author: Foot, J.,

text:
    Hoard against Garner.
    A party covenanting “ to take proper means ” for the collection of a bond and mortgage, is responsible for the laches of every agent employed by him in proceedings for the collection.
    The covenantee can recover any damages incurred from delay in the prosecution of a suit to foreclose the mortgage, though the covenantor employed a solicitor in good standing, whose delay resulted from an error of judgment, excusable as between himself and his client.
    This was an action of covenant, commenced in 1847. The declaration set forth that on the 31st of October, 1843, one C. W. Adams and wife executed to the plaintiff a mortgage of one equal undivided fifth part of a farm on Staten island, being Mrs. Adams’ share of such real estate as one of the children and devisees of Isaac Cubberly, who died seised thereof. The mortgage was given to secure the plaintiff against any liability on two promissory notes made by the plaintiff and Adams, under the name of C. W. Adams & Co., Adams having received the value of such notes, and agreeing to pay them. One of these notes was for $576.78, dated October 13, 1843, payable in eight months, in favor of Hugh Auchincloss & Sons; the other for $600.31, dated October 14, 1843, payable at ninety days, to G-arner & Co. The mortgage was also conditioned for the payment of a bond for $500, with interest, executed by Adams to the plaintiff at the date of the mortgage, and payable one year after date.
    The declaration then set forth an absolute assignment of the bond and mortgage by the plaintiff to the defendant on the 31st of January, 1844, which recited the purposes for which the mortgage was given, and that G-arner had given up to the plaintiff the note of $600.31, held by Garner & Co., and that thereupon the defendant covenanted with the plaintiff as follows: “ To take proper means to collect the amount due and secured to be paid by the said indenture of mortgage, so assigned as aforesaid, and to appropriate the amount which may be collected after deducting all necessary expenses, as follows, viz.: in the first place, to retain the amount of the said note so given to Garner & Co. as aforesaid, with interest thereon from the time the said note became due and payable; in the second place, to pay unto the said Hugh Auchincloss & Sons, if there shall be sufficient for that purpose, the amount of the said promissory note, so given to them as aforesaid, and the interest which may be due thereon; and lastly, if there shall be sufficient for that purpose, to pay unto the said John W. Hoard the amount of the said bond or obligation so given to him as aforesaid, and the interest which may be due thereon.” The breach assigned was the omission by Garner to take proper means to collect the amount due upon the mortgage. The defendant traversed the breach-in various pleas, on which issues were joined.
    Upon the trial, in February, 1849, before Mr. Justice Sand ford, of the superior court of New-York, it was proved that in September or October, 1844, the defendant employed Mr. C., a solicitor o£ competent skill and knowledge, to file a bill for the foreclosure of the mortgage. Such a bill was accordingly filed soon afterwards, against Adams and wife and other defendants, and the action for foreclosure was still pending at the time of the commencement of this suit. This delay in the prosecution of the former action, the defendant attempted to account for and excuse by the following facts:
    Previous to filing his bill, Mr. C. had made proper searches, but the clerk of Richmond county, where the land was situated, omitted to mention in the certificate of search furnished by him, a trust deed then on record from Adams and wife, dated February 4, 1843. By this deed the grantors conveyed all the -real estate to which Mrs. Adams was entitled as devisee of Cubberly, embracing the mortgaged . premises to John Q. Day, in trust for her separate use, free from the control and exempt from the debts of her husband. On the 4th of September, 1843, Alfred Adams was substituted as trustee in the place of Day, and on the 2d of April, 1844, Joseph G-. Gilbert was substituted in the place of Adams. Of this trust deed Mr. C. had no knowledge at the time of filing his bill for foreclosure; but Day and Alfred Adams were made defendants as claiming some interest in the mortgaged premises, without his knowing the nature of their claim. C. W. Adams put in' an answer on the 10th of December, 1844, and from that answer Mr. C. first ascertained the existence of the trust deed. Mr. C. testified that after the answers all came in and the cause was ready for hearing, he entertained very great. doubts, founded upon the trust deed, whether the plaintiff could succeed; and that he was deliberating upon •the subject, and making some examinations for the purpose of seeing whether the trust deed could be successfully attacked. In March, 1845, Mrs. Adams and Gilbert, the trustee, filed a bill for the partition of the real estate of which her father died seised; among other things setting forth the mortgage to Hoard and the assignment from Hoard to Garner, charging that the mortgage was not a valid lien upon the land, and praying that it might be so declared. This bill was served on Mr. C., as solicitor for Garner, on the third of May. No answer was put in on behalf of Garner, there being an understanding between him and the plaintiff’s solicitor that it might be put in at any time. Mr. Sedgwick was soon after substituted as solicitor for Garner, a,nd had the principal management of that suit. In June, 1845, the bill of foreclosure was dismissed as to Day and A. Adams for want of prosecution, and it then became necessary to amend the bill and file a supplemental bill, which was done in August, 1847; the mortgaged premises having in the meantime been sold by the executors in persuance of a power in the will. The supplemental bill set forth that sale, alleged that the executors had in their hands money and securities, being the share of Mrs. Adams in the purchase money, and prayed that such money and securities might be applied on the mortgage to Hoard.
    The cause was ready for hearing as to all the defendants in the summer of 1845, but no proofs were ever taken, and the cause was never noticed for a hearing until January term, 1849. It appeared that the state of the calendars and the amount and course of business in the courts, at the time the foreclosure suit was commenced and while it was pending, was such that the cause might probably have been heard within a year from the time of being placed on the calendar; and that by filing a replication in that suit, which was never done, the plaintiff would have entitled himself to put the cause on the calendar of the assistant vice-chancellor, which would have expedited the proceeding. It also appeared that the solicitor of the defendant in this action was not informed of the covenant between him and the plaintiff for the collection of the mortgage, and that the reason for his delay was doubt as to the result of the suit, there being á very nice question under the statute of trusts arising upon Mrs. Adams trust deed, which was determinable in the suit brought by her and Gilbert, to which the plaintiff and defendant in this action were parties. There was also a third chancery suit pending, involving the same question. He thought the whole fund would be used up in expenses if they all proceeded, and therefore suspended proceedings in this suit till the others were dismissed in May, 1847.
    The court refused to charge in accordance with several propositions submitted by the defendant’s counsel, and charged as follows: That the defendant was bound by his covenant to use reasonable diligence in the institution and prosecution of proceedings necessary to collect the amount due and secured to be paid by the mortgage, so far as the plaintiff had an interest in the proceeds; and if unreasonable delay was, before the commencement of this suit, suffered to take place in that respect, whether the delay was the consequence of his own negligence or the omission of his solicitor to go on with the proceedings, the defendant is liable for a breach of his covenant. If the jury came to the conclusion that such unreasonable delay had taken place by the act or omission of the defendant or his solicitor, their verdict would be for the plaintiff, otherwise for the defendant. Other instructions were given upon the question of damages in case of a verdict for the plaintiff, “to all of which charge and refusal to charge as aforesaid” the defendant’s counsel excepted. The jury found for the plaintiff for $2000, subject to adjustment and subject to the opinion of the court upon the whole case. The court at general term (3 Sand/. S. C. R., 179) ordered judgment upon the verdict, fixing the damages at $1074.51. That part of the opinion of the superior court, by Sandfoed, J., which relates to the question is as follows:
    By the court, Sandford, J.
    Whatever might have been our view of the effect of the defendant’s covenant, if it had been an open question, we are required by the authority of the case of Allen v. The Merchants’ Bank (22 Wend., 215), in the court for the correction of errors, to give our judgment for the plaintiff. It was there settled that on the deposit of a bill of exchange with a banker residing here, for collection in another state, where it was payable, the banker was liable to the holder for any neglect or omission of duty in respect to such collection on the part of his agent or the notary employed by him in the foreign state.
    The principle established was, that the implied contract of the banker was an undertaking to do the thing itself, and was not the delegation of an agent or attorney to procure the thing to be done. That the contract looked mainly to the thing to be done, and his undertaking was for the due use of all proper means for its performance; and it was not a contract only for the immediate services of the agent, and his acting faithfully as the representative of his principal. That in the latter case the responsibility ceases with the limits of the personal services undertaken; in the other it extends to cover all the necessary and proper means for the accomplishment of the object, by whomsoever used or employed.
    In the case at bar, the defendant, for a valuable consideration, undertook the collection of a bond and mortgage. He covenanted in express terms “to take proper means” to collect the amount secured to be paid by them; and he is therefore clearly responsible that such means should be taken by every person whom he employed to execute his covenant.
    The retainer of a competent solicitor was undoubtedly a proper step to be taken, and as far as it went was a compliance with the contract. But the responsibility did not cease there; and if the solicitor failed to pursue the proper means for collecting the securities, the defendant must answer for his default.
    It was contended that proper means were taken in this case; that the long delay which occurred was the result of no oversight on the part of the solicitor employed; in his judgment, it was inexpedient to proceed under the circumstances; and his course was the true one.
    ■ The good faith of the solicitor is not impeached. This, however, did not satisfy the covenant; nor did the exercise of his judgment, if that judgment were wrong and caused unreasonable delay. We have considered the question with more than usual care and deliberation, and we cannot resist the conclusion, that the course pursued by the solicitor was unwise, and in respect to the defendant’s duty to Hoard was entirely unwarrantable.
    No good reason is shown why the foreclosure of the mortgage was not commenced immediately after the defendant received it. Passing by the nine months thus lost before proceedings were instituted, in December, 1844, the solicitor became fully informed of all the difficulties in the case, by the answer of Adams and wife. He should then have brought Mrs. Adams’ trustee before the court at once by an amendment of his bill. If this course had been pursued, the bill afterwards filed by Mrs. A. and her trustee would never have been exhibited, or if exhibited, it would have been no more than a cross-bill in the foreclosure suit, disposable either summarily by a demurrer or more deliberately, by being carried forwai’d with the original suit.
    Whether Mrs. A.’s bill had been filed or withheld, if the original suit had been pressed on with ordinary diligence, after the receipt of the answer of Adams and wife, there is no doubt that it would have been brought to hearing, and a decision obtained before 1846. Even after the bill of Mrs. A. and her trustee was exhibited, the defendant could have expedited either the one suit or the other, and brought the matter to a conclusion. But he did neither. He was entirely passive from December, 1844, until after this suit was commenced, a period of more than two years and a half. It is said the marriage settlement of Mrs. Adams presented a doubtful and difficult question. If it did, there was the more reason for urging on the suit, because a greater delay would be inevitable if the suit were to be litigated.
    Without dwelling upon the subject, it suffices to say that proper means were not taken by or in behalf of the defendant to collect the bond and mortgage, and he is liable for a breach of his covenant.
    The cause was argued here by

