author: Hoffman J.

text:
    Samuel Parsons, impleaded with John Jewett, ads. Benjamin De Forest and Alfred De Forest.
    In order to maintain an action of assumpsit against two trustees jointly, for money had and received to the usé of the cestuy que trust, the plaintiff must prove a joint promise, either express or implied. As each trustee is, in general, answerable for Ids own acts only, the law will not imply a joint promise on the part of both to pay over tho money in their hands to the cestuy que trust, from the mere fact that each trustee has, for himself, separately admitted that there were funds in his possession equal to the amount of the plaintiff's claim.
    The plaintiffs in this case, being creditors of C. & D. (who had assigned their property to the defendants by a deed of trust for the benefit of certain persons, among whom were the plaintiffs) filed a bill in equity against the defendants. The defendants answered separately, and each in his answer admitted that ho bad received funds to a considerable amount out of the estate assigned, and that he then held in his hands a sum equal to the plaintiffs’ demand, which he proffered his readiness to distribute according to'the terms of the trust.
    Upon an action of assumpsit against both trustees for money had and received to the use of the plaintiffs, founded upon these admissions, it was held, that the proof did not support the declaration, and that the plaintiffs could not recover unless they proved a joint promise on the part of both defendants.
    This was an action of assumpsit for money had and received,— the declaration containing but a single count, which embraced the usual money demands and an account stated. The defendants appeared by different attorneys and separately pleaded the general issue.
    The defendant Jewett, suffered a default to be taken against him, but Parsons appeared and defended.
    The cause was tried before Mr. Justice Oakley, and at the trial, the plaintiffs, to support the issue on their part, produced and read, in evidence a bill of complaint filed in the, Court of Equity for the first Circuit of the State of New-York, in a case wherein George W. Wallis, and the present plaintiffs, and Charles and George Belden were complainants, and the present defendants were respondents,—together with the "separate answer of each defendant to said bill.
    The bill stated, that one David Cromelien and David Davies, being indebted to the complainants in various sums of money, on the 23d day of March, 1827, became insolvent, and being possessed of considerable personal property, agreed upon a compromise with their creditors upon certain conditions. That in pursuance of this agreement, the said Cromelien & Davies made an assignment to the defendants, Parsons & Jewett, of certain goods, credits and choses in action, amounting in value to a large sum of money, upon the condition, that they should apply the proceeds of the same to the payment of the debts of the creditors named in a schedule annexed to the assignment according to the proportions therein specified; and among said creditors were the plaintiffs in this suit, who were entitled to receive, under said assignment, the sum of $934 21. The bill then stated that the defendants converted said goods, &c. into money, and that Jewett being applied to by the complainants according to the terms of the trust to make payment, expressed his willingness to do so, but alleged that Parsons had possessed himself of the proceeds of a large amount of stock, which had been conveyed to said trustees by Cromelein & Davies, together with the sum of $2500, arising from the sale of said goods. The bill also asserted that Parsons being applied to for a like purpose, refused, under various pretences, to make any payment whatever. The bill then prayed for relief, and that Parsons might be removed from his situation as trustee, alleging, that he had threatened to apply said funds to his own use.
    Parsons in his answer admitted, that he had received from the sales of stock and goods transferred to said trustees, the sum of $8,392 12, but alleged that he had paid out on account of the trust, $4,617 34, and that the difference between these two sums ($3,774 78) remained in his hands.. He denied any unwillingness on his part to dispose of the funds in his hands according to the trust, but alleged that he could not safely part with them, because he had been regularly served with a process of foreign attachment in the State of Connecticut, by the creditors of C. & G. Belden, whereby said funds were attached and held to answer that suit. He admitted that the present plaintiffs were entitled unqer saj<j deed of assignment to receive the sum stated in the foilL and alleged that Jewett had in his hands funds unincumbered sufficient to meet the demands of all the complainants.
    Jewett in his answer admitted the principal allegations in the bill, and also that he had received from the proceeds of the property assigned, the sum of $27,801 83 ; but he alleged that of this sum he had paid out $24,909 71 on account of the trust. The difference between these sums he admitted was in his hands, subject to the claims of the complainants and his own charges for commissions, and that the present plaintiffs were entitled to receive from said trustees the amount stated in the bill. Jewett also proffered his readiness to answer all claims upon the trust fund, but alleged that Parsons had received and retained in his hands the proceeds of certain stocks, which were intended to satisfy the claims of the complainants, but that he refused to pay them over without any just excuse.
    By the terms of the assignment (which was attached to the answer of Jewett) it appeared that C. & G. Belden were not to be paid the amount of their claims, until after all the other creditors named therein were satisfied, and from the answers it appeared that all the said creditors except the complainants, had received the amount they were entitled to claim.
    Parsons in his answer stated that the complainant Wallis was not entitled to receive any thing from the trustees under the assignment, as he was not mentioned therein, and because Jewett received a specific sum from Cromelein & Davies to answer that demand. Jewett admitted that Wallis was entitled to receive $1800 (the amount of his claim) under the assignment, and stated that the only reason why Wallis was not formally named, was because his account was not liquidated. He admitted also that he had received from C. & D. the sum of $2000 with which ' to satisfy Wallis’ claim, but alleged that he received it under the trust, to be distributed according to the terms of the assignment.
    It thus appeared that each of these defendants had in his hands a sum sufficient to cover the demand of the plaintiffs.

      Upon this testimony the counsel for the plaintiffs having rested their cause, the defendants moved for a non suit; but the motion was overruled by the presiding Judge, who was of opinion that the plaintiffs were entitled to a verdict. To this opinion the counsel for the defendants excepted. The jury returned a verdict in favor of the plaintiffs for $1019 75, and the defendant, Parsons, now moved for a new trial.

      Mr. W. S. Johnson in support of the motion, contended,
    I. That the matter in controversy formed the subject of equity jurisdiction only. The trustees under the assignment received different and very unequal parts of the proceeds of the trust-fund, which each had distributed for himself without concert with his co-trustee. Each then is answerable for his own acts, but. nothing more, and they cannot in a court of law be called to an account jointly.
    An action at law does not lie against a trustee except upon an express promise by him, and no case can be found where he has been held liable upon a promise implied from the mere fact of his reception of funds. [Coke Lit. 272 b. s. 404. 1 Coke Rep. 121 c. 2 Bulst. 336. 12 J. R. 276 Weston v. Barker. 5 Term R. 690.] A court of law cannot look into the accounts to examine the claims of the various parties, nor can it adjust the amount, which each is entitled to receive. Nothing but a court of equity can do complete justice between the parties, and therefore a court of law will not entertain jurisdiction upon the subject matter.
    II. The attachments served on Parsons in Connecticut, are a bar to the plaintiff’s right of recovery against him. Parsons in all his admissions, couples them with a statement of his liability to respond to the attaching creditors. He was perfectly willing to pay over the funds in his hands according to the trust, if he could do so with safety. He is justified in his refusal to part with them while those suits are hanging over him, and he cannot be compelled to part with any portion of those sums until the termination of that controversy. If the attaching creditors prevail in Connecticut, can Parsons pay over the funds, which he holds as the trustee °3 Belden, to any but those creditors! Can he escape the consequences if he act thus imprudently, and will any Court compel him to assume a risk where he has no beneficial interest ? If he be right then, in retaining the fund he must retain it entire, and a court of law will not sever it. [5 J. R. 100 Embree and Collins v. Hanna. ]
    III. The defendants are not jointly liable, as appears by the evidence. Each trustee is liable for himself but not for his co-trustee. If any action at law can be sustained against a trustee, it must be upon an express promise, and if the action be against two, then there must be a joint promise. Here each defendant answers for himself. Each admits that he has funds, and throws upon the other the obligation of paying this debt. These defendants are not jointly liable even in equity, and much less will a Court of law raise a joint promise from separate admissions. Suppose Parsons to have in his hands but $500,while Jewett has $1500: Can Parsons be made liable for any part of the sum in Jewett’s hands ! If the latter become insolvent, can the former be responsible for his delinquency ! And if the whole sum be collected of Parsons by execution, must he pay the debt of another without funds, and take the risk of looking to a man over whom he has no control for remuneration! The law imposes no such hardship upon trustees, and this action cannot be maintained. I. Hopk. R. 309-5 J. C. R. 296. 6 Ib. 16. 4 Vin. Ab. 534. 3 Equi. Cas. Ab. 742. Attor. Gen. v. Randall. 1. P. Will. 81. 2. Mad. 14 12. 11 Ves. 324. 2. T. R. 366.]

      Mr. Hugh Maxwell for the plaintiffs observed.
    I. That the Court had already decided when this case was formerly before them, (Vol. 1, p. 137.) that the action should be a joint one against both defendants, and that the attachments in Connecticut formed no defence to the suit. The second point of the plaintiffs is at all events disposed of, and the first is not tenable even as an abstract proposition. It has been repeatedly and expressly decided that a trustee may be sued in a court of law for a balance admitted by him to be in his hands for the cestuy que trust. It cannot be necessary to drive a plaintiff into Chancery where the defendant admits that he has a certain, fixed and specific sum in his hands to which the plaintiff is entitled. Where the accounts are unsettled and before any balance is struck, or before it is ascertained what amount the plaintiff is entitled to receive, it may be, that an action for money had and received will not lie against the trustee. But when he has converted the funds into money and has admitted the plaintiff’s claim, and that he holds the money for him there can be no good.reason for driving him to his bill in Equity, nor for ousting a court of law of its jurisdiction. At all events it is well settled that if there be a balance in the hands of a trustee, which he has promised to pay, that amount may be recovered in an action of assumpsit. [1. Paine’s Cir. Ct. R. 636. 644. U. S. v. Clarke 12, J. R. 280. Weston v. Barker.]
    II. As to the attachment in Connecticut, there is no privity between the attaching creditors there, and these plaintiffs. The rights, which we have under a valid assignment, cannot be defeated by any such process, and this excuse will not avail. Besides, nothing was attached in Connecticut but the interest of the Beldens, who were to have nothing until all other creditors were paid. What peril, then, could be brought upon Parsons, even if he were to pay to us the sum, which he holds for our benefit 1 Would it not be a sufficient answer to any suit against him, that the funds in his hands were held in trust to pay certain creditors, and that by the terms of the trust, the Beldens were to have nothing until all other creditors were satisfied 1 Would it not form a good defence, if he were to say that the fund was exhausted before any rights of the Belden’s attached % Their rights depended upon a contingency, and if the contemplated event did not take place, then those rights could not attach. It cannot be that Parsons had any fear from that source, and his only object is delay. At all events the excuse for not paying these plaintiffs is no defence at law, and it cannot avail any thing. [Embree and Collins v. Hanna. 5 J. R. 100.]

