text:
    Henry F. Hamill, Plaintiff and Appellant, v. James C. Willett, Sheriff, &c., Defendant and Respondent.
    1. Where two partners dissolve, one taking all the stock and agreeing to pay all the debts, and stipulating for the right to use the firm’s name in continuing the business, the mere facts that he continued the business, using the same sign, same business cards, and same form of bank account, and drew checks in the firm’s name, and employed the retiring partner as a salesman and clerk, at an agreed monthly compensation, are alone insufficient to warrant the inference that the transfer was made by the"retiring partner with intent to defraud creditors, or to subject the property to levy by an execution at the suit of an individual creditor of the retiring partner, who became such creditor subsequent to the dissolution.
    (Before Hoffman and Woodruff, J. J.)
    Heard, April 10th;
    decided, April 28th, 1860.

      Appeal by the plaintiff from a judgment and an order denying a motion made by him for a new trial. The action was tried before Boswobth, Ch. J., and a jury, May 2, 1859. It was brought to recover possession of personal property which the plaintiff claimed to own, and which the defendant, as Sheriff, had seized on an execution on a judgment rendered December 20, 1856, in favor of Henry Husmeyer against James Gr. Hamill, which property the Sheriff claimed was the property of James.
    Most of the property in question originally belonged to the plaintiff and James Gr. Hamill, as partners. They dissolved July 1, 1856, the plaintiff taking all the assets and agreeing to pay all the firm’s debts. He continued the business, using the firm’s name, sign, &c., and employed James as 'salesman, &c., at an agreed sum per month. The other facts are sufficiently stated in the opinion of the Court.

      C. Patterson, for appellant,
    Insisted that the verdict was contrary to clear and uncontradicted evidence; that no question of fraud was raised by the pleadings, and no evidence of fraud was given on the trial; and that it necessarily followed that the jury erred.

      A. J. Vanderpoel, for respondent.
    I. There are no exceptions to the rulings, nor to the charge of the Court. The charge is not given. We, therefore, are bound, to intend that the case was fairly submitted to the jury.
    II. The verdict in this case is fully justified by the evidence, and the jury gave the only verdict which the facts sanctioned. The plaintiff’s own testimony not only wholly failed to rebut the presumption declared by the statute as consequent upon a want of change of possession, but also showed a clear case of fraudulent changing of the legal title to the property, as against the creditors of James G. Hamill, the judgment debtor. (2 R. S., p. 136, §5.)
    1. Before the statute, the Judge would have been bound to nonsuit. Kow it is peculiarly a question for the jury.
    The vendor remained in as complete control and possession, according to all appearances, as he had ever been, and the parties expressly stipulated and agreed to maintain these false pretenses, lest creditors should suspect that there had been a change of interest, and become alarmed.
    2'. To lull creditors into security, the name of the vendor was, by the agreement, to continue to be used, as formerly, on cards, signs, and for business purposes, which comprised every way in which notice could be given. The judgment debtor would be liable for all debts which might be contracted.
    They continued to do business in the same name as before sale; sign same; card same. Bank account continued to time of trial in name of Hamill & Brother. The business had been established by the judgment debtor. The plaintiff was admitted as a partner as late as 1855. The judgment debtor was the real man in the concern. There was no evidence that the plaintiff' ever contributed a dollar to the capital.
    3. The only witness called to give evidence to rebut the presumption of fraud was the plaintiff". The jury had a right to criticise his evidence and conduct as influenced by his interest, and give to it such weight as it was entitled to.
    III. The Court will not, even in actions not sounding in fraud, set aside a verdict, unless there is such a preponderance of evidence as to satisfy the Court that there was either an absolute mistake on the part of the jury, or that they acted under the influence of prejudice; passion or corruption. (Cohen v. Dupont, 1 Sand. S. C. R., 260.)
    1. There is nothing in the verdict in this case to justify a suspicion that the jury acted under either of the above influences.
    2. But on a question of fraudulent transfer, such as was involved in this case, the Court will not set aside the verdict of the jury when they are not misdirected, and when there is evidence on both sides, come from what source it may, fraud being a question peculiarly within the province of the jury. (Ward v. Center, 3 Johns., 271.)
    3. The plaintiffs’ counsel at the trial did not suggest a doubt but that the question was one upon which the jury should be required to pass their verdict.
    IV. The verdict is proper in form—the levy being upon partnership property, the creditor was entitled to the possession of the property, for the purpose of selling the right, title, and interest of the debtor. (Dows v. Rush, 28 Barb., 158, 187.)
    The judgment should be affirmed.
   By the Court—Hoffman, J.

The action is to recover possession of personal property. The defendant justifies the taking and detention, and demands a redelivery, upon the ground of a judgment and execution against James G. Hamill, insisting that the goods were his property.

No exceptions were taken to any ruling, or the charge of the Judge. The jury found a verdict for the defendant, and that the value of the property was five hundred dollars. An order was made denying a motion for a new trial. Judgment has been entered, and appeals taken from such judgment and order.

The case has been, tried upon the theory that the goods were those of James G. Hamill, and that the claim and possession of the plaintiff was a cover. .

The plaintiff was the only witness, with one unimportant exception. Upon his evidence and some instruments the verdict has been founded.

It appears that in 1855 the plaintiff and James G. Hamill were in partnership. On the 1st day of July, 1856, they dissolved, and by the articles of dissolution, the plaintiff took the whole of the property, assuming the debts and liabilities of the firm. It is stated that the amount of property was equal, or nearly equal, to the amount of the debts. It was then stipulated, in order that said Henry F. Hamill might be the better enabled to carry on the business, and discharge the debts without alarming unnecessarily any creditor of the concern, that James G. Hamill should allow his name to remain on the cards and signs of any business place which said Henry F. Hamill should select, and allow such other use of his name for business purposes as said Henry F. should see fit; the use of his name being considered advantageous, as he had been engaged in the business previous to said Henry F. engaging in it, and from his extensive acquaintance with the customers. James G. Hamill then covenanted, in consideration of the premises, and his earnest desire to see all the debts paid, and the business settled up satisfactorily, that he would remain as salesman, clerk, or laborer, for one year: Henry F. Hamill paying him twenty dollars per month, and furnishing his board and lodging; which Henry F. thereby undertook and agreed to do.

About the 1st of July, 1856, the plaintiff moved from the former place of business of the firm, to 357 West street. . The property taken by the defendant had all been property of the firm, except a pile of iron, purchased since the dissolution. The sign over the door at the place of business, after the dissolution, was Hamill & Brother; the same names were used on the carts at the time of the levy. An account was kept at the bank in the name of Hamill & Brother, and the plaintiff continued to sign checks in such name. The plaintiff had no other brother than James.

A lease had been taken to the firm, on the 5th of June, 1856, for the property in West street, and this was assigned by James to the plaintiff on the 12th of September, 1856.

Another lease, of what appears to have been adjoining premises, was also held by the firm, and was also assigned by James to the plaintiff, on the same day.

The levy was made on the 11th of February, 1857; the judgment obtained on the 20th of December, 1856.

This is the substance of the evidence given upon the trial. Husmeyer, the plaintiff in the action against James Gr. Hamill, deposed, that he was security for the sheriff in the suit, before the levy was made.

The question was not raised on the trial, that the defendant was not in a position to question the bona fides of the transfer from James Gr. Hamill to the plaintiff.

