text:
    H. C. Beals & Co. v. R. Terry & Co.
    A usage of trade, to the effect that on a contract to deliver flour of a particular mark or brand, a delivery of flour of equal or better quality, of a different mark or brand, will satisfy the contract; was held to be inadmissible.
    On the default of the vendor in a contract to sell and deliver goods at a specified time, for a price then payable, the measure of damages in an action by the vendee, is the difference between the contract price, and the market value at that time, with interest on such difference.
    The same rule applies against a guarantor of the vendor’s fulfilment of the contract.
    Sept. 13 ;
    Sept. 30, 1848.
    Assumpsit, on the guaranty of a contract, with the money counts, tried before Oakley, Ch. J., May 12th, 1848. The contract was in writing, and with the guaranty, were in these words:
    “ For value received, we have this day sold, and agree to deliver to Messrs. Roderick Terry & Co., in the city of New York, two thousand barrels superfine flour, ‘City Mills, Rochester,’ at six dollars per barrel, payable cash on delivery of each parcel; to be delivered at our option, in all the month of Jupe next, in parcels of not less than 200 barrels each. Any variation from superfine, to be settled at the usual rates of difference.
    “Clark & Coleman.

      “New York, March 26th, 1847.”
    [Endorsed,]
    “ Messrs. Clark fy Coleman, will please deliver to H. C. Beals <fc Co. the within flour, as per contract—they paying you for same as received..
    “ Roderick Terry & Co.”

      “ For a valuable consideration, we do hereby guarantee the fulfilment of the contract, as within specified.
    “ Roderick Terry & Co.”

      “New York, May 25th, 1847.”
    On the 30th June, 1847, the plaintiffs presented the contract to Clark & Coleman, tendered to them $12,010, for the price of the flour and half inspection, and demanded a delivery of the flour specified in the contract. They replied that they had not the flour, and could not deliver it. They offered to deliver flour, other than “ Rochester City Mills,” on the contract. The plaintiffs immediately advised the defendants of Clark & Coleman’s default. The market value of “ Rochester City Mills” flour at the end of June, 1847, was variously estimated by .witnesses, at from $8 75 to $7 25 per barrel. It appeared that there was none of that brand of flour in the market, after June 21, 1847; that there was a considerable decline in the price of flour generally, between that date and June 30th, so that flour equally as good as “ Rochester City Mills,” was selling on the 30th, at $7 25 per barrel. Particular brands of flour, which are highly esteemed, frequently maintain their price in the face of a general fall in the market, to the extent of a dollar per barrel: especially, when the supply of such brand is small.
    The plaintiffs proved that they paid the defendants $4500, for an assignment of Clark & Coleman’s contract.
    The defendants offered to prove, that there was no other kind of Rochester City Mills flour, than superfine Rochester City Mills flour ; which was objected to and' excluded. They also offered to prove, that on the 30th of June, 1847, Clark & Coleman offered to deliver to the plaintiffs, on the contract, flour of a quality equal to or better than the “ Rochester City Mills” flour ; of - the brands, “ Hopeton,” “ Allen’s Creek,” “ Le Roy Mills Extra,” and “ M. Holmes, Rochesterwhich evidence was objected to by the plaintiffs, and excluded by the judge.
    The defendants also offered to prove, that by the usage of the trade in flour in the city of New York, it was customary on contracts for the delivery of particular brands of flour at a future day, to deliver other brands of flour of equal quality in fulfilment of such contracts. This evidence was objected to by the plaintiffs, and excluded by the judge.
    The judge charged the jury, that the rule of damages in the case, was the difference between the market value of the flour in question on the 30th June, and the contract price, with interest. The jury found a verdict for the plaintiffs, for $4246 15 damages; and the defendants move for a new trial.

      E. Terry, and D. Lord, for the defendants.

      D. D. Field, for the plaintiffs.
   By the Court. Vanderpoel, J.

The principal questions are, whether the judge submitted the proper rule of damages to the jury, and whether he properly rejected the evidence offered by the defendant, that there was a usage of trade in flour contracts for the delivery of flour at a future day, to deliver other brands of flour of equal quality.

