author: By the Court. Slossoh, J.

text:
    Adrian H. Muller, Plaintiff and Respondent v. John T. B. Maxwell, Defendant and Appellant.
    1. When the written terms of a sale of a lease of real estate for a period of fifteen years are, that “ the lessee will pay the auctioneer his fee of $10, for each year, being $150, in cash, this day,” and the person purchasing, at the time of such purchase, signs a paper-writing, (at the foot of such written terms,) which states, that he has leased such real estate for the sum of $8150 per annum, and “ agrees to comply with the terms above set forththe auctioneer, (a lease of the premises having been made to, and accepted by such purchaser,) may maintain an action in his own name, against the purchaser, to recover such fees.
    2. The purchaser, in such a case, by force of the terms of sale, and of his agreement to comply therewith, promises to pay the auctioneer’s fees directly to the auctioneer. The grant of the lease to the purchaser, and his acceptance of it, are a sufficient consideration for the promise. The auctioneer is the actual party in interest, as promisee, and alone entitled to receive the fees, and may sue, in his own name, to recover them.
    (Before Bosworth, Hoffman, Slosson, and Woodruff, J. J.)
    Heard, Dec. 12;
    decided, 19, 1857
    This is an appeal by the defendant, Maxwell, from an order made at Special Term, November 10, 1856, overruling his demurrer to the plaintiff’s complaint.
    The complaint states, that “ the plaintiff heretofore, and on or about the 26th day of February, 1856, was employed as auctioneer, by Messrs. Thompson, the owners of the premises hereinafter mentioned, or persons entitled to make the lease hereafter mentioned, to offer, at public auction, in the Merchants’ Exchange, in the City of Hew York, a certain lease or right to have a lease of the premises Ho. 38 Wall street, in the City of Hew York, under the terms of sale and written conditions, a true copy of which is hereto annexed, marked A; that, at the time and place aforesaid, the plaintiff, as such auctioneer, offered said lease and right to take a lease at public auction, under the aforesaid terms and conditions, which were then and there read and announced as the terms and conditions upon which said lease was offered, and the defendant then and there bid and agreed to pay the-yearly rent of eighty-one hundred and fifty dollars for said lease, under said terms and conditions; and the rights offered, and the benefits mentioned in said terms and conditions were thereupon struck down to the defendant, who thereupon subscribed a memorandum annexed to said terms and conditions, a true copy of which is hereto annexed, marked B; and the defendant, in consideration of the premises and the agreement of the aforesaid employer of the plaintiff, to execute and deliver the lease mentioned in said memorandum, then and there made with him, agreed, at the same time, to take such lease, and fulfil the said terms and conditions mentioned in said memorandum, on his part, and further agreed with the plaintiff’s said employer, and also with the plaintiff, to pay to the plaintiff the sum of one hundred and fifty dollars, for his services in the matters aforesaid, in cash, on the' day of sale ; that the plaintiff, and also his said employer, has fulfilled all the conditions precedent of said agreement, on his part, and the lease mentioned in said memorandum has been given to the defendant, or his assignee, or nominee, prior to the commencement of this action; but that the defendant 'has not paid the sum of one hundred and fifty dollars, so agreed by him to be paid to the plaintiff, in and by said terms and conditions, and his subjoined memorandum, though the same has been demanded from him, but the same remains wholly due and unpaid.
    “ Wherefore the plaintiff demands judgment against the defendant in this action, for said sum of one hundred and fifty dollars, and interest thereon, from the 26th day of February, A. D., 1856.”
    A.
    “ Terms of Sale of Lease, 38 Wall Street “The lots, with the buildings thereon, No. 38 Wall street, will be leased for fifteen years, from 1st day of May, 1856, at so much per annum, payable quarterly on the usual quarter-days.
    “ The lessee will be required to covenant to pay all taxes and assessments, including the Croton water tax, from the 1st day of May, 1856, during the whole term of said lease.
    “ The lessee is to have the privilege of making any alterations in the building, which shall be left on the premises at the expiration of said lease. Satisfactory security is to be given by the lessee, if required by the lessor, for the faithful fulfilment and performance of all the covenants of the lease. The parties taking the lease must be prepared to execute the papers on or before the 4th of March next, at the office of Anson Livingston, No. 52 John street, who will give all necessary information as to title.
    “ The lessee will pay the auctioneer his fee of $10 for each year, being $150, in cash, this day.

      “Bated New York, Feb. 26,1856.
    B.
    “ I have leased the premises, No. 38 Wall street, for the sum of $8150 per annum, and agree to comply with the terms above set forth. John T. B. Maxwell.”

      " New York, Feb. 26, 1856.”
    The defendant demurred to the complaint, on the ground that it “ does not state facts enough to constitute a cause of action.” The demurrer specified, as reasons for the insufficiency of the complaint, the several propositions contained in the points made by the appellant, on the argument of the appeal.
    On the argument of the demurrer, at Special Term, an order was made “that the plaintiff have judgment on the said demurrer, unless the defendant answers within twenty days after service of a copy of this order, and pays to this plaintiff $22, costs of the said demurrer.”
    From that order, the present appeal is taken.

      B. F. Mount, Jr., for defendant, the appellant.
    I. The written instrument, upon which this action is brought, is void, because—1. It is not subscribed by the parties by whom the lease was to have been executed; nor do their names appear therein. (2 R. S. 135, § 8, orig. edit.) 2. It expresses no consideration. 3. It is not mutual: the defendant could have no claim or right of action against the plaintiff. (Champlin v. Parish, 11 Paige R. 405; Mc Whorter v. McMahon, 10 Paige R. 386 ; Townsend v. Hubbard, 4 Hill R. 351.)
    H. The contract is entire, and not divisible; and if void in part, it is void altogether. (King v. Brown, 2 Hill R. 485; Thayer v. Bock, 13 Wend. R. 53.)

      III. The agreement, if any, was made with the owners of the premises, and this action should have been in their name.
    IV. If the instrument be divisible, and allowing one action thereon for the benefit of the lessors, and another by the plaintiff, for his fees, even then, the fulfilment, by the defendant, of one part, does not take the case out of the statute. '
    V. The instrument was not made valid by the subsequent fulfilment of any part of it. It had no reference to any future consideration, and if void at the time of its execution, it was void for all times: a fortiori, if the alleged undertaking with the plaintiff is to be considered as independent.
    VI. The payment of the plaintiff’s fees is not one of the “terms of the lease,” expressed in the instrument.
    VII. The services of the plaintiff were a past consideration when the defendant signed the instrument, and arose out of his engagement with his principal. The undertaking of the defendant, therefore, is to answer for the debt of another, and should express the consideration. (2 R. S. 135.)

      Weelcs and De Forest, for respondent.
    I. Upon the facts stated in the complaint, independently of the averment of an express promise, the defendant became liable to pay the plaintiff as soon as the lease was struck down to him.
    II. The complaint, in addition, sets forth an independent agreement, for sufficient consideration, made directly between the defendant and plaintiff, to pay the latter.
    III. The promise set forth is, to pay the plaintiff for his services as auctioneer, etc.; and, being for the benefit of the plaintiff, he is the proper party to sue upon it. (Schemerhorn v. Vanderheyden, 1 Johns. Reports, 138; Ellwood v. Monk, 5 Wend. 235 ; Brewer v. Dyer, 7 Cushing, 338.)
    IV. Taking the entire complaint together, it appears that, before making the lease, it was well understood between the parties, that the person who received it was to pay the plaintiff his stipulated fees. The defendant, having accepted the lease upon this understanding, is bound to pay the $150, as part of the consideration-money.
   By the Court. Slossoh, J.

—Whether the memorandum, annexed to, and forming part of the complaint, was a sufficient memorandum, within the statute of frauds, to bind the owner of the premises to make the lease, in pursuance of the sale at auction, it being signed neither by the owner nor by a duly authorized agent, is not a question which can be raised on this demurrer; since the owner has actually executed the lease to the defendant, upon the terms upon which the premises were bid off by him.

Had the memorandum been actually signed*by the owner, or by the plaintiff, as his lawfully authorized agent, it would, though not signed by the defendant, have bound the latter, and have created, in respect to the auctioneer’s fees, a privity of contract between him and the plaintiff, which would have entitled the latter to sue for the fees, in his own name. (Bleecker v. Franklin, 2 E. D. Smith, R. 93.)

But the memorandum is actually signed by the defendant, and, by it, he expressly agrees to pay the auctioneer the fees for which he now sues. Whether this be treated as a stipulation with the owner, to pay the auctioneer, or with the auctioneer himself, in either case, the latter may sue for them in his own name.

The argument, that the owner of the premises was not bound by the memorandum, and therefore, the defendant is not bound, is answered by the fact, before adverted to, that the owner has complied with the terms of it, and executed the lease.