We cannot understand how it was possible for the Jury, upon this uncontroverted and undiscredited evidence, to find the verdict they have rendered. That the property originally belonged to the firm composed of James and the plaintiff, cannot be disputed ; that the transfer by the articles of dissolution of the 1st of July, 1856, was no way invalid on its face, or justifying any inference of fraud by its provisions, seems to us clear;, that the possession then must be deemed to be presumptively the possession of the plaintiff under his purchase, and not that of the firm, seems also plain. We think also that the continuance of the name, and other circumstances, are sufficiently explained, and at least, are wholly insufficient to warrant the conclusion of fraud in the transaction, so as to justify the result that the property was in truth the property of James, or that his interest as a partner remained in him at the date of the levy.

We think there must be a new trial upon payment of costs of the former trial. Costs of the appeal to abide the event.

Ordered accordingly.


source: Caselaw Access Project

author: By the Court—Woodruff, J.

license: Public Domain

text:
    Francis C. Treadwell, Plaintiff, v. Russell Stebbins and Abraham Godwin, Jr., Defendants.
    1. Where two notes are given upon a single consideration, and one has been put in suit and facts directly in issue, which, if true, must affect both notes alike, are established by verdict and judgment, the verdict and judgment are evidence of those facts in a subsequent suit between the same parties depending upon the character and validity of the other note.
    2. Hence, when the maker of a note who had paid it, sued the indorser to recover the amount as money paid for the use of the latter, alleging that that note and another were made by him for a special purpose by request of such indorser to enable the latter to raise money, and on his agreement to pay it at maturity, and on the trial, the plaintiff has given evidence tending to show that the two notes were given under one arrangement, and upon the same consideration, it is competent to give in evidence a judgment rfecord in a suit on such other note, brought by spell indorser against such maker, in which the same allegations were relied upon as a defense and to prove that those allegations were the only matters contested on the trial, and that such indorser had a verdict thereon, and judgment in his favor.
    3. When a witness has been examined and has left the stand and the trial has proceeded, whether the party shall be permitted to recall him for further examination to the same matters, rests' in the discretion of the Judge presiding at the trial.
    (Before Hoffman and Woodruff, J. J.)
    Heard, November 18th, 1859;
    decided, May 12th, 1860.
    This action, was brought in the Supreme Court, of July Term, 1846, and was tried on the 21st of March, 1848, before Mr. Justice Edwards of that Court, by whom a nonsuit was ordered at the trial. The plaintiff made a case whereon to move for a new trial, and in that stage of the proceedings, the action was, with others, (pursuant to statute,) transferred to this Court, and the motion brought to a hearing in General Term.
    The declaration (the action being commenced before the enactment of the Code of Procedure) was for money paid, laid out and expended by the plaintiff for the defendants, with the other usual money counts. The defendant Godwin did not appear, and whether he was served with process or not, the case does not disclose. The defendant Stebbins interposed the plea of nonassumpsit and a special plea of payment'; the latter plea was traversed by the plaintiff by replication.
    The case sought by the plaintiff to be established was this: That the defendants agreed with the plaintiff, (in consideration that he would receive one Robert R. Taylor into copartnership,) that they would advance for Taylor $3,000, as his share of the capital. That as a means of raising the money wherewith to make such advance, the defendants requested the plaintiff and he consented to make for their accommodation his two notes for $2,000 each, payable to the order of Godwin and indorsed by the defendants, they undertaking to procure the notes to be discounted and passed to the plaintiff’s credit at the Dry Dock Bank, of which Stebbins was a Director, and to pay the same at maturity. The plaintiff nevertheless to furnish $1,000 on account thereof, so as to leave the actual advance by the defendants, $3,000 as agreed. That the plaintiff, in money and notes, furnished to the defendants such $1,000. That one of such notes for $2,000 was discounted by one Peck; and afterwards one Laing, his executor, sued the defendant Stebbins thereon as in-, dorser, and recovered the amount thereof from him. That the other note was discounted at the Dry Dock Bank, and from time to time renewed, and was reduced, by $500 of money so furnished by the plaintiff, to $1,500, after which the plaintiff was sued thereon, by the bank, as maker, and was compelled to pay, and did, on or shortly after the 5th of March, 1841, pay the same with interest amounting to $1,647.66, and to recover the money so paid, this suit was brought in 1846.
    The plaintiff gave evidence which tended (as claimed by the plaintiff) to show an admission by Stebbins of the original agreement by the defendants, to advance $3,000 for Taylor, as capital in his copartnership with the plaintiff. Also that a note for $2,000, made November 11th, 1833, by the plaintiff, to the order of Godwin, and indorsed by the defendants, was held by Peck at his decease, and passed to Laing as his executor Also, (by a statement of Washburn, cashier,) that another note for $2,000, dated May 14th, 1833, made by the plaintiff to the order of Godwin, and indorsed by the defendants, was discounted at the Dry Dock Bank, and the proceeds placed to the credit of the plaintiff, was renewed from time to time, to one dated January 21st, 1854, at 60 days, reduced by payment to $1,500, and that Stebbins was during the same period a Director of that Bank, and that certain two notes amounting to $500, payable to order of plaintiff, were discounted for Stebbins, who received the proceeds. The plaintiff then offered to read in evidence the record of a judgment recovered by the Bank against the plaintiff, on a note for $1,500, made by him to the order of Godwin and indorsed by the defendants, dated January 21st, 1854, payable 60 days after date. This was objected to and rejected as irrelevant, and the plaintiff excepted. The plaintiff then proved an assignment by the Dry Dock Bank to Jedd Fry, of a judgment recovered against the plaintiff for $2,131.45, damages and costs, November 8th, 1838, and the payment by the plaintiff of $1,647tW, thereon.
    The plaintiff then offered in evidence the record of a judgment in a suit brought by the defendant Stebbins against the present plaintiff as maker of the note for $2,000, dated November 11th, 1833, payable to the defendant’s order which had been held by Peck, and by Laing his executor as above stated, in which suit the present plaintiff had by notice annexed to his plea set up as a defense, that that note was made for the accommodation of these defendants under their agreement, and under the circumstances above alleged by the plaintiff, and on the trial of which action the defendant had a verdict and judgment in his favor.
    The plaintiff then offered to prove that the only matter controverted on the trial in the suit of Stebbins v. Treadwell, was whether the note then in suit, made by Francis 0. Treadwell and payable to the order of Abraham Godwin, Jr., six months after date,, for $2,000, and dated November 11th, 1833, and indorsed by said Godwin and by Stebbins, the plaintiff in that suit, was made for the purpose of enabling Godwin & Stebbins to raise the sum of $2,000, as part of the sum of $3,000, which they had agreed to furnish to Robert R. Taylor as his part of the capital to be employed in the baking business in a copartnership between said Treadwell & Taylor, to be carried on under the name of said Treadwell, in the city of New York, and whether the said note was made at the instance of Stebbins & Godwin for that purpose, and to follow up that proof with evidence that the note on which the Dry Dock Bank recovered the said judgment assigned to Jedd Fry, and on which the plaintiff had made the payments to which Jedd Fry had testified, was made for the like purpose, and for the accommodation of Stebbins & Goodwin, except as to the sum of $1,000, part of the aggregate amount of the two original notes for $2,000 each; that Treadwell by the two promissory notes referred to in Washburn’s statement, paid to Stebbins $500 of the said aggregate sum of $4,000, and also paid to the Dry Dock Bank $500 of said aggregate sum of ■ $4,000, on one of the renewals of said note for $2,000 mentioned in Washburn’s statement.
    The defendant’s counsel objected to so much of the plaintiff’s offer as related to the matters controverted on the trial in the suit of Stebbins v. Treadwell. So much of the offer as was objected to was overruled by the Court, and the plaintiff’s counsel excepted.
    The plaintiff then proposed to recall Laing, a witness whom he had already examined, in order to inquire if his recollection had been refreshed, and to prove further admissions of Stebbins tending to show that the note which was discounted at the Dry Dock Bank, was made under the arrangement to raise money to be advanced by the defendants as capital for Taylor.
    This was objected to on the ground that the witness had already been examined on the subject, and his testimony exhausted. The objection was sustained, and the plaintiff excepted.
    The plaintiff having rested, the defendant’s counsel moved for a nonsuit on the grounds,
    1st. That the plaintiff, on the face of the note is primarily liable to pay, unless that liability is removed by the testimony of the witness Laing.