The rule of damages, as laid down by the Chief Justice at the trial was, the difference between the market value of the flour on the thirtieth of June, and the contract price, with interest on such difference. This is the true rule. (Clark v. Pinney, 7 Cowen, 681; Dey v. Dox, 9 Wend. 129; Davis v. Shields, 24 Wend. 322.) In all those cases, it was held, that when there is a default in the vendor in a "contract to sell and deliver chattels, the measure of damages in an action by the vendee is, the difference between the contract price and the market value of the chattels when they should have been delivered by the contract. The reason of the rule, says Nelson, J. in Dey v. Dox, is conclusive, to wit, that such damages, added to the contract price which the vendee has not parted with, will enable him to buy the article in the market. Why should a different rule be applied in this case. It is said that this was not a contract for a specific marked number of barrels of flour; that the spirit of the contract would have been satisfied by the delivery of other flour of equal quality; and that the judge improperly rejected the evidence offered to show that at the time of the maturity of the contract, Clark and Coleman offered to deliver other brands of flour of equal or better quality. This evidence was not admissible, unless the usage of trade is potent and authoritative enough, in a case like this, to justify the delivery of other brands than those contracted for. The rule which forbids the admission of parol evidence to contradict or vary a written contract, is not infringed by any evidence of usage respecting the subject to which the contract relates. (1 Greenleaf’s Ev. § 292.) Proof of usage is admitted, either to interpret the meaning of the language of the contract, or to ascertain the nature and extent of the contract, in the absence of express stipulations, and where the meaning is equivocal and obscure. (Ibid.; 2 Sumn. R. 569; Cutter v. Powell, 6 T. R. 320 ; Vallance v. Dewar, 1 Camp. 503; Noble v. Kennaway, 2 Doug. 510.) There is nothing equivocal in this contract; nothing to require the aid of any usage, or mercantile understanding, to ascertain the meaning of any of its terms or phrases. We took occasion, in the case of Hone v. The Mutual Safety Insurance Co., (1 Sandf. 137;) to express our repugnance to the practice of setting up particular usages or customs, to control the liabilities of parties under the common law, and our entire concurrence in the doctrine of Justice Story, so clearly laid down and so forcibly expounded by him in the case of the Schooner Reeside, 2 Sumn. 567. We cannot recognize a usage which will authorize a party to deliver one article in fulfilment of a contract, positively to deliver another ; which will justify him in delivering the fabrics of one mill or manufactory, when he has expressly contracted to deliver those of another. The injustice of such a rule is rendered manifest by the evidence in this case. It is proved, that when the supply of flour is small, a particular brand will often maintain its price, in the face of a general fall of one dollar per barrel. Suffice it to say, that one of the contracting parties wants a partictilar brand, and the other agrees to deliver it to him ; and it is not in law or sound reason a good answer for the vendor to say, “ I offered you not the article I contracted to deliver, but one just as good.” The vendee may, at the time of the contract, have the most conclusive reasons for contracting for that particular brand, and wé cannot on any sound principle hold the contract satisfied by the tender of another, which the witnesses may deem equally good.

Nor, do we deem the point well taken, that the judge improperly rejected the evidence offered, that there was no other kind of Rochester City Mills flour, than superfine Rochester City Mills flour. We cannot conceive, how it could, legitimately, have influenced or varied the natural import or meaning of the contract. The verdict is larger than we would have found, had we been in the place of the jury; but we have not been able to conclude that the damages are so excessive as to warrant our interference on that ground.

The motion for a new trial is, therefore, denied.


source: Caselaw Access Project

author: By the Court. Oakley, Ch. J.

license: Public Domain

text:
    King v. Dowdall.
    The statute permitted a non-resident plaintiff to sue in a justice’s court, by a short summons, having not less than two nor more than four days to run. He could also sue by the ordinary summons, having not less than six nor more than twelve days to run. Such a plaintiff sued by a summons returnable five days from its date. Held, that the justice had no jurisdiction to proceed in the suit.
    Where Sunday is an intervening day, it is counted in computing statute time.
    Sept. 27 ;
    Sept. 30, 1848.
    Cetiorari to one of the assistant justices courts. The facts are sufficiently stated in the opinion.

      T. E. Tomlinson, for the plaintiff in error.

      G. A. Curtis, for the defendant in error.
   By the Court. Oakley, Ch. J.

Dowdall sued King in the court below by a summons, dated January 12th, and returnable January 17th, 1848. Dowdall was a non-resident, and the 16th day of January was Sunday. The defendant, at the return of the summons, appeared and moved that it be quashed and the suit dismissed, on the ground that it was returnable in five days.