      III. The only real question is, whether, there has been a,promise, and if so, such a promise as will sustain this action.
    Let us for a moment advert to the facts. It is asserted in the Bill in equity which has been admitted as evidence here, that Cromelein & Davies made an assignment to the defendants jointly of certain goods, credits and choses in action, which were to be converted into money and distributed among certain creditors of the assignors in given proportions, according to an indenture, to which Cromelein & Davies the. defendants, and the creditors were parties. Each of the defendants, admits in his answer, that the goods, credits and choses inaction so assigned were received by them jointly; that they were converted into money by the defendants, and that the proceeds have passed into their hands. Each defendant admits, that there are now funds enough in his hands, to satisfy the claims of the complainants, and each alleges further that his co-trustee has funds enough in his possession to pay this demand ; and both defendants admit, that the plaintiff’s claim is just, and that it ought to be satisfied. Each defendant proffers his readiness to do justice in the matter, but insists upon it that his co-trustee ought to pay this particular demand.
    From these confessions we draw proof of facts enough to support this action. The plaintiffs have nothing todo with the collisions between the trustees, and are indifferent as to the issue of their contests. Neither have uie any thing to do with hypothetical cases put by the ingenuity of counsel, and this Court is not called upon to give judgment against co-trustees, where one is without funds, and the other is full-handed. We take the case as it actually exists, and ask the Court, if the law does not impose an obligation upon the defendants jointly in a case where each is in possession of an abundant fund expressly appropriated to the payment of this debt? Is it any answer for Parsons to say, that true it is, the claim is just,—it ought to be satisfied, and I have the means of payment; but in an arrangement between myself and Jewett, it was agreed or understood that he should pay this debt, and he has the means of doing it: look, therefore, to him. Will an excuse like this lie in. the mouth of Jewett as a defence, and if the matters admitted in the answer were spread out as a defence at law* would they form a plea in bar of this action %

    If an execution go forth against these defendants, no injustice can be done, let the sheriff proceed as he will, for each defendant has in hands the money of the real debtors, intended to be applied to this very object, which he refuses to give up.
    But we are told, that there is no express promise to pay. What if there is not 1 there is an express admission of a debt due from Cromele'in & Davies to the plaintiffs, and an express admission of funds in the hands of the defendants to meet this debt. Here is a direct acknowledgment of money had and received to the use of the plaintiffs,and for them; and will not the law upon these confessions raise an assumpsit 1 Is not the admission tantamount to an express promise, and can the defendants by a technical defence of this kind drive us from the straight course of the law into the circuitous paths of a court of equity ! And for what 1 The defendants could have nothing there, which we refuse them here, and there can be no reason founded upon justice or good sense, which will defeat this action.
    We rely upon the general principle of justice, upon which this peculiar action rests: Ex equo et bono, the defendants ought to pay us this money, and a court of law can compel them to do justice. But if authority be wanting, it is to be found in the case of Weston v. Barker t o the full extent of our claims.

      Mr. S. P. Staples in reply, observed that the difficulty in the way of a recovery in this action, was to be found in the fact, that there was no joint liability on the part of the defendants. The trustees are not liable for each other, and hence no joint action against them can be sustained "except upon an express promise, and that promise must be a joint one.
    The defendants are trustees created by a deed, containing an assignment for the benefit of creditors. The cestuy que use, has neither jus in re, nor jus ad rem, and hence can have no action at common law. His rights are equitable merely, not legal, and a court of equity is the only tribunal which has jurisdiction over the subject matter of the complaint. [Co. Lit. 272 b.]

      The case of Weston v. Barker so far from supporting this action is an authority to prove, that it will not lie, unless there has been an express promise. Judge Thompson did not intend to go beyond this point, and it will be observed that his opinion, even as reported, was not sustained by all his brethren. Spencer J. in an able and almost incontrovertible opinion, maintained the other side of the question, while Judge Platt gave no opinion upon the point at all.
    The principle upon which we rely, is to be found in all analogous cases. Take a case of partnership, where accounts between partners are settled and a balance struck: there still cannot be a recovery by one partner against another at law, unless there has been an express promise. [Murray v. Bogart & Kneeland, 14 J. R. 322.]
    The case of Beach v. Hotchkiss [2 Connec. R. 697] contains the same principle in another matter. That was a case of joint adventure, where a balance had been struck, but there was no express promise, and it was held that the action could not be supported. So in an action for a legacy, no action at law will lie against the executor, unless upon an express promise. [5. T. R. 690.]
    The general principle is laid down by the Supreme Court of the U. S. in the 2d of Wheaton’s Rep. 56, and is supported by all the authorities. “ A trustee, merely as such, is in general only suable in equity. But if he chooses to bind himself by a personal covenant, he is liable.” [8. Taunt. 263. Holt’s N. P. R. 641.] in this case the defendants are trustees merely, and the funds cannot be drawn out of their hands by an action at law.
    The defendants at all events are not liable until the trust is closed, whichis not the case here. The rights of Wallis are not ascertained, the defendants commissions are not fixed, and the amount to be distributed is not known. This of itself is a conclusive objection to the action. [Chit on Con. 88. Com on Con. 281, 301, 282, 302.]
    II. But in equity even the liability is not joint, but separate. Each trustee is liable for the property in his hands, and for nothing more. If all the mdney pass into the hands of one trustee, his co-trustee is not liable in any Court, unless he has improperly permitted the fund to be diverted from himself. [6 John C. R. 16. 452. Mumford v. Murray, and the cases already cited,]
    III. If the defendants are liable at all, it is upon the sole ground of an express promise, and that leads us to look into the evidence.
    But in the first place it may be well to ask, what is an express promise 1 It is an undertaking or an agreement, to do or not to do a particular thing upon a sufficient consideration. What is an implied promise ? It is the inference of law arising from a given state of facts. An express promise and an implied promise cannot exist at the same time concerning the same thing, for the implied promise will be merged in the express one.
    In this case, even if the evidence should present facts from which an inference might arise, that Parsons ought to be made liable jointly with Jewett, it would still fall far short of what is required to sustain this action.
    The declaration upon the face of it, for the purposes of this case, must be considered as stating an express promise.' A mere assent cannot be construed into an express undertaking, even if there was one. But here there is no assent on the part of Parsons proved. The bill in equity is no evidence against the defendants for any purpose ; neither can the answer of one defendant be used as evidence against the other. The only proof in the cause against Parsons is to be found in his own answer.
    From that answer it appears, that the accounts are not closed, and that Parsons is ignorant of their real situation, as Jewett has kept them all. True it is that Parsons has money enough in his hands to pay this debt, and so has. Jewett. But the fund in Parson’s hands is attached by the creditors of C. & G. Belden. If Parsons were to pay this debt,then those creditors would have no remedy,and the Beldens would draw out of Jewett’s hands all the money remaining there. Now the proceedings in Chancery are still pending, and justice in that Court can be done to all the parties interested in the fund. But by sustaining this suit, you leap over that Court and undertake a task not suited to the constitution and powers of a court of law.
    It may be true, that the trust is joint, but it does not follow that its obligations are joint also. The trust would be joint if the funds had in point of fact all passed into Jewett’s hands; but in such case, it will not be pretended, that Parsons would be liable in a court of law.
    The result of the inquiry is, first, that no evidence of assent on the part of Parsons to the demands of the plaintiffs can be found ; and second, there is nothing to show an express promise. There is a mere admission of funds in hand, which Parsons swears he is ready to distribute according to the terms of the trust. This admission raises no promise, which can sustain this action, and the Judge ought to have nonsuited the plaintiffs. The promise proved (if any such there be) and the proinise implied are but several ones, at all events, and such proof will not sustain the declaration.
   Hoffman J.

After stating the facts observed, that the utmost extent to which the evidence in the cause went, was to show that each of the trustees had funds enough in his hands, arising from the proceeds of the property assigned, to pay the demand of the plaintiffs ; and the question was, whether such proof could sustain this action.

The plaintiffs, in order to make the defendants liable, must prove an express promise on their part to pay this demand ; and in order to support their declaration, they must also show that the promise was a joint one. There can be no doubt that either of these defendants, or both of them, might be made liable by an express promise to pay over to a cesimj que trust, an amount of money, which they held for him as trustees. But here no express promise is proved, and I doubt whether any can be implied, from the facts, which will sustain the action.

No case has been cited where an action has been maintained in a court of law against trustees, upon the mere ground, that funds had passed into their hands. If that position were correct, an action at law might always be maintained against trustees’ to their great prejudice, and the utter confusion of their accounts. In the case of Weston v. Barker, Judge Thompson maintains his argument upon the sole ground, that there were facts enough in that case to show an express promise. He did not go beyond this point, and did not mean to give the latitude claimed here by the plaintiffs. In the case cited from Paine’s Reports, his opinion was placed upon a ground entirely different from that assumed here, and that opinion cannot, therefore, aid the plaintiffs in this matter.