The defendant cannot now object to its sufficiency, both parties having acted under it, and the defendant having received the benefit of it.

Besides, the complaint alleges a distinct agreement, by the defendant, with the plaintiff, to pay the fees in question, for his services as auctioneer, and that the services were rendered.

This the demurrer admits. Sucha promise, would not be a promise to pay the debt of another, but an original undertaking of the defendant himself, and would be good, though not in writing.

In every aspect, the demurrer is not well taken.

The order must be affirmed.

Affirmed accordingly.


source: Caselaw Access Project

author: By the Court. Hoffman, J.

license: Public Domain

text:
    James Ross and William Newell, Plaintiffs and Respondents, v. George E. West, Defendant and Appellant.
    1. If one partner, upon a dissolution of his firm, assigns, to liis co-par.tners, all his interest in all the property and assets of the firm, and covenants not to interfere ■with the collection of the debts owing to the firm, and subsequently, for a valuable consideration received by himself, settles and receipts, as paid to him, one of the debts so assigned, an action will lie against him, at the suit of his co-partners, to recover the amount of such debt.
    2. It is no answer to such action, that the original debtors might, notwithstanding such settlement, be sued by his co-partners to recover such debt, on the ground, tiiat no money was paid or property delivered on such settlement, but that the defendant receipted the debt, as paid to him, on receiving from such debtors a receipt that he had paid to them, in full, a debt of an equal amount which he, individually, owed to them.
    8. The Court, at General Term, on an appeal from a judgment rendered at Special Term, or entered on the report of a referee, cannot look into -the question, whether a previous order, requiring 1he defendant to be arrested and held to bail in the action, was properly granted.
    (Before Duer, Ch. J. and Hoffman and Pierrepont, J. J.)
    Heard, Jan. 6;
    decided, Jan, 30, 1858.
    The complaint alleges, that on or before the 20th of October, 1854, the plaintiff Newell and the defendant were partners in business, and as such, had divers assets; and that on that day, the defendant, for value received, sold and assigned to the plaintiffs, jointly, “ all his interest in each and every of said assets, and in all the partnership property; and among said assets, so sold and conveyed, was an account and demand against the firm of Blood-good & Bouse, for the sum of $237.97, due and owing said co-partnership ; and after said conveyance, and on or about the 5th of December, 1854, the defendant received and collected, from said Bloodgood & Bouse, the said sum of $237.97 in full of said account, and receipted for and discharged the same without the authority of the plaintiffs; and though often requested, has not paid the said moneys so collected, nor any part thereof, hut is still indebted therefor,” and prays judgment for $237.97, with interest from December 5, 1854.
    The answer admits the transfer by West, to the plaintiffs, of his interest in the partnership, and alleges it was a limited partnership; that Ross was the special partner, and that it continued until the 1st of January, 1855. It puts at issue the allegations as to Bloodgood & Bouse being debtors of the firm, and as to the settlement of their alleged debt. It sets up matters by way of counter-claim, and prays judgment against the plaintiffs for $12,300, with interest from the 20th of October, 1854.
    The action, being at issue, was referred to a referee, to be tried and decided by him. On the trial, among other evidence, there was produced a written and sealed agreement, dated October 20th, 1854, signed by all the parties to this action, which recited, that the three were partners, that the plaintiffs had purchased West’s interest, and by which said agreement, he sold and assigned to them all his interest in the property and assets of the firm, and covenanted that he would “not use the partnership name or credit in liquidation, or for any other purpose whatever.” The referee’s report, exclusive of* its recitals, reads thus, viz:—■
    “I find, that all the facts stated in the complaint in this action are true, as therein stated; that the manner in which the defendant received and collected from the firm of Bloodgood & Bouse, the sum mentioned in said complaint, was by receiving from the firm of Clement & Bloodgood, who were in the habit of paying the bills of Bloodgood & Bouse, a receipt and discharge of a similar amount of indebtedness, due from the defendant to said Clement & Bloodgood, and thereupon giving a receipt for said sum due, from Bloodgood & Bouse, to the firm of West & Newell, and signing the name of West & Newell to such receipt.
    “I further report, that the counsel for the defendant, with the assent of the counsel for the plaintiffs, voluntarily withdraws the counter-claim set up in the answer, without prejudice to his right to avail himself of the same in another action.
    “I find, as matter of law, from the foregoing facts, that the plaintiffs are entitled to recover, from the defendant in this action, the amount claimed in the said complaint, with interest from the 5th day of December, 1854, amounting to $36.78, and making, in the aggregate, for principal and interest, the sum of $274.75.
    “I do, therefore, decide, adjudge and report, that the plaintiffs in this action, are entitled to recover, from the defendant, the said sura of $274.75, together with the costs of this action.

      “All of which is respectfully submitted.
    “ Dated Kew York, February 20th, 1857.”
    When the plaintiffs rested their case, the defendant’s counsel moved that the complaint be dismissed, and a report made in favor of the defendant, on the grounds—
    1st. That there was no conversion of money or property of the plaintiffs proved.
    2d. That the complaint sets forth that the defendant received and collected from Bloodgood & Bouse the money: whereas the evidence of the plaintiffs is, that the amount of the receipt given by West was credited by the witness, Clement, upon the claim which Clement & Bloodgood held against West; and that there is a failure of proof on the part of the plaintiffs.
    3d. That the defendant received no money or other valuable consideration of Bloodgood & Bouse, or of Clement & Bloodgood; the original indebtedness remains intact, and the giving and crediting of the receipt, made by West, upon an individual debt, is not a new consideration.
    4th. Such act cannot be construed into a tortious, or fiduciary transaction.
    The referee denied the motion, and the defendant’s counsel excepted.
    Judgment having been entered on the report, the defendant appealed from the judgment, to the General Term.

      Geo. Shea, for defendant, the appellant, made and argued the following points:—
    I. The complaint states that the defendant “received and collected,” of Bloodgood & Bouse, money. The evidence is, that the amount named in the receipt given by the defendant was, in form, passed by the witness to the credit of West, upon the claim which Clement & Bloodgood held against the defendant individually. There is a failure here of proof. (Code, § 171.)
    II. The evidence does not prove the conversion of any tangible property of the plaintiffs, or any injury done to the plaintiffs’s interests. 1. West, as partner, or assumed agent, was possessed of no power to create or discharge a partnership liability or claim, when it was for the manifest purpose of being credited therefor upon, a past individual indebtedness. 2. Clement & Bloodgood parted with nothing for the receipt. (Stewart v. Small, 2 Barbour’s S. C. R. 566.)
    III. This action cannot be said to be brought upon the theory that the plaintiffs have waived the alleged tort and fraud, and rest their claim on the assumption that West was authorized to do the act stated, as their agent. They expressly disclaim any such waiver, the complaint stating that the defendant acted “ without the authority of the plaintiffs.” There is no ratification or adoption of his act.
    IV. This action can only be maintained by, predicating it upon the idea that the agent has, by such act, discharged the plaintiffs’ claim against Bloodgood & Bouse. The plaintiffs properly place their right of action on such idea. (Beardsley v. Boot, 11 John. R. 465.) 1. The plaintiffs’ right to recover of Bloodgood & Bouse remains intact. They have not lost or gained any thing by the nugatory act of West. (Underwood v. Nicholls, 33 Law and Equity R. 321; Dob, et al., v. Halsey, 16 Johns. R. 34; Gram v. Cadwell, 5 Cowen R. 489.) It is a good defence, that the misconduct of the agent has been followed by no loss or damage to the principal; for the rule then applies, that although it is a wrong, yet it is without damage, and to maintain an action, both must concur. (Story on Agency, § 236.)
    Y. The defendant is not estopped from availing himself of the real nature of the alleged act, as proved by the plaintiffs. 1. The. plaintiffs have not been induced, on the faith thereof, to alter their condition in relation to Bloodgood & Bouse; they have not acted upon it. (1 Greenleaf’s Ev. § 209.)
    VI. If there has been any interference with the rights of the plaintiffs herein, such act, as proved, cannot be construed into a tortious or fiduciary transaction. The action should have been brought upon the covenants in the bill of sale. (Masters v. Stratton, 7 Hill, 101.)

      C. A. Nichols, for respondents.
   By the Court. Hoffman, J.

The defendant having'sold, (for its full value as we must assume,) his whole interest in the assets of the firm of which he was a member, and having covenanted not to use the partnership name, in liquidation or otherwise, gives a receipt to debtors to the firm for the amount of the demand; and gives it in the partnership name.

That receipt is so expressed as to justify the plaintiffs in supposing that the money was actually paid by the debtors, so as fully to exonerate them, and as the firm had not then expired according to its original limitation, and no proof was given of the debtors’ knowledge of its actual dissolution, the plaintiffs could not but conclude that the debtors were fully discharged. They, therefore, brought their action against the defendant to compel payment of the amount thus received by him.