The justice overruled the motion. The parties then joined issue, proceeded to trial, and the plaintiff recovered a judgment. The defendant seeks to reverse the judgment, both on the merits, and on the preliminary objection to the process.

We will first consider this objection. The law on the subject undoubtedly is, that a non-resident plaintiff may take out a short summons, having not less than two nor more than four days to run, or a long summons, having not less than six nor more than twelve days between its date and return. He has the option to take the one or the other, on giving the prescribed security, if he take the former. The difficulty here is, that the summons was neither long nor short. It is a summons of five days, if Sunday is to be counted as one.

The question then is, whether Sunday is to be counted in the computation of time on this process.

We know of no rule or principle by which it is to be excluded from the computation where it is an intermediate day, and we supposed the law on the subject was settled. The defend- . ant in error has brought to our notice the cases in the Massachusetts Reports, cited in Mr. Hill’s note to 2 Hill, 376. It suffices to say, that the rule indicated by those cases, is not the rule in this state, and whether those decisions were well founded or not, we cannot follow them. (Ex parte Dodge, 7 Cowen, 147; Columbia Turnpike Road v. Haywood, 10 Wend. 422 ; Anonymous, 2 Hill, 375, and note b., page 376.)

The law is established here that Sunday must be computed when it is an intermediate day, and the objection to the process is fatal. The court below was wrong in disregarding it, and the proceeding was without legitimate authority.

We have a discretion as. to costs ; and as the error here was purely the act of the magistrate in the issuing of the summons, the judgment will be reversed without costs.

Judgment reversed.


author: By the Court. Vanderpoel, J.

text:
    Suydam, Reed & Co. v. Clark & Coleman.
    Where the bought and sold notes delivered by a broker to the respective parties, on a sale of produce, differ in a material point, no contract is effected between the parties.
    So held, where on a sale of one thousand barrels of flour, the bought note expressed that seven hundred and fifty barrels was to be delivered when it arrived, not later than three days ; and the sold note expressed that the whole was to be so delivered.
    Where flour was deliverable upon a day certain, the delivery of an order on a barge, in the hold of which the flour is deposited, is not a compliance with the contract; there being no actual delivery or tender of delivery of the flour itself, on the day specified.
    Evidence of a custom or usage of trade, that the delivery of an order for flour by the seller to the buyer, the receipt thereof by him, and his presentation to the drawee of it, the seller not being notified of the non-acceptance of the order, is a delivery of the flour sold ; held, to be inadmissible.
    Sept. 14;
    Sept. 30, 1848
    Assumpsit, to recover the difference on a contract of the defendants to purchase flour, which not being performed, the flour was re-sold at their risk.
    The cause was tried before the Chief Justice, on the 14th of April, 1848. The plaintiffs called W. L. Roberts, who testified that he was a produce broker in this city, and made the sale and purchase of the flour between the parties. The following is the bought note which he sent to the plaintiffs :
    “ No. 274. “ New York, July 13th, 1847.
    “ Gent:—We have this day sold for your account, to Clark & Coleman, 1000 barrels superfine flour, whereof 750 barrels are 1 T. Wiman,’ at $6 per barrel; and 250 barrels ‘ Scio,’ at $5 87|- per barrel.
    The 750 barrels to be delivered when it arrives, not later than three days; and the ‘ Scio’ to be marked ‘ Genesee

    /‘Roberts, Bro’s., Brokers.

    “ To Suydam, Reed Co.”

      The following is the sold note which he sent to the defendants :
    “No. 274. “New York, July 13th, 1847.
    “Gent:—We have this day bought for your account, of Suydam, Reed & Co., 1000 barrels superfine flour, whereof 750 barrels are “ T. Wiman,” at $6 per barrel; and 250 barrels ‘ Scio,’ at $5 87J per barrel. To be delivered when it arrives, not later than three days ; and the ‘ Scio’ to be marked 1 Gene-see.’ “ Roberts, Bro’s., Brokers.