      Daniel Lord for the appellant, and

      Charles H. Smith for the respondent.
   Foot, J.,

delivered the opinion of the court.

My understanding of the covenant is, that the appellant was to take proper means, both for himself and others, to collect the amount of the mortgage. If he omitted for an unreasonable length of time to cause proceedings for foreclosure to be commenced; or if he employed an incompetent solicitor to commence and prosecute them; or if the proceedings, after being commenced; were unduly delayed by his own negligence, or that of his solicitor, his covenant was broken; for in each case, the proper means would not be taken to collect the money. The charge on this branch of the controversy, appears to me to be substantially right.

My impression from an examination of the evidence is, that the charge gave the jury too great a latitude on the subject of damages, but the exception is not sufficiently specific and pointed to reach the error, if one was committed.

Judgment affirmed.


source: Caselaw Access Project

author: Gardiner, J.

license: Public Domain

text:
    Ring against McCoun.
    John Mason, in 1838, placed in the hands of the defendant $3500, with instructions to purchase a farm therewith, and to “ take a deed in his own name, and hold the same in trust for the benefit of James Mason [son of John M.] and for his possession.” The defendant purchased the farm, as directed, situated in the county of Queens, which was occupied by James M. for ton years, when he sold and conveyed it to the plaintiff: Held, that the plaintiff could not maintain an action against the defendant to compel a conveyance of the farm to him.
    Such action, if it could be maintained, is not within the jurisdiction of the superior court of the city of New-York, its object being “the recovery of real property, or of an estate or interest therein,” not situated within the limits of that city. (Per Rugóles, Oh. J., and Pool, J.)
    Whether, under the provisions of the Revised Statutes in regard to trusts, the entire legal and equitable estate vested in James Mason, Queret

    Appeal from a judgment of the superior court of the city of New-York. The complaint alleged, in substance, that in the spring of 1838, John Mason, since deceased, entrusted to the defendant the sum of $3500, with instructions to purchase a farm therewith, and take a deed in his own name, “and hold the same generally in trust for James Mason” [a son of the said John Mason], “ and for his possession ; ” that in compliance with these instructions, the defendant, in the same year, purchased a farm in Queens county, paying for it the sum above mentioned, and took an absolute deed of it in his own name; that after the taking of the deed by the defendant, James Mason took possession of the farm, and retained possession until he sold it to the plaintiff, as thereinafter mentioned, receiving the rents and profits, and expending more than $4000 upon it in improvements, all with the knowledge and consent of the defendant; that by reason of the instructions to the defendant and the purchase money furnished by John Mason, the defendant held, and always had held, the title in trust for the use and benefit of James Mason; that by force of the statute no estate vested in the defendant, and that the deed to the defendant was a cloud upon the title of James Mason, in whom the legal and equitable title was absolutely vested; that on the 7th day of February, 1849, James Mason conveyed to the plaintiff the premises in question, by a deed of bargain and sale, for the consideration of $6000 therein expressed; that the defendant, upon the request of the plaintiff, refused to execute any paper or do any act for the purpose of conveying the legal estate to the plaintiff. The prayer of the bill was that the defendant might be compelled to execute a deed for the purpose of conveying the legal title to the premises in fee to the plaintiff, or else to pay to the plaintiff the money entrusted to him by John Mason, together with the value of the improvements made on the farm by James Mason.'
    To this complaint the defendant demurred, first on the ground that the court had no jurisdiction of the subject of the action, “the same being brought for the recovery of real property situate in the county of Queens, or of an estate or interest therein, or for the determination, in some form, of such right or interest.” Upon this ground the complaint was dismissed at special term (Vanderpoel, J.), and the judgment of dismissal affirmed at general term. (3 Sandf, S. C. R., 524.) The fourth ground of demurrer specified was, that the complaint, did not state facts sufficient to constitute a cause of action.

      James J. Ring, appellant,
    in person, as to the fourth cause of demurrer, cited 2 Story's Eq. Jur., § 1210; Id., § 979; 1 John. Ch. R., 394; 2 Mylne Keene, 819; 6 Paige, 364; 1 Barb. Ch. R., 18; 1 R. S., 728, § 49.

      F. F. Marbury for the respondent,
    cited 1 R. S., 728, §§ 47, 51, 52, 53 and 63; Dyer v. Dyer, White's Eq. Cases, 162, and Notes, 167 and 175; Ostrander v. Livingston, 3 Barb. Ch. R., 426.
   Gardiner, J.

The fourth cause of demurrer assigned is, that “the complaint does not state facts sufficient to constitute a cause of action.”

Enough appears upon the complaint itself to show the precise nature of the trust, and that it has been completely executed by the trustee.

He has refused to convey the legal title to the cestui que trust, or to his appointee, because.his instructions were “to take a deed in his own name, and hold the same in trust generally for James Mason.” A conveyance to the latter, or to the plaintiff by his order, would contravene a plain duty, and the whole purpose and object of the trust..

A cestui que trust, observes Judge Story, may call upon his trustee for a conveyance to execute the trust (2 Story's Eq. Jur., % 979); but the call in this complaint is for the defendant to go beyond the trust, and violate its whole spirit.

It is said that the instructions of the elder Mason, and the receipt of the deed by the defendant, in his own name, created a resulting trust in favor of James Mason; and we are referred to Story's Equity (§ 1210), as authority for the position. The author is there speaking of implied trusts, and remarks that “if a trustee authorized to purchase lands for his beneficiaries, should take the deed in his own name, without a declaration of trust, equity, in such case, would decree the property to be held as a resulting trust.” But the learned author does not say that where the trustee is expressly directed by the trust itself to take and hold the conveyance in his own name, that such an implication would exist. A resulting trust arises by implication of law, from the presumed intent of the parties. In the case supposed, which is this case, there is no room for presumption. The creator of the trust has spoken, and the trustee has literally complied with his instructions. There is not an element in the case necessary to constitute a resulting trust, either at common law, or under the Revised Statutes. (1 R. S., 728, ^ 51, 52.)

I have so far considered the transaction as an express trust, which if declared in writing would be valid at common law.

But it obviously is not of the class of express trusts retained and authorized by § 55 of the Revised Statutes. By the 60 th section of the act, the trusts created according to the previous provision, vest the whole estate, legal and equitable, in the trustee. (1 R. S., 729, § 60.) Here the plaintiff avers, that by the conveyance to the defendant, the whole title to those premises vested in James Mason. It follows that the plaintiff’s title to relief, according to the case made by the complaint, rests upon the provisions of the 47th and 49th sections of the act in relation to uses and trusts. (1 R. S., 727, %% 47, 49.)

The statement in the pleading is, that the defendant by the conveyance to him, took “No estate in the premises, but that the estate, both legal and equitable,” vested in the beneficiary “ absolutely.”

If these averments are true, the plaintiff requires no aid from any court. He has succeeded to the rights of James Mason, and consequently has the whole estate. The defendant has nothing to convey; for I am unable to comprehend how he can be said to hold the legal title to these premises without any estate, legal or equitable, in them. If the, pleader means by “ legal title,” the title apparently accruing to the defendant under the deed to him; which thus, in the language of the complaint, “ becomes a cloud upon the title of James Mason,” the answer to this suggestion will be: That it was the design of the statute to supersede the necessity of a conveyance from the nominal trustee, by carrying the title at once to the beneficiary; That there is no allegation, even upon belief, that the defendant designs or has it in his power, to do any act to the prejudice of the real owner of the land; Because there is no privity between the defendant and James Mason, or his assignee, except though the alleged trust. If the plaintiff claims under the trust, the defendant, as we have seen, has discharged his whole duty as trustee, and is not responsible to any one. If he repudiates it, and insists that by “force of the statutes,” the whole interest legal and equitable vested in James Mason, the plaintiff, as the assignee of the beneficiary, obtains an estate in the premises which the donor never intended that his son should receive. The plaintiff’s right is therefore stricti juris. He must be content with what the law, on grounds of public policy, gives him. The trustee owes him no duty. Nor can we imply from the statute, which vests the whole estate in the donee, a covenant for further assurance in favor of the plaintiff, against the defendant,- as.the original grantee of the premises.