      2d. The testimony of Laing does not identify the note in question. He speaks of a $2,000 note, whereas the note in question is for $1,500; and
    3d. That this suit is brought against Stebbins & Godwin jointly, and a joint liability must be proved, and that whatever may-be the force or effect of the admissions of Stebbins to Laing, the defendant Godwin cannot be affected by such admissions, and there is no testimony in the case as against the defendant Godwin.
    The motion for a nonsuit was granted by the Court, and the plaintiff’s counsel excepted.

      Joshua M. Van Cott, for the plaintiff.
    I. The substantial ground on which the plaintiff was nonsuited, was his alleged failure to identify the note (and judgment upon it) on which he had made the payments, with either of the $2,000 notes made on account of Taylor’s contribution to capital.
    That identification was complete.
    1. Stebbins and Godwin were to furnish the capital.
    2. It was contributed through two $2,000 notes, made by plaintiff arid indorsed by them.
    3. One of those two notes (dated 11th November, 1833, and held by the estate of Mathew Peck,) was paid by Stebbins.
    ■ 4. The other of those two notes was discounted by the Dry Dock Bank, of which Stebbins was a Director, and the proceeds passed to the credit of the plaintiff. This application of the proceeds (unexplained) decisively characterizes the transaction and identifies the note.
    5. Two $2,000 notes, indorsed by Stebbins and Godwin, being shown, they must be presumed to be the two notes in question, until some other $2,000 note is proved. But no other $2,000 note is proved; and no evidence is given, to repel the presumption, that the notes were given for the purposes stated to the witness Laing, and disclosed by the notice of special -matter in the successful defense to the suit by Stebbins on the $2,000 note paid by him.
    Upon the naked facts proved, and offered to be proved, no jury could find that any other $2 000 note had ever been made or indorsed by the-defendants.

      II. Upon the facts so proved, and offered to be proved, Stebbins’ liability was clear. All evidence offered to show such facts was competent, and all the exceptions to its exclusion were well taken. The exclusion was for irrelevancy, and the evidence was all relevant.
    The nonsuit should be set aside, and a new trial granted.

      Frederick A. Lane, for the defendants.
    I. The judgment recovered by the Dry Dock Bank against plaintiff was not competent nor relevant, and was properly excluded.
    I. The general rule is, that the verdict must be between the same parties, or those claiming under them. (Lawrence v. Hunt, 10 Wend., 80; Jackson v. Wood, 8 id., 35; Duchess of Kingston’s Case, 20 How. St. Tri., 578; Phillipps on Evidence, 4th Am. ed., p. 17, vol. 2; Dale v. Rosevelt, 1 Paige, 35.)
    II. The judgment in the suit of Stebbins, the defendant, against the plaintiff, was incompetent and irrelevant, and was properly excluded.
    1. See eases cited above.
    2. A verdict and a judgment are not evidence, unless it be on the same point. (Maybee v. Avery, 18 John., 352.)
    3. The judgment could not be offered in evidence, unless the subject-matter of this suit was directly in issue in the former suit, and the verdict necessarily involved a determination of the rights of the parties upon the particular subject-matter of this controversy. (Oases cited above; Manny v. Harris, 2 John., 24; Dunckel v. Wiles, 1 Kern., 420.)
    III. The question put to the witness Dikeman, and the evidence offered to be given in connection therewith, were properly excluded.
    1. The best evidence must always be given. The record is the best. “ A writing would be better than a parol contract, a deed better than either, and a record better than all.” (Phillipps on Ev., 4th Am. ed., pp. 567,581, vol. 1; Ingram v. Hall, 1 Hayw., 193, 206; Cooper v. Watson, 10 Wend., 202; Webb v. Alexander, 7 id., 281.)
    IV. The question, what was the issue in the suit of Stebbins v. Treadwell, was properly rejected. (Cases cited under last point.)

      V. The offer of evidence made by plaintiff’s counsel was properly excluded by the Court, so far as the same related to the matters controverted on the trial in the suit of Stebbins v. Hh-eadwell. (Cases cited under all above points.)
    VI. The Court properly excluded the offer to reexamine the witness Laing, inasmuch as it was an offer to examine him anew to matters theretofore inquired of, and the witness had already been exhausted.
    The motion for a nonsuit was properly granted, and the bill of exceptions should not be sustained.
   By the Court—Woodruff, J.

To entitle the plaintiff to recover, he was bound to prove that it was the duty of the defendants to pay, for his exoneration, a note which was dated January 21, 1834, made by the plaintiff payable to the order of the defendant Godwin, and indorsed by him and by the defendant Stebbins.

The declaration contained nothing but the usual money counts in use under our former system of practice; and the ground, and sole ground, on which the plaintiff claimed to recover was that the defendants were bound to take up that note for $1,500, and indemnify him against the same, and, not having done so, the plaintiff, who had paid the same, was entitled to recover the amount thereof with interest, as for so much money paid to the use of the defendants.

It is obvious that the very face of the note is evidence that the plaintiff, and not the defendants, was bound to pay the note.

The plaintiff, therefore, before he could ask to have his case submitted to the jury, was bound to give evidence which overcame the presumption arising from the plaintiff’s own signature and promise, and establish, with reasonable certainty, or, at least, probability, that the defendants were bound to pay it.

To this end he showed that it was one, and the last, of a series of renewals of a note for $2,000, dated May 14, 1833, made by himself payable to the order of the said defendant Godwin at sixty days, and indorsed by Godwin and by Stebbins, upon which, on or prior to the 19th of November, 1833, $500 was paid; which note was discounted at the Dry Dock Bank, in which the defendant Stebbins was a Director, and the proceeds of which, when so discounted, were placed to the credit of the plaintiff.

The fact of the successive renewals by the parties, coupled with the fact that the plaintiff received the proceeds of the discount, was, we think, sufficient to alter somewhat the presumption arising from the face of the note that the money was due thereon to the payee, but not to show, in any degree, that the plaintiff was not bound to pay it. On the contrary, the transaction indicated that Godwin and Stebbins had indorsed the note for his accommodation and benefit, and that he, receiving the proceeds on the discount thereof, was bound to pay it, not only in discharge of his own liability, but for their protection and exoneration.

The plaintiff, in further proof of the case he desired to establish, produced another note, dated November 11, 1833, for $2,000, made by the plaintiff payable to the order of Godwin and indorsed by the defendants Godwin and Stebbins, and proved that, in the years 1834 and 1835, Stebbins was called upon, as indorser, to pay this last-mentioned note to the then holder thereof; that, in the conversations then had, the defendant “ Stebbins said that he and Mr. Godwin were to supply $3,000 as Mr. Taylor’s part of the capital in the partnership with Mr. Treadwell. He observed that, if he paid this note for $2,000, in addition to another note for $2,000, he would have advanced $1,000 more than he was to advance.”