It turns out, upon the trial, that the defendant owed these debtors, on his own individual account, a sum of money exceeding their indebtedness to the firm, and he was credited by them with the amount of the latter debt on that individual account. It may be noticed, that although the personal debt was to Clement & Bloodgood, it is treated by both parties..as the same as if it had been to Bloodgood & Bouse.

Ko money passed at the settlement; nothing but receipts. The claim was for groceries furnished to West’s family.

It may be that Bloodgood & Bouse, being parties to the transaction of thus attempting to liquidate their debt to the firm, were not effectually discharged. But this was a matter for the action of the plaintiffs, who were clearly at liberty to repudiate the receipt, or to ratify it. They do ratify it, when, with knowledge of the facts, they proceed with this action against the defendant, and demand a judgment for the amount, as an amount in his hands received from their debtors. To permit the defendant to set up as a defence, that although he obtained full value from the debtors for the receipt he gave, they remain liable, and he is not, would be to enable him to commit a franc', against one or the other party, and to sanction it.

We cannot hesitate in affirming the decision of the referee.

It has been suggested, that the defendant is now under an Order of arrest obtained at the commencement of the action. It is insisted, that if the ground on which the action is sustained, is merely his violation of his covenant, and reception of money, or its equivalent, to the plaintiffs’ use, an arrest could not be supported. And also that an execution against the person could issue, as of course, upon the basis of the order of arrest remaining in. force after the return of one against the property. (Corwin v. Freeland, 2 Selden, 560. Code; § 288.)

We apprehend that the General Term cannot make an order in the matter. If any redress can be had, either before or upon the execution which may be issued, it must be sought elsewhere. Judgment affirmed with costs.

       The papers on which the appeal was heard, do not disclose the grounds on which the order of arrest was made, nor that any such order had been granted, An order of arrest may be granted for causes having no connection with the nature of the plaintiffs’ cause of action, or the grounds on which his right to recover is placed, (Code, § 179, sub. 6.) An order of arrest can be vacated, by a motion under § 204, and by an appeal, from the order denying such motion, taken under § 349 of the Code, and, probably, by no other mode of proceeding.—Rep.


text:
    Phoebe C. Brower, by her next friend, Plaintiff v. John Orser, Sheriff, etc., Defendant.
    1. It is irregular to take a verdict subject to the opinion of the Court at General Terra, when there are facts to be settled upon contradictory or doubtful testimony.
    2. The General Term has no right, of itself, to deduce facts from evidence, in order to found a judgment.
    3. The amendment, in 185*7, of the 333d section of the code, has not varied this rule, or established another, in relation to proceedings that may be had at the trial, or in relation to the powers and duties of the Court at General Term,
    (Before Hoffman and Pierrepont, J. J.)
    Heard, Jan. 13th;
    decided, Jan. 30th, 1858.
    This case comes before the Court, on a verdict taken for the plaintiff, valuing the property in question at the sum of $200, subject to the opinion of the Court at General Term, with liberty to the Court to enter judgment of dismissal, and with liberty to either party to turn the case into a bill of exceptions.
    The cause was tried in May, 1854, before the late Chief-Justice Oakley, and a jury. Certain exceptions were taken by the defendant to his rulings, in rejecting testimony, which were not pressed on the argument, and which the Court, at General Term, thought were clearly untenable.
    The facts are these: The plaintiff intermarried with one Abraham Brower, in the month of August, 1848. On the 24th of March, 1849, her husband went to California, where he resided until 1851, when he returned to New York, and has lived with his wife, the plaintiff, ever since.
    The plaintiff had, for many years prior to her marriage, kept a boarding-house, in Green street, and elsewhere. In May, 1849, she moved to Mulberry street, and took a lease of the premises, in her own name, for two years. Her husband was then absent.
    In August, 1849, one Thompson sold a piano to the plaintiff, for the sum of $240. The purchase-money was adjusted, by crediting him with a board-bill he had incurred with the plaintiff, of about $60, and an agreement, that he should board out the balance, which he did. The $60 had, no doubt, accrued for board after the marriage.
    The piano was used in Mulberry street, for the period that the plaintiff remained there, and was carried with her where she removed.
    About the 18th day of October, 1853, the Sheriff of the County of New York, the present defendant, received an execution upon a judgment obtained, in favor of L. & J. R. Ingersoll, against Abraham Brower, the plaintiff’s husband; and, under such execution, he levied upon the piano. The judgment was upon a debt contracted before the marriage.
    The testimony of John R. Ingersoll was taken, as to certain admissions of Mrs. Brower, the plaintiff, of having received money from her husband, in California, to pay for a piano, which is particularly stated in the opinion.

      J. M. Van Cott, for plaintiff.

      A. J. Vanderpoel, for defendant.
   By the Court. Hoffman, J.

A similar question to that which arises in the present case, has been before the Court, in the late cases of Freeman v. Orser, (5 Duer, 476,) and Burger v. White, (November Term, 1857, Ante p. 92.) Under what circumstances, property, resulting from the earnings and labor of a wife, can be exempt from seizure by the husband’s creditors, is the point there and here raised. Whether the present case would be governed by the one or the other of those decisions—whether it would fall within the general principle of the former, or the exception established in the latter, would require a careful analysis, of both, and comparison of the facts. We are not called upon to determine this question, for there is one point which compels us to send the case back for a new trial.

The verdict was taken by consent, subject to the opinion of the Court, with liberty to dismiss the complaint. This course is permitted by the Code, when, upon a trial, the case presents only questions of law. In that case, judgment may be given at the General Term. (§ 265.)

All this presupposes settled, or undisputed facts. It is contrary to the theory of a trial by jury, and unwarranted by the Code, to take a verdict, subject to the opinion of the Court, when facts are to be deduced from disputable or uncertain evidence.

We do not understand, that the amendment made in 1857, to the 333d section of the Code, varies this rule. It directs a concise statement of the facts, upon which the questions or conclusions of law arose, to be prepared by the Court, (of course, at General Term,) and be filed with the judgment roll. But those facts must, we presume, have come before the General Term, ascertained and settled, or admitted in the usual manner, or be established by evidence to which there is no contradiction, and the force and effect of which is not doubtful. This statement is made “for the purposes of a review in the Court of Appeals,” and for such purposes only. (Laws of 1857, chap. 723, § 11, as amended, sub. 2, and § 333, as amended.) It is not a statement of facts found by the Court upon doubtful or conflicting evidence, but a summary of the facts, in relation to which there is no doubt or dispute, out of which facts the questions of law arise, which the Court is called on to determine, and which alone they decide.

Now, Ingersoll swore positively to admissions of the plaintiff, that she had received money ($250) from her husband in California, and that the piano seized, belonged to her husband. He also stated, that she said she had paid for the piano with money received from him.

Eow this would not be true, in fact, as the purchase was made in August, 1849, and the husband did not get to California until September. The witness fixes the conversation with the plaintiff to have beén in 1850.

Yet it by no means follows, that she may not have said all that is deposed to, and still less, that the main fact, of a remittance to purchase a piano, may not have been admitted, and loosely spoken of, as having been applied to pay for it.

This matter should have been submitted to the jury.

New trial ordered, costs to abide the event.

        Cobb v. Cornish, (16 KT. Y. B. 602.) Gilbert v. Beach, (Id. 606.)