Without expressing any opinion upon the other question in the case, I think for the reasons suggested, that the judgment of the superior court should be affirmed.

McCouií, J., took no part in the decision.

Buggles, Oh. J., and Foot, J., were for affirmance on the ground of want of jurisdiction in the- court below but the majority of the judges concurred in the above opinion.

Judgment affirmed.


text:
    Poor against Guilford.
    A mere agent or attorney, in whom is the legal title to a chose in action, his principal having the beneficial interest might, before the Code, maintain an action upon it in his own name, even though a like action might lie in favor0 of his principal.
    An attorney holding for collection a note against A, received as security therefor an assignment of an interest in a note held by A, against B, sufficient to pay the first note. A afterwards recovered judgment against B on the second note, and assigned that judgment to 0, the latter having notice, before the assignment to him, of the prior assignment to the attorney. C having collected the judgment debt from the defendant therein, it was held, that an action against C for the amount of the first note was rightly brought in the name of the attorney.
    Although the attorney had. no beneficial interest in the money, he had a legal interest sufficient to maintain the action, and a recovery by him would bar any subsequent action in favor of the person having the beneficial interest. 0 having notice of the assignment to the plaintiff, of an interest in the note on which the judgment was recovered, received the assignment of the judgment subject to the plaintiff’s prior right, and when he collected the money, he received it to the plaintiff’s use, to the extent of such prior right.
    Oliver L. Poor made his promissory note for about $335, payable to E. M. Poor, or bearer. Early in the year 1843 E. M. Poor placed this note in the hands of Franklin Poor, an attorney, for collection. In April of that year, Oliver L. Poor, for the purpose of securing the payment of the note before mentioned, executed to Franklin Poor, the attorney, an assignment in the following terms:
    “For value received, I hereby transfer and assign to Franklin Poor an interest to the amount of $334.48, in a certain note owned by me, and signed by Fanny and Alfred Hull, now in the hands of W. Angel, of Cuba, for collection, as collateral security for the payment of a certain promissory note of that amount and interest, now held by said Franklin against me.
    “Oliver L. Poor.”
    In October, 1843, a judgment for over $900 was recovered by O. L. Poor against the Hulls, upon the note last mentioned. In December following, O. L. Poor assigned to Robert Guilford, $345.62, of this judgment, and a day or two thereafter he made a further assignment of it to Guilford to cover any demand which Guilford might obtain against him. Guilford then took charge of the collection of the judgment against the Hulls, and in July, 1844, he made a settlement with them in which he received of them the full amount of the judgment. Guilford had notice of Franklin Poor’s interest in the Hull note, at the time of the assignment of the judgment to himself.'
    Franklin Poor brought this action of assumpsit, in 1847, against Guilford, to recover the amount of O. L. Poor’s note to E. M. Poor, as money had and received to the use of the plaintiff. The cause was tried before a referee, and judgment rendered for the plaintiff for the whole amount claimed. This judgment was affirmed by the supreme court, in the eighth district, at general term, and the defendant appealed.

      George F. Comstock, for the appellant,
    cited, 1 Chitty on Pleading, Springfield ed., 2; Gra. Prac., 2d ed., 90; 12 John., 1; Taintor v. Prendergast (3 Hill, 72); 2 Wend., 158; 10 Id., 156; 21 Id., 110; Paley on Agency, by Lloyd, chs. 4 and 5; Pigot v. Thompson (3 Bos. & Pul., 147); Sargent v. Morris (3 Barn. & Ald., 277).

      A. Taber, for the respondent,
    cited Harp v. Osgood (2 Hill, 216); Banfill v. Leigh (8 T. R., 571); Sargent v. Morris (3 Barn, & Ald., 277).
   Foot, J.,

delivered the opinion of the court. In this case, there is no doubt of the justice of the judgment of the supreme court, nor of its being a full protection to the appellant against a second claim for the same demand, and it ought not to be reversed, unless some well-established principle of law has been violated.

The beneficial interest in the demand, for which the judgment was rendered, belongs to one E. M. Poor; and the question is, whether the respondent has such a title, and stands in such a relation to the beneficial owner, as to authorize a judgment in his favor.

The respondent having the legal title to the interest in the note of the Hulls, on which the appellant received the money, and upon receiving which arose the implied assumpsit to pay, the question is, whether this assumpsit may not be held to have arisen in favor of the holder of the legal title, although he holds it as attorney and trustee for the beneficial owner. There is no doubt that on the receipt of the money, a right of action arose against the appellant in favor of the respondent, ór of E. M. Poor. The money did not belong to the appellant, and the respondent was the legal, and E. M. Poor the beneficial, owner of it. (Seaman v. Whitney, 24 Wend., 263, and cases there cited.)

When an express contract is made with an agent by a third person, the agent may maintain an action upon it, though he may be known to act as agent; and though his principal may, or may not, be entitled to a like action on the same contract. This is a well-settled proposition. (Story on Agency, § 393, and cases there cited; Foley on Agency by Lloyd, ch. 4.) The fact that the legal title to the money in question is held by the respondent as agent, would seem, therefore, to furnish no obstacle to his recovery; and why should it ? For, if the real owner is also entitled to an action, the present recovery would certainly be a good bar to it, as the respondent is clearly acting within the scope of his authority, in prosecuting this suit and collecting the money for his principal.

The implied promise which the law raises is always auxiliary to the title, and is only a legal mode of enforcing it. Chief Justice Bronson, in delivering the opinion of the supreme court in Norton v. Coons (3 Denio, 134), states the principle correctly. He says: “ Where there is a legal right to demand a sum of money, and there is no other remedy, the law will, for all the purposes of a remedy, imply a promise of payment. (See, also, Chitty on Cont., 609.)

On the whole, the recovery in this case does not appear to me to have violated any rule of law, but on the contrary, to be in accordance with well-established principles.

The counsel for the appellant referred to the case of Gunn v. Cantine (10 John., 387) as precisely in point. But the difference between that case and this is very great. Here the appellant has the legal title: there the attorney in fact had not; he merely handed the security of his principal over to Cantine to collect.

Judgment affirmed.


author: Foot, J.

text:
    Knapp against Knapp.
    Proof that a will executed by a deceased person was said by him, a month previous to his death, to be in his possession in a certain desk at his house: that he was then very aged and feeble: that his housekeeper was a daughter having an interest adverse to the will, and that the same could not be found on proper search three days after his death, is not sufficient evidence of its existence at the testator’s death or of a fraudulent destruction in his lifetime to authorize parol proof of the contents.
    Appeal from supreme court. Action for the partition of land. The plaintiff claimed an interest as an heir-at-law of Samuel Knapp, deceased, as tenant in common with the d.efendants, whom she also alleged to be heirs of said Knapp. The defendant denied the tenancy in common, and alleged that he owned the land in severalty, by virtue of the last will and testament of Samuel Knapp, deceased. Upon the trial at Tompkins circuit, before Mr. Justice Morehouse, it was admitted that Samuel Knapp died seised of the premises in question, July 6, 1847, and that the parties to this action were his children and heirs-at-law. The defendant then proved, by two witnesses, that twelve or fourteen years previous to the trial, Samuel Knapp duly executed a will, and that they were the subscribing witnesses thereto, and that he took the will, from the office of the scrivener who drew it, into his own possession. They also proved his competency. It was also proved that on the fourth of March next previous to his death, Knapp told a witness that he had made a will, and that he had it safe; he spoke of certain provisions in it in favor of the defendant. Another witness testified to a conversation with Knapp, at the end of May or first days of June previous to his death, at his house and in his own room, upon the premises in question. He said that he was very feeble and should stay but a little while: that his will, deeds, and other papers would be found in his desk after he was gone. He was then a widower., eighty years old, and very feeble. His daughter the plaintiff kept house for him. The defendant then proved that three days after his father’s death, he made search among his papers for the will, all the heirs being present. The desk was searched; three deeds, some other papers and some money were found in it, but no will.
    The defendant, after showing notice to produce the will, offered to give parol evidence of its contents, and that the premises in question were devised to him thereby. The judge excluded the evidence on the ground that it was not shown that the will had been fraudulently destroyed before the testator’s death, or lost or destroyed after his death. The defendant took an exception. The plaintiff had a ver-