This conversation tended, unquestionably, to prove that at some time prior to the date of such conversation, the defendants, Stebbins and Godwin, had agreed to advance for Mr. Taylor the sum of $3,000, to be contributed as his part of the capital in a copartnership with the present plaintiff—but when or how it was to be contributed — when the partnership was formed—or whether the partnership still continued—it was not shown. Nor did the conversation sufficiently show, that indorsing the note now in suit, or agreeing to pay it for the plaintiff, was the mode in which the advance was agreed to be made, while all the other circumstances indicated the contrary. If this note was made and indorsed as a means of raising that capital, the defendants should have been the makers instead of indorsers of the note.

The defendants may have made the agreement testified to, and may be liable if they have not performed it, but proof of such liability did not warrant any finding that they agreed to take up or pay the plaintiff’s individual note. Nor can the conversation be construed into an admission that the defendants ever agreed to pay the plaintiff’s notes to any amount.

Nor is it apparent how paying the plaintiff’s nóte, the proceeds of which he had received individually, would, upon any facts proved by the plaintiff, have been performance of an agreement to contribute capital to a copartnership between Treadwell & Taylor.

Upon the evidence given and received at the trial, we think there was nothing which would have sustained a verdict that the original note dated May 14th, 1833, for $2,000, or the renewal thereof dated January 21, 1834, for $1,500, was a note which the defendants had agreed to pay.

But the plaintiff, on the trial in further support of his claim, produced a judgment record in a suit upon the $2,000 note mentioned by the witness with whom the conversation above stated was had. That note, after such conversation, came to the hands of the defendant, Stebbins, (presumptively by his taking it up in discharge of his liability to the holder as the indorser thereof,) and he, Stebbins, brought his action thereon against the present plaintiff, as maker. The suit was defended on the ground that the said note was made by the plaintiff, Treadwell, at the request of the defendants, Stebbins and Godwin, to enable them to raise a part of the sum of $3,000 which they had promised and agreed to furnish to the said Taylor, then a partner with the plaintiff, transacting business under the firm name of “ Francis C. Treadwell," to be used and employed as a part of the capital in the said business; and that the defendants, Stebbins and Godwin, agreed that they would pay the said note to the holder thereof when it should become due. The plaintiff offered this record in evidence, and offered to prove that the only matter controverted on the trial of that action was the matter so set up as a defense. The record showed a verdict for Treadwell, and a judgment in his favor (¡hereon.

The'record and this further evidence was rejected.

Now unless there was some proof warranting an inference that the note given in May, 1833, was given upon the same consideration as the note given in November, 1833, proof that the latter was an accommodation note made by the defendants’ request, and to enable them to raise money, would not alone show that the note given in May was an accommodation note also. And yet if there were circumstances tending at all to prove such an identity, the proof relating to the November note might tend to destroy any supposed improbability, arising from the order of names upon the .note, that such an agreement was made, and included the May note.

The record and the evidence offered in connection therewith would have established the material fact that there was an agreement by the defendants to advance $3,000 to Taylor, to be used as capital by the firm mentioned. And that a part of such advance was raised by the making, by Treadwell at their request, of a $2,000 note which was used to enable them to raise the money. And if there was evidence, though slight, tending to show, that the previous note was made for the same purpose, the record and the testimony offered in connection therewith, should have been received,

Where two notes are given upon a single consideration, and one has been put in suit and facts directly in issue, which if true must affect both notes alike, are established by verdict and judgment, the verdict and judgment are evidence of those facts in a suit between the same parties on the other note. (Gardner v. Buckbee, 3 Cow., 120; Burt v. Sternburgh, 4 id., 559.)

If therefore this evidence had been received, the only inquiry would have been, Was the May note given upon the same consideration in whole or in part? And has the plaintiff paid or provided for the one-half part as to which there is no pretense, that it was not made for his own benefit.

While we feel that the testimony is slight, we think that upon the reception of the evidence, which, as above suggested, was in its nature relevant and competent, the plaintiff would have been entitled to submit the question to the jury. The conversation with the witness Laing may be understood as fairly importing, that the defendants were to supply the $3,000, and that the advance they were to make had some connection with two notes, each for $2,000, and that the advance had not then been made, and that Stebbins’ hesitation, in regard to paying the note presented to him, was because he did not wish to pay $2,000, and remain liable for another amount greater than he had agreed to advance. The conversation indicates that in the mind of Mr. Stebbins a payment of the $2,000 note would have been equivalent to an advance of $2,000, towards the $3,000 which he was to advance. It is true that standing alone it does not show that the advance was agreed to be made by paying the sum specified upon the notes of the plaintiff, but in connection with the rejected evidence, which showed that one of the notes was in fact made as a means of raising so much of the $3,000, it would not be against evidence to infer that the whole $3,000 was raised in the like manner, and that the objection which at the time of the conversation existed in the mind of Mr. Stebbins, was obviated by the plaintiff who apparently had already reduced the May note to $1,500, and afterwards furnished Stebbins two small notes, amounting to another $500, which were paid in May, 1854.

We cannot say that these proofs are conclusive, or that it can be inferred from the mere fact that the November note was made for the defendants’ • accommodation, that the May note was so made. If there was in 1834 or 1835, or at any time after the November note was given, any other note outstanding to which the conversation may have related, the proof seems to us to fail entirely.

But, as the case stands, we think the Judge erred in rejecting the evidence offered, because, if it had been received and it had established what it was proposed to prove, the doubt of the plaintiff’s right and of the defendants’ liability would have made the case a proper one for the jury to determine upon the questions of fact.

We feel the force of the suggestion that the case savors strongly of staleness, and that the circumstances seem to indicate that the claim that this May note was an accommodation note is an ingenious expedient to effect indirectly a recovery under an agreement alleged to have been made twenty-seven years ago, and more than thirteen years before this suit was brought, when the statute had long barred any action thereon. But this circumstance, if it be of force, may properly be addressed to the jury in connection with the other facts.

The propriety of suffering the plaintiff to recall his witness after he had been once examined, is to be determined by the Judge at the trial. As the general rule, it is a matter resting in his discretion; and, unless it be quite palpable that that discretion was unwisely exercised, and injustice has been done, the refusal of the Judge to permit a further examination would not furnish ground for ordering a new trial. It may sometimes be perceived by the Judge that the discussions in the progress of the trial, after the party has examined his witness, have had the effect of instructing the witness as to the very point and pinch of the case, and have informed him just what the party wishes him to testify. This—and, if he be a willing witness, other circumstances which may be quite apparent to the Judge who sees the witness and his manner of testifying—may suggest to him that there would be great danger of injustice if the party be permitted to recall him to meet an exigency. We see nothing of the kind on this trial; and, so far as appears on the Case, the Judge might well have suffered the witness, Mr. Laing, to be recalled and examined further by the plaintiff.

It is further insisted by the defendants that, as this action is brought against the defendants upon an alleged joint liability, that joint liability must be established by proof that is competent as against the defendant Godwin; and no evidence of Stebbins’ admissions could affect him: that there was, therefore, as against Godwin, no evidence whatever of his liability, and, of course, no joint liability was proved, and the nonsuit should be sustained.

As the action was brought and tried before the Code was enacted, this question must be disposed of as the law then stood. The defendants’ proposition, however, as the issue was presented, is not sound, to the extent claimed. It is true that the plaintiff was bound to prove a joint liability; and, had the defendant Godwin appeared and defended, he must have proved it by evidence which was competent proof as against Godwin.

But when one of two joint defendants makes default, or is not served with process, it is enough, on the trial of the issue made by the other, to show, by evidence good as to the latter, that he is liable, and liable jointly with his co-defendant; and this may be done by his own admission, in Court or out of Court. If, therefore, in this case, the plaintiff had shown, by the admission of the defendant Stebbins, or otherwise, that he (Stebbins) was liable jointly with Godwin,.it would have entitled him to judgment, although the evidence was such as would not, as against Godwin, (had he defended,) have been competent to show that he was liable at all. (Halliday v. McDougall, 22 Wend., 264; Downing v. Mann, 3 E. D. Smith, 36.)