text:
    James E. Wood and Samuel R. Mabbatt, Plaintiffs and Respondents, v. William H. Merritt and Benjamin J. H. Trask, Jr., Defendants and Appellants.
    1. It is not an absolute unqualified rule, that a joint owner of a vessel may not sustain an action against the other owners, for contribution to a demand paid by him, during the continuance of the relation. If it appears, that at a certain period, such as the time of a report of a referee, no accounts are outstanding, which might change the apparent liability of a party, or wholly displace it, the fact of the joint ownership continuing, will not defeat a suit to recover a proportion of a sum paid to a creditor under a judgment recovered.
    2. Each owner is responsible only to an amount proportionate to his interest in the vessel.
    8, In an action to recover that aliquot part, the defendant may have allowed to him, by way of counter-claim, the plaintiff’s aliquot part of a liquidated demand owing by the owners of the vessel, as such, to the defendant.
    (Before Hoffman and Pierrepont, J. J.)
    Heard, January 12;
    decided, January 30, 1858.)
    This action comes before the Court, at General Term, on appeal by the defendants from a judgment entered against them on the report of a referee.
    The plaintiffs, James E. Wood and Samuel R. Mabbatt, as part owners of the propeller M. K. Wilson, (they owning bring this action against William H. Merritt and Benjamin J. H. Trask, Jr., as other part owners thereof, (the latter owning -£,) to recover of the defendants one-half of the amount-paid by the plaintiffs, to satisfy a judgment recovered by Hogg & Delamater against the present plaintiffs and defendants, as owners of such propeller. Who the other part owners are, is not proved, nor does it appear, that any objection was taken, in the suit brought by Hogg & Delamater, that the other part owners were not made defendants, therein. In the present action, the defendants’ answer, among other things, contains the following allegations, viz:—
    “ That also, when the plaintiffs were owners with the defendants in the same proportions, at various times, Michael K. Wilson George Dobson, George Wilson, Henry C. Worth, Richard N. Hayden, William Amden and Hiram Watson were, and each of them was owner in the said steamboat, and while so, the defendants paid and advanced money, and furnished supplies, for which they have not been paid,-and which should also enter into the account; and said Michael K. Wilson, George Dobson, George Wilson, Richard N. Hayden, Henry 0. Worth, Hiram Watson and William Amden are, and each of them is, a necessary and proper party defendant herein, and that the plaintiffs’ complaint, in not joining said persons as party defendants, is defective, and defendant prays the full benefit thereof.”
    plaintiff’s reply.
    “ The plaintiffs, replying to the answer of the defendant, Trask, say, that they deny, on information and belief, that the defendants supplied said steamboat, or paid out moneys for the said steamboat; and they deny, that on an accounting for all the debts and expenses of said steamboat, it will be found, that all the defendants will be found to pay of the debt in question, is one-quarter of whatever .is actually due, less what the boat owed them, as is stated in said answer.
    “And the plaintiffs deny, on information and belief, that the defendants advanced moneys, or furnished supplies, for which they have not been paid, or that the boat was indebted to the said defendants."
    The case made, on which the appeal was heard, contains no part of the testimony given on the trial before the referee, to whom the action was referred. His report is in these words, viz:
    “referee’s report of the facts found, and of his conclusions OF LAW.”
    “ The parties to this action, were part owners of the propeller M. K. Wilson, plaintiffs owning and defendants and no more. While they were such owners, Hogg & Delamater made repairs on the vessel to a considerable amount, and afterwards commenced an action, against the plaintiffs and defendants, to recover for the repairs so made. Judgment was recovered, in this action, against all the defendants, for $704.46, April 22d, 1854. The execution was collected from the now plaintiffs, on May 29th, 1854, who paid to the deputy-sheriff $709.58, for the amount of the judgment, and $8.79, poundage and expenses, in all, $718.37. For the proportion of amount, which the now plaintiffs may justly claim from their former co-defendants, this action is brought.
    “ The defendants, during the years 1852 and 1853, furnished supplies to the steamboat M. K. Wilson, of which a balance, amounting to $274.52 remains unpaid, including $50 for rent of office and desk-room for use of the steamer.
    “ I think the judgment, recovered by Hogg & Delamater, fixes the liability of the now defendants to contribute, to the present plaintiffs, an equal moiety of the amount paid to the deputy-sheriff by them.
    “ And that the relative proportions of interest each party had in the M. K. Wilson, does not affect this liability.
    “In my opinion, the plaintiffs are entitled to judgment for $359.19, with interest from May 29th, 1854.
    “April 30th, 1857.”
    The defendant, Trask, excepted to the report of the referee in the above entitled action, and alleged the following grounds:—
    “ First.—That the referee has reported that the plaintiffs should recover judgment for $432.47, when in fact nothing is due.
    “ Second.—That the referee erred in reporting that the judgment, recovered by Hogg & Delamater, fixes the liability of the now defendants to contribute to present plaintiffs an equal moiety of the-amount paid to the deputy-sheriff by them.

      “ Third.—That the referee erred in reporting that the relative proportions of interest each party had in the M. K. Wilson, does not affect this liability.
    “ Fourth.—That the referee erred in reporting that the plaintiffs are entitled to judgment for the $359.19, with interest from May 29, 1854.”
    From the judgment, entered on the foregoing report, the present appeal is taken.

      G. Dean, for appellants, defendants.

      L. B. Marsh, for respondents plaintiffs.
   By the Court. Hoffman, J.

The general rule, that one partner cannot sue his co-partner for any payment or advance during the continuance of the relation, is not to be disputed.

In Sadler v. Nixon, (5 Barn. & Ad. R. 936,) this rule was applied, where all the three members of a firm had been sued, and judgment recovered. Upon an execution, the whole amount was paid by the plaintiff, who brought the action against one of the other members, to recover one-third of the amount. It was held, that the action would not lie.

The Court advert to the case of Helme v. Smith, (7 Bingham, R. 709,) and to the distinction of Chief-Justice Tindal, there made, that if it had been the case of co-partners, there would have been an end of the question; but part-owners were not necessarily partners.

In Helme v. Smith, the action was by a part-owner, and the managing owner of a vessel, against another part-owner, for his share of the balance due for the outfit of several voyages. The plaintiff was part-owner and ship’s husband. The defendant was owner of one-fourth, and interested in one-fourth of the voyages. The voyages had been concluded, and the ship sold; .but this latter fact is to be kept out-of view, in ascertaining what the Court determined.

Thus, Gaselee, Justice, said:—“No doubt, if one partner advances capital to another, he may recover it by action; but my difficulty is, to know whether the expenses of outfitting a ship should form a portion of the general account, to be charged at the end of the voyage, or may be claimed at once.”

And by Bosanquet, Justice:—“ Before a voyage, the duty of each owner is, to contribute his share of the capital for the outfit of the ship. Here the ship’s husband, being a part owner, at the request of the others, advances their shares for them: that constitutes a debt which he is entitled to recover, independently of the profits of the voyage. Of those profits we know nothing; but the debt is found.”

Tindal, Chief-Justice, said:—“ The question is, whether, if one part-owner lays out money to enable the ship to proceed, he may not sue each of the owners for his share of the expense ? There is nothing to show, that the plaintiff’s claim was to depend on the profits of the voyage, or that he was to be deprived of remuneration, if the voyage turned out to be without profit. It might have been otherwise, if, by the course of trade, the ship’s husband was to look to the returns of the ship for the payment of his bill; but no such custom is stated, nor any thing to show that the plaintiff and defendant were partners.”

The action was sustained for one-fourth of the demand.

The referee, in the present case, has found, (under an allegation in the answer, that upon an accounting, the defendants would not be found indebted to the plaintiff,) that the defendants are creditors of the boat, for the sum of $274.52, the balance of an account.

The case is really, then, presented, upon these pleadings and proofs, of a concluded settlement, or at least, a liquidated state of the accounts, when this action was commenced; in which, upon the one side, the plaintiffs had a demand against the vessel of $718.57, and the defendants $274.52.

These relative demands being thus adjusted, there does not seem any good ground for refusing a right to recover, against the co-owners, separately, their proportionate amount.

We think, that when some of the joint-owners of a vessel have been sued, and judgment is recovered against them, (they omitting to plead the non-joinder of the others,) if some of them pay the amount, it is not an absolute rule, that they may not sustain an action for contribution, even pending the relation of joint-ownership. If it appear, that no accounts are outstanding, which may change the apparent liability of the party sued, or perhaps wholly displace it, the mere fact of the continuance of the relation of part-owners will not defeat the suit.

But then, what proportion of the sum paid by the part-owner is to be recovered ?

We are at a loss to understand how it can be any more than an amount proportioned to the interest of the party sued; The action of the creditor settled nothing but the responsibility of the parties to him, and their responsibility in solido. (Collyer, p. 1050, § 1225.) The defendants in that action could not have restricted the recovery to a recovery against them, separately, for an amount in the ratio of their respective shares. The English rule and our own would not permit this, although in the ancient civil law, and in that of Holland, such a rule prevails. (Abbott on Shipping, p. 117.)

Between themselves, then, as to their respective liabilities for the amount thus paid, nothing was determined by the judgment in favor of the creditors; nothing could be there determined.

It must, then, be open to the part-owner to say, that supposing he can be sued as upon a liquidated demand, he is bound only to pay his aliquot part.

The case of Batard v. Hawes (20 Eng. L. & Equity Rep. 137) settled some points pertinent to the present. There were twelve joint-contractors, who had employed an engineer to make surveys and plans for their projected work. He was paid the amount of his demand by one of such contractors. The latter sued several of the others in separate actions. Some of the associates were dead. It was held, first, that the action could be brought against one separately; next, that he could recover only the aliquot proportion of the one sued, according to his interest at the time of the contract; although two were dead, when the action was commenced, the plaintiff could recover but one twelfth part from each.

The parties were not partners, but bound in a contract which might be looked upon as joint and several. Upon the second point, the Court say, “After entertaining considerable doubt on the subject, we have come" to the conclusion, that the rule, most in conformity with the authorities, the principles of law, and the convenience of the case, is to look to the numbers of the original contractors for the purpose of determining the aliquot part which each contributor has to pay.”