      diet upon the issue, and judgment establishing the rights of the parties as heirs-at-law, which having been affirmed at general term in the sixth district, the plaintiff appealed to this court.
    The opinion of the supreme court was as follows:
    By the court, Mascot, J.
    It was well settled at common law by a long series of adjudications in the courts in England, and which have been followed by the courts of this state, that the presumption of law is, that a will proved to have had existence, and not found at the death of testator, was destroyed animo revocandi. (Betts v. Jackson, 6 Wend., 173; Idley v. Bowen, 11 Wend., 227.) And our statute has placed this matter beyond all cavil and doubt. It is as follows: “No will of any testator, who shall die after this chapter shall take effect as a law, shall be allowed to be proved as a lost or destroyed will, unless the same shall be proved to have been in existence at the death of the testator or be shown to have been fraudulently destroyed in the lifetime of the testator; nor. unless its provisions shall be clearly and distinctly proved by at least two credible witnesses, a correct copy or draft being deemed equivalent to one witness.” (2 R. S., 68, § 67.) This statute recognizes the former common law rule, by requiring proof either that the will was in existence at the time of the death of the testator, or that the legal presumption that the testator destroyed it animo revocandi be overcome by satisfactory proof that it was fraudulently destroyed in the lifetime of the testator. I presume it will not be insisted in the case under consideration that there is any proof in the case to show the will in question in existence at the time of the testator’s death. I have not been able, at any rate, after a careful examination of the evidence in the case, to discover any proof of this fact. The question arises, then, had the defendant, at the time he made his offer to go into evidence to - prove the contents of the will, and to prove it as a lost or destroyed will, shown by evidence that the wall had been fraudulently destroyed in the lifetime of the testator? If not, he was not entitled to go into evidence to prove it as a lost or destroyed will. I must say, after a careful examination and consideration of the evidence upon this branch of the case, I think the defendant failed to establish this branch of his issue so as to entitle him to go into evidence to prove' the will as a lost or destroyed will. It is true, as was contended by the counsel for the defendant, that it is a fact for the jury ultimately to pass upon, and find whether the will is, or is not, shown to have been fraudulently destroyed; or rather this becomes ultimately a question for the jury in all cases where the party adduces sufficient evidence in the case to entitle him to go to the jury upon the question. If, on the contrary, the evidence so far fails to make out this fact that the court would feel itself constrained to set aside the verdict of the jury, if they were to find the fact in favor of the party seeking to show the will fraudulently lost or destroyed, then the court upon the trial may properly refuse to leave this question to the jury; and even do what was done by the learned justice upon the trial of this cause—arrest the trial at this point by refusing to permit the party to go into evidence to prove the will. I am inclined to think, therefore, that the justice ruled correctly in excluding the evidence offered by the defendant’s counsel to prove the contents of the will in question, and it follows as a consequence that a new trial should be denied; for there was nothing left for the judge to do but to direct a verdict for the plaintiff, which he did do.

      B. Davis Noxon for the appellants.

      Alexander 8. Divert for the respondent.
   Foot, J.

After a careful examination of the testimony in this cause, I am satisfied that there was not sufficient evidence to authorize a submission to the jury of the question whether the will in controversy was in existence at the death of the testator; and a fortiori not sufficient to justify proof of its contents.

I concur in the views, of the facts and law of the case, taken by the supreme court, and neatly and appropriately expressed by Mr. Justice Mason.

The counsel for the appellant directed our attention to, the rule that the presumption of the revocation of a will, resting on the fact that it could not be found after the testator’s death, is rebutted by proof that the will before his death was really or practically in the possession of a person whose interests were adverse to it, and then argued, that the respondent was such person in this case. But the bill of exceptions furnishes no proof that the will, in any aspect, was ever in her possession. It can only be said on the testimony, that by living with her father, and he being old and feeble, she had facilities for rifling his desk and destroying his will.

Judgment affirmed with costs.


author: Mullett, J.,

text:
    Pearce and others against Ferris’ Executors.
    At the expiration of a lease of land, a building erected thereon by the lessee was wrongfully continued upon the lot by those claiming under him. Ejectment being brought for the lot alone, by metes and bounds, against parties occupying separately the different stories of the building, it was held that the action would lie against all the defendants, as being joint trespassers on the land in using it to uphold the building, and that the plaintiff was not bound to elect against which one she would proceed, as provided by 2 B. S., 307, $ 30.
    • This was an action of ejectment brought in the superior court of the city of New-York by Jane Ann Ferris, in September, 1844, to recover possession of lot No. 267 in the Bowery. The plaintiff claimed the premises in fee, and there was no dispute about her title to the fee at the time of of the commencement of the action. The defendants, one of whom occupied the basement, another the second stoiy, and the third another part of the building, all using the back buildings, back-yard and passage-way in common, joined in the plea of the general issue. The facts upon which they claimed a right to the possession were briefly as follows:
    John Ferris died in September, 1813, leaving a will whereby he devised the bulk of his estate, including the premises in question, to his executors, of whom his widow, the plaintiff in this suit, was one, in trust, with power to dispose of it, and to divide it between his wife and his infant son Charles John. The will directed that the property devised to the son should remain in the hands of his executors until his son should become of age.'
    On the 5th of June, 1823, all the executors joined in a lease of the premises in question to Nathaniel H. Smith, for the term of twenty-one years from the 10th of December, ] 822, which lease contained a covenant on the part of the lessee “that on the last day of the term, or other sooner determination of the estate granted by the lease, he would peaceably and quietly leave, surrender and yield up unto said lessors, their heirs and assigns, all and singular the demised premises with the appurtenances, together with the building and improvements thereon to be e?-ected.”

    On the day of the execution of the lease, Mrs. Jane Ann Ferris gave a bond to the lessee, Smith, in the penalty of $2500, and annexed it to the lease; by the recitals and conditions of which bond, she, on behalf of herself and her son Charles John, covenanted that in case Smith, his executors, administrators or assigns, should perform and fullfil the conditions and covenants contained in the lease on his or their part, that the buildings which might be erected by the said Smith, his executors, administrators or assigns, on the demised premises, and also the fair value of the ground rent of the demised premises, should be appraised or valued by three indifferent persons to be chosen in the manner mentioned ; and if the buildings should be valued at $2000 or upwards, that the said Jane Ann Ferris, Charles John Ferris, or whoever should be seised in fee of the demised premises, should either renew the lease of the premises for the further term of twenty-one years, at such rate as might be determined by the appraisers, or else pay to Smith, his executors, administrators or assigns, the appraised value of the buildings within sixty days. But if the appraised value of the buildings should be less than $2000, that it should be optional with the said Jane Ann Ferris, Charles John Ferris, or whoever should be seised in fee simple of the demised premises, either to renew the lease of the premises for such term of time, and upon such conditions as should be mutually agreed upon, or else that the said Jane Ann Ferris, Charles John Ferris, or whoever should be seised in fee of the demised premises, should suffer the said Nathaniel H. Smith, his executors, administrators or assigns, to remove and take away from off the premises the buildings and materials composing the same, provided they should do so in twenty days after notice of such election.
    On the 16th day of March, 1829, in a partition and division of some of the real estate of John Ferris, deceased, between .the widow and son, by the trustees, the lot in question was conveyed to Charles John Ferris; and on the 13th day of December, 1830, Charles John Ferris conveyed the premises to his mother, the plaintiff, who thereupon became the owner thereof, and continued to own the same at the commencement of this action. The lease to Nathaniel H. Smith, and the bond of the same date made by Mrs. Ferris, had by various assignments passed to Henry Abell, and were held and owned by him on the 18th day of February, 1842. On the last mentioned day, Mrs. Ferris gave Henry Abell a covenant, by which she agreed with him not to avail herself of the covenants in her bond, as to the value of the improvements, but to pay for the same on the valuation thereof, in the manner mentioned, even if the same did not amount to the sum of $2000, in case she did not renew the lease. On the 1st of February, 1843, Mrs. Ferris and Henry Abell agreed in writing, that Jacob Taylor and Simeon Kingsley should estimate the amount of rent per annum, for a lease of the lot in question, for the term of twenty-one years; and in case they could not agree, they should choose a third person, whose award should be final in the premises ; and Taylor and Kingsley thereupon agreed that the yearly rent of the lot should be $190. On or about the 13th day of November, 1843, Mrs. Ferris caused to be prepared and offered to Henry Abell, a lease of the premises in question similar to the one originally given to Nathaniel H. Smith, by the trustees of John Ferris, deceased, except as to the amount of rent, which was $190 a year. This lease Abell declined to accept, because it contained a covenant requiring the tenant to pay taxes and assessments.
    On the 4th of June, 1844, the plaintiff, Mrs. Ferris, caused notices to be served on Henry Abell and on the defendants, requiring them to surrender the possession of the premises to her, and to remove from the same, in one month after the service of such notice. On the 29th day of July, 1844, Henry Abell assigned.the original lease of June 5th, 1823, Mrs. Ferris’ bond of the same date, her covenant dated the 18th of February, 1842, the agreement between Mrs. Ferris and himself, respecting the appraisal of the value of the rent, made February 1st, 1843, and all his interest in the demised premises, to Harriet Augusta Evans. The defendants held under separate leases from Miss Evans, given in 1845, and it was claimed for them that some or all of these instruments and transactions operated as a renewal of the original lease, or as a new lease, from Mrs. Ferris, or at least to such a permission to continue the possession of the premises as created a tenancy at will, which was in effect a tenancy from year to year.

      At the close of the proof, the above facts having been shown', the defendants’ counsel requested that the plaintiff should elect against which of the defendants she would take a verdict, which she declined doing, and the presiding judge charged the jury, that the plaintiff was entitled to recover against all the defendants, against whom a verdict was given accordingly. The judgment of the superior court upon the verdict was sustained, on error, by the supreme court, and' the plaintiffs in error (defendants in the original suit) appealed to this court. The original plaintiff, Mrs. Ferris, having died pending the action, it was continued in the name of her executors.

      David Dudley Field for the appellants.

      Marshall S. Bidwell for the respondent.
   Mullett, J.,

(after discussing the question whether under all the circumstances the plaintiff showed a clear and uncontradicted right to the possession of the premises, and arriving' at an affirmative conclusion.)