A new trial must be ordered; costs to abide the event.


author: By the Court—Hoffmam, J.

text:
    Robert G. Bonesteel, Plaintiff and Appellant, v. The Mayor, &c., of the City of New York, Defendants and Respondents.

    1. When, in accordance with the provisions of the charter of the city of New York, the Street Commissioner, as the head of one of the departments, has issued and published a notice containing specifications of work to be done for the Corporation, directed to be done by ordinance of the Common Council, and inviting proposals or bids therefor from contractors, and the proposal of the lowest bidder is accepted and the contract awarded to him, and such notice, specifications, offer and award are by the Common Council duly approved and confirmed, the Street Commissioner has no power to bind the city by executing a contract with the bidder, differing in any material particulars from the specifications, in reference to which the offer or bid, and the award and confirmation were made, and such a contract is void as against the city!
    2. Where the contract which is executed, in general terms binds the bidder to perform the work according to the specifications, the work will be deemed done under the contract, unless other terms of the contract are clearly inconsistent with such specifications.
    3. If the contract which is so executed be void for such inconsistency and want of authority to depart from the specifications, the bidder will nevertheless be bound to perform the work according to his offer and the specifications in reference to which it is made; the notice inviting offers, the bidder’s offer, the award, and the approval and confirmation thereof in such case, constitute the actual contract between the parties.

      4. If a contracting party intentionally violates his contract, and refuses to perform it, by departing from its provisions in a material particular, he cannot recover anything, not even the value of his work, although the work he performs is valuable and beneficial to the other party.
    5. A party contracting to perform work according to specifications agreed upon, is not at liberty to depart therefrom in material particulars, as his interest may prompt, and then claim to be paid, as upon a quantum meruit, the value of his work, on the ground that his work is beneficial or valuable to the other party.
    (Before Hoffman and Woodruff, J. J.)
    Heard, April 16th;
    decided, May 12th, 1860.
    Appeal from a judgment for the defendants on the report of Henry J. Scudder, Esq., as Referee, who, on the trial of the action, dismissed the plaintiff’s complaint.
    The action was brought to recover the amount alleged to be due by the defendants for work done by Philip J. Bonesteel, in regulating and grading Seventieth street, under an alleged contract between the defendants and one Nicholas McDonald, which contract was, with the consent of the defendants, assigned to the said Philip J. Bonesteel, by whom the work was done, so far as the contract was performed. After the alleged performance of the contract, Philip J. Bonesteel assigned to the present plaintiff his claim to the money alleged to be payable by the defendants. No question arose on the pleadings which does not sufficiently appear in the following statement of the facts :
    On the 10th June, 1851, the defendants, in common council convened, duly passed the following resolution and ordinance;
    “ Resolved, That Seventieth street, from the Tenth avenue to the Hudson river, be regulated and graded under the direction of the Street Commissioner, and that the accompanying ordinance therefor be adopted.

      “Be it ordained by the Mayor, Aldermen and Commonalty of the city of New Ybrh, in Common Council convened, that Seventieth street, from Tenth avenue to the Hudson river, be regulated and graded, under such directions as shall be given by the Street Commissioner and one of the City Surveyors.

      “ And whereas, the said Mayor, Aldermen and Commonalty deem it necessary, for the more speedy execution of the said ordinance, to cause the work necessary for the purpose above specified, to be executed and done at their own expense on account of the persons respectively upon whom, the same might be assessed: Therefore be it further ordained, that Samuel H. , Thomas Nicholson, and Isaac W. Smith be and they are hereby appointed assessors, to make a just and equitable assessment of the expense of conforming to the provisions of this ordinance, among the owners or occupants of all houses and lots intended to be benefited thereby, in proportion, as nearly as may be, to the advantages which each may be deemed to acquire.” On or about the 14th of August, 1851, John T. Dodge, then Street Commissioner, the proper officer for that purpose, in obedience to the said resolution and ordinance, issued and published a notice containing specifications of the work proposed to be done with a surveyor’s estimate of the probable amount of work, (or yards of excavation, &c.,) and inviting proposals from parties desiring to undertake the work, and the price or estimate of the amount or rate at which they would perform it. The material parts of such notice and specifications and estimate so published, are as follows:
    “ STREET DEPARTMENT,
    “ No. 4 Hall of Records.

    “To Contractors.
    “ Sealed proposals will be received at the Street Commissioner’s office until Eriday, August 27th, 1852, at 12 o’clock M., to regulate and grade Seventieth street from Tenth avenue to Hudson river.
    The street is to be regulated and graded in conformity to the Commissioner’s grade, as shown on the profile in the Street Commissioner’s office; and the carriageway and sidewalks properly shaped. The earth required to be excavated is to be used in regulating the street, and to be paid for only as excavation. The rock is to be excavated one foot below the finishing grade, and deposited on the street and in the river in continuation of the street, as the Surveyor directs, and to be paid for only as excavation. No boulders to be allowed for as rock. Stone culverts, three feet wide, by four feet high inside, to be built where directed.
    “All the work and materials to be under the direction and superintendence of the Surveyor, and such other person as may be appointed by the Street Commissioner to inspect the same; and any materials furnished or any work done not satisfactory to either of them shall be immediately removed, and other work done and materials furnished satisfactory to them.
    “Estimators will state in their estimates the prices for the following work and materials, as before mentioned: For excavating and removing earth, per cubic yard; for excavating and removing rock, per cubic yard; and for furnishing materials and building stone culverts, per lineal foot; also, the time required to complete the work. x x x x -x- -x- -x- * x x- xxx x x x x x
    “ The Surveyor’s estimate of the probable amount of work by which the bids will be tested, is as follows: 19,000 cubic yards of rock excavation, 6,000 cubic yards of earth excavation, and 80 lineal feet of stone culvert. * * * * * * * *
    “ Inasmuch as great latitude has heretofore been allowed in the fulfillment of contracts, notwithstanding clearly written stipulations to the contrary, signed by contractors, it is thought well to give express notice that, hereafter, contractors will be required to conform to the very letter of the specifications on any work which they may undertake. Contractors, therefore, will bear in mind that former precedents will not be received as an excuse; and that any work or materials not strictly in accordance with the specifications of their contract will be positively rejected.
    “Work or materials not specified, and price fixed on in the contract, will not be allowed for.
    “ Payment to be made on the confirmation of the assessment.”
    This notice and specification also stated that a strict compliance with the ordinances concerning “ contracts for supplies and work done for the Corporation,” will be observed and required in all cases.
    The said notice and estimate of work, and the specifications therein, being seen by Nicholas McDonald, he, in response thereto, (and among other persons desiring to perform the work,) presented his proposal, or bid, to the Street Commissioner, offering to do the work. His proposal and estimate was as follows; and it was accompanied by an affidavit and an instrument of agreement to become surety for him, which was signed by the before mentioned Philip J. Bonesteel, annexed thereto:

      “ Estimate for Regulating and Grading Seventieth street, from Tenth avenue to Hudson river.

    “ Dated August 27th, 1852.
    “ Made by N. McDonald, of the city of New York, Seventy-first street: I dp declare that I am the only person interested in this estimate, and that no other person than herein named has any interest in this estimate, or in the contract proposed to be taken.