As a general proposition, it is undoubtedly true, that a trustee is not liable to be sued by the cestuy que trust in a court of law, from any obligations resting on him as trustee merely. He may, if he choose, vary his responsibilities by his own acts, and by an express agreement. If he admit that he has funds in his hands for the cestuy que trust, and promise to pay them over to him, the law will find no difficulty in supporting the promise by a sufficient consideration. But if no promise be proved, it cannot be implied as an inference of law from a given state of facts. A case may exist where the Court or jury might infer that an express promise was made, although not proved in direct, explicit, and unequivocal terms. The necessity of proving an express promise is one thing, and the mode by which it shall be done is another.

From the facts shown in this case, I take it to be clear, that the remedy of the plaintiff is in chancery; and creditors in such cases must look to that tribunal. It is certainly true, that here is no joint promise proved, and yet such a promise is absolutely necessary to maintain a joint action.

The most that could be claimed under the facts, would be a several action against each trustee, upon his own admissions; for then his answer would be evidence against himself. The general rule is, that each trustee is liable for his own acts and not for those of his co-trustee, although some exceptions to this may be found. But here the answer of Jewett is no evidence against Parsons; and the latter cannot be convicted except by his own admissions. But he has not confessed a joint liability and a new trial must be granted. I think, however, that the remedy of the plaintiffs is properly in equity, and if they choose to be nonsuited, they may take that course instead of proceeding to a new trial.

Oakley J. after stating the facts. I am satisfied, on reflection, that I ought to have nonsuited the plaintiffs at the trial. The action being against the defendants jointly, a joint promise must be proved, either expressly or impliedly. There is no proof of any express promise, either jointly or severally; and the law cannot, as against these defendants, imply a direct promise, from the fact that each is in possession of funds, sufficient to discharge the debt, and that it is the duty of each to pay it. The rule appears to be well settled, that trustees are not jointly liable to the cestuy que trust, unless they have made themselves so "by some joint act. Each is responsible for his own acts, and for the money that he receives. Kirby v. Turner and others, 1 Hop. Ch. R. 309. Morrell v. Morrell, 5 J. C. C. 296.]

In the absence, then, of any evidence of an express promise on the part of the defendants, it seems that the law cannot raise a joint assumpsit; as their responsibility to account for and pay over the trust funds is, in its nature, separate and distinct.

I do not mean to give any opinion on the point, whether, under the peculiar circumstances of this case, an action at law will lie against either of the defendants separately. The plaintiffs have, no doubt, a perfect and easy remedy by application to the Court of Chancery, to compel an execution of the trust.

New trial granted.

[W. P. Hawes, Att'y for the plffs. W. S. Johnson, Att’y for Parsons. J. W. Girard, Att’y for Jewett.]


source: Caselaw Access Project

author: Oakley J.

license: Public Domain

text:
    John Wheelwright versus. John A. Moore.
    The defendant executed the following instrument of guaranty in favor of the plaintiff.

      New-Yorlc, December 5Ih, 1827.
    “ Whereas Noah Scovell of the City ofNew-York, has this day passed to John “Wheelwright of the said city, his three promissory notes, of which the folio w- “ ing are correct copies ; (setting forth the same ) “ amounting together to “ $10,590 and 80 cents ; now in pursuance of the understanding and agreement “ between the said John Wheelwright and the said Noah Scovell, I do hereby “ guaranty the just and full payment of the said notes to the said John Wheel- “ wright or his order, and should any default; of payment thereof be made by “ the said Scovell, I bind myself for the full amount of such default.” (Signed) John A. Moore.
    The plaintiff proved that Scovell on the 25th of November, 1827, came to him for the purpose of purchasing a quantity of barilla, and offered to give the defendant as a surety. That he accepted the terms, sold the barilla to Scovell, and on the 4th of December following delivered a part of it to him. Scovell gave his notes to the plaintiff for the amount of the barilla, and about three hours after they were gvien, the notes and and guaranty wore presented to the defendant, who immediately executed the guaranty and delivered it to the plaintiff.
    Held, that this was all one original and entire transaction, and that the sale and delivery of the goods to Scovell supported the promise of the defendant as well as the promise of Scovell, and formed a good consideration for both. Held, also, that the declaration (which counted on the promise as a collateral one,) being according to the fads of the case, was correct in its form, and in all respects sufficient.
    Assumpsit, upon a guaranty, executed by the defendant.
    The same case in substance, liad been before the Court oil two former occasions, once upon a demurrer (o the plaintiff’s evidence, [ Vol 1 ,p. 201.] and again upon a demurrer to the plaintiff’s replications to the defendant’s pleas. [Ib. 648.]
    The declaration in the present instance contained two special counts; the first stating in substance, that on the 5tli day of December, A. D. 1827, in consideration that the plaintiff would, at the special instance of the defendant, sell and deliver to one Noah Scovell a large quantity of merchandise for the sum- of $10,590 and qq cents . ¿efen¿ant undertook and faithfully promised io guaranty to him, or his order the payment of three several promissory notes, bearing date respectively on the said 5th day of December; the first being for $3,530 and 27 cents, payable seven months after date: the second for $3,530 and 27 cents, payable in nine months after date, and the third for $3,530 and 26 cents, payable twelve months after date. It then averred the sale and delivery of the merchandise to Scovell for the above amount, payable in Scovell’s three several notes of the tenor above set forth, and that the, first note had become due, but was not paid by Scovell, whereby the plaintiff became liable, &c.
    The second count differed from the first in nothing, except in confining the guaranty to the first note, the consideration being the same with that set forth in the first count.
    Plea, the general issue. The cause was tried before Mr. Justice Oakley.
    At the trial, the plaintiff’s counsel offered in evidence, the guaranty of the defendant, containing copies of Scovell’s notes exactly set forth in the declaration in the former case. [ Vol. 1 p. 202.] He then read the deposition of one Daniel McLaughlin, which stated^ “ that on the 25th day of November, 1827, Scovell went to the “ Compting House of the plaintiff, for the purpose of purchasing a “ quantity of barilla of him, and offered the defendant as a guaran- “ ty, for the payment of the same. That after making inquiry “ as to the “ stability ” of the defendant, the plaintiff on the 30th “ of November agreed to sell Scovell 242 tons ofbarilla for forty four “dollarsper ton, (amounting to $10,590 and 90 cents,) at a credit “ of seven, nine, and twelve months, ivith the defendant as a surety. “ That the witness (who was acting as bookkeeper to the plaintiff) “ then entered a memorandum of the sale in the plaintiff’s sales “ book, and the memorandum was immediately communicated to “ Scovell, who assented to it, and suggested that the word “ guar- “ ty” should be substituted for the word “ endorsed,” which the de- “ ponent had written. Afterwards, (but on what particular day, “ the witness did not recollect,) Scovell gave his three promissory “ notes to the plaintiff for the whole amount of the purchase mon- “ ey, and in about three hours after they were signed by Scovell, the “ witness carried them, together with the guaranty containing cop- “ ies of the notes to the defendant, who then executed the guaran- “ ty. Moore, the defendant was not in the compting room of the “ plaintiff, nor present at the time, when the agreement between “ him and Scovell was made.”
    All that part of the deposition, which related to the transactions of Scovell and his conversations with the plaintiff at his office, was objected to at the trial by the counsel for the defendant; but the objection was overruled by the Judge.
    The plaintiff then offered to prove, that the sale of a quantity of barilla formed the consideration of Scovell’s notes, and that a part of it was delivered to him on the 4th day of December, 1827. This evidence was objected to on the part of the defendant; hut the objection being overruled, the plaintiff proved the delivery of apart of the barilla to Scovell on the 4th of December, and also that it formed the consideration of the notes.
    The plaintiff having shown that the note described in the declaration had become due, but xvas unpaid; the defendant’s counsel moved for a nonsuit, but the motion was denied by the Judge, A verdict xvas then taken in favor of the plaintiff, for $3,653 and 82 cents, to be considered as subject to a case, either party having leave to turn it into a special verdict or bill of exceptions.
    A case having been made, the cause was now argued by Mr. /« JLnthon for the defendant, and by Mr. Wilkes for the plaintiff For the defendant it was contended
    I. That the promise of the defendant as disclosed by the guaranty xvas collateral, and as such was declared on by the plaintiff. The consideration for the promise must therefore not only be in writing but must appear on the face of the instrument of guaranty. [Fell on Guar. p. 20, 21 [n). 2 D. ty E. 80. 8 John. Rep. 29. 11 lb. 271. 4 lb. 281. 13 lb. 175.—In this case, the consideration so appearing, is there stated to be “ the understanding and agreement betioeen Wheelwright and Scovell.” This consideration is unintelligible without recourse to oral testimony, xvhich it was the express object of the statute of frauds to exclude. All parol testimony therefore to explain the consideration was inadmissible under the statute.
    II. The parol testimony of the matters, which took place between Scovell Wheelwright, in the absence of Moore was upon every principle inadmissible.
    III. Under the statute of frauds the written contract must speak for itself, and it contains the sole evidence of the terms, upon which the defendant consented to be bohnd. All the testimony therefore as to the consideration of Scovcll’s notes was inadmissible.
    IV. The interval of time between the signing and delivery of the notes and the signing and delivery of the guaranty, takes the case out of that class of decisions, which, by reason of the simultaneous execution of the original and collal eral contracts, treat both as forming one original contract. [3 Bing. 107. 5 Mass. Rep. 358. Hunt v. Adams, and the cases before cited.]