The remaining question is, whether the plaintiff had a right to maintain a joint action against all the defendants. They each occupied separate parts of the house, under their respective leases from Miss Evans, and all used the outbuildings, back-yard, and the passage in common. As to Miss Evans and the house, they were not joint tenants, and did not occupy jointly ; as to the plaintiff and her land, they were all trespassers. The plaintiff brought her action to recover the possession of the land, by metes and bounds, which she claimed in fee. She makes no claim to the house. The house may belong to the land or not, according to the agreement of the parties, which is a question not involved in this suit, nor settled by it. The lease from the trustees of John Ferris to Smith having expired, and being in no way renewed or continued, and no subsequent arrangement having been made as to the house, it was wrongfully continued on the land, and those who occupied it then, were trespassers on the lot. They all used the land in common to sustain and uphold the house, and for other uses necessary for the enjoyment of the house. The house was sustained and upheld, as well for those who occupied the upper stories as those who occupied the basement. To this effect are the cases of Winton v. Cornish (5 Ohio Rep., 477); Kerr v. The Merchants' Exchange Company (3 Ed. Rep., 315), and Starkwell v. Huston (11 Met. Rep., 485). ■ In the case of the land, all those who, under the circumstances, occupied the house, were joint trespassers as against the plaintiff, and the action will lie against them all; and therefore the judgment appealed from ought to be affirmed.

Foot, J., read an opinion, arriving at the same conclusion.

Paige, Gardiner and McCoun, Js., concurred.

Ruggles, Oh. J., was for reversal.

Judgment affirmed.


author: Foot, J. Gardiner, J.

text:
    Gray against Davis.
    Upon a sale of personal property, any acts of the parties indicative of the exercise of ownership by the vendee may he submitted to the jury as evidence of receipt and acceptance, to take the case out of the statute of frauds.
    A sold B a stock of goods in store. After the verbal bargain, an inventory of the goods was taken, B going through the store and calling off the parcels, and A entering them in the inventory, which was headed “ B bought of A,” &c. On leaving the store, A offered B the keys, which he declined to take until next day, saying that he had no insurance The vendor then offered to assign his own policies, when the purchaser requested the vendor’s clerk to take the keys for him until the morning, which he did: Held, that these facts were sufficient evidence to go to the jury of receipt and acceptance by the purchaser.

      Per Foot, J.: The facts in this case were even sufficient to have warranted the court in holding the delivery established, instead of taking the case from the jury upon the opposite ground.
    This action was brought in the New-York common pleas, to recover the price of a stock of goods alleged to have been sold by the appellant to the respondent; and there being no memorandum in writing of the bargain, the question was whether the respondent, who was the buyer, accepted and received the goods.
    The' goods were in the first and third lofts of a store, and constituted a stock for conducting the umbrella business. The bargain was made about noon, the 1st day of April, 1847. In February previous, the appellant had made an' inventory óf his stock of goods, which the respondent had seen and examined several times before the day of the bargain. The agreement was, that the appellant sold, and the respondent purchased, the goods on twelve months’ credit, at the prices mentioned in the inventory, less a deduction of $350. The parties also agreed that the respondent should take the two lofts, until the first of May following.
    When the verbal bargain was completed, the appellant told the respondent “ to consider the goods and premises his at once.” The respondent answered, “I cannot attend to it now, but will come at four o’clock and take possession and • inventory the stock.” This was acceded to, and, by agreement of the parties, the clerk of the appellant locked the store till that hour. In the meantime, the appellant, with the express assent of the respondent, delivered to a customer $30 worth of umbrellas which had been laid out for him. At four o’clock P. M., the parties met at the store, and took an inventory of the stock, the respondent and the clerk of the appellant calling off the goods, and the appellant taking an account of them. The heading of this inventory was as follows :
    Mr. Charles Davis,
    “ Bought of E. C. Gray.”

      The stock was all gone through with, and the prices put down from the inventory taken in February, except the umbrella frames up stairs. They were not counted, but taken down from the inventory of February, and the parties agreed that the respondent should count them afterwards, and if he found an error in them, it should be corrected. The respondent looked over the inventory, made no objection to it, and handed it to.the appellant, with a request to copy it, and give him a copy in the morning. The appellant then directed the clerk to hand the keys of the store to the respondent. The latter said “he did not want to take them till morning; that his rent was not to commence till then, and that he had no insurance.” The appellant replied, “I will give you my policies of insurance on the stock.” The purchaser then directed the clerk to take the keys for him till morning, and the clerk did so. All three then left the store together, and Gray’s sign was immediately taken down in Davis’ presence.
    In taking the inventory, some buttons were met with, which were not in the February inventory. The price was not known, and the respondent directed the clerk to inquire the price of them in the morning, and insert it in the inventory.
    The next morning the respondent refused to have anything more to do with the matter.
    At the trial, upon these facts being shown, the judge held that there was not sufficient evidence of delivery and acceptance to submit the question to the jury, and ordered judgment for the defendant. From this judgment, affirmed at general term, the plaintiff appealed.
    The opinion of the court below was delivered by Wood-ruff, J., and so far as relates to the points considered in this court is as follows :
    But the plaintiff insisted, secondly, that he gave such evidence of a delivery of the goods as should have been submitted to the jury.

      The plaintiff had undoubtedly shown the making oof a bargain for the goods in question, at noon of the 1st April, 1847. But no,, delivery was then made; on the contrary, in reply to the plaintiff, who “ told him to consider the goods and premises his, at once,” the defendant declined receiving them, and said, “ I cannot attend to it now, but will come at 4 o’clock and take possession and inventory the stock.” He came to the store in pursuance of his promise, and the parties, together with the plaintiff’s clerk, engaged in taking the inventory, which was, with the exception of a few details, completed, but not footed up, or the amount of the goods ascertained. Nevertheless, if the possession had then been surrendered and accepted, the fact there were some mistakes in the inventory or that the amount was not footed, would not have rendered the delivery less effectual. But a considerable portion of the goods remained to be counted, amounting to over $260, and as to some buttons the price was not ascertained. The goods not counted were set down in the inventory at the same number or quantity that was found on the inventory of the previous February, and it was agreed that the defendant should count them afterwards, and if any error was found it should be corrected. And as to the buttons, the clerk was directed to ascertain the price the next morning, and have them put down at the price so ascertained. Had this sale been for cash, the last named circumstances might have brought the case apparently within the rule that where any thing remains to be done between the parties for the purpose of ascertaining either quantity, value or quality, there is no delivery. This was held in Rapelye v. MacJcie (6 Cow., 250), where weighing and designation of particular bales remained to be done by the vendor; in Outwater v. Dodge (7 Cow., 85), where transportation and inspection of the fish sold remained to be done by the vendor; in Ward v. Shaw (7 Wend., 404), where slaughtering and weighing the cattle sold remained to be done by the vendee, to ascertain the price, &c.; in
      Andrew v. Dietrich (14 Wend., 31), where the vendee was to measure and cut off the desired quantity of carpeting; and in Downer v. Thompson (2 Hill, 137), where counting and designation remained to be done by the vendor. But where there is a sale upon a credit of twelve months, and an actual surrender of possession by the vendor and a taking possession by the vendee, with intent to deliver and accept, the price being agreed upon in detail and the delivery being in bulk, it is going too far to say that because the vendee is to count the goods to ascertain the gross amount, therefore the delivery is incomplete; or where (as in regard to the buttons) the quantity is ascertained, but the price requires a reference to a third party, which it is agreed shall be had the next morning, that this makes the whole delivery invalid. (Crofoot v. Bennett, 2 Comst., 2-58, 260.)
    The true question in the present case is, was there a delivery of the whole of the goods (be they more or less) and an acceptance by the defendant, with intent to pass and to receive the title to the property ? A single fact proved by the plaintiff’s witness seems to me conclusive on this subject, and to have left no question in the case which it was proper to submit to the jury. When the parties had finished the inventory (so far as it was completed) the plaintiff directed his clerk to give the keys of the store to defendant. Here was a distinct manifestation of an intention to place the defendant in possession of the goods and store. The defendant declined receiving them. This was a distinct declaration of his intention not to take possession; and the defendant gave a reason—“he had no insurance.” It was not possible for the parties then to misunderstand this, and it cannot now be misunderstood. It is as plain as if the defendant had said, I will not accept a delivery so as to change the title, because if I do the property will remain over night unprotected by insurance.
    The plaintiff did then so understand it, for he replied, “I will give you my policies of insurance on-the stock.” This however was not done, and according to the usual conditions of fire policies (requiring a consent of the company to a transfer) could not be until the next day. How then can it be for a moment believed that the defendant “accepted and received ” the goods, or intended to assent to the plaintiff’s offer to deliver the keys, in the face of his express declaration, which meant, and could only mean, that he would not thus accept because not insured? A verdict for the plaintiff (had the case been submitted to the jury) must in the face of such a refusal have been set aside as unsupported by the evidence. The direction to the clerk to take the keys must be construed in connection with this conversation. It appears by the evidence that he kept the keys before this supposed delivery; he unlocked the store when he went there that afternoon. No change in the custody of the keys appears therefore to have been then contemplated; he merely continued that custody. And it appears to me. impossible to doubt, that when the parties left the store, the defendant had as little idea that the goods had been delivered to him and accepted, as he had when he left at noon. Besides, if the promise by the plaintiff to give him his policies of insurance was material and affected this question, that was, even in the aspect of the case most favorable to the plaintiff, an inducement condition, precedent to the acceptance of the goods that night, and it is in this view obvious, that something remained to be done by the vendor which was not done, and so far as appears by the bill of exceptions has never been done; and the delivery was incomplete, according to the cases above cited, without such a transfer.
    It is to be borne in mind that acceptance by the vendee is the material fact; not a tender nor a mere manual tradition by the vendor; and a final and absolute appropriation by the purchaser is said to be requisite to a compliance with the statute, i. e. (laying out of view the subject of constructive possession by symbolical delivery, which is not material in the case), the acceptance must be final, complete and irrevocable, and the subject matter must have come into the absolute possession of the purchaser, or of some person authorized finally to receive it for him. (Story on Sales, §§ 276-280 and cases cited in the notes.) And in Shindler v. Houston (1 Comst., 265), Mr. Justice Gardiner cites the rule thus: “ There must be an actual acceptance by the vendee with the intent of taking possession as owner.” And Mr. Justice Wright says, “this ultimate acceptance can only be evidenced by unequivocal acts.”
    I think the case was correctly disposed of on the trial, and the judgment must be affirmed with costs.