    “To Clark Sp Coleman.”
    It appeared, that on the 16th July, a barge arrived having on board 650 barrels of “ T. Wiman” flour for plaintiffs, and about 9 A. M., an order on the barge in these words, was delivered to the defendants:

      “New York, July 16, 1847.
    “ Captain of Barge Chicago, will please deliver Messrs. Clark & Coleman, six hundred and fifty barrels 1T. Wiman’ flour, and oblige, “ Suydam, Reed & Co.
    “ Pier Six. Balance out of store.”
    The defendants sent this order to the broker on the 17th, with a written notice indorsed, that “The time for delivery of the flour expired yesterday; the boat cannot deliver it to-day, and we have 'been forced to send other flour in place of it, as the ship cannot wait.” They sent him a formal note on the same day, declining to receive the flour.
    Roberts further testified, that he bought this flour for the defendants to ship by the Piscatore, on the 16th of July. The ship did not sail till four or five days after that. On his suggesting it, the defendants consented to take and did take the “Scio” flour.
    A clerk for the plaintiffs proved, that they received notice of the arrival of the boat, early on Friday morning," the 16th July. Plaintiff had the “Scio” flour in store before the sale; and the balance of the 100 barrels of “ T. Wiman” flour, was put in store on the 14th, after the sale, in a lot"of 123 barrels. On Monday, witness presented a bill for payment of the whole flour. The defendants paid for the Scio, but refused to pay for the Wiman flour, saying they would not take it. 0 Witness gave them a notice, that the Wiman flour would be sold on their account, and they would be called on for the difference.
    The úsage is to send an order to the parties, when the flour is on the barge. When the flour is at the store, the parties send to the store for it. It is customary to have flour inspected on sales, and for the seller to attend to it. Has known both parties to attend to it. Each party pays half the inspection. The loss on this sale was 75 'cents per barrel, making $562 50.
    The Captain of the barge Chicago proved, that he had on board, 664 barrels of “ T. Wiman” flour for Suydam, Reed & Co. It arrived on the night of the 15th July, from Troy. The order for 650 barrels, was presented by the defendants about ten o’clock next morning. Another barge of the same line lay between the Chicago and the dock. The captain told the person who had the order, that he would give him the flour when he arrived at the dock. If it had been urgent, the captain testified he could have delivered it immediately. The person did not seem to be urgent. The Chicago delivered goods on that day. The flour was in the forward hold, immediately under the hatch, and could have gone over the other boat. Was ready to deliver at any time when the barge could get to the dock. The same person called on Saturday, and said he wanted the flour. The captain put him off as he had before, although he could have delivered it, if it had been urgently required. The barge between him and the wharf, was discharging all day Friday. It was one of the same line. The captain did not tell the defendants clerk he could land the flour. Told him it could not be landed till Monday morning, and then it would be. He made no objections. The flour in the barge, was the “ T, Wiman” flour, and was the same contemplated in the order.
    David Dows, for the plaintiffs, testified he is in the flour business. The usage in the flour trade on a contract of sale is, that about the time of the contract expiring, the party gives an order on the boat, or a distant store, and it is accepted as delivery. If I sell flour to be delivered in the month of May, and in the course of that month deliver an order, and it is accepted, it is considered a delivery of the property.
    It is usual for the captains of the boats, under the direction of the holders of the order, to deliver the flour on the dock, turn up the barrels, and have it inspected. It is customary for the captain to have the inspection done. He notifies the inspector, The trade have considered the acceptance of the order as a delivery of the property.
    If the flour is not delivered on presentation of the order, the custom is, that the purchaser must return the order to the seller, or he is considered as satisfied.
    The plaintiffs counsel then offered to prove as the usage of the trade, that the delivery of the order to the purchaser, and the receipt thereof by him, and the presentation thereof by him, and the seller not being notified of the non-acceptance of the order, is a delivery of the property.
    The judge refused to receive the testimony, and the plaintiffs counsel excepted.
    The defendant’s counsel moved for a non-suit, on the ground that the broker’s notes of the contract delivered to the respective parties varied, and did not constitute a contract, and none had been proved by the plaintiffs. And that the plaintiffs had not proved a delivery of the flour within the time contemplated by the contract. The judge granted the motion, and the plaintiffs counsel excepted.

      S. Sherwood, for the plaintiffs,
    cited 14 John. 485 ; 3 Wend. 112; 26 ibid. 363.

      A. S. Johnson, for the defendants,
    cited 3 Wend. 459; 26 ibid. 341; 5 Barn. & Cr. 436 ; 9 Mees. & Welsb. 600; 2 Camp. 326 ; 3 ibid. 274; 7 Dowl. & Ryl. 131.
   By the Court. Vanderpoel, J.