We think, that upon the established facts of this case, the plaintiffs were entitled to recover one-fourth of the sum paid; viz.: $179.59, and are chargeable with oné-eighth of the balance in favor of the defendants, or $34.31. There remains due, then, $145.28, with interest from the 29th of May, 1854.

The judgment must be so modified.

Ordered accordingly.


text:
    Owen and Lugar, Plaintiffs and Respondents, v. The Hudson River Railroad Co., Defendants and Appellants.
    1. In an action, by the owners of an omnibus or stage, against a railroad company, to recover damages for an injury to the stage, resulting from a collision between it and a car of the company, while the car is being drawn by horse-power-; which collision is alleged, by the plaintiffs, to have been caused by the negligence of the company’s servants; and which collision is alleged, by the defendants, to have been caused by the sole, or concurring negligence of the driver of the stage; and there is evidence tending to show negligence of both parties, which concurred to produce the injury; The true rule to be stated to the jury is, that if the collision and injury were caused by the concurring negligence of both parties, neither can recover against the other, and the defendants are entitled to a verdict.
    2. In such a case, it is erroneous to instruct the jury, that if they “ believed that the brakes of the car were not in good or sufficient working order, so that they were inefficient for the purpose of checking the progress of the car, and if they shall be satisfied that the driver of the car had time enough, after he discovered the dangerous position of the stage, to have avoided the collision by the application of the brakes, if they had been in good order, then the plaintiffs will be entitled to recover, notwithstanding the plaintiffs’ driver was guilty of imprudence or carelessness in getting into such a position.”
    3. "When the negligence of the company consists, in not having their car furnished with a suitable and efficient brake, in good working order; and although, but for such negligence, there might have been no collision and no injury, notwithstanding the plaintiffs were negligent; yet if the plaintiffs were, at the time, in fact, negligent, and if their negligence concurred with the defendants’ negligence, to produce the injury, such facts present the case of an injury caused by the concurring negligence of both parties, and neither can maintain an action against the other, to recover any damages, resulting from it.
    4. It would seem, that when one of two persons, by his own negligence, is unexpectedly placed in a position of danger, from which he cannot be extricated uninjured, without ordinary care, and a reasonable use by the other of the mean's, at the time, at his command, to prevent an injury to the former; and the latter sees the former, and the position in which he is placed, in time to prevent the injury, by the exercise of ordinary care, and by reasonable efforts on his part, in the use of such means, and he fails to exercise such care and make such efforts, and by reason thereof, the former is injured, the latter is liable. (See note at the foot of the case.)
    5. In a case of such peculiar and extreme circumstances, the negligence of the defendant is proximate, and that of the plaintiff remote, and the injury, in judgment of law, is imputable solely to the party who had it entirely within his power to prevent it, by ordinary care in the use of the means then at his command to avoid it, but who failed to use such care, although seeing and knowing that the other party could not, at .the time, by any act on his part, escape the threatened injury.
    (Before Duer, Ch. J., and Hoffman, and Pierrepont, J. J.)
    Heard, Jan, 6;
    decided, Jan. 30, 1858.
    This is an appeal by the defendants, from a judgment, entered on the verdict of a jury, in favor of the plaintiffs, for $1187.73. The action was tried in May, 1856, before Mr. Justice Slosson and a jury.
    Daniel Qwen and Jeremiah Gr. Lugar, the plaintiffs, as partners, owned and run a line of stage omnibuses through the Tenth Avenue, in New York City, in which avenue the track of the road of The Hudson River Railroad Company, (the defendants,) is laid.
    This action is brought to recover damages which the plaintiffs sustained, by a collision between one of their stages and the defendants’ cars, on the 23d of February, 1853, while both were going up the Tenth Avenue, near 24th street.
    It was also brought to recover damages sustained by them, from a collision between another of their omnibuses and the defendants’ cars, on the 20th of July, 1853, near 26th street, in Tenth Avenue, when the cars and stage were going in opposite directions.
    Both collisions occurred in broad daylight, and the avenue extends in a straight direction, both north and south of the place of collision, and objects could be seen in it, in either direction, to the distance of at least half a mile from the place of either collision.
    The plaintiffs sought to recover, on the ground that each collision was caused by the negligence of the defendants and their servants, and without any fault or negligence of the plaintiffs or their servants. When the plaintiffs rested, the defendants’ coun • sel moved for a nonsuit, on the grounds:—

      “ First.—That it appeared that the plaintiffs were guilty of negligence, which contributed to the accident.
    “ Second.—That it also appeared that the defendants were not guilty of any negligence which contributed to the accident.
    “ The Judge refused the nonsuit, and the defendants’ counsel excepted.”
    The evidence given before the plaintiffs rested, and the motion for a nonsuit was made, tended to show that the driver of each stage was negligent, in getting into such a position, that a collision between it and the defendants’ cars occurred.
    The evidence, given before the testimony was closed, tended to show, that at the time of the collision, the brakes of the defendants’ cars were not in good working order, and that if they had been, the drivers of their cars, after they saw there was danger of a collision, might have arrested their progress and prevented a collision, and that the want of sufficient brakes, in good working order, was the only negligence on the part of the defendants.
    “ The Judge charged the jury, that the plaintiffs in this case could not recover, if the carelessness of their servant contributed directly to the accident; but the Judge also stated, that that rule was subject to this qualificationIf the jury believed that the brakes of the car were not in good, or sufficient, working order, so that they were inefficient for the purpose of checking the progress of the cars; and if you shall be satisfied that the drivers of the cars had time enough, after they discovered the dangerous position of the stage, to have avoided the collision by the application of the brakes, if they had been in good order; then the plaintiffs will be entitled to recover; notwithstanding the plaintiffs’ driver was guilty of imprudence or carelessness in getting into such a position. To which said qualifications, the defendant’s counsel then and there excepted.”
    The other parts of the charge, not having been called in question on the appeal, are omitted.
    The jury found a verdict for the plaintiffs. From the judgment entered therein, the present appeal was taken by the defendants.

      William Fullerton, for the appellants.

      The charge of the Judge was erroneous. The rule, as first stated, was correct, and should have been permitted to stand, without the qualification to which it was made subject.
    The obligation to use ordinary care is incumbent on a party who has suffered from a collision. The performance of this duty on his part, and the breach of the corresponding duty by the party sued, must concur, to entitle the plaintiff to damages sustained in a collision.
    The general rule, resulting from the authorities, is, that a party suffering injury on a highway, in a collision with a railroad train, is entitled to damages, on proof, both of a want of ordinary care on its part, and the exercise of the same degree of care on his own. And if he was himself chargeable with a Want of ordinary care, and thereby contributed to the injury, he is without remedy. This rule is without qualification. (March v. Concord, R. R. 9 Foster, 43; Moore v. Central R. R., 4 Zabris. 268, 824; Runyon V. Central R. R., 1 Dutcher, 556; Herring v. Wil. & Bal. R. R., 10 Iredell, 402; Spencer v. Utica & Schen. R. R., 5 Barb. 337; Sheffield v. Roch. & Syr. R. R., 21 Barb. 339 ; Haring v. N.Y. & E. R. R., 13 Barb. 9; Neal v. Giliet, 23 Conn. 437.)

      John Graham, for the respondents.
    The qualification of the Court, in charging the jury, to the proposition as to the plaintiffs not being entitled to recover, if chargeable with negligence, was correct.
    Both accidents amounted to crassissima negligentia, as against the defendants. The charge is directly within the principle of Carroll’s case, (1 Duer, 571,) and of Cook v. The Champ. Transp. Co., (1 Den., 91.)
    Suppose the plaintiffs’ stages to have been standing upon the tracks of the defendants’ road, would that justify the defendants in injuring them, especially when, as in this case, it resulted from gross negligence on the part of the defendants’ agents or servants? In trying to clear the tracks, the plaintiffs are in a more favorable position than if the stages had stood still upon them; and shall they not have the benefit of the same principle ?
    No matter how much exposed the plaintiffs’ stages were to danger or injury—that will not excuse the defendants from the consequences of gross neglect. With reference to this, the plaintiffs were under no obligation to choose a position more or less liable to peril. It is evident, that if there had been no imprudence or carelessness on the part of the plaintiffs’ driver in getting upon the track, that the defendants’ gross negligence would still have existed, and, no doubt, have produced the same, or results equally serious as those it did. Eor every legal purpose, the horses might as well have been without bridles or reins—as the cars without brakes. Brakes will check the progress of the cars, when bridles might fail in restraining the horses. In the use of this means of conveyance, it is no more reprehensible to be without the one than the other.
    The charge of the Court was equivalent to saying, that a want of ordinary prudence on the plaintiffs’ part would be a fair offset to the same delinquency on the part of the defendants; but that if the collisions in question could not have been avoided by the exercise of ordinary care or prudence by the plaintiffs, or their agents or servants, the defendants were liable. This is undoubted and familiar law. (Butterfield v. Forrester, 11 East. 60; Bridge v. The Grand Junction R. R. Co., 13 Mees, and W. 244; Davies v. Munn, 10 id. 546.)
   By the Court. Hoffman, J.