      E. C. Gray, for the appellant,
    cited the following authorities: Wilkes v. Ferris (5 John., 335); DeRidder v. M’Knight (13 John., 294); Shindler v. Houston (1 Comst., 261); Crofoot v. Bennett (2 Id., 258); Olyphant v. Baker (5 Denio, 379); Goodrum v. Smith (3 Humph., 542); Byre v. Etnyre (2 Gill, 150); Moon v. Haws (3 Aik., 390); Chaplin v. Rogers (1 East, 192); 6 Id., 602; Blenkinsop v. Clayton (1 Moore, 328); Shumway v. Rutter (8 Pick., 443); Macomber v. Parker (13 Id., 175); Riddle v. Varnum (20 Id., 280); Caldwell v. Smith (4 Dev. & Batt., 64); Houdlette v. Tallman (2 Shepl., 400); Wing v. Clark (11 Id., 366); Hunter v. Talbot (3 Sm. Marsh., 754); Jewett v. Warren (12 Mass., 300); Smith v. Nevitt (Walker, 370); Crawford v. Smith (7 Dana, 59); 2 Kent Com., 498, 501.

      A. Thompson for the respondent
    referred to 1 Crompt. & Mees., 334; 7 Cow., 85; 1 Comst., 261; 10 Ad. Ellis, 111.
   Foot, J.

These facts make an entirely different impression upon my mind, and when tested by the rules of law applicable to them, lead me to a different conclusion from the one adopted by the common pleas. The transaction in respect to the keys, instead of being conclusive, as the learned judge held, in favor of the respondent, is directly the reverse. When offered to him, he declined receiving them because he had no insurance on the goods. But on the appellant assuring the respondent that he should have the benefit of his policies, the respondent directed the clerk, a third person, to take them for him, and he took them accordingly, which, in substance and legal effect, is the same as if he had received them himself.

The learning on the subject is collected, and the rules established by and deducible from it clearly presented in the case of Shindler v. Houston (1 Comst., 254). Gardiner, J., there says: “ The acts of delivery and acceptance mentioned in the statute are something over and beyond the agreement of which they are a part performance, and which they assume as already existing.” There are in this case two minor acts, significant of ownership, by the respondent, which I will barely mention. One is the expression of his • assent to the delivery of the parcel to the customer; the other, his direction to the clerk to ascertain the price of the buttons and insert it in the inventory. But the two principal, and, in my judgment, controlling facts, are the taking of the inventory and acceptance of the keys. The taking of the inventory, with a heading such as it had, viz., a declaration that the respondent had bought the goods of the appellant, was a clear and unequivocal act of ownership. The manner, however, in which the inventory was taken was particularly significant. The respondent himself, with the aid of the clerk, handled the goods, took them into his manual possession, called off the different articles, by doing which he must have specified the quantity and quality of each. The handling and entering in the inventory in this manner, of each parcel of the goods, amounted, under the circumstances, to a designation andt acceptance of it at the price inserted in the inventory.

The delivery and acceptance of the keys are still more decisive. That act alone is, according to several cases, a symbolical delivery, and of itself sufficient to take the case out of the statute. (2 Kent Com., 4th ed., 500, and cases there cited.) I do not, however, place my opinion on the symbol, but on the fact that, after the taking of the inventory, all that remained to be done to render the delivery and the acceptance of the stock of goods perfect, was to hand the respondent the keys and for him to receive them, both of which were done. It was the only remaining act which could be done to complete the business. The parties themselves so considered it; for when it was done, the appelant’s sign was taken down in the presence of the respondent, and without objection from him.

The idea suggested and adopted by the court of common pleas, that the acceptance of the keys by the respondent was on condition that the policies should be assigned to him, is not supported by any proof in the case.

On the whole, I think the court of common pleas erred, not so much in taking the case from the jury as in deciding there was not a delivery and acceptance of the goods.

Gardiner, J.

I think that the question of delivery should have been submitted to the jury. Kenworthy, the plaintiff’s clerk, testifies that, after the inventory of stock was taken, and it had been arranged that Gray should copy the bill of goods and hand it to the defendant in the morning, he “ told the witness to give the keys of the store to the defendant. Davis said he did not want to take them until morning; that his rent did not commence until then, and he had no insurance. Gray replied, ‘ I will give you my policies of insurance on the stock.’ Davis then told me to take the keys for him until morning, and I took them, and we all left together.” There is no doubt that Gray intended to give possession of the goods, and whether the defendant designed to accept them, by the direction above mentioned to Kenworthy to take the keys for him until morning, was a question for the jury.

The judgment should be reversed and a new trial ordered.

Paige, McCoun and Jewett, Js., concurred.

Judge Ruggles was for affirmance, for the reasons given in the court below.

Judge Gray took no part in the decision.

Judgment reversed and new trial ordered.


author: McCoun, J. Gardiner, J. Foot, J. (dissenting.)

text:
    Peck, Agent of the State Prison, against Burr and another.
    Where a contract of hiring for a term of years, providing for the payment of wages at the end of each month, had been rescinded on the ground of illegality, before the expiration of the stipulated time, by the party who had agreed to furnish the labor, it was held, that he could not recover for the labor performed under the contract prior to its rescission.
    Where a contract on behalf of the state with an individual, has been declared illegal by the proper law officer of the state, acting under instructions from the legislature, and has been accordingly rescinded, the state and its agents are thereby estopped from denying its illegality.
    No recovery can be had for value parted with upon an illegal contract.
    ' On the 10th of July, 1839, the agent of the state prison at Mount Pleasant, of the first part, and William H. White, of the second part, entered into a sealed agreement embracing the following provisions: “ The party of the second part is to have the .labor of thirty of the convicts employed in said prison, to labor and work for said party of the second part, at the manufacturing of hats in all its branches, and all such work connected with such manufactory. For the labor of such convicts the said party of the second part agrees to pay the said party of the first part the sum of forty cents per day each, for every day’s work done and performed. The said party of the second part is to furnish all the stock, materials and tools for said convicts to work with, at their own cost and expense, and to instruct said convicts in said trade of hat manufactory.” “ The said party of the second part is to pay for the labor of said convicts at the end of each month, in cash or with satisfactory paper, payable in three months from date.” The contract was to commence on the first of August thereafter, and to “be continued for the term of five years.” There was a clause authorizing the assignment of the contract by the party of the second part, in accordance with which he assigned his interest therein to the defendants, Henry A. Burr and Stephen White, in April, 1840.
    By an act of the legislature, passed in 1842 (Laws, ch. 148, § 5), the inspectors of state prisons were required to lay before the attorney-general a copy of every contract for convict labor in their possession; and it was further provided, “If, on examination, the attorney-general shall be of opinion that any such contracts are in violation of existing laws, he shall certify such opinion in writing to the inspectors having charge of the same; and the inspectors shall cause every such contract which, in the opinion of the attorney-general, is illegal, to be annulled or rescinded on the 1st day of May, 1843.” In accordance with this statute, the attorney-general, in March, 1843, certified to the inspectors of the Mount Pleasant state prison his opinion that the contract in question was one which “ violated the provisions of existing laws of this state,” and “ under the provisions of said act (of 1842), ought to be annulled or rescinded.” The agent of the prison accordingly at once gave notice to the defendants to discontinue their work; and in July of the same year he brought this action of assumpsit, upon the common counts, to recover the value of four months’ labor performed under the contract prior to its rescission. The cause was tried before Mr. Justice Barculo, and a jury, in 1846, and a special verdict found, subject to the opinion of the court, upon which judgment was afterwards entered for the plaintiff for $966.75. From this judgment the defendants appealed} and the cause was submitted here on printed arguments by

      Ambrose L. Jordan for the appellants.

      Joseph S. YorJc for the respondent.
   McCoun, J.

It appears that the contract for convict labor in the state prison, under which the work in question was done, violated the provisions of the act in relation to state prisons, passed May 11, 1835, and that upon the certificate of the attorney-general, whose duty it was, by the subsequent act of 9th April, 1842, to examine all the then existing contracts for convict labor, the contract between the parties to this suit was rescinded on the ground that it did violate the provisions of the previous law. This rescission was the act of the agent of the prison under the direction of the prison inspectors, without the consent of the other contracting parties, the defendants below.