We think, the variance here is fatal. The broker was the agent of both parties ; he must be deemed to have been employed by the one to buy, and by the other, to, sell; and the notes which he delivers to the parties, evidence their contract. According to the note delivered to the plaintiffs, the 750 barrels only were to be delivered when it arrived, not later than three days ;* whereas, according to the note delivered to the defendants, the whole quantity, a thousand barrels, was to be delivered on its arrival, not later than three days. By the latter note then, the obligation of the defendants, to take the thousand barrels, was conditioned, on its arrival and delivery, within three days. Whether the terms of the latter note were more or less beneficial to the defendants than the former, cannot be material. Both parties had the right to determine that question for themselves, when they entered into the contract.

In Grant v. Fletcher, (5 Barn. &. Cres. 436,) it was expressly held, that the broker is the agent for both parties, and as such may bind them by signing the same contract, on behalf of buyer and seller. But that if he does not sign the same contract for both parties, neither will be bdund, and that where a broker delivers a different note of the contract to each of the contracting parties, there is no valid contract. (Davis v. Shields, 26 Wend. 341; Peltier v. Collins, 3 Wend. 459.)

2. The point is also well taken, that the flour was not delivered within the time specified in the contract. Nor does thé defendants receiving the 250 barrels of “ Scio” flour, preclude them from taking this objection. They had a right to receive this, in part fulfilment, and under the expectation, that the whole would be delivered according to the contract. The three days, within which the delivery was to be made, expired on the 16th of July ; and the defendants could not, on that or the following day, succeed in getting possession of the flour. (Cox v. Todd, 7 Dow. & Ry. 131.) That this is an article, as to which the time of delivery may be very important to the purchaser, is apparent from the evidence in this cáse. It shows, that the defendants wanted to ship it to England by a particular vessel, and the vessel had to be laden before delivery of the flour was offered.

3. The judge properly rejected the evidence of custom, offered by the plaintiffs in regard to delivery. We have lately expressed our repugnance to the idea, that well established principles of law should yield to local customs or usages. What is delivery, is a question of law, .and not of opinion. It is not within the legitimate province of custom, to control, or at all interfere, with a question of this kind.

The motion to set aside the non-suit is denied.


author: By the Court. Sandford, J.

text:
    Stevens and others v. Strang and others.
    A note payable to a fictitious person, is recoverable as payable to bearer, under the statute, on proof that it was negotiated by the makers.
    Evidence state'd, which was held sufficient to entitle the holder to recover on such a note.
    Sept. 11th;
    Oct. 7th, 1848.
    This was an action of assumpsit commenced by declaration, which contained the money counts and a count upon an account stated, and on which was indorsed a copy of a promissory note with a notice that the same was the only cause of action on which the plaintiffs relied.

    The plea was the general issue.
    The cause was tried before Chief Justice Oaklet, without a jury, on the tenth day of May, 1848. The plaintiffs proved the making of the note by the defendants, and it was read as follows:

      “ $466 -40.
    “ Six months after date, we promise to pay to the order of ' Messrs. Ebenezer Stevens & Sons, four'hundred sixty-six and 40-100 dollars value received.
    “ Benj. H. Strang & Co.”
    The plaintiffs counsel then called Thomas M. Adriance, who testified:—I am in the plaintiffs employ. The title of the firm is “ Ebenezer Stevens’ Sons.” I have been with the old and new firm, near thirty years. Have been in plaintiffs' employ ever since the formation of the present firm. There was formerly a firm of “ Ebenezer Stevens & Sons,” but it does not exist now. It ceased to exist some twelve years ago. Ebenezer Stevens is dead. He died in September, 1823. He was the father of the plaintiffs. There was no such firm as Ebenezer Stevens & Sons, at the time the note in suit was given, nor is there at the present time.
    The plaintiffs counsel offered to prove by the witness the consideration of the note, and the circumstances attending the making and negotiating the note, for the purpose of showing that the title of the note was in the plaintiffs, and they had a right to sue upon it. The defendants counsel objected to the evidence, but the objection was overruled, and the defendants excepted.
    The witness then testified :—The note was given for goods sold and delivered by the plaintiffs, under the firm of Ebenezer • Stevens’ Sons, to Benjamin H. Strang & Co. This is the order :—(The defendants counsel objected to the reading of the . order, but the objection was overruled, and the defendants excepted.) The order was then read in evidence, and is as follows:—
    , L