It has become a settled axiom in our State, that if the negligence of a plaintiff who complains of an injury has contributed to produce it, he is not entitled to recover. (Rathbun v. Payne, 19 Wendell, 399; Collins v. The Albany & Sch. R. R. Co., 12 Barbour, 492 ; Munger v. Tonawanda R. R. Co., 4 Comstock, 349 ; 5 Denio, 255.)

This rule is modified by another, which is thus stated by Chief-Justice Duer, in Johnson v. The Hudson River R. R. Co., (5 Duer, 27.) “ As the plaintiff in the action is not allowed to recover, notwithstanding the clearest proof of the negligence of the defendants, when it is also proved that his own negligence directly contributed to the accident, so the defendant is not shielded from a recovery, when it appears that but for his own subsequent negligence the accident would not have occurred; that is, when it appears that his own negligence was the sole proximate cause."

The doctrine thus stated was applied by the late Chief-Justice in the case of Williams v. The N. Y. & Harlem R. R. Co., tried December 14th, 1852. The law, as laid down, in his charge, was affirmed at the General Term of this Court, (February 11th, 1854,) and by the Court of Appeals.

After stating the general rules, as to the necessity of finding the defendants guilty of negligence; and if so, then, next, whether the party injured had been negligent on his part; the learned Judge proceeded—“ If the deceased was guilty of negligence in attempting to cross the track, or in jumping out of the wagon, still, if when he was on the ground, the driver could have stopped the car before it went over him, the plaintiff was entitled to recover.”

To understand this, it is sufficient to observe, that the deceased was thrown from a wagon and run over by a car of the defendants, and that there was no little testimony to show that the car was driven at a great rate of speed, and that the driver made no attempt to check it when he discovered the situation of the party, and that he could have stopped the car so as to have avoided the accident.

This, then, was the case of a wilful neglect of ordinary means of avoiding the accident at the period of its occurrence. Had the driver of the car, in the present instance, wholly neglected to apply the brakes, the cause would have been similar.

But if the ruling of the learned Judge here is right, the most remote neglect of the company, or its agents, in the construction of its car, road, or equipment, would make them liable, whatever might be the fault of the other party. If they are responsible, because of the inefficiency of the brakes, they would be so for any deficiency or imperfection, no matter how far back it might be traced, which could be deemed to have contributed to the event. Indeed, it would, in principle, go far to give as entire protection to a traveller, or party grossly in fault himself, and to place him in the same position, as one who is wholly free from fault, and who has a guaranty for even these latent defects which ordinary diligence has failed to discover. See the cases collected in the valuable Treatise of Judge Redfield on Railways, p. 325, and notes.

Another exception was, to the charge as to the rule of damages. No point has been made by the defendants’ counsel as to this, nor was any argued. We omit, therefore, to consider it.

We think that there was error in the charge, and that there must he a new trial, with costs to abide the event.

Ordered accordingly.

       In the case of Button, administratrix of Button, deceased, v. The Hudson River Railroad, Company, decided by the Court of Appeals, in December, 1858, rules were declared which seem to cover the case of Owen & Lugar v. The same Company.

      Margaret Button, as administratrix of her deceased husband, sued the company, on the allegation that the death of the deceased was caused by the negligence of the defendants, without fault on Ms part. The deceased, when first discovered, after he was injured, was found lying directly across the track, with his head on one rail • and his feet on the other. How he came there, or how long he had been there, no witness was able to state. • All that was proved was, that he had been drinking at an oyster saloon in the vicinity, and had left the saloon but a few minutes before he was found in this position.
      The opimon of Mr. Justice Harris, of the Court of Appeals (which is understood to have been delivered as the opimon of that Court) affirms the following propositions :—
      1st. Such testimony, alone, warrants no other finding than that it was the fault of the deceased that he was lying on the track in the position in which he was first discovered, and that he was not seen in time to stop the car before it reached him. On such a state of facts, the deceased was the cause of his own death, and the defendants were blameless, and, of course, are not liable.
      2d. When an injury is produced by the concurring negligence of both parties, and the negligence of the plaintiff is as truly a proximate cause of the loss as that of the defendant, there can be no recovery, although the negligence of the defendant may be greater in degree than that of the plaintiff. (Lowell v. The General Steam Navigation Company, 6 Ellis & B. 195, and 32 Eng. Law and Equity R. 158; Trow v. The Vermont Central Railroad Company, 24th Verm. 481; Hawkins v. Cooper, 8 Carr. & P. 4!3; Woolf v. Beard. 8 Carr & P. SIS.)

      3d. “ Where the negligence of the plaintiff is proximate, and that of the defendant remote, no action can be sustained. In such a case, the plaintiff himself is the immediate cause of the loss. This rule embraces all that class of eases where, at the time of the injury, the plaintiff was chargeable with a want of proper care. On the other hand, where the negligence of the defendant is proximate, and that of the plaintiff remote, the action may be sustained. The question, then, is, whether, it being concluded the plaintiff was not without fault, the defendant might, by the exercise of ordinary care and prudence at the time of the injury, have avoided it.” (Cerwhaeker v. The Cleveland, Columbus and Cincinnati Railroad Company, 3 Ohio 112, K S).
      One man cannot, by Ms own negligence, cast upon another the nécessity of exercising extraordinary care. {Lowell v. The Steam Navigation Company, supra.)

      4th. To entitle the plaintiff to recover, it was necessary to prove, that prior to the injury of the deceased, he was seen on the track by the driver.of the car in time to have enabled the driver, by the exercise of ordinary care, with the means then at his command, to arrest the progress of the car, and prevent the injury.—Rep.