The question then is, whether, after rescinding the contract, the agent of the prison can recover for the labor performed under it, anterior to the time of the rescission ?

By the terms of the contract the labor was to have been paid for monthly at the end of each month; and the action is brought upon an implied assumpsit, for several of such monthly payments. The contract, however, appears to have been resorted to upon the trial, in order to fix the price or value of convict labor, and to show that, by its terms, each month’s earnings constituted a distinct demand, and might be the subject of an action. In this respect the contract which was here made differs from those of a hiring for a definite length of time, where the contract is entire, both as to the period of service and the payment, and where performance to the end of the period agreed upon is a condition precedent to any right of action, although the amount of compensation may happen to be fixed at a certain specified rate per day or per month. Such were the circumstances in McMillen v. Vanderlip (12 John., 165), Reab v. Moor (19 John., 337), and in other cases of that class.

Notwithstanding the contract was put an end to in the manner above mentioned, the respondent’s counsel insists that it is not to be considered an illegal contract because no evidence was given of the existence of such facts as are required to bring it within the prohibition of the 7th and 9th sections of the statute of 1835; that the opinion of the attorney-general did not make it illegal, but only caused it to be annulled.

It is a sufficient answer to this argument to say, that the contract has been pronounced illegal by the proper officer of the state; and upon the ground that it violated the provisions of existing laws, it has been annulled. The state, and its agents or servants acting in this matter, are therefore estopped from making any question on the subject, or from denying that the contract was malum prohibitum at the time it was entered into, and also at the time it was rescinded by them. The illegality consists in applying the labor of the convicts in such a way as to teach them the trade or business of “ manufacturing hats in all its branches.” The employers expressly stipulating “ to instruct said convicts in said trade of hat manufacturing”—hats being articles of which the chief supply for the consumption of the country is not imported from foreign countries. The work about which the convicts were employed was, therefore, unlawful, and it is for the wages of such work that this action is brought. If the action had been brought upon the contract during its existence, or while it remained executory, there can be no doubt that a successful defence might have been made, provided it was proved that the contract was illegal; and at the expiration of the five years, if anything remained due for labor performed under it up to that time, it is equally clear, upon such proof being made, that no action could have been sustained as upon an executed contract. In pari delicto, potior est conditio defendentis, is the rule of the courts in all such cases. (2 Com. on Contracts, 109.)

This action, it is true, proceeds upon the ground that the contract has been disaffirmed, that is, it has been brought after the contract was rescinded; but it is a mistake to say that it proceeds in disaffirmance of the contract. On the contrary, it rather affirms the contract, for it claims exactly what the contract was intended to give. The plaintiff seeks to have the full benefit of the contract, though in a form of action a little different. The case is not, therefore, within the principle of those cases where actions have been sustained to recover back mone;y paid or property parted with, as the consideration for a void contract which has failed, or one which is capable of being set aside or disregarded; nor .is it within the principle of the cases of The Utica Insurance Company v. Kip (8 Cow., 20), and of King v. Brown (2 Hill, 485), relied upon by the respondent’s counsel. In the first the action was sustained to recover back the money lent because the loan was not unlawful, though the securities taken upon the loan were such as the company had no authority to take—indeed were prohibited from taking— and were, therefore, unlawful. (Beach v. Fulton Bank, 3 Wend., 583.)

In the other case (King v. Brown), the plaintiff was allowed to recover for work which he had performed for the defendant, though the work was to have gone in payment for land which was to have been conveyed to him by the defendant under a contract void by the statute of frauds. The true principle, says Nelson, Oh. J., in that case, is “that the contract being void and incapable of enforcement in a court of law, the party paying the money or rendering the service in pursuance thereof, may treat it as a nullity and recover the money, or the value of the services, under the common counts. This is the universal rule in cases where the contract is void for any cause not illegal, if the defendant be in default.”

In the case in hand, the contract was not merely void, it was illegal; at least it is so to be regarded for the present purpose: and to allow the plaintiff to recover in this case is, in my judgment, virtually to allow an illegal contract to be enforced.

Ruggles, Ch. J., and Jewett, Paige and Gray, Js., concurred in the above opinion;

Gardiner, J.

The contract, in this case, was entire; but the agent had a right of action against the contractor at the end of each month for the amount earned by the convicts according to the price fixed by the agreement. But the plaintiff could not rescind the special contract, and recover upon the common counts. The agreement was not wholly performed by the plaintiff, and could not, in the nature of things, be performed until the expiration of the whole period stipulated. A farmer hires a laborer for a year, at $10 per month, payable at the end of each month. The laborer works two months and abandons the employment of his master altogether,—in other words, rescinds the contract on his part—and sues for his wages. He must recover, if at all, upon thé special contract, and upon the stipulation for monthly payments as an independent covenant. He cannot by his own act, without cause, put an end to the contract, and then ask the court to imply an assumpsit in his favor. (12 John., 168.)

If the contract in this case was rescinded without cause, the plaintiff cannot recover. If for the cause suggested by the attorney-general in his opinion, then the agreement was against public policy, as settled by an act of the legislature and expressly prohibited by the statute. No cause of action can arise from an undertaking prohibited by statute, whether the contract is malum in se or malum prohibitum. Two persons enter into a contract to smuggle goods: the law will not imply a contract in favor of either in any matter growing out of the transaction.

I think the judgment erroneous.

Foot, J. (dissenting.)

The first question in this cause is, whether the covenants between the parties are dependent.

Obviously, they are not. The appellants engaged to pay “the sum of forty cents per day each, for every day’s work done and performed ” by the thirty convicts mentioned in the articles of agreement, and “to pay for the labor of said convicts at the end of each month in cash, or with satisfactory paper payable in three months from date.” On these terms, the appellants were to have the labor of the thirty convicts for five years. It is clear, that the respondent had a right of action at the end of every month, for the previous month’s wages, and was not bound to wait until the end of the five years, before he could enforce his claim for them.

When the contract was rescinded by the respondent, in obedience to the opinion of the attorney-general, given under the statute on that subject (Laws of 1840, ch. 148, § 5, 128), the right of action of the respondent for the wages of the previous month was perfect. The rule is perfectly well settled, that when a right of action has accrued and become perfect in favor of a person, he cannot be deprived of it except by his.release under seal, or by an agreement by which he engages to accept, and does accept, something else in satisfaction and discharge. This rule is one of the oldest in the common law, and has never, as I am aware, been departed from. This court has acted upon this rule of law at the present term, in the case of Dunlop v. McKnight, and rendered a judgment in accordance with it.

It is obvious, that if this judgment is reversed on the ground that the respondent cannot recover, because he rescinded the contract after his right of action became perfect, this ancient and valuable rule of law is violated; for the respondent is deprived of his right of action after it had become perfect, because he did a subsequent wrong. For which wrong, however, the party injured may have full redress by an action on the covenant; and he might also have redressed the wrong, if it existed, by recoupment in this action.

The fact that the respondent did hot commence his action for the two months’ wages till after he rescinded the contract, cannot, it seems to me, make the slightest difference. The only inquiry is, was his right of action perfect; not whether he had commenced an action to enforce it. The right to deprive him of it surely cannot rest on any such ground.

There is only one case in the books, so far as my own or the researches of counsel have gone, where a party commenced a suit for previously earned wages after he had rescinded the contract. That is the case of Read v. Moor (19 John., 337). In that one the supreme court decided against the plaintiff, because the covenants were dependent, and the plaintiff not entitled to recover any wages until he worked the whole eight months as he had engaged; but in delivering the judgment of the court, Mr. Justice Woodworth distinctly and in terms states, that if the covenants had been independent, and the plaintiff had been entitled to his wages at the end of every month, and to sue for them if they were not paid, he would have been entitled to judgment (Id., 341). The doctrine of this case is decisive of the present one, and should control it.

The next question is, whether the respondent is barred of his right of recovery, because the contract is illegal by reason of containing a provision that the appellants shall teach the convicts hired to them the trade of manufacturing hats; and by reason of the number of such convicts not being limited to the number of convicts who had learned a trade before coming to prison.

Our statute declares that no mechanical trade shall be taught to. convicts in our state prisons, “ except the making of those articles of which the chief supply for the consumption of the country is imported from foreign countries.” {Laws of 1835, ch. 302, § 7, p.342.) The same statute also directs, that “ in all those branches of business of which the consumption of the country is chiefly supplied without foreign importations, the number of convicts to be employed or let shall be limited by the number of convicts who had learned a trade before coming to prison.” (Id., § 9, 343.)

In 1840 the legislature directed all contracts for convict labor to be submitted to the attorney-general, and “if, on examination, he shall be of opinion that any of such contracts are in violation of existing laws, he shall certify such opinion to the inspectors having charge of the same, and they shall rescind the same on the 1st May, 1843.” (Laws of 1840, ch. 148, § 182.)

The contract in question was rescinded under this statute, on the certificate of the attorney-general, who simply certified that in his opinion it was illegal, without stating any grounds or reasons for his opinion.