      “2. I further declare, that this estimate is made without any connection with any other person or persons making an estimate for the same work; and is in all respects fair and without collu- ■ sion or fraud.
    “ 3. I further declare, that no member of the Common Council, head of a department, chief of bureau, deputy thereof, or clerk therein, or any other officer of the Corporation of the city of New York, is directly or indirectly interested therein, or in the supplies or works to which it relates, or in any portion of the profits thereof.
    “ 4. I refer to the estimate and specification as forming part of this estimate, issued by the Street Commissioner for estimates in relation to this contract, dated August 14th, 1852, and signed by him.
    “For excavating earth, per cubic yard,.............12^ cents.
    For “ rock, “ “ “ .............62£ “
    For culverts, per running foot,...................90 “
    “ City and County of New York, ss:

      “ Nicholas McDonald, being duly sworn, says: That the several matters stated in the annexed estimate are in all respects true.
    “ Nicholas McDonald.
    “ Sworn and subscribed to, this )
    27th day of August, 1852, j
    “M. G. Hart,
    “ Gommr. of Deeds.”

    “In consideration of the premises, and of one dollar to us paid, we, the undersigned, consent and agree, that if the contract mentioned in the annexed estimate be awarded to the person or persons making the estimate, they will become bound as sureties for its faithful performance, and that if the said person or persons shall omit or refuse to execute the said contract, if so awarded, we will pay to the Mayor, Aldermen, and Commonalty of the city of New York any difference between the sum to which such person or persons would be entitled upon the completion of such contract and that which the said Mayor, Aider-men, and Commonalty may be obliged to pay to the next highest bidder, to whom the contract may be awarded.
    “Witness our hands this 26th day of August, A. D., 1852.
    “ P. J. Bonesteel.
    “ J. W. Tbipp.
    “ In presence of
    “ Chables Holmes,
    “ Oommr. of Deeds."

    The said Nicholas McDonald being the lowest bidder, the contract was awarded to him as required by the ordinances referred to in the Street Commissioner’s said specification.
    Two of the said ordinances are as follows:
    “ § 493. All contracts to be entered into on the part of the Corporation, for the purpose mentioned in the last section,” (which includes work to be done for the Corporation,) “ must be authorized by the Common Council; and when so authorized, shall be made by the department under whose direction the supplies are to be furnished, or the work performed,” (excepting certain contracts not relating to the subject now in question.)
    “ § 494. No contract shall be made, signed, or executed, until proposals therefor have been advertised, and estimates received and decided upon, as provided by the ordinance (except when otherwise provided by law); nor shall any contract be made, signed, or executed, for a sum exceeding two hundred and fifty dollars, until all the proposals, estimates, contracts, and papers relating thereto shall have been laid before the Common Council, and confirmed by them, and an appropriation made therefor.”
    McDonald’s bid or proposals and estimate and papers above mentioned were laid before the Common Council, and the award to McDonald was confirmed.
    Thereafter the Street Commissioner caused to be prepared an agreement, which was executed by the said McDonald on his part and by the Street Commissioner on behalf of the defendants, the parts whereof that are material to be stated are as follows:
    “ This agreement, made and concluded this twenty-first day of October, in the year of our Lord one thousand eight hundred and fifty-two, between the Mayor, Aldermen, and Commonalty of the city of New York, by their Street Commissioner, John T. Dodge, of the first part, and Nicholas McDonald, of the said city, contractor, of the second part, Witnesseth: That the said party of the second part has agreed, and does hereby agree, under the penalty expressed in a bond bearing even date herewith, to furnish all the materials and labor to regulate and grade Seventieth street from Tenth avenue to Hudson river, according to the specification.
    “The street is to be brought to the grade-line on the profile in the Street Commissioner’s office. The sidewalks to be regulated with a sufficient rise from the curb-grade, and the carriageway to be properly shaped, under the direction of the Surveyor. The contractor to excavate the portion above the grade, and fill it into the portion below, which is only to be allowed for as excavation, and to furnish and fill in surplus earth; the rock to be excavated two feet below the line of the curb-stone grade, and to be allowed for as excavation only; no boulders to be measured or allowed for as rock; all the rock excavated by the contractor to belong to him, upon his furnishing at his own cost an equal quantity of earth, and filling it on the street where required.
    “Firm and substantial stone culverts, three feet wide and four feet high, tobe built in each part'of the street as maybe directed by the Surveyor.
    •if ff ■K' ff -If 4f if *!f if if if if if if if if if if
    “ And the party of the second part hereby agrees * * * to conform the work to such further directions as may be given by the Street Commissioner and one of the City Surveyors * * * ****** anq that he will commence the aforesaid work without delay, and progress therein, so as to complete the same by the 21st day of June, one thousand eight hundred and fifty-three.”
    The specification in this contract referred to is what is contained in the notice issued by the Street Commissioner, but the contract did not in terms require McDonald to use the earth and rock excavated solely on the street, and by depositing it in the river in continuation of the street as the Surveyor directs. But the contract did in terms recognize and refer to the specification.
    The foregoing facts are found in substance, and the Referee found further, as follows:
    “ Fifth. That Gardner A. Sage was appointed, by the Street Commissioner, Surveyor of the work, and gave the contractor the grade-lines of the street, and directed the work to be done in conformity with the specifications contained in the notice to contractors, read on the trial, and the excavation to be only one foot below the curb-grade, and that the rock excavated should be deposited in the river in continuation of the street.

      “Sixth. That considerable quantities of earth and rock were deposited in the river outside of high-water mark, as directed by the Surveyor, but the larger portion thereof was not so deposited, and that the contractor refused so to do, and converted the same to his own use.”
    (The proof was that he sold it for his own benefit, notwithstanding the directions of the Surveyor to desist, and to deposit it in the river.)
    “ Seventh. That the surface of said street was graded in conformity with the established grade of Seventieth street, and was graded as well as is usually done in such cases, and as directed by said Surveyor, from Tenth avenue to high-water mark of the Hudson river, and that said grading was completed some time in the year 1855.

      “FKghth. That the quantity of work done was 16,837 cubic yards of rock excavated, 8,879 cubic yards of earth excavated, and 100 lineal feet of stone culvert built, which, at the price mentioned in the contract set out in the complaint, would amount to $11,733.
    “ Ninth. That the said contract was assigned by McDonald to Philip J. Bonesteel, before any work was done, and that all the work was done by said Bonesteel, assisted by said McDonald at the commencement, and afterwards by one Bradley; and that said Bonesteel never saw said notice to contractors, or any other paper, directions or specifications, than such as are contained in the contract assigned to him.

      “ Tenth. That the grade of the street, at the point of crossing the Hudson River Railroad, was 17£ feet above the grade of the railroad. The work of grading the street was suspended for twelve months for the bridge across the railroad to be built, which was built for or by the Railroad Company, and that said work of grading was not completed within the specified time, by reason of said bridge not being built by said Railroad Company.”
    The following are the Referee’s conclusions of law:

      “Mrst. That the only contract between the parties, proven on the trial, was the notice to contractors, the written bid of McDonald, and the acceptance of such bid by the defendants and that such contract not having been fully performed by the assignor of the plaintiff, in not depositing the surplus rock in the river, in continuation of the street, the plaintiff cannot recover.
    “ Second. That the contract set out in the complaint, not being conformable to the notice to contractors in requiring the surplus rock to be deposited in the river in continuation of the street, is void.
    “ Third. That the complaint should be dismissed, with costs.”
    Judgment dismissing the plaintiff’s complaint, with costs, was entered, from which he appealed to the General Term.