author: By the Court. Pierrepont,

text:
    Peter J. Wetterwulgh v. The Knickerbocker Building Association.
    1. The twenty-second, of the Articles of the Knickerbocker Building Association, provides that “ in case any member, by reason of sickness or removal from the city, or through misfortune, is unable to continue the payment of his subscription to the society, he or she may give notice to the secretary of an intention to withdraw from the association; and in case the board of trustees are satisfied as to the grounds of withdrawal, the whole amount of subscription paid by the party into the association shall be returned.”
    2. A member of this association, who has given notice, in due form, of his intention to withdraw, on the ground that he was “ no longer able to continue the payment of his subscription to the said association, owing to various misfortunes, losses in business, sickness in his family, and the rigor of the times,” in an action to recover back the money paid by him to the association, should be permitted to prove the truth of said alleged grounds for withdrawing, they having been set forth in his complaint, and denied by the answer.
    8. If he proves, that, owing to such causes, he was totally unable to continue the payment of his subscription, and that there was nothing in the pecuniary circumstances or condition of the association, furnishing any reason why the money paid to it by him should not be returned, he may recover it back, although the board of trustees may not have declared themselves satisfied as to the grounds of his withdrawal
    4. It is not an indispensable condition to a member’s right to withdraw, and to a return of his money, that, under any and all circumstances, the board of trustees shall declare themselves satisfied as to the grounds of his withdrawal. They have no right to withhold that declaration, arbitrarily, when no ground exists, or can be suggested, for withholding it.
    6. It was, therefore, error to exclude evidence of the truth of the grounds alleged by the plaintiff for his withdrawing, and to order a nonsuit, on the ground that in no event, and under no circumstances, could the plaintiff recover without proving that the board of trustees declared that they were satisfied as to the grounds of his withhrawal.
    Nonsuit set aside, and new trial granted, with costs to abide the event.
    (Before Hoffman & Pierrepont, J. J.)
    Heard, Jan. 11;
    decided, Jan. 30, 1858.
    This is an appeal, by the plaintiff, from a judgment dismissing his complaint, ordered at the trial, which was had in March,. 1856, before Chief-Justice, Oakley and a jury.
    This action is brought by the plaintiff, as a member of the Knickerbocker Building Association, to recover from, it the moneys he had contributed to it, on the theory, that he had ceased to be a member, under circumstances that entitled him to recover the moneys he had paid in, as a member.
    The complaint allegesThat the defendants are a corporation or association, organized under, and in pursuance of the provisions of an Act of the Legislature of the State of New York, entitled, ‘An Act for the Incorporation of Building, Mutual Loan and Accumulating Fund Associations, passed April 10th, 1851,’ by the name of the Knickerbocker Building Association. That such organization was made by the filing of .articles of association, pursuant to the provisions of the Act aforesaid, on or about the 24th day of February, one thousand eight hundred and fifty-two, as, by reference to the same, or authentic copies thereof, may appear.
    “ That, on or about the ninth day of February, one thousand eight hundred and fifty-two, the plaintiff became a member of the said association, in conformity to law, and the rules and regulations and by-laws of the said association, and continued such member thereof until on or about the seventh day of March, one thousand eight hundred and fifty-five, at which time the plaintiff shows, .that being no longer able to continue the payment of his subscription to the said association, owing to various misfortunes, losses in business, sickness in his family, and the rigor of the times, the plaintiff, on or about the 7th day of March, 1855, gave notice, to the secretary of the said association, of his intention to withdraw from said association, pursuant to the requirements of the twentieth section of said articles of association.”
    It also alleges, that while the plaintiff was such member, and between the 9th of February, 1852,.and the 7th of March, 1853, he paid into the association, in all, $108, which he has demanded, and which they refuse to pay; for which sum, with interest, judgment is prayed.
    The answer admits the organization of the defendants, and plaintiff’s membership. Among other allegations, it contains the following, viz.:—
    “ That the said defendants admit, that on or about the seventh day of March, 1855, the plaintiff gave notice, to the secretary of the said association, of his intention to withdraw from the same; but, whether it was because the plaintiff was no longer able to continue his subscription to the said association, owing to various misfortunes, losses in business, sickness in his family, and the rigor of the times, neither the said association nor its officers have sufficient knowledge to form a belief, and the same is, therefore, denied; but the defendants allege, upon information and belief, that one of the principal reasons why the said plaintiff made the said application to withdraw from the said association, was, that the said association was in. embarrassed circumstances, and had lost large sums of money by the maladministration and neglect of certain agents of the said association, and that the plaintiff was fearful of losing some portion of the moneys he had paid in, and was anxious to realize the amount of the said moneys, notwithstanding such withdrawal, would have the effect of injuring the several members of the said association; in the proportion of the plaintiff’s claim to the total of their interests in the said association.” . ........
    “ And the defendants further allege, that the articles of the said association, as appears by article No. 20 of the same, require, that before any member shall be entitled to withdraw, and to be repaid the amount paid in by such member, he shall obtain the approval of the board of trustees of the said association; and it was part of the agreement of membership between the plaintiff and the defendants, that said board of trustees should, as a protection to all the members of said association, have and exercise the right of determining whether or not the application of the plaintiff to withdraw should be accepted, and the amount paid in repaid.”
    The entire proceedings at the trial, so far as the printed case furnished to the Court, on the appeal, shows any thing in relation thereto, were as follows, viz.:— 4
    “ The case came on to be tried at a Trial Term of this Court, on the 3d day of March, 1856, before the Honorable Thomas J. Oakley and a jury. Mr. Shannon, counsel’ for the plaintiff, then opened the case to the Court and jury, and then moved for judgment in favor of the plaintiff, on the pleadings, on the ground, that the plaintiff’s complaint was admitted by defendants’ answer.”
    “ Mr. King, counsel for defendants, resisted said motion, for the reason, that before any member could withdraw from the association, he must' obtain the consent of the board of trustees, and thereupon moved to dismiss the complaint. The said Justice denied the said motion of plaintiff for judgment. To which decision of the said Justice the plaintiff then and there excepted; The plaintiff then offered evidence to show that the plaintiff was unable, by reason of misfortune and sickness in his family, to continue the payment of his dues into the said association. Which evidence the said Justice refused to admit, on the ground of irrelevancy.
    “ To which decision the plaintiff then and there excepted.
    ■ “Whereupon the said Justice dismissed the plaintiff’s complaint, with liberty to plaintiff to make a case or exceptions within twenty days, and to appeal to the General Term of the Court, without security.”
    The respondents’ points state, that article 20 of the articles of said association, reads as follows, viz:—
    In case of the death of any member, the amount paid into the society shall be refunded to his widow or next of kin, or shall belong to his executors or administrators, who shall enjoy the same benefits and advantages, and be subject to the same liabilities as the original holder enjoyed or was subject to. When there are more than one executor or administrator, the first name only, in the letters testamentary or of administration, ■ shall vote at the meetings of the association; and in case any member, by reason of sickness or removal from the city, or through misfortune, is unable to continue the payment of his subscription to the society, he or she may give notice to the secretary of an intention to withdraw from the association; and in case the board of trustees are satisfied as to the grounds of withdrawal, the whole amount of subscription paid by the party into the association shall be returned. Any person wishing to withdraw, for the above reasons or otherwise, and who shall have been a member of the association two years, and be clear of the books, shall receive an interest of four per cent., and any member of more than three years’ standing, shall be entitled to an interest of'five per cent, on the amount of funds paid by such member or members into the funds of the association.
    Judgment having been entered in favor of the defendants, upon the order dismissing the complaint, the plaintiff appealed from the judgment to the General Term.

      B. S. Shannon, for plaintiff and appellant.

      Wm. B. Smith, for defendants and respondents.
   By the Court. Pierrepont,

J.—The plaintiff had been a member of the association more than “ two year;" had paid in his money, and, so far as appears, was “ clear of the books.” He had given the requisite notice of his intention to withdraw, alleging sickness and misfortune, which had rendered him unable to continue the payment of his subscription. The defendants having taken issue upon the allegations of sickness and misfortune, the plaintiff offered to prove them; but the Judge excluded the evidence as irrelevant.

The plaintiff, upon this argument, contends that, had he been permitted to show, that by reason of misfortune and sickness in his family, he was unable to continue the payment of his dues, he was then prepared to prove, that the condition of the association was such, that there was no legal or equitable objection to a repayment of the money as claimed by him, but that he was prevented in the outset from giving any evidence on the ground of irrelevancy.

In this view, we think the ruling was erroneous. Proof of the facts, which the plaintiff offered to establish, was, certainly, the first and appropriate step in the plaintiff’s case; and if he could not be permitted to prove them, no evidence of the condition of the association, nor any other evidence could be of any avail to him.

If the plaintiff had proved what he offered to prove, and had proved, in addition, such facts relating to the condition of the association as in law and good conscience ought to have satisfied the trustees, as to the grounds of the plaintiff’s withdrawal, then we think he not only had a right to withdraw, but was also entitled to a return of his money; and as his first step, we think, he had a right to give the evidence which was excluded.

The defendants insist, that the plaintiff must first show, that the trustees were satisfied as to the grounds of withdrawal.”

How the plaintiff was to prove that fact, it is not easy to see. To prove that trustees of a corporation are satisfied as to the grounds of withdrawal, when that withdrawal takes money with it, would be difficult.

We think the statute of 1851, under which this association was formed, gives no such arbitrary power to trustees, and imposes no such impossible conditions upon a member’s right to a return of the subscription money paid by him to the association, who desires to withdraw from that association, by reason of sickness and misfortune.

New trial ordered, with costs to abide the event

       This case should, probably, he understood as merely deciding, that it is possible that a member’s right to withdraw, and to a return of his money, may be perfect, although the board of trustees may have omitted, or declined to express themselves satisfied as to the grounds of his withdrawal.
      The point is not decided, that in a case fairly calling for the exercisfe of judgment, whether the alleged grounds exist, or if a member has suffered from sickness, or misfortune; whether they have actually disabled him from continuing the payment of his subscription to the society; or whether they have merely made it inconvenient or undesirable to the member: the dissatisfaction of the board of trustees, as to the grounds of withdrawal, would not conclude him, and be an answer to a suit to recover back the money paid.
      This case cannot be regarded as deciding, that if the association is in debt, and ' its assets are barely sufficient to pay its debts, much less, if they are insufficient, that a member, however unfortunate and poor, can withdraw and coerce a return of the whole amount of subscription paid by him to the association. The opinion clearly intimates the contrary
      The shareholders are declared, by the statute under which the association is organized, “ liable to the creditors of the said association, to an amount equal to the amount of stock held by them respectively, for all debts contracted by such association.”—Laws of 1851, p. 234, § 11.
      In passing upon the truthfulness or sufficiency of the alleged grounds of withdrawal, and the extent to which they may affect a member’s ability to continue the payment of his subscription; the board of trustees owe a duty, not only to the other members of the association, but to its creditors; and by the law of its organization, their satisfaction, as to the grounds of withdrawal, would seem to be a condition, as the. general rule, to any member's right to withdraw, and be refunded the amount he may have paid on his subscription to the association.—Rep.


author: By the Court. Pierrepont, J.