    “ Please deliver Messrs. Benjamin H. Strang & Co.,
    1. One half pipe Otard brandy, 1842.
    2. Two do. A. Seignette.
    Sold per your order.
    G. H. Stanton.
    New York, May 28, 1847,
    (Endorsed.) Benj. H, Strang & Co.”
    On being cross-examined, the witness testified:—The goods were sold by me to Stanton, the broker of the defendants. All I know, except what appears in the order, was what Stanton told me. 1 delivered the goods myself to a cartman, who presented the order with the indorsement on the back.
    The plaintiffs’ counsel then offered to read the note in evidence, to which the defendants objected. The court overruled the objection, and the defendants excepted. The note was then read in evidence.
    The plaintiffs here rested ; and the defendants moved for a nonsuit, on the ground that the plaintiffs had not shown any title to the note, or any right to sue upon it in their names. The court overruled the motion, and defendants excepted.
    The Chief Justice thereupon rendered judgment for the plaintiffs" for the.amount of the note, and interest.
    The defendants now move that a nonsuit be entered.

      M. G. Harrington, for the defendants.

      G. Gibbs, for the plaintiffs.
   By the Court. Sandford, J.

By the statute, promissory notes made payable to the order of the maker thereof, or to the order of a fictitious person, shall, if negotiated by the maker, have the same effect, and be of the same validity, as against the maker and all persons having knowledge of the facts, as if payable to bearer. (1 R. S. 768, § 5.)

In this case, the proof was abundant to show, that Ebenezer Stevens & Sons were fictitious persons, within the meaning of the act; and also that the insertion of that name as the payees was an inadvertence, which might well occur under the circumstances.

The evidence which the defendants object to as proving a cause of action distinct from the note, (the declaration having a notice attached that the note was the only cause of action,) was given to prove the plaintiff’s title to the note, and that the makers negotiated it. It was pertinent and proper in that view, and was sufficient to bring the case within the statute.

Motion for new trial denied.


text:
    Satterlee v. Frazer.
    A party cannot enforce an agreement made by him with an attorney to give him a part of a debt as his compensation for collecting it. Held accordingly in an action against the attorney, by one who had made a sub agreement with the attorney to collect a demand placed in the plaintiff’s hands for collection.
    An actual demand must be proved, in order to maintain a suit against an attorney at law, for money collected by him.
    Sept. 25th ;
    Oct. 7th, 1848.
    Certiorari to the marine court. Frazer sued Satterlee in the court below, and declared against him, “ That the defendant is an attorney at law, and as such received for and on behalf of the plaintiff, a large sum, viz. $60, which he undertook and promised to pay the plaintiff. Nevertheless the defendant, though often requested so to do, has and does wholly refuse. Also, on the money counts and account stated.” The case which the plaintiff sought to prove on the trial, and which the court below decided that he established, was this :
    Stephen Barker, having a demand of $110 against Peter A. Griffin, deceased, of whose estate Mr. Kane was administrator, employed the plaintiff as his attorney to collect it, and agreed that he should have half of the demand for collecting it. The plaintiff employed the defendant as attorney in the matter, and it was agreed between them, that the defendant should have one-half of the plaintiff’s share of the demand for the services of the defendant in collecting it or procuring it to be paid.
    The demand was collected by the defendant, who paid to Barker fifty dollars, which .he received in full of his share of the demand. But the defendant never paid anything to the plaintiff.
    (It was alleged by the defendant, and he gave proof to that effect, that the arrangement between him and the plaintiff was abandoned; and that he collected the demand under a subsequent retainer directly from Barker. In the view taken by this court, it is unnecessary to state the evidence.)
    The defendant in the court below, objected to the plaintiff’s claim, that no demand upon him had been proved, but the objection was overruled, and a judgment for $27 50, rendered for the plaintiff below.

      C. V. S. Kane, for the plaintiff in error,
    relied upon the merits, and the point raised below ; and insisted that the agreement set up by Frazer was contrary to law.

      Winslow & Morris, for the defendant in error.
   By the Court. Sandford, J.

Without looking into the merits of the question of fact disposed of in the court below, we think there are two grounds upon which the judgment must be set aside.

1. The defendant below was sued as an attorney at law, for money collected by him as such, for the plaintiff and on his retainer. Now, there is no point better settled than this, that such an action cannot be maintained without proof of an actual demand of the money. Our reports are full of decisions to this effect, and it would be a waste of time to cite them at large. In this case there is no evidence of a demand.