      C. L. Monell, for the plaintiff (appellant).
    I. The Referee erred in deciding that the only contract between the parties was the notice to contractors, the written bid of McDonald, and the acceptance of his bid by the defendants.
    1. The contract set out in the complaint was admitted to have been executed between McDonald and the Street Commissioner.
    2. Such contract was entered into after all the requisites of the statute and of the defendants’ ordinances had been complied with, and after it had been confirmed by the Common Council, and by them awarded to McDonald.
    3. The notice to contractors, the bids for the work, the acceptance of McDonald’s as the lowest, the confirmation by the Common Council, and the awarding the contract, were preliminaries required by the defendants’ ordinances to render the contract valid. Until all these were done, there was no authority for the Street Commissioner to make a contract for public work.

      4. The Corporation, by general ordinance, have committed the duty of issuing proposals, receiving bids, declaring who is the lowest bidder, and executing contracts for work of the character performed in this case, to the Street Commissioner; but declaring that no contract shall be executed by him until the proposals and estimates have been laid before the Common Council, and confirmed by them.
    5. Until the proposals and estimates are laid before the Common Council, and confirmed, the Street Commissioner is not authorized to execute a contract. Upon confirmation of his decision, as to the lowest bidder, he is directed to execute the contract.
    6. The contract thus directed, and such as was executed in this case, is presumed to contain the whole of the agreement between the parties, and to embrace and include all the previous and preliminary matters, from the passage of the ordinance to the signing of the contract. It was complete in all its parts, was unambiguous, required no explanations, and imported on its face all that the parties agreed to.
    7. Had not the terms of the agreement been reduced to writing, and the instrument set out in the complaint signed by McDonald and the Street Commissioner, no doubt the bid and acceptance of it would, of itself, have been a legal contract. (Hunt v. City of Utica, 18 N. Y. R., 442.)
    But here, the bid, and acceptance of it, and all the details of the agreement, together with the specifications for the work, were merged in the only contract the Street Commissioner was authorized to execute. If this be not so, why execute a contract at all? If the bid, predicated upon the notice, and its acceptance was the only contract between the parties, the ordinance requiring the Street Commissioner, after a confirmation of his decision as to the lowest bidder, to execute a contract, was quite unnecessary.
    8. It was not in the contemplation of either of the parties that the contract should rest in the notice to contractors, the bid and acceptance merely, but that its terms should be subsequently reduced to writing, and signed by the contracting parties. And the uniform practice has been, upon the acceptance of a bid, to execute a contract with the successful bidder. Such seems to have been the view of the late Chief Justice, in Smith v. Mayor. (4 Sandf. S. C. R., 221.)
    9. The contract as signed by the parties differs in some particulars from, and contains much more than is embraced in, the notice to contractors.
    There cannot, it seems to me, be a reasonable doubt, that the contract set out in the complaint was the only contract between the parties, and that all that preceded it was merged in that instrument. And the judgment dismissing the complaint cannot be sustained on the ground, that the proposal, bid, and acceptance was the only contract.
    II. The Referee erred in deciding that the contract executed by McDonald and the Street Commissioner was void, not being conformable to the notice to contractors in requiring the rock to be deposited in the street, and in the river in continuation of the street.
    1. The ordinance, which was the only authority to the Street Commissioner to issue the notice to contractors, directed that Seventieth street be regulated and graded from the Tenth avenue to the Hudson river, under the direction of the Street Commissioner. Any contract to regulate or grade beyond the Hudson river, i. e., high-water mark — would have been ultra vires and void.
    2. The notice for proposals, in requiring the deposit of rock in the river, and beyond high-water mark, carried the work further than the ordinance permitted, and was therefore entirely unauthorized.
    " 3. The general ordinances of the Corporation prescribe what shall be contained in the proposals for estimates, and nowhere is there any authority for the Street Commissioner to exceed or limit the ordinance, which is the basis of his action. The words “ under the direction of the Street Commissioner,” in the ordinance, have respect to the work permitted by the ordinance, and do not enlarge the powers of the Street Commissioner.
    4. But, if there was authority for the Street Commissioner to enlarge the ordinance, and to issue proposals for more work than the ordinance required, it was competent for him to limit by his contract, subsequently entered into, the work to the extent permitted by the ordinance. This was done by the contract he made with. McDonald, which is to regulate and grade the street “ to the Hudson river,” in the words of the ordinance; and this is presumed to include all the parties agreed to. The rock, which, by the proposals, was to be deposited in the river, by the contract was given to the contractor.
    III. Though the contract was void for the reason given by the Referee, or for any other reason, yet the contractor having Iona fide completed the work, and it having inured to the benefit of the city the plaintiff is entitled to recover upon a quantum, meruit.

    The testimony of the Surveyor appointed by the Street Commissioner to superintend the work is, that he gave full directions to the contractor in respect to the work, and “ that the work was completed between the Tenth avenue and high-water mark of the Hudson river, as well as is usually done in such cases.” And the Referee finds the same.
    Having therefore completed the work under his contract, he is entitled, notwithstanding any infirmity in his contract, to be paid what the work is reasonably worth.
    The Corporation has received the benefit of the work, a recovery can be had upon a quantum meruit. (Clark v. Guardians of C. U., 11 Eng. L. & Eq., 442; Bulkley v. Derby Fishing Co., 2 Conn., 252, 260; Sanders v. Guardians of St. Noet's Un., 55 Eng. Com. L., 810; Doe v. Taniere, 64 id., 1013; Reuter v. The Electric T. C., 6 Ellis & Black., 341; Bigelow v. City of Perth Amboy, 1 Dutch., [N. J.,] 297.)
    A municipal corporation is governed by the same rules, as to its liability, as apply to private corporations or individuals. (Peterson v. Mayor of New York, 17 N. Y. R., 449.)
    IV. The case presents itself strongly to the favor of the Court. It is meritorious in any aspect in which it can be viewed. There is no suspicion or pretense of fraud. It is not disputed that McDonald was the lowest bidder; that his bid for the work was very low; that-Bonesteel performed the work faithfully; that he never saw the proposals or any other specifications for the work, than such as were contained in the contract assigned to him by McDonald; and that the city has received the benefit of the labor and money expended by him.
    The judgment should be reversed, and a new trial granted.

      Greene C. Bronson, for defendants (respondents).
    L The Referee correctly decided that the notice to contractors, the written bid of McDonald, and the acceptance thereof, constituted the only contract which the Street Commissioner had power to make for the work in question. (Smith v. Mayor, &c., 4 Sandf., 221, 226; Brady v. Mayor, &c., 2 Bosw., 173.)
    Even if the Street Commissioner stood in the character of an agent of the defendants, the plaintiff and all others dealing with him were chargeable with knowledge of the extent of his authority, it being defined by law. (Delafield v. State of Illinois 2 Hill, 159, 175.)
    II. The contract not having been fully performed by the assignor of the plaintiff, in not depositing the surplus rock in the river in continuation of the street, no recovery can be had upon it. (Smith v. Briggs, 3 Denio, 73.)
    III. The Referee was also right in holding that the contract set out in the complaint was void, because it did not, in essential particulars, conform to the notice to contractors. (See cases under Point I.)
    IV. If it be contended that the words “ according to the specification,” in the contract, refer to the notice or estimate, and not to what therein follows, then they, necessarily form a part of the contract, and the result is the same for the breaches alleged and found. (Rogers v. Kneeland, 10 Wend., 219; Coddington v. Davis, 1 Comst., 186.)
    I. The contract and notice are consistent in requiring the rock to be excavated below the line of the curb-stone grade, and the failure to do this was sufficient to prevent a recovery upon the contract.

      (a.) That the manner in which this was done was according to the direction of the surveyor, affords no excuse for the default. The stipulation in this respect was plain, and none but the defendants could waive performance. (2 Hill, 175.)
    V. If the Street Commissioner could exercise the power claimed for him by the plaintiff, then he can substantially change the contract, override the proposals, and defeat the very object of the ordinance.
    The judgment should be affirmed.

