 253. Ferreira v. Depew, Id. 131. Davidson v. Remmington, 12 How. Pr. Rep. 310. Van de Sande v. Hall, 13 id. 458. Spencer v. Babcock, 22 Barb. 327. Wolfe v. Chas. E. H., 13 How. Pr. Rep. 84. Vassear v. Livingston, 13 N. Y. Rep. 248.)

I am of opinion that none of the exceptions have been sustained, and, therefore, that the plaintiffs should have judgment upon the verdict.

Ordered accordingly.


text:
    Lewis Roberts, plaintiff and appellant, vs. Henry White et al. executors, &c. defendants and respondents.
    1. In the absence of any agreement between owners of adjoining lots, for a party wall or easement, or uninterrupted, user as such by one, of a wall built on the lot of the other, the fact that the former, in building upon his lot, had. inserted his beams in such wall, if done Without permission of the other, will not entitle him to an injunction to restrain the latter from taking down such wall.
    2. A mere license from the party in whose walls such beams were inserted to the other to hang window-shutters upon stich wall, is not a ratification of the act of inserting beams in it. The mere request for such a license, and an agreement that the party applying will brick up the opening whenever requested, is a recognition, rather than an exclusion, of the rights of the owner of the wall.
    (Before Robertson, Ch. J., and Monell and Garvin, JJ.)
    Heard October 8,1864;
    decided October 9, 1864.
    Appeal by the plaintiff from an order made at a special term, dissolving an injunction. The facts' sufficiently appear in the opinion of the court.

      C. Tracy, for the appellant.

      J. P. Crosby, for the respondents.
   By the Court,

Robertson, Ch. J.

The order appealed from in this case, dissolved a previous order, enjoining the defendants not to interfere with a brick wall separating two buildings on the northerly side of South street, in the city of New York, of which the more easterly, claimed to be the property of the plaintiff, is known as number 17, and the more westerly, \ admitted to be owned by the defendants, is known as number 16, on such street.

The answer denies the allegations of the complaint, that the wall in question is a party wall, standing, as to one half of its width, on the land of the plaintiff, and the other half on that of the defendants ; that it was erected as a party wall; was ever used as a party wall, for the support of beams of any building upon lot number 17 South street; also that such building was ever partially rebuilt and enlarged, and beams and timber used for such support, for any time previously, replaced by new beams and timbers in 1855; also that the plaintiff and his grantors have had a continuous, uninterrupted and unquestioned use of such wall for twenty years. It controverts the allegations in the complaint, of building one story higher upon such wall, by the plaintiff or those under whom he claims, and the insertion of new beams in such addition, with the concurrence or assent of the defendants’ devisor.

Such answer avers that the wall in controversy was built as an independent wall, for the building erected on number 16 South street; that a corporation called the New York Corn Exchange, in the year 1855, being in possession of such premises, under a lease thereof, bought the premises No. 17 South street, pulled the building thereon down, and erected the present building thereon, inserting its beams in the wall in controversy, without the consent of the defendants’ devisor, which they had applied for, and been refused. That until that time such building, upon No. 17, was supported by an independent wall upon its easterly side, built entirely upon that lot, and not dependent or built upon, or supported by the walls or building of the defendants, on No. 16 South street. Also, that for the purposes of the new building, which the latter propose to erect on the latter lot and an adjoining one, it will be necessary to tear down the present walls on No. 16, including that in question, which by its age, condition and want of depth, is unsuitable and insufficient for their purpose.

An affidavit of the plaintiff shows, that at the time of the erection of the new building on No. 17, the wall in question was raised for its whole length and width a story higher, by the New York Corn Exchange, thus elevating that building that distance above No. 16. And that by the color of the' material of the front edge of such addition being different from that of the adjoining building, No. 16 being plainly visible, externally, the fact of such increase of the height of the wall in question is easily made known. He also deposes to the presence of 'the devisor of the defendants once during the erection of the building, when- it was inclosed. In December, 1857, the devisor of the defendants agreed, by an instrument under seal, that the New York Corn Exchange might put a window for light in the south side wall of their building No. 17 South street, with an outer iron shutter, opening over the store on No. 16 South street; and the officers of such corporation signed such instrument, agreeing thereby, on receiving notice in writing requiring it, to remove such iron shutter, and fill up such window in a solid manner. The affidavits state that such window was left open, but none that a shutter has been put upon it.

An affidavit of a surveyor shows that the wall in question is a foot wide, and nearly eighty feet deep ; that the easterly side of such wall, on South street, is forty-seven feet eight inches from the corner of Broad and South streets, and at a little over fifty-seven feet from the front, is distant from Broad street forty-seven feet five inches along a wall standing there. The original grant of Ho. 15 (the corner lot,) and Ho. 16 seems to make them, together, forty-six feet ten inches and a half wide. Subsequent successive conveyances leave the first twenty-three feet five inches wide, but make the latter of various widths, varying from that to twenty-three feet and three inches.

Affidavits of a mason (Lafage,) and a builder (Stephens,) who were employed by the Hew York Corn Exchange to tear down the building on Ho. 17 South street, and erect the new ■one, testify that the building then standing thereon, had an independent wall on the westerly side, as they judge from the inspection as the plans and specifications for such building shown to them. They also establish the insertion of the beams of the new building in the wall in question. The affidavit of the architect (Thomas,) shows that the Corn Exchange, in the instructions to his firm to draw specifications for such building, directed them to do so in such manner as to include the tearing down of the westerly side wall thereof adjoining the wall then and now standing on the premises owned by the defendants’ predecessors; and that the specifications were so drawn, and show the existence of such wall.

There is prima facie evidence, therefore, however slight, in the case, that the former building on the plaintiff’s lot was supported by an independent wall, as lately as 1855, and it is not contradicted even by the gain of dimension in the breadth of lots 15 and 16 South street, which might be accounted for in various ways. The deeds under which the defendants claim title, it is true, seem to show that such gain did not affect the former, while the latter gained in width. Such discrepancy alone,- is not sufficient to establish that the present wall must be a party wall.

The beams of the building on the plaintiff’s lot seem to have been inserted in the wall in controversy, without permission. There is no evidence of any agreement for a party wall, or easement, or uninterrupted user of such wall, as such, by the plaintiff or those under whom he claims. The license given by the devisor of the defendant to the Corn Exchange to hang a shutter, upon a wall built upon his land, of which they held a lease, so as to swing over it, was not a ratification of their act in inserting beams into it. Leaving an opening for a window therein could hardly be construed into taking possession of the premises. Asking for a license do do so, and agreeing that they would brick it up when required, is rather a recognition than an exclusion of the rights of the devisor of the defendants.

Nothing on the face of the papers before us, justifies our restoring the injunction order; the plaintiff must be left to his remedy by an action for the recovery of any land of which he may be dispossessed by the action of the defendants.