    There is no evidence that the witness McLaughlin communicated to Moore the terms, upon which the plaintiff had agreed to receive his guaranty of Sco veil’s notes. There is therefore no connecting link between the plaintiff’s contract with Scovell and the consideration for the defendant’s promise ; nothing to show that there was but one transaction, and one consideration, passing among the parties.
    In the case of Leonard v. Vredenburgh the parties were all together, when the note was given and endorsed, and the consideration furnished. So in the case of Bailey v. Freeman, and in that of Nelson v. Dubois, there was but one transaction. Here the promissory notes were first made and delivered : three hours afterward the defendant was applied to for his guaranty of the notes. Moore was not present when the original contract was made, but that was perfect and in esse, at the time the defendant was solicited to execute his agreement. This therefore was clearly a collateral contract, made subsequently to the original one, and is void for the want of a consideration.

      V. If the case falls within the class of cases referred to, the plaintiff has not treated it as such, he ought in that event to have declared upon it as an original and not a collateral contract. The plaintiff is in this dilemma: if he assumes the contract to be an original one, then he has no count in his declaration to meet it, Ifit is a collateral one, then there is no consideration to support it.

      Mr. Wilkes, for the plaintiff.
    The giving of the notes and the execution of the guaranty were concurrent acts, and one and the same transaction. " By the evidence of McLaughlin, the plaintiff has supplied, we think, what the Court considered upon the former trial as a defect in his proof. This evidence was clearly admissible, to show as part of the res gestee, that the giving of the notes by Scovell and the guaranty by the defendant were the same transaction and founded on the same consideration. Where the jury have found a verdict, subject to a case, every thing fairly inferable from the verdict is to be taken in favor of the successful party. Here we have a right to infer, for we think the jury Would have found, that the defendant knew perfectly well before the contract was made between Scovell and the plaintiff, that his guaranty would be required, because Scovell proposed to give this security, at the time when he asked for the credit.
    After the terms of the contract between the original parties were digested, Scovell gave his notes to the plaintiff, who in pursuance of the agreement, sent his clerk immediately to the defendant for the purpose of obtaining the required security. The defendant, without hesitation and without inquiry signed the guaranty and delivered it to the plaintiff; under these circumstances, is it not fair to suppose that Moore had been made acquainted with the arrangements between Scovell and the plaintiff, and had assented to them all % The plaintiff would not have delivered the barilla on the 4th of December, if he had supposed that the giving of the guaranty by the defendant was subject to any contingency: on the contrary, he considered it as a part of the original contract, and so all the parties treated it. We therefore consider the fact as established, that the giving of the notes and the guaranty were all , one transaction.
    II. The guaranty being an essential branch of the same transaction with the giving of the notes, it required no new or distinct consideration passing between the plaintiff and the defendant to support it; but it is upheld by the same consideration which supports the notes. [D’Wolf v. Rabaud et al. 1 Peters’ U. S. Rep. 477.] This is what is termed an original, collateral contract. It is original as to consideration, because made at the same time with the principal contract; but is collateral as to promise, because the faithful performance of another’s contract is guarantied. This distinction is well settled in our own Courts, and the law upon the subject is also well settled. The defendant relies upon the case of Wain v. Warlters, and the class of decisions in England following that case. The authority of that decision has been denied in Massachusetts, [17 Mass. Rep. 122,] and it has been questioned in.the Supreme Court of the United States. [D’Wolf v. Rabaud, supra.] The principle of that case as admitted by our Courts, however, goes only to this point; that where the original debt was perfectly in esse, independent of the collateral one, and the collateral contract was afterwards superinduced upon the original one, then not only the contract itself, but its consideration, must appear in writing. In such case the original consideration cannot be the consideration of the collateral contract, but the latter must rest upon some new foundation. But here there could be no distinct consideration, for there never was but one, moving between the parties, and that was the credit given to Scovell.
    III. The evidence offered at the trial was competent to explain atid ascertain what the agreement between Scovell and the plaintiff was, as referred to in the guaranty; it not being in contradiction, but in furtherance of it,
   Oakley J.

When this cause was formerly before us on a demurrer to the plaintiff’s evidence, we considered, that the case was defective, in not showing the consideration for the defendant’s promise, which the declaration alleged. The guaranty of the defendant was alone, in proof. That guaranty was written under copies of the notes made by Scovell, which purported to be for value received, and although we considered that a sufficient consideration to support the guaranty, yet it did not accord with the consideration set up by the declaration, which was the sale of goods by the plaintiff to Scovell at the defendant’s request: and we held, on the authority of the case of Leonard v. Vredenburgh, [8 J. R. 29.] that parol proof was admissible to show, that the actual consideration of the'defendant’s promise, was the sale of goods to Scovell at his request.

In the case, as it now presents itself, it is sufficiently proved, that previous to the giving of the notes by Scovell, he applied to the plaintiff to purchase the goods in question, and offered the defendant as his surety; th at the plaintiff agreed to sell the goods upon the guaranty of the defendant for the payment; that the notes of Scovell were signed by him ; and the agent of the plaintiff about three hours after they were so signed, called with them on the defendant; that copies of the notes were made, and the guaranty of the defendant written under the said copies. The goods sold were partly delivered to Scovell on the day preceding the date of the notes ; and the guaranty is stated to have been made in pursuance of the agreement and understanding between the plaintiff and Scovell.

The facts in this case show with sufficient clearness, that the promise of the defendant to guaranty the payment of the notes was a part of the original negotiation between the plaintiffs and Scovell; that the defendant must have understood the nature of that negotiation, and that the plaintiff had agreed to part .with the property, on the security of his guaranty. ' The sale and guaranty, therefore, in the language of C. J. Kent, in Leonard v. Vredenburgh, were all one original and entire transaction, and the sale and delivery of the goods to Scovell supported the promise of the defendant as well as the promise of Scovell. The case seems to fall directly within the principles of Leonard v. Vredenburgh, and of Nelson v. Dubois, [13 J. R. 175.] which latter case is very similar, in all respects, to the present. The case of Bailey & Bo gert v. Freeman, [11 J. R. 221] is also in point, and is also similar to the present.

The interval of time which elapsed between the signing of the notes and of the guaranty, does not destroy the entirety of the transaction. Both acts were done in pursuance of the original agreements, and the one must necessarily have preceded the other. The contract made with Scovell was not past and completed, until the guaranty was given by the defendants. In Bailey fy Bogert v. Freeman, the guaranty was signed at a different time and place from the original agreement. There is no foundation for the objection to the form of the declaration. It is strictly according to the facts of the case, and agrees in all respects with the declaration in the case of Nelson v. Bubois. The plaintiff is entitled to judgment.

Judgment for the plaintiff, on the case made.

[H. & E. Wilkes, attys. for the plff. E. Anthon, atty. for the deft.]


author: Hoffman J. Oakley J.

text:
    Christian J. Burckle and Emanuel Burckle versus The New-York Dry-Dock Company.
    No person can lay the foundation of an action against another, by a wrong on his part, or by a neglect or breach of his own duty.
    The defendants were proprietors of a certain dry-dock, with a machine to raise vessels out of the water, for the purpose of cleaning and repairing their bottoms. The plaintiffs hired this machine, and placed a vessel upon it, under the direction of their own agents and workmen ; and in an attempt to burn off the tar from her bottom, the vessel took fire, and was much injured. An action being brought by the plaintiffs against the defendants for negligence on their part as to the manner in which the machine was kept, and for its improper construction in a certain particular, the defendants proved that the injury to the vessel was occasioned by carelessness and neglect on the part of the plaintifis in the use of the machino. The Judge charged the jury, that if the injury were attributable to carelessness, or want of common precaution on the part of the plaintiffs, in the use of the machine, the defendants were not liable; and the jury having returned a verdict for the defendants, a new trial was denied.
    This was an action on the case for injury sustained by a vessel belonging to the plaintifis, while on a rail-way, or inclined plane belonging to the defendants, for repairs.
    The declaration contained two counts. The first set forth that the plaintiffs, on the first day of May, 1827, were the owners of a brig called the Eagle, and that the defendants were the owners of a certain dry-dock or rail-way, “ intended and held out by them “ for the receiving and repairing of ships and vessels, which they “ were bound to keep in good order and repair, and in a state and “ condition suited to the purposes aforesaid.” That the defendants “ hired the same to the plaintiffs for a certain reward,” “ to “ receive the said brig for the purpose of repairing the same, yet, “ the defendants not regarding,” &c., “kept the said dry-dock or “ rail-way in a state and condition so unsuitable to the purposes of “ repairing ships or vessels,” “ that, by reason thereof, and of “ great quantities of combustible materials, which they” “ had “carelessly, and negligently, and contrary to their duty as afore- “ said, allowed to accumulate and attach to the said dry-dock or “ rail-way,” the said brig, in the course of her repairs, through the unsuitable condition of said rail-way, took fire, and was greatly injured, &c.
    The second count alleged, that the defendants received the plaintiffs’ vessel on their rail-way for repairs, but “ so negligently “ and carelessly managed their said rail-way, or dry-dock, that the “ same, by and through the carelessness and mismanagement of the “ defendants,” “ took fire, whereby, and by means of the defective “ construction of said dry-dock, or rail-way,” the said brig was greatly injured, &c.
    The defendants pleaded the general issue, and the cause was tried before Mr. Justice Oaklev.
    At the trial, it appeared that the dry-dock or rail-way referred to, was a machine by which vessels are drawn out of the water upon an inclined plane, for the purpose of cleaning, graving, and repairing their bottoms. It consists of a cradle, which, after receiving the vessel, is drawn up the inclined plane with the vessel upon it, to a given distance out of the water, on ways prepared for that purpose. When the vessel is thus drawn up, the cradle is secured by palls, which fall into certain grooves in the ways, at the bow and stern of the vessel, by which she is fixed in her place. When the repairs are finished, the palls are raised, and the cradle, with the vessel upon it, glides down the inclined plane until the vessel meets and is buoyed up by the' water.
    It also appeared by the testimony of one Leslie, whom the plaintiffs called as a witness, that he had been employed by the defendants early in March, 1827, to examine the dock, and state any objections, which might exist in regard to it. The witness found a quantity of combustible matter beneath the cradle, consisting of tar, pitch, and oakum, the remains of the graving and repairing of vessels, which had been allowed to accumulate gradually there. This combustible matter extended the whole length of the under surface of the cradle, and the witness considering it as dangerous, recommended that the whole space under the cradle should be covered over with earth. He made the same rep-presentation to the defendants afterwards repeatedly, but no notice was taken of his caution. The witness also observed that the patois' were secured by ropes, and he told the President, that they were unsafe,—stating that in case of fire, the ropes would be destroyed, and the pawls fixed in their grooves, so that the cradle and vessel could not be launched into the water. He therefore recommended, that chains should be used instead of ropes, for the purpose of raising the pawls. To these representations the President replied, “the men must be the more careful.” Leslie also recommended, that the sleepers of the cradle should be covered with a preparation of lime; and on one. occasion, he represented the danger to two of the directors of the Company, who having spoken to the President in relation to it, were answered, that there was no danger, and that the Company were insured. The President, however, suggested, that buckets should be made ready in case of five, but the witness thought they would be useless. The witness further stated, that he suggested various other precautions, which being disregarded, he left the employment of the'defendants, eight days before the injury complained of in the declaration, in order to avoid the responsibility of such an accident. After the witness had left the Company’s employment, the President seemed disposed to adopt his precautions, and wished him to speak to the defendants upon the subject. Nothing, however, was clone to avoid the danger.
    Tire witness also stated, that the bottoms of several vessels had been burned oif, while upon the cradle, without any injury from the fire. When the flames were too vehement, they were subdued by brooms prepared for that purpose. After the accident happened to the brig Eagle, chains were attached to the pawls instead of ropes, and the bottom of the cradle, where the combustible matter collects, was covered with sand.
    The plaintiffs called several witnesses, from whose testimony it appeared, that the plaintiffs were the owners of the brig Eagle, describedin the declaration; that she was a new vessel, which had been launched a few weeks before the accident, and her bottom payed. The plaintiffs being anxious to have her coppered expeditiously, had hired the defendants’ rail-way, and employed their own (plaintiffs’)