The special verdict does not show that the trade of manufacturing hats is one of the kind in which the convicts may not be instructed, nor that the number of convicts hired to .the appellants is greater than the number who had learned a trade before coming to prison. It appears to me, therefore, that the question of illegality of the contract cannot be raised. There is no fact which furnishes a basis for it. The certificate of the attorney-general is no proof of any fact except of his giving such an opinion. It may be right or wrong; and whether the one or the other, depends on the facts upon which he expressed it.

The counsel for the appellants contends that the respondent, who .sues for the state, is estopped from denying that the contract is illegal, because the law officer of the state expressed an opinion that it was. This would be using the doctrine of estoppel in pais to establish an affirmative fact, and would make it perform the office of legal evidence. Had the appellants proved the contract illegal, then, if ever, they might contend that the state was estopped from denying its illegality. I must not, however, be understood as countenancing the idea that they could so contend with success. But until the appellants prove something, there is nothing for the respondent to deny, or to be estopped from denying.

I think the judgment should be affirmed with costs.

Mullett, J., did not hear the argument.

Judgment reversed.


author:
Paige, J.
      Foot, J.

text:
    John J. Palmer, Special Receiver, against Samuel R. Smith and others.
    A mortgagor to the North American Trust and Banking Company entered into a written contract with the company for the surrender of shares of its stock in part satisfaction of the mortgage, provided certain creditors of the company, for whose security the mortgage had been assigned to trustees, should consent: Held, that having thus recognized the title of the trustees, the mortgagor was estopped from denying the validity of the assignment to them,, and insisting that the stock should be applied in satisfaction of the mortgage without the assent of the trustees or creditors interested in the trust.
    The plaintiff filed his bill of complaint in the late court of chancery for the foreclosure of a mortgage, made by the defendants, Smith and wife, to J. D. Beers, president of the North America Trust and Banking Company, and transferred, through several assignments, to the plaintiff. The defendants, Smith and wife, in their answer insisted, that the bond and mortgage, and assignments thereof are void; for the reason that the act to authorize the business of banking, under which the North America Trust and Banking Company was organized, was unconstitutional and void; not having received the assent of two-thirds of the members of the legislature. The defendants also in their answer insisted, that; the company had no power to assign the bond and mortgage to Curtis, Blatchford and Graham in trust; that at the time of making the assignment the company was insolvent: that the only consideration of the assignment was money to be thereafter, advanced upon bonds payable at a future day, to be issued and put into circulation by the company for the purpose of raising money: that the bonds were sold in England for ninety per cent of their face; and that the company had. no power to issue such bonds, they being prohibited by the laws of the state, and also usurious. The defendants, Smith and wife, also set forth an agreement entered into between Smith and the company, in which the president of the company agreed that there should be endorsed on the bond of Smith $2625, being seventy-five per cent of the par value of thirty-five shares of the stock of the company, to be transferred by Smith to Curtis, &c., the said trustees. The answer stated that the agreement recited that the trustees were willing to receive the stock in part payment, provided the holders of the bonds should approve thereof, &c., and that the agreement provided that in case such endorsement was not made at the expiration of six months, the thirty-five shares of stock should be retransferred to Smith. The defendants, Smith and wife, in their answer, insist, that as the said assignment to Curtis and others and the said bonds were void, the company were bound, without the consent of the bondholders, to endorse such receipt on the bond of the defendant Smith. The defendants introduced evidence tending to show that the bond and mortgage of Smith were given for stock of the company; and that such stock was issued on condition that it should not be offered for sale until after May 1st, 1839. A decree was made at a special term of the supreme court in favor of the plaintiff which was affirmed at a general term of the same court, and the defendants appealed here.

      F. Dominic for the appellants.

      B. W. Bonney for the respondent.
   Paige, J.

The defendants, Smith and wife, cannot take the objection that their bond and mortgage were given in payment of a subscription to the stock of the company. No such point is raised in the answer. The evidence on that subject was not applicable to any issue made by the pleadings, and was therefore inadmissible. The plaintiff was not bound, in order to establish his right to enforce the collection of the mortgage, to state affirmatively in his bill its consideration. The law will presume, in absence of allegations or evidence to the contrary, that the consideration was a good one, and that the mortgage was a valid security. The defence put forth in the answer, founded on the invalidity of the general act to authorize the business of banking, is not insisted upon. The question as to the constitutionality of that act was put at rest by the decisions of the court of errors in Warner v. Beers (23 Wend., 103) and in Gifford v. Livingston (2 Denio, 380).

The defendants, Smith and wife, insist that they are entitled to a credit on their bond and mortgage for the sum of $2625, the value of the thirty-five shares of stock of Smith, under his agreement with the company. The grounds on which this credit is claimed are: 1st. That the agreement of the company to endorse that sum on the bond of Smith was absolute, and did not depend on the previous consent of the English bondholders; 2d. If in terms conditional, the performance of the condition was not necessary, as the trust deed and the bonds, to secure the payment of which the deed was given, were void, and the company was the legal holder of the bond and mortgage of Smith. It is contended that the bonds are void, because they are usurious, and because they were not authorized by the general banking law, and were prohibited by the act of May 14, 1S40.

The agreement between the company and Smith is conditional. The substance of it is, that the company promises that there shall be endorsed on the bond of Smith $2625, provided the English bondholders consent to it in writing; and should they withhold their consent, that the stock shall be retransferred to Smith.

Smith, by entering into the agreement which recites the trust deed to Curtis and others, and the bonds issued by the company, has recognized their validity, and he is not now at liberty to take the objection that they are void. (4 Denio, 480; 1 Ad. & Ellis, 792; 4 Peters, 83, 86.) The parties to the agreement treated these securities as valid, and chose to make the consent of the holders of the bonds a condition precedent to the endorsement of the stipulated value of the stock on the bond of Smith. If this consent is. refused, Smith cannot say, in the face of the terms of the agreement executed by him, that the consent is immaterial and unnecessary, and that the endorsement must be made without it. The covenant and promise of the company that the endorsement should be made within six months, must be construed in connection with the previous recitals, which contemplate that the endorsement was to be made by the trustees, the holders and the legal owners of Smith’s bond and mortgage. This covenant is made expressly in pursuance of the arrangement previously detailed in the agreement, and in order to carry it into effect- The parties recognised the trustees as the legal owners of the bond and mortgage of Smith, and as the only persons who were capable of making the endorsement; and the covenant of the company was a mere guaranty that the trustees would make the endorsement, provided the bondholders consented thereto- To get rid of this condition, and to change the guaranty of the company into an absolute engagement to make the indorsement, Smith cannot say that the trustees and the bondholders have no interest in the bond and mortgage, and that the whole title, legal and equitable, to the same, is in the company. Smith has no right to raise the question of the validity of the trust deed and of the bonds it was given to secure. That is a question between the receiver of the company and the trustees and bondholders. The plaintiff as special receiver represents in this suit both the receiver and the trustees. The defendant is justly bound to pay his bond and mortgage either to the company or to the trustees. The right to the mortgage moneys will be determined, after they have been collected by the plaintiff. (2 Hill, 526; 9 John., 60; 2 Hill, 522.) If the bonds issued by the company are void, either on the ground of usury or because prohibited by the act of 14 May, 1840 (Laws of 1840, 306, 4), or not authorized by the general banking law, I see nothing which prohibits the company from securing, to- bona fide holders the payment of sums actually advanced for the bonds. A debtor may secure to a creditor, in an assignment, the payment of money actually lent on a security void for usury, with legal interest (7 Paige, 639, 641, 642, 644); and a contract may be made between a creditor and debtor to free a previous usurious contract from the taint of usury. (10 Wheat., 367; 1 Camp., 165, and note; 2 Taun., 184; 2 Hill., 522.) It is not sufficient for the defendants to show that the bonds issued by the company are void ; he must also show that the condition in the agreement is void by reason of its being contrary to public morals, public policy, or positive law, and even this will not be sufficient; for if he shows that the condition is void on the ground of its illegality, he will show the entire agreement to be void, on the principle that a contract which is illegal in part, is void in toto. (Chitty on Con., 692, 693.) This would deprive him of his entire defence.

I am of opinion, that the decree should be affirmed with costs.

Foot, J.

The appellants having omitted to set up in their answer the invalidity of the bond and mortgage, on the ground that they were given for the stock of the company, and that the company had no legal right to take them for it, cannot now claim that they are void for that reason. The appellants, however, have probably lost nothing by that omission, as the judicial history of other bonds and mortgages taken by the .company will show.

Nor can the appellants avail themselves of the decision of this court in the case of Leavitt v. Palmer (3 Comst. 40),. in which the assignments of this and other bonds and mortgages to certain trustees were declared invalid.

The transfer by the trustees to the special receiver in pursuance of the order of the court is in substance a judicial act to preserve the property, and cannot justly be tested by the rules applicable to the voluntary acts of parties. The receiver stands in the place of .the true owner, and if the title he derives from the trustees has any efficacy, it is to return the title to the true owner in disaffirmance of the illegal act of the company, by which it was assigned to the trustees. But there is no necessity in this case of deciding, and no opinion is therefore expressed, on the character of the title which the special receiver derives from the trustees; for if they had none,, as the court has declared they had not, the title which the special receiver acquired from the association, through Leavitt the general receiver., is free from all objection.

The views which the supreme court have taken of the agreement in respect to the endorsement on the bond and mortgage are, in my judgment, correct.

All the judges concurring,

Judgment affirmed with costs.