       Affirmed in the Court of Appeals, 22 N. Y. R., 162.

   By the Court—Hoffmam, J.

There are two aspects in which the case may be considered.

The contract between the plaintiff’s assignor, McDonald, and the defendants, is to be treated, First, as contained in the ordinance of the 10th day of June, 1851; the notice and specification of the Street Commissioner of the 14th day of August, 1852; the proposal of McDonald of the 27th day of August, with its affirmation and acceptance, and the agreement of the 31st day of October, 1852; or, Second, (as the Referee has concluded,) as contained in all of these documents except the last.

In examining the case on the first hypothesis, we find that McDonald, in Ms proposal and estimate, refers to the specification of the 14th day of August, as forming part of his own estimate. The agreement of October declares, “ that he agrees to furnish all the labor and materials to regulate and grade Seventieth street, from Tenth avenue to Hudson river, according to the specifications If such specification was the notice of August, that explicitly declared “ that the rock was to be excavated one foot below the finishing grade and deposited on the street and in the river, in continuation of the street, as the Surveyor directs, and to be paid for only as excavation.” That notice containing this clause was plainly the specification adopted and referred to in McDonald’s estimate and offer; and we think it was also the specification referred to and adopted in the agreement of October.

It is found “that considerable quantities of earth and rock were deposited in the river outside of higMwater mark, as directed by the Surveyor; but the larger portion thereof was not so deposited, and that the contractor refused so to do, and converted the same to Ms own use.

By the term “contractor” is no doubt meant Philip J. Bone-steel, to whom the contract had been assigned by McDonald, and by whom all the work was done.

In this view, the specification containing the clause in question has been made as fully part of the contract, as if it had been set forth at length and adopted in it. Theinstrumen ts are so connected together by a sufficient reference, as to make them all constitute the contract between the parties. Hills v. Miller, (3 Paige, 254,) and the cases there cited, declare the rule when there are several cotemporaneous instruments in relation to the same subject-matter. Van Hagen v. Van Rensselaer, (18 John., 420,) Adams v. Hill, (16 Maine, 215,) Rogers v. Kneeland, (10 Wend., 219,) are examples of its application to instruments executed at different times, but connected by the subject and a reference.

It appears to me clear that Philip J. Bonesteel, the assignee of McDonald, and who actually performed the work, must stand as to every obligation, duty and right, precisely as McDonald would have stood; that he is chargeable with knowledge of every thing between the original parties, affecting their legal relations; and certainly, that he could not become assignee of a contract referring to a specification as regulating its execution, without being as much bound by it as if he had been personally privy to it. The fact found that he did not see the notice to contractors, or other papers, is wholly immaterial. It was impossible that he could, without some new action, acquire any better right or claim, or be in any different legal position than his assignor.

Besides, it is found that the direction of the Surveyor was, that the work was to be done according to the specifications in the notice, and that the rock was to be deposited in the river in continuation of the street. This the contractor refused to do, and converted the large portion of the rock to his own use.

Second. We concur also in the view taken by the Referee, so far as to hold, that if the clause in question is no part of the actual contract between the parties, then the agreement between the Street Commissioner and McDonald was inoperative, because unauthorized. The contract which the defendants had before them and confirmed, was a contract embracing the provision. The Street Commissioner was powerless to bind the defendants to any contract of which that provision was not, in some form, an integral portion. It was that which they had confirmed under the 494th section of the ordinances given in evidence, and no other.

The breach of the contract, and the breach in a matter which must be assumed to have been material, is apparent and flagrant. The plaintiff cannot sustain a claim upon the contract with any shadow of pretense.

It is then insisted, that he shall be entitled to recover for the value of the work he has actually performed.

' It is obvious that the adoption of such a principle will sanction the violation of every stipulation or covenant, however important to one contracting party, at the risk merely of the violator losing some profit derivable from its entire completion, but with the certainty of being fully reimbursed for whatever he performs, and possibly with the result of profiting by his own neglect. In short, it breaks down a contract which was indivisible and entire, and demanded compliance in every material particular, into a contract fashioned and performed according to the will or the interest of one party to it.

The case of Brady v. The Mayor, &c., of New York, (2 Bosw. R., 173; Court of Appeals, 20 N. Y. R., 312,) settled that a contract made in violation of the provisions of the 12th section of the charter of 1853, was void. ■ The Court of Appeals say: “ It was not necessary to deny that one who has bona fide performed work under a contract which is void, from a failure to comply with the statutes, may maintain an action against the city to recover a quantum meruit, where the work has been accepted by the city, and has gone into use for public purposes.” There was no acceptance or ratification, and the decision of the Superior Court was not interfered with on this point. The Court of Appeals has in no way intimated that a recovery as for a quantum meruit can be had by one who willfully violates a material portion of the contract he has entered into.

The learned counsel asks us to review the rule stated in that case, or not to apply it to the one before us, upon the strength of several authorities which he cites.

Clark v. The Guardians of Cuckfield Union, (11 Eng. L. & Eq. R., 442,) was the case of work done on behalf of a corporation, necessary for its purposes, faithfully done, and accepted and profited by; the whole consideration for the payment was executed. The corporation could not defend, on the ground that the contract was not under seal.

Bulkley v. Derby Fishing Company, (2 Conn. R., 252,) was the case of an insurance company, pursuing a course of contracting through agents, for some length of time; profiting by it—never disavowing it—and which, if not prescribed, was not prohibited by, or at variance with, the charter.

Reuter v. The Electric Telegraph Company, (6 Ellis & Black. R., 341,) is also found in 37 English Law and Equity Reports, 189. There was a parol agreement between the plaintiff and the chairman of the Company, to do certain work for it. By the charter, the contracts of the company for labor, &c., when under £50, might be entered into by any officer empowered by the Directors. Other contracts were to be entered into and signed by three Directors, or to be sealed. It was held, that the objection of the want of a seal was invalid. Next, that even supposing that the consideration which passed exceeded £50, and the contract by the chairman was originally ultra vires, yet it had been acknowledged and ratified by the Company, so as to render it binding upon them. “ The deed of settlement declares, that the Directors shall manage the affairs of the Company, and shall exercise all powers which may be exercised by the Company at large. The facts set out in the case afforded abundant evidence that the Directors were made acquainted with the new contract, approved of it, and acted upon it.”

In Bigelow v. The City of Perth Amboy, (1 Dutch. [N. J.] R., 297,) it was expressly ruled that the city had the corporate power to make the purchase in question, and incur the debt. The creditor had nothing to do with the use of the materials afterwards.

In Sanders v. The Guardians of St. Noet’s Union, (8 Adolph. & Ellis R., N. S.; 55 Eng. Com. L. R., p. 810,) work was done for purposes connected with the objects of the corporation. It was accepted and adopted. The objection that the contract could only have been made under seal was untenable.

Doe v. Tanniere (64 Eng. Com. L. R., 998,) rests upon a similar principle.

Such authorities are widely different from the case before us, of an intentional violation of a material part of an indivisible contract, without any act of ratification in any legally known manner —indeed, without proof of the body having profited by the work.

It seems scarcely necessaiy to advert to the numerous and decided cases in our State, in which, when the performance of a contract is one entire thing, and the contract has been broken, no ground of action exists for the value of that part which may have been performed. (Mead v. Degolyer, 16 Wend., 632; Paige v. Ott, 5 Denio, 406, and cases of a similar character.)

We think the judgment should be affirmed.

Judgment affirmed,-with costs.