      men to do the work, it being the sole duty oí the defendants to raise the vessel out of the water, and to .return her there again. The whole of the. premises were open to the inspection of the plaintiffs their agents, and the combustible materials collected were visible to all the workmen. It further appeared, that previously to the coppering of the vessel; it was necessary to have her graved, and for this purpose empty tar-barrels were prepared, which being sawed asunder, and placed under the parts to be burned, were set on fire, and the flames thus communicated to the vessel’s bottom. When this process is resorted to, buckets and brooms are prepared, that in case of accident from the fire, or if the flames are too great, the fire may be reduced or extinguished, From the testimony. of these witnesses, it also appeared, that the burning of this vessel was conducted in the usual manner; but when the fire was communicated to the tar upon her bottom, a part of it dropped upon the combustible matter below, which being thus set on fire, instantly blazed up about the vessel, drove the workmen from the rail-way, and resisted all efforts for its extinguishment, until after the combustible matter was. totally consumed.
    It also further appeared that the ropes attached to the pawls were burnt off, by which' means the cradle became fixed in such a manner, that it could not be launched : if, however, the pawls had been secured by chains, the witnesses were of opinion, that the cradle with the vessel upon it might have been launched .into the. water within two minutes, and the fire "thus .extinguished. - The injury to the "vessel exceeded two thousand dollars, and the plaintiffs were compelled to repair her at their .own expense.
    The defendants, on their part, called several witnesses!» show that the fire w.as communicated to the vessel and the combustible materials entirely by the carelessness of the agents and workmen of the plaintiffs, especially by the haste and obstinacy of. the master of the Eagle. That before any vessel’s bottom can be safely burned upon the rail-way, it is necessary to prepare brooms and pails of water, that in casé of too much flame, its progress may be instantly arrested. That in this case, the master of the Eagle took upon, himself to direct the operations, and although warned repeatedly against the consequences, he caused fire to be applied to the vessel’s bottom before either brooms or buckets were prepared. That by this means.the fire had made such progress before any attempts could be made to arrest it, that it became impossible to extinguish the flames before the injury was done. The witnesses also testified, that if brooms and water had been prepared, the evil might have been prevented, but that the vessel’s bottom was not in a safe state to be burned, as she had been recently payed. Upon these points, however, the testimony was contradictory, the weight of it being with the defendants. •
    Upon these facts, the Judge charged the jury, that it might well be doubled whether the defendants were liable for any injury sustained by the plaintiffs, in consequence of the alleged insecure situation of the rail-way, as every body was free to use it,, or not, it being open to inspection in all its parts. For the purposes of this trial, however, he charged the jury, that the defendants were liable for all damage resulting from their neglect to keep the rail-way in a secure situation, unless the injury arose from, the negligence of those, who used it. That they were not, however, bound to keep it in such a state as to guard against hazard arising from the negligence of the plaintiffs or their agents. If, therefore, the jury believed, that the persons employed about the vessel did not act with ordinary prudence, and use the common and usual precautions against fire, or if the vessel was not in a situation to be safely graved, or was exposed to unusual hazard from the state of her bottom, that then the defendants were not liable.
    The jury returned a verdict in favour of the defendants.

      Mr. J. Anthon, for the plaintiffs,
    now moved for a new trial, and contended, that under the first count, the Judge ought to have charged the jury, that the defendants were liable for the injury sustained by the plaintiffs, if there was such negligence on the part of the defendants as was charged in that count, and if damage ensued therefrom to the plaintiffs. That the whole body of the evidence showed conclusively, that this negligence did exist; that it exposed vessels to great danger, and required more than ordinary care on the part of those engaged in graving them. That the Company had notice of the danger, and were warned against it, and that such danger actually proceeded from this source. [Mahew v. Borie, 1 Stark. R. 423. Clay v. Weed, 5 Esp. R. 44.]
    ' The second count, besides the averments of negligence, contained an additional averment of a defective construction of the rail-way, and ascribed the damage to both causes; the negligent accumulation of the combustible materials and the defective construction also. On this count, the Judge should have charged the jury, that if the rail-way was defectively constructed, and any danger proceeded from that source, they ought to find for the plaintiffs. He contended that the evidence clearly showed defects in the construction, and proved, that if chains had been used in the place of ropes, the pawls might have been raised, and the vessel launched info the water. Upon this point, the defendants were expressly warned, and having neglected to remedy the defect until after the injury had been done, they were liable to the plaintiffs.
    That if these matters did not form a cause of action, as set forth in the declaration, the defendants ought to have demurred. But having joined issue upon them, the plaintiffs were entitled to a specific finding on the facts under the charge of the Judge: valeat quantum valere. If such negligence and mal-construction existed on the part of the defendants, want of due precaution on the part of the plaintiffs would never release the defendants from their liabilities.
    III. On the whole case, the weight of evidence showed, that the injury proceeded from the combustible materials collected below the cradle, the burning of which produced the injury complained of. The Judge erred, therefore, in not charging specifically on the case as stated in the declaration, and secondly, in charging, that carelessness on the part of the plaintiffs, neutralized,, in effect, the negligence of the defendants, and relieved them from the liability attaching to them, from the unfit condition, and defective construction of the rail-way. [Townsend v. Sus. Turnp. Co. 6 John. R. 90.]

      IV. As the Dry Dock Company enjoy privileges by public grant, on the condition of having proper rail-ways, all rules are to be inte;preted strictly against them for the benefit of the community.
    V. The verdict was against the evidence.
    As to the general question, Mr. Anthon contended, that in all cases where one person holds out to another his power and ability to do or perform any tiling fora reward, he is liable for negligence and unskilfulness. He said, that our lav/ upon the subject was borrowed from the civil law, and that, he, who lets a carriage or machine, warrants against all defects. So he, who hires out casks, which are defective, is liable by the civil law for the consequences; and if one let a pasture having poisonous herbs therein, he would be liable by the same law, for the injury they might occasion. This is also our law of bailment in one of its branches, ([locatum,) as appears from Jones on Bailment, (page 49,) and Coggs v. Barnard, Ld. Ray, 902. [He cited also, Pandects, Lib. 19, ti. 2, Law 19, sec. 1, (si quis dolia.) Nap. Civ. Code, B. 3, tit. 8, chap. 2, sec. 1721, (page 198 of trans.) Pothier, vol. 2, 65 to 72.]

      Mr. Jay and Mr. Baldwin, for the defendants contra, contended,
    that the cases cited on the other side did not apply. That inthis case, there was no special agreement whatever. The dock was open to the inspection of all persons desirous of hiring it; and the defendants let it out to the plaintiffs in its actual condition, without warranty of any kind. The plaintiffs and their agents knew and understood the actual condition of the rail-way, and were aware of all the precautions necessary for its use. The pawls were exposed to view, and the plaintiffs were aware, when they hired the rail-way, that the pawls were secui ed by ropes. They knew the hazard originating from fire, and were aware, that the ropes were liable to be destined. The defendants are not bound by their charter to keep the dock in repair, and they have no monopoly. There are other rail-ways in New-York, and the defendants may, if they choose, allow their’s to sink into decay. The defendants, in fact, undertake nothing ; they exhibit their dock, and allow all parties to use it, who choose to pay the hire, and take the consequences. Here the plaintiffs employed their own agents and workmen, and the jury have found, that the accident proceeded entirely from the neghgence of the plaintiffs and their agents.
    Upon this point, the charge of the Judge was altogether too favourable to the plaintiffs, .and they cannot have a new trial from any error in the charge. If there be cause of complaint any where, it is with the defendants.
    A party, who uses a machine of any sort, must adopt ordinary care and precaution in its use, or he cannot complain of defects ; and this is a principle of common sense as well as of law. [Butterfield v. Forrester, 11 East. 60. Esp. N. P. 218, (599, old ed.) 1 Cowen 18, (Bush v. Brainard.) 1 Ventris, 310. Com. Dig. action on the case, B. 4.]
    There was no objection at the trial, as to the charge in relation to the admission of the evidence of negligence, on the part of the plaintiffs. They are too late, therefore) to complain, even if there was a cause of complaint. But there was no negligence in fact, as it was clearly proved, that the injury received by the Eagle might have been prevented by the plaintiffs, with ordinary care, and would never have occurred, but for gross negligence on their part. There is no reason, therefore, for a new trial, as the charge was favourable to the plaintiffs, and the jury found according to the evidence.
   Hoffman J.