text:
    Samuel T. McDougall, Respondent, v. Charles E. Fogg, Defendant and Appellant.
    1. In an action upon a contract, by which the plaintiff covenants " to improve machinery for manufacturing gas, and to obtain a patent or patents therefor, and to assign to the defendant one undivided half of said patent or patents,” and by which the defendant covenants “ to pay the plaintiff $1000 when the patent or patents are issuedwhich action is brought to recover the $1000, after the plaintiff has obtained a patent for an alleged improvement, and assigned an undivided half of it to the defendant: it is competent for the defendant to allege, in his answer, and prove at the trial, “ that the alleged improvement in said patent was worthless; had never been reduced to practice, and had been known, and tried, and abandoned as worthless, before the patent was issued to plaintiff.”
    2. Held, that the rejection of such evidence entitled the defendant to a new trial, he having excepted to its rejection.
    (Before Hoffman and Pierrepont, J. J.)
    Heard, January 14;
    decided, January 30, 1858.
    This is an appeal by the defendant, from a judgment entered in favor of the plaintiff, on the report of a referee. The action was brought to recover $1000, and upon an agreement in writing, dated February 5, 1855, signed and sealed by both parties, in these words, viz.:—
    “ Charles E. Fogg agrees to advance Samuel T. McDougall $500, to improve machinery for manufacturing gas, and to obtain a patent or patents on the same; he also agrees to pay Samuel T. McDougall $1000 when the patent or patents are issued.
    “ In consideration for the above advance and payment, Samuel T. McDougall agrees to improve machinery for manufacturing gas, and obtain a patent or patents therefor, and to assign to Charles E. Fogg one undivided half of said patent or patents; and he further agrees to leave $500 of the last payment in the business as capital, Charles E. Fogg paying a like amount ($500) as capital: said capital to be used for joint account in selling patent rights and manufacturing and selling machines.
    “ Charles E. Fogg reserves the right to sell his interest in said invention to any person complying with the terms and conditions of this agreement.”
    The report of the referee states, not only the facts found by him, and his conclusions of law thereon, hut it states the decisions made by' him during the progress of the trial, to which the exceptions were taken, which alone are considered in the opinion, of the Court delivered at General Térra.
    The report of the referee, after stating the making of the agreement above set forth, and the substance of it, is as follows, viz.:—
    “ That subsequently said plaintiff did obtain a patent for an improvement in the discovery for the manufacture of hydro-carbon vapor, (which was admitted on the trial to be an inflammable gas,) and did assign the one-half of his interest therein to'said defendant, which assignment was duly recorded in the United States Patent Office at Washington, and that said defendant did pay to the plaintiff the sum of five hundred dollars, but made no other or further payment to him.
    The defendant on the trial insisted, as a matter of law, that the plaintiff, in order to sustain his action, must show that he had actually improved machinery for manufacturing gas, and that the alleged improvement of plaintiff was useful, upon which proposition of law I ruled and decided that the issuing of the patent was prima facie evidence of utility.
    “The defendant likewise insisted, that the plaintiff must prove that the patent had been reduced to practice, which proposition of law I overruled. The defendant likewise, at a subsequent stage of the case, offered to prove that the alleged improvement in said patent was worthless, had never.been reduced to practú^ and had been known, and tried, and abandoned as worthless before the patent was issued to plaintiff, which offer I overruled unless the defendant should first prove false representations of plaintiff alleged in the answer.
    “ The defendant then offered evidence tending to show, that the defendant and plaintiff had, after the making of the contract above referred to, settled the same by the payment of the five hundred dollars above mentioned; and that by a parol agreement between the parties, the said contract was discharged, and the defendant released therefrom; and that the said five hundred dollars so paid, was in full settlement of all plaintiff’s claims upon defendant, arising out of the matter of this agreement. And upon this point, without deciding as a matter of law whether the said contract could be legally rescinded by such an agreement in parol, I find, as a matter of fact, that although there is considerable evidence tending to that point, yet, that it is not sufficient to warrant me in coming to the conclusion, that the said contract was thereby rescinded or discharged, or intended so to be, by the parties. I further find that no special damage to the plaintiff has been proved, on the trial of this action.
    “ And upon the above facts, so found by me, I find as a matter of law, that plaintiff is entitled to recover from the defendant the said sum of one thousand dollars, so by him contracted to be paid on the assignment of the one-half of said "patent, with interest thereon, from the date of said assignment, August 27, 1855, to the date of this my report, amounting in all to one thousand one hundred and seventeen dollars and sixty-three cents,
    ($1117*)
    “ All of which is respectfully submitted. Dated, N. Y., April 30, 1857.”
    “ The false representations of plaintiff alleged in the answer,” referred to in the referee’s report, are to the effect, that before the agreement was made, and “ some time in the autumn of 1854, the plaintiff called upon the defendant, and-stated that he had invented a new apparatus, or machine, for manufacturing gas from a fluid called Benzole, and represented to this defendant that his said invention was of immense value, and that he was about to procure a patent for the same.
    The answer alleges, that the defendant relied on these representations, and was induced by them to enter into the agreement, and that “ they were utterly false and made without foundation.”
    When the plaintiff rested, the defendant moved to dismiss the complaint, on grounds stated in the opinion of the Court. The motion was denied, and the defendant excepted. He also, in due time, filed various exceptions to the decision of the referee, and the conclusions of law included therein.
    Judgment having been entered upon the referee’s report, the defendant appealed from it to the General Term.

      A. B. Capwell, for appellant, contended that the plaintiff, in order to recover, must prove, affirmatively, that he had “improved machinery for manufacturing gas,” and, also, that he had “ obtained a patent or patents on the same.”

      That the issuing of the patent was not prima fade evidence of the fact, that the plaintiff had improved machinery for manufacturing gas, or of the utility of the alleged invention. (Curtis on Patents, § 363, .p. 406; 2 G-reenleaf’s Ev. §§ 493, 494, p. 407; Earle v. Sawyer, 4 Mason’s R. 6.)
    That the referee erred in excluding evidence to show that the alleged improvement was worthless, that it had never been reduced to practice, but had been known, and tried and abandoned, as worthless, before the patent was issued.

      C. A. Nichols, for respondent.
    I. The defendant makes, in his answer, no issue as to the novelty or usefulness of the invention.
    II. The written agreement between the parties does not require that the invention should be useful, or reduced to practice, and no warranty as to a patent can be implied where there is a written agreement of sale. (Van Ostrand v. Reed, 1 Wend. 432; Peltier v. Collins, 3 Wend. 459.)
    III. The finding of the referee is conclusive, as to the question of fact. (Woodin v. Foster, 16 Barb. R. 146.)
   By the Court. Pierrepont, J.

The party who seeks to recover upon a contract containing mutual and dependant covenants, must show that he has performed his part of the agreement.

This contract states, that the plaintiff “ agrees to improve machinery for manufacturing gas,-to obtain a patent therefor, and to assign one undivided half to the defendant.”

The plaintiff gave evidence tending to show, that he had procured a patent, and had assigned one-half of the same to the defendant, and that the defendant had paid him on account of this contract $500. The defendant’s counsel moved to dismiss the complaint upon various grounds; and among others, that the plaintiff had given no evidence tending to show that he had “ improved machinery for manufacturing gas,” as stipulated in the contract.

The referee held, that the obtaining of a patent was prima fade evidence of the utility of the invention. . The defendant then “ offered to prove, that the alleged improvement in said patent was worthless, had never been reduced to practice, and had been known, and tried, and abandoned, as worthless, before the patent to the plaintiff was issued.”

This offer the referee rejected, unless the defendant should first prove the false representations, alleged in his answer; thus virtually ruling, not only that the patent was prima, facie evidence that the plaintiff’s invention was an improvement, but that it was conclusive, and of such a nature that no evidence could be given to rebut it, unless fraud was first shown.

We conceive the law to be quite otherwise. In the case of Cross v. Huntley, (13 Wend. 385,) the suit was upon a note given on the sale of a patent right, for an improved washing machine. The defence was, that the patent was of no validity, and, therefore, the note was without consideration. Witnesses were called to testify, that they had seen washing machines in use, prior to the granting of these letters patent, which, in material parts, corresponded with the machine in question. The defendant contended, that the machine was not a new invention. Mr. Justice Nelson held, that the patent issued was invalid, and that the note given was without consideration, and that the plaintiff could not recover.

So in the case of Head v. Stevens, (19 Wend. 411,) the suit was upon several promissory notes, the consideration of which was the assignment of a patent right. The defendant was allowed to show, what the defendant in this case, in order to defeat a recovery, proposed, but was not permitted, to show. There are other like decisions, made by the Courts of this State, by the Courts of other States, and by the Courts, of the United States. (Wright’s Ohio R. 306; 11 Ohio R, 411; 4 Washington C. C. R. 13.)

The evidence offered and excluded, if uncontradicted, would establish, that the plaintiff had not improved machinery for manufacturing gas, and that the patent, the undivided half of which he had assigned, was not a patent of improved machinery; and that, as a necessary consequence,- the plaintiff had not performed the covenant on his part—full performance of which was a condition, precedent, to his right to maintain this action.

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

Ordered accordingly.