2. The agreement by which the plaintiff acquired an interest in the demand against the estate of Griffin, as well as that which he seeks to enforce against the defendant; was a contract with an attorney at law, employed to collect a debt, to give him a part of the debt as the compensation for his services in collecting it.

Such contracts were void by the law of this state, as it existed when these arrangements were made ; and they could not be enforced either at law or in equity. (Arden v. Patterson, 5 J. C. R. 44; Matter of Bleakley, 5 Paige, 311; Merritt v. Lambert, 10 ibid. 352; S. C. by the name of Wallis v. Loubat, 2 Denio, 607; Berrien v. McLane, 1 Hoff. Ch. R. 421.) The ' code of procedure appears to háve changed the law in this respect, and to enable parties to make such bargains as they please with their attorneys. (Code of Proc. § 258.) The judgment must be reversed.


text:
    Sandford v. Conant.
    An assignment of a party’s “ right and title to certain insurance money my due, and now in the hands of,” Sec., will pass the right of such party to the money-due upon the insurance, although it has not been paid to the person mentioned as having received it.
    S. having a right to receive insurance money from C., or from parties who had insured C. for his benefit, assigned his right to tí. The money was subsequently received by C. from the insurers. Held, that it was money had and received to the use of N., and not to the use of S., and that an action for money had and and received, could not be maintained in the name of S.
    Sept. 22 ;
    Oct. 7, 1848.
    Assumpsit for money had and received, and on an account slated.
    It was proved on the trial, that on the 28th of October, 1846, the defendant, a jobbing merchant in New York, sold to the plaintiff, residing in Southport, Wisconsin, a bill of goods amounting to $256 48, and received the plaintiff’s note at six months. On the 29th October, 1846, he sold to the plaintiff for cash, to be paid within thirty days, another bill of goods of $95 36. The goods were shipped to Southport, and the defendant insured them. No policy or contract of insurance in writing was made by the defendant, but the premium was charged in the bills of goods, and the amount included in the note of the plaintiff. The note, as well as the bill of goods for cash, remained unpaid at the time of the trial. The defendant effected an insurance in form, on these goods, with ten per cent, added to the invoice price; and on the 26th of April, 1847, received the entire amount from the insurers, the goods having been lost by the perils insured against, on their way to South-port. The defendant credited the sum thus received, to the plaintiff, against the debt due him from the latter.
    On the 6th day of January, 1847, which was subsequent to the loss of the goods, the plaintiff assigned and transferred to Nixon & Bartlett of New York, in part payment for merchandise sold to him at the time, his claim against the defendant in respect of the insurance. The transfer was under seal, and as expressed therein, it assigned to N. & B., all the plaintiff’s “ right, title, and interest,, in and to . certain insurance money my due, and now in the hands of” the defendant, “ the amount. . being $349 74, insured by him for my benefit on goods shipped and lost on steamboat Boston with full power to receive and collect the same.
    . Written notice of this assignment was given by Nixon & Bartlett to the defendant, on the 28th of January, 1847.
    . A verdict was taken for the plaintiff, subject to the opinion of the court. ■

      R. Goodman, and E. S. Van Winkle, for the plaintiff.

      E. W. Chester, for the defendant.
   By the Court. Oakley, Ch. J.

The plaintiff claims to recover for money had and received, on the ground that the insurance money for the goods, was money received to his use, which he had assigned to Nixon & Bartlett, before the defendant had any right to retain it by way of set-off. And if wrong in this, he claims to recover under the count upon, an account stated, charging the defendant as an original insurer of the property. The defendant contends, 1st. That there were no moneys in his hands, at the time the assignment was made by the plaintiff to N. & B., and thus nothing passed to them by the assignment. 2d. If the assignment were operative, it vested in N. & B. the right to receive money, and' when received, it was. their .money and riot the plaintiffs, and they alone could sue for it. 3d. It was the defendant’s right to receive the insu- ■ ranee, and retain it towards ■ his demand against the plaintiff. And 4th. He had a right to set off such demand against the money received. . .