It appears from the evidence presented by the case, that when fire is about to be applied to a ship’s bottom, water and brooms are usually provided, to guard against accidents; and that with these precautions a vessel may be safely graved. The plaintiffs, although warned that there would be hazard, unless such care was taken, having neglected all the usual precautions, cannot found an action for damages upon their own negligence.

The rule of the civil law, I apprehend, does not sustain the counsel for the plaintiffs in the position he has taken ; because from the testimony it clearly appears, that they have suffered entirely from their own carelessness and want of caution,—even if there was some negligence on the part of the defendants. In order to lay the foundation of an action against the defendants for a negligence of this kind, the neglect complained of, must be the cause of the plaintiff’s loss. But in this case there is no evidence to sustain the principle, upon which the action rests. I see no error in the charge of the Judge, and am satisfied, that the motion for a new trial must be denied.

But as the second count of the plaintiffs’ declaration charges upon the defendants a mal-construction of a part of the machine, which they let to the plaintiffs, it may not be improper to ascertain, whether there is any just cause of complaint from that source. The pawls attached to the cradle, it seems, were secured by ropes; and the plaintiffs insist, that these pawls should have been secured by chains. But it seems to me, that the defendants were hardly bound to take such a precaution, since they could not have anticipated a fire, which should extend to the cradle. But if this was a defect in the machine, it was an apparent one, and open to the plaintiffs. If they thought the rail-way insecure, they were not bound to use it; and the defendants in my view of the case warranted nothing connected with their rail-way. A commission merchant is not bound to store his goods in a fire-proof building, although they would be much safer there than in a wooden warehouse. The law leaves the owner to effect insurance in such cases, and imposes no obligation on the commission-merchant, to seek a place of storage, which is absolutely secure.

In this case, although the rail-way would have been safer, if the pawls had been secured by chains instead of ropes; still the defendants were not bound to provide chains,—since the plaintiffs were at liberty to exercise their own judgments, as to the safety of the machine.

Suppose the defendants had persisted in the use of ropes, after the accident took place; could their customers complain of this resolution'? They have the option to use the machine or not to use it, as they may think proper, and they must rely upon their judgments as to its safety. It is true the ropes were burnt, and by that means the plaintiffs were deprived of the power of launching the cradle and vessel into the water: but it must be remembered, that the ropes were destroyed by a fire originating in the plaintiffs’ negligence. The injury did not in fact proceed from any defect in the machine, but from want of caution on the part of the plaintiffs, and they cannot, therefore, sustain their action.

In my view of the subject, the charge of the Judge was correct ; and I do not think, that the jury have found against the weight of the evidence under the charge. On the contrary, the proof was strong to charge the plaintiffs with gross negligence on their part; although it is evident, that there was some cause of complaint, as to the situation of the rail-way, in relation to the accumulation of combustible materials under the cradle. Upon the whole view of the case, I am clear, that this action cannot be sustained, and that the motion for a new trial must, therefore, be denied.

Oakley J.

The defendantswere proprietors of a certain dry-dock or rail-way, with a machine for raising vessels out of the water, for the purpose of cleaning and repairing them. Theplaintiffs hired the machine, and placed their brig Eagle upon it, under the direction of their own agents and workmen ; and in the attempt to burn off the tar from her bottom, she took fire, and was much injured; They have brought this special action on the case against the defendants for damages; and they rest their right of recovery on two grounds t 1st, that the defendants had negligently suffered a quantity of combustible materials to accumulate under the machine, by means of which the fire originated and was communicated to the vessel; and 2dly, that the machine itself was insecurely and improperly constructed, so that the plaintiffs were unable to rescue the vessel from the fire; by launching her into the water.

The defence was, that the fire originated from the carelessness and negligence of the plaintiffs, and from their omitting to use the ordinary precautions, in such cases, against fire. The Judge charged the Jury that the defendants were not liable, if the injury arose from the negligence of the plaintiffs or their agents; and that they were not bound to put their machine in a state to guard against hazard, arising from the want of ordinary care on the part of those who used it; and under this charge, the jury found a verdict for the defendants. The plaintiffs now move for a new trial, on the ground that the Judge misdirected the jury.

Assuming that the defendants would, under any circumstances, be liable for injury, sustained by vessels, while repairing under the superintendence of their owners, I think it quite clear, upon general principles, that no action can be sustained, where the plaintiffs have been guilty of negligence m managing their own property, and have thus in fact caused the very injury, of which they complain. No man can lay the foundation of an action against another by his own wrong, or by the breach of any duty on his part. This is the dictate of common justice as well as of common sense. The defendants in the' present case, to say the most, were only bound to keep their machine in a situation capable of being safely used, for the purposes for which it was intended, by those, who should manage it with ordinary care. They cannot be held to warrant the plaintiffs against the consequences of their own rashness.

In the case of Bush v. Brainard [1 Cowen 78] the principles above laid down are fully recognized. The Chief Justice says, “ it is necessary to inquire, not only whether the defendant has “ been guilty of culpable negligence on his part, but whether “the plaintiff is free from a similar charge.” The cases of Blythe v. Topham. (Cro. James 158.) and Butterfield v. Forrester, (11 East. 60.) go upon the same principle.

I do not think it necessary to pursue the subject further. It seems too plain for any question.

It was contended also on the argument that the verdict was against the weight of evidence, as to the alleged negligence of the plaintiffs agents, and the cause of the fire. I think otherwise. The evidence, detailed in the case, is very strong to show gross carelessness, and even rashness on their part, and it fully warrants in my judgment the conclusion, which the jury drew from it.

Motion for a new trial denied.

[E. Anthon, Att’y for the plffs. Hallott and Walker, Att'y for the defts.]


text:
    J. & W. G. Ward versus Selah Van Duzer.
    In order to charge a defendant, in an action for money paid, for the purchase of stock on his account, and by his order, the plaintiff must clearly show the authority under whieh he acted, and prove that, he was instructed by the defendant to make the purchase. And where the proof was so defective at the trial that the jury would have been compelled to infer such authority from conversations and admissions of the defendant, which were neither explicit nor satisfactory, the plaintiffs were non-suited and the Court refused to set the non-suit aside.
    At the time of the purchase of the stock by the plaintiffs, the persons with whom they contracted for its delivery had no stock standing in their names on the books of the corporation by which it was issued, and there was no evidence, that they* were in fact the owners of the stock, which they professed to sell. Held, that the transaction was void under the act relative to stock-jobbing, and that the plaintiffs’ action could not be sustained.
    This was an action of assumpsit for money paid by the plaintiffs for the defendant in the purchase of stock for him and by his orders, or to recover the value of the stock which consisted of fifty shares in the Fulton Bank, of the city of New-Tork.
    The cause was tried before Mr. Justice Oakley, and at the trial the plaintiffs called William J. Robinson, a stock broker, as a witness, who testified, that on the 19th of May, 1826, he sold to the plaintiffs fifty shares of stock in the Fulton Bank, at 84 per cent on its par value, for which the plaintiffs at the end of 60 days paid him the cash with interest from the date of the purchase. But at the time of the sale the witness had not a single share ot the stock standing in his name, neither could he recollect whether he transferred the fifty shares to the defendant when he received his money, nor whether they were in fact transferred at all, (as he acted as a broker for other persons,) although he presumed they must have been conveyed to the plaintiffs.
    The witness being cross examined, and asked, who the owner of the stock was, the counsel for the plaintiffs objected to the question, but the objection was overruled, and an exception was thereupon taken to the opinion of the Judge. The witness then testified, that he sold the stock for J. M. D. Lawrence and S. L. Gouverneur, but he knew not whether they had any stock standing in their names, either on the 19th of May, when the sale took place, or on the 20th of July, when payment was made; nor w as the witness privy to any transfer of the stock by them. He however paid over the money received of the plaintiffs to his principals, and he therefore concluded that a transfer of the shares took place. The witness testified further^ that it is the common custom well known to all dealers, to transfer bank stock by means of powers of attorney authorizing the transfers, which accompany the certificates of stock, and these certificates and powers pass from hand to hand, as if they were negotiable. The witness presumed, that his principals owned the stock when he sold it, although it might have been hypothecated for some loans.
    The plaintiffs then called a witness, who testified, in substance, that the defendant had admitted to him, that he had directed the plaintiffs to purchase some stock in the Fulton Bank, (without stating the quantity, however,) and that he had paid $200, on account of the purchase. Another witness, (a clerk of the plaintiffs’) also testified, that on the 19th of May, he heard the defendant consulting with the plaintiffs, as to theexpediency of purchasing stock in the Fulton Bank. But he heard no orders for that purpose given, and all other facts known to him he derived from the plaintiffs and their books.
    The cashier of the bank was then called, who testified, that neither on the 19th of May, 1826, nor on the 20th of July following, nor at any intermediate period, had Lawrence any stock standing in his name on the books of the Fulton Bank. On the 15th of July, Gouverneur had thirty-five shares standing in his name, which he afterwards, on the 22d of the same month, transferred to Robinson and another person. Robinson transferred fifteen shares, which stood in his name, but no stock was ever transferred to the defendant, and he never, at any time, held any stock in the bank in his own name; but the plaintiffs at all times between the periods above specified, were holders of a large number of shares.
    The plaintiffs then produced a certificate of fifty shares of said stock, with a power of attorney attached thereto, and offered to transfer the same to the defendant, upon receiving the same amount therefor, which they had paid to Robinson.
    The cause being rested upon this evidence, the defendant moved for a nonsuit, which was granted by the presiding Judge, who gave the plaintiffs leave, at the same time, to move to set it aside.

      Mr. J. Hoyt, for the plaintiffs, now moved to set the nonsuit aside, and contended,
    I. That there was sufficient testimony given to entitle the plaintiffs to go to the jury.
    II. That as to the statute relative to sales of stock, [2 R. L. 187,] the plaintiffs were under no obligation to set it up as against Robinson, and the defendant could not avail himself of it to defeat the action. He considered the money advanced as a loan to the defendant, and, as this was not an action upon the contract, the plaintiffs were entitled to recover back the money paid out for the defendant. It was not necessary that the stock should stand in the name of the vendor;—it was sufficient if he owned it. [7 Cow. 24, Frost v. Clarkson.] Here the plaintiffs purchased the stock, and the defendant could have received it at any time by paying the money advanced. Whether the plaintiffs were directed to buy the stock or not, was a question for the jury, and there was evidence enough to satisfy them upon that point. At all events, the plaintiffs were entitled to an opinion of the jury upon the facts, and the nonsuit was improperly granted. [Mr. Hoyt also cited the following cases: 1 Mass. R. 139. 3 T. R. 418. 6 T. R. 61.]

      Mr. Anthon for the defendant, contra, contended,
    I. That there was no evidence to sustain the action, nor any evidence, from which the jury could legally infer the existence of a contract; and if the case had gone to the jury, and they had found for the plaintiffs, their verdict would have been set aside as against evidence. The evidence does not prove any authority on the part of the plaintiffs to purchase stock for the defendant of any kind, and if it showed a general intention on the part of the defendant to purchase, there was still a total want of all proof as to the quantity to be procured.
    II. The contract was, at all events, void by the statute. It is proved, 1. That Robinson, the broker, had no stock at the time he pretended to sell fifty shares to the plaintiffs. 2. Neither Lawrence nor Gouverneur had any, nor was any ever transferred to the defendant. It was then a mere jobbing transaction, at least on the part of those, who sold the stock to the plaintiffs, if any in fact was sold. But it is not even proved, that any stock was ever conveyed to the plaintiffs by Robinson, and as they had a large quantity of their own, the presumption is, that the sales were all ideal, founded upon contracts to deliver stock at a future period, the sellers having none in possession at the time of the purchase, on the part of the plaintiffs.

      Mr. Hoyt, in reply, said that if the plaintiffs were bound to show an express authority, they had shewn it by the testimony of the clerk, who had heard the defendant consulting with the plaintiffs as to the purchase. Add to this the fact, that the defendant paid, the plaintiffs $200 on account of the stock, and his admission of a purchase, and he thought the authority of the plaintiffs was fully made out.
   Oakley J.

I. There was no evidence of any authority by the defendant to the plaintiffs to purchase stock, of a certain character, so as to enable the jury to find any verdict in the case. The only proof on the subject was furnished by the testimony of Will-cox, who stated that the defendant told him, that he had directed the plaintiffs to purchase some stock, and had paid $200 on account. If the jury had been left to pass on this evidence, they could have found nothing. II. There was no proof, that the plaintiffs ever purchased any stock for the defendant.

None was ever transferred to the defendant on the books of the bank.

2. The power of attorney spoken of by Robinson, (and which he merely presumes must have existed,) if it existed at all, is shown to have been in the hands of the plaintiffs, aud they ought to have produced it. Parol evidence of its contents was incompetent, and there was therefore no proof at all of the pretended sale by Robinson to the plaintiffs.

3. There was no stock in existence, which was the pretended subject of the sale. Robinson had none, and Lawrence and Gouvemeur, for whom he pretended to act, had none.

It is clearly, as the case stands, a void transaction, within the act relative to stock-jobbing. That act makes entirely void (2 R. L. 187, s. 18,) all contracts for the sale of the stock of any Trank, unless the seller, at the time of the contract, shall be in the actual possession of the certificate of such stock, or otherwise entitled to the same in his own right, or duly authorized by some person so entitled, to transfer such certificate. If Robinson, therefore, or Gouverneur and Lawrence, who were the pretended sellers of the stock, were not entitled to any on the day of the sale, and were not possessed of any certificate of stock, t.he whole contract between the plaintiffs and Robinson was illegal and void. The proof shows, that neither of them at the time had any stock standing in their names in the books of the bank, and there was no evidence of any certificate of stock in the names of either. Robinson does not pretend to say that he had any, and he must have known the fact, if it had been so.

The affair was manifestly a mere stock-jobbing transaction, and if the proof had shewn that the plaintiffs acted on it, in pursuance of any authority from the defendant, the whole proceeding being illegal, the plaintiffs could not call on the defendant to refund them the money paid on the pretended purchase. No right of action could accrue to the plaintiffs from their own violation of the law; much less can the plaintiffs claim to have made the purchase for the defendant, when it is evident, that if he can give any authority to purchase at all, he must be presumed to have authorized a legal purchase onty.

Motion to set aside nonsuit denied.

Note.—The Court rested their judgment on the ground, that there was no evidence to show that the defendant had authorized the purchase of the stock, so that the jury could have found a verdict on the proof as it stood.

[Ward and Hoyt, Att'ys for plffs. W. A. Seely, Att’y for deft.]


text:
    Charles Farnham and Calvin Pollard versus William E. Ross and others.
    The plaintiffs entered into a covenant with the defendants, whereby they stipulated to build and finish the Masonic Hall in tire city of New-Xork, within a certain period, under a penalty of thirty dollars, as liquidated damages for each and every day the work should remain unfinished after the stipulated time. Held, that by the true construction of the covenant, the building was not to be finished absolutely within any stipulated period ; but if not completed by the time fixed, the plaintiffs were liable, for each day’s delay, to the amount of the liquidated damages.
    The plaintifis completed the building within the specified time, with the exception of the front doors, and a certain stair-way. These would have been completed also, but for the defendants themselves, who made certain alterations in their plan of the stairs, and delayed the finishing of the doors. In an action upon the covenant for the contract price of the work, it was held, that this proof supported the averment of performance on the part of the plaintifis, and that the defendants could not interpose, as a defence, a delay occasioned by their own acts. As the plaintiffs would, but for the defendants, have completed the building within the specified time, their conduct was tantamount to an averment of performance on their part, and a refusal by the defendants, which are held to be equivalent to an actual performance. :
    Covenant upon articles of agreement for building the Masonic Hall, in the city of New-York. The defendants, in their own names, but describing themselves in the body of the articles, as a “ Committee of the Masonic Hall Association,” entered into a contract with the plaintiffs, under seal, bearing date the 16th day March, 1827, whereby the latter agreed, in consideration of the sum of $10,750, to be paid to them by the defendants at such times as might be required, in proportion as the work advanced, “ at their own proper costs and charges to furnish all the mate- “ rials, work, and labor necessary, or to be required for finishing “ the Masonic Hall,” then building in Broadway, in the city of New-York, “ and build the same, together with the stair-way in “ the rear of said Hall,' and perform said work according to the “ specifications” annexed to the agreement, “ and to execute the “ whole according to the plans to be furnished by Hugh Reina- “ gle,” &c. Certain parts of the work were to be completed by the first of May, 1827, “ and all the rest of the work,” undertaken by the plaintiffs, by the first of June thereafter, under a “ penalty “ of thirty dollars, as liquidated damages, for each and every day” the work should remain “ unfinished after the day last men- “ tioned.”
    The declaration counted upon the articles of agreement, and averred a general performance on the part of the plaintiffs, and that they had “ built the stair-way in the rear of said Hall,” and completed the whole work on the said 30th day of June, &c., setting forth the non-payment of the money, as the breach on the part of the defendants.
    The defendants pleaded payment, and several special pleas, putting in issue the performance of the covenant on the part of the plaintiffs, and also that the plaintiffs were indebted to them in the sum of $3000, “ liquidated damages,” for not having completed the work for one hundred days after the said first of June, and which they claimed as a set-off. They also added a notice to their plea, in which they claimed to set-off the sum of $3000 against the demands of the plaintiffs, which sum they alleged the plaintiffs had forfeited by the non-performance of the work within the specified time.
    Issues being joined upon the pleas, the cause was tried before the Chief Justice.
    At the trial, it appeared that the plaintiffs had completed all their work according to the stipulations of the covenant, and within the specified time, except the stairs therein referred to, and the front doors of the building, which were not finished until some time afterwards. But it also appeared that when the plaintiffs were about to build the stair-way, the defendants directed that an iron stair-way should be substituted for the wooden one described in the articles, and it was agreed that the sum of $90 should be deducted by the plaintiffs from the amount of the contract, on account of this change. But for this, the stairs would have been completed by the time specified in the articles. With regard to the front doors, it appeared that shortly before the said first of June, the plaintiffs employed several workmen to complete the doors by that day; but Mr. Reinagle, on the part of the defendants, desired that the work on them might not be hurried, as he wished the doors to be constructed by two particular workmen. For this purpose, he applied to Brown, one of the defendants, who consented to have the doors completed by these two workmen; notwithstanding they might not thereby be completed by the stipulated time ; and temporary doors were put up by the plaintiffs, to secure the building while the principal ones were in the workmen’s hands.
    The counsel for the defendants contended, that this testimony did not prove a performance of the covenants on the part of the plaintiffs; but the Chief Justice overruled the objection, and directed the cause to be submitted to the jury, who, after having heard the counsel for the parties, returned a verdict for the plaintiffs.
    The defendants having excepted to the opinion of the presiding Judge, Mr. Staples in their behalf now contended.
    I. That as the declaration was upon a covenant, the plaintiffs were bound to show, that they had performed it within the time, according to the terms of the covenant. This they had not done, for by their own witness it was proved, that the door and stairway were not completed until long after the first of June. The plaintiffs could not therefore recover in this form of action. [3 Term R. 590. 8 John. R. 392. 1 John. Cases 22. 4 Cowens R. 564. 7 Taunt. R. 646.]

    II. That no parol agreement could be given in evidence under the declaration to charge the time or vary the the terms of the contract. [3 J. R. 528.]
    III. The admissions attempted to be proved were not the admissions of all, but only of a part of the defendants.

      Mr. F. Tallmadge contra,
    observed that the last objection, if well founded, came too late as it was not made at the trial. There was enough before the jury to show that the defendants knew of, and assented to the alterations and delays, all of which were occasioned by them, and not by the plaintiffs.
    II. The defendants waived all objections as to time, and cannot therefore set it up now against the plaintiffs’ right of recovery. The acts done by the plaintiffs, were tantamount to a strict performance on 'their part, for they would have completed their work by the time stipulated, but for the defendants.
    III. The plaintiffs were not bound-to finish the building by the first of June. This is not the true construction of the covenant. They might have delayed its completion for a reasonable time, but would have been liable to a penalty of $30 per day, for every day’s delay after the period stipulated. But such delay would be no breach of the covenant on their part, which would prevent them from recovering in this action.
   Oakley J.

This case comes before us on a bill of exceptions, taken by the defendants. The action is on a covenant, by which the plaintiffs stipulated, to build the Masonic Hall, in the city, and to finish it according to certain specifications, annexed to the contract and to the plans to be furnished by an agent of the defendants. Certain portions of the work were to be completed by the first day of May, after the date of the contract; and the whole by the 30th of June, under a penalty of $30, to be paid by “ plaintiffs as liquidated damages, for every day, that the same should remain unfinished, after these periods respectively. By the contract a wooden stairway was to be put up in the building, and the defendants afterwards, and when the plaintiffs were about to commence the building of the stairs, directed an iron stairway to be substituted, which was not finished until after the first day of July. It also appeared that, the main door of the building was not completed, by the time specified in the contract; but when the plaintiffs were about to employ additional workmen to finish it within the prescribed period, the defendants requested, that it might be done by two men only, with whose work they were pleased; and that it was accordingly done by them.

Upon this evidence, it is objected, that the plaintiffs have not shown a performance of the covenant on their part. It is well settled, that where the action is on the covenant itself, the plaintiff must show a strict performance, of the stipulations on his part, and within the time limited by his contract; and that evidence of a parol agreement, to extend the time, cannot be given to excuse the want of such performance. [Phillips v. Rose, 8 J. R. 392. Little v. Holland, 3 J. R. 590.] It appears to me, however, that the defendants, in the present case, have mistaken the true construction of the covenant. The building in question was not to be finished absolutely within any stipulated period. If not completed by the 30th of June, certain stipulated damages, were to be paid by the plaintiffs for the delay : but the evident intent of the parties was, that the work should nevertheless be completed, under the contract. It was not necessary therefore for the plaintiffs to have averred, or proved that the house was completed by the 30th day of June. A general averment of performance on their part was sufficient; and the proof in the case supports such an averment.

If, however, the true construction of the covenant were otherwise, I should still be of the opinion, that the plaintiffs have shown performance on their part. They were proceeding to complete both the stair-way, and the door within the time limited, when they were prevented from doing so by the interference of the defendants; who directed a different course of the work. This was in fact a tender of performance on the part of the plaintiffs, and a refusal by the defendants, and these are held to be equivalent to an actual performance. And it is also held, as a sound principle, that he “ who prevents a thing from being done, shall not avail “ himself of the non-performance which he has occasioned.” These principles are recognized and established, in Fleming v. Gilbert, (3 J. R. 631.) and are entirely applicable to the present case.

Motion for a new trial denied.

[F. A. Tallmage atty. for the plffs. Wm. S. Johnson, atty for defts.]


text:
    John B. Waistel versus Joseph T. Holman.
    In every action for a libel, a publication oí the libellous matter must be distinctly averred: and it will not be sufficient to allege, that the defendant composed, wrote, and delivered to the plaintiff a certain false, malicious, and defamatory libel, but it must appear upon the face of the. declaration, that the libel was, in some form, made public.
    It is not necessary, however, to aver, in direct terms, that the libel was communicated to third persons, but it will be sufficient to allege, that the defendant published, and caused to be published, a certain libel, although it also appears that it was addressed to the plaintiff.
    Demurrer to the first and second counts of the plaintiff’s declaration. The action was for a libel contained in a letter written, addressed, and sent by the plaintiff to the defendant; and the question was, as to the sufficiency of the publication set forth in the declaration.
    The first count averred, that the defendant, on the 28th day of September, in the year 1828, at the city and county of New-York, “ did cdmpose, write, and deliver, and cause to be compos-
      " ed, written, and delivered to the plaintiff a certain false, scanda- " lous, malicious, and defamatory libel of and concerning the “ plaintiff, and addressed and directed to him, containing the false, “ scandalous, malicious, defamatory, and libellous matter follow- “ ing,” &c., setting out the letter in Iubc verba.

    The second count alleged, that the defendant “published, and “ caused and procured to be published, a certain other false, scan- “ dalous, malicious, and defamatory libel, addressed to the plain- tiff, and of and concerning the plaintiff containing certain other “ false, scandalous, malicious, defamatory, and libellous matter, “ of and concerning the plaintiff, as follows,” &c., setting out the letter as in the first count..
    To these two counts the defendant demurred; hut took issue upon the other counts in the declaration, which were for slander.

      Mr. J. Anthon, for the defendant, and in support of the demurrer, contended,
    that as the first count set forth a letter in hœc verba, written and sent by the defendant to the plaintiff a publication of it to a third person should have been averred, in order to make it libellous. The gist of the action is injury done to the character of the plaintiff in the estimation of others, and this could never come but from publication. To write and deliver a letter to the person himself, who is libelled, is no publication, for he may keep it entirely secret. The defendant does not put the defamatory matter into circulation, and of course does not injure the plaintiff in the estimation of others. As there can be no libel without a publication of it to others, besides the plaintiff, the publication should be averred, and the want of such an averment is a fatal defect in the declaration. [Lyle v. Clason, 1 Caines’ R. 580.]
    The second count is substantially like the first, and as it also sets out the subject matter in hmc verba, the Court will judicially understand, that the supposed libel is a letter addressed by the defendant to the plaintiff. The publication of this letter should then be distinctly averred, and it is not sufficient to state in general terms, that the defendant “published, and caused it to be pub- “ lishedThe reason is, that from the averments taken together, it appears the publication was made merely by sending the letter to the plaintiff. This is not a sufficient averment; it must appear that the libel was communicated to a third person; and the Court cannot infer, that it was so communicated. These defects are apparent, and may be taken advantage of by general demurrer.

      Mr. O’Conner for the plaintiff, contra, contended,
    that as the words set out were actionable in themselves, it was not material to aver a publication of them to a third person, by any technical words. If the words used in the libel are such as tend to injure, degrade, and disgrace the plaintiff, the libel is consummated when the letter containing it is delivered to the plaintiff himself. He is thereby in some measure constrained, in self-vindication, to communicate it to his friends, and the law will deem the libel published, if delivered to the plaintiff himself. [To show that the words used in the letter were actionable per se, and that the alleged publication was sufficiently averred, Mr. O’Conner cited Brooks v. Bemis, 8. John. R. 456. 10. Ib. 444. 5. Co. R. 125.]
    The second count avers a publication in direct, unequivocal, and technical terms. It was not necessary to allege a publication to “ third persons,” nor can any such averment be found in the precedents. The libel is not called a letter, nor will the Court infer, that it was in fact a letter, because it was such in form. If it were termed a letter in the count, the inference might be that it was a sealed letter. But here this libel might have been exhibited to many persons before its delivery, and the plaintiff expects to prove, that the fact was so.
   Oakley J.

In Lyle v. Clason, (1 Caines’ R. 581,) the Supreme Court decided, that in every action for a libel, a publication of the libellous matter must be averred, that the sending of a sealed letter by the defendant to the plaintiff, is not a publication of the libel, and that any letter sent is to be presumed to have been sealed. The principle of that case is, that when the declaration shows a publication of the libel to the plaintiff only, the action cannot be sustained. The Court say, that the “ basis of the ac- “ tion is damages for the injury to the character, in the opinion of “ others,” and that can only arise from publications to third persons. In the present case, the declaration alleges that the defendant composed, wrote, and delivered to theplaintijf, a certain libel, fyc., addressed and directed to the plaintiff, fyc. This averment does not show a publication of the libel. The plaintiff could not have sustained any injury by it, unless he communicated its contents to others, and of course had no right to sustain this action for damages. The first count falls clearly within the case of Lyle v. Clason, and the demurrer to it is well taken.

The secoud count sets forth, that the defendant “ did publish and cause and procure to be published,” a certain other libel, addressed to the plaintiff.” Here is a sufficient publication averred. Although it may be inferred, that the libel was in the form of a letter, addressed by the defendant to the plaintiff, yet, the publication may have been, by showing it to other persons, or even by inserting it in a newspaper. The particular mode of publication need not be set forth. The demurrer to the second count must, therefore, be overruled.

Judgment for the defendant on the demurrer to the 1st count, and for the plaintiff on the demurrer to the 2d count, with liberty to either party to amend.

[C. O’Conner, Att'y for the plff. E. Anthon, Att'y for the deft.]