. First. Did the right to the insurance pass by thé assignment to Nixon & Bartlett? It purports to transfer the insurance money then in the hands of the defendant, when in fact he had received no money, and had merely a right of action. It also assigns all the plaintiff rs right tó thé insurance money then due to him; and on a liberal construction of the instrument, we hold it sufficient to assign whatever demand the plaintiff then had against the defendant, whether it was for money received, or was a right to recover against him as an insurer.

Second. Waiving the defendant’s claim to retain the insurance money, was it received by the defendant, to and for the use of the plaintiff, so that the action can be maintained in his name 1 We think Nixon & Bartlett are mistaken in their view of the relation existing between the plaintiff and the defendant, when this money was received by the latter. It was not received for the plaintiff, because he had parted with all his interest in it, and the defendant was notified of that fact. The money was received for Nixon & Bartlett, to whom it had been assigned. If the suit were upon a bond, or other demand not assignable at law, the suit would necessarily have been in the name of the assignor; but this action is brought on the ground, that the defendant has received money to which the plaintiff is equitably entitled, and it should have been in the name of the party thus actually entitled to it. Nixon <fc Bartlett should have sued in their own names.

If the contract be viewed as a direct insurance founded on the defendant’s agreement and receipt of the premium, then the pleadings are entirely insufficient to sustain the suit. That contract could only be enforced in an action on the case, or in a direct suit as upon an express insurance. The money cannot be recovered on a count for a balance due on an account stated.

Without looking into the remaining points, we must direct a judgment of nonsuit to be entered.


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    Bell v. Quin.
    Where an act is expressly prohibited by a statute, all contracts growing out of its performance are void.
    So- a promissory note given by one of two parties to the other, for the latter’s share of the profits received by the former in a transaction forbidden by law, cannot be recovered by the payee or his voluntary assignee.
    The charter ofxa municipal corporation enacted that no member of the common council, during his official term, should be interested in any contract, the expenses or consideration whereof was to be paid under any ordinance of the common council. A member of the board was interested with the defendant, in a contract for supplying the corporation with coal, and received the defendant’s note for half the profits of the contract. Held, that his assignee could not recover the ■ note against the defendant.
    Sept. 15 ;
    Oct. 7 1848.
    ■ Assumpsit, on a promissory note for $1178 24, made by the defendant, dated August 17th, 1842, payable on demand to the order of Williams & Ferguson, and by them indorsed in blank.
    The cause was tried June 15th, 1848. The note and indorsement were proved, upon which the plaintiff rested.
    The defendant then called as a witness, George Ferguson, Jr., who testified that he was one of the firm of Williams & Ferguson, in 1842. The note was given for their share of the profits on a contract made by the defendant with the Commissioners of the Alms House of the city of New York, for the delivery of coal to the alms house. At the time the contract was made, and when the note was given* David F. Williams, the other member of the firm, was the assistant alderman of the fourth ward of the city of New York.
    The defendant then read and proved in evidence the contract referred to, which was signed by the defendant and by the chairman of the Alms’ House Commissioners. It was dated June 3d, 1842, and thereby the defendant was to deliver three thousand tons of coal of 2240 pounds, at certain prices, and Mr. Williatos was to be the judge of the quality of the coal.
    It was admitted that the coal was delivered in pursuance of the contract, and payment therefor received by the defendant. Ferguson further testified that the contract was made after his firm had agreed with the defendant. The note was assigned to the plaintiffs in January, 1843, for the benefit of creditor’s.
    Cross-examined, he testified that their bargain with the defendant was not in writing. Their firm had had the previous contract with the alms house, but this year Mr. Williams being a member of the board of assistant aldermen, would not take the contract, and the witness had concluded to propose for it individually, but did not on the defendant’s agreeing that if he got the contract, W. & F. should receive half the profits. Williams & Ferguson were to attend to purchasing the coal, and were to share half the losses and half the profits. They loaned the defendant money for expenses, which he subsequently paid back. Mr. Williams went to Pottsville on the matter of purchasing the coal. They had a settlement with the defendant, of their claim growing out of the contract, and the note in suit was given on that settlement. The defendant attended to the delivery of the coal, and paid all the expenses. He alone was known in the transaction. There was nothing but a computation of the profits brought into the settlement, and the note was given for half of the net profits.
    The defendant then proved that the expenses of the alms house were included in the appropriations of the year 1842, by an ordinance of the common council.
    The testimony being closed, a verdict was taken for the plaintiffs, subject to the opinion of the court.

      S. P. Nash, for the plaintiffs.
    The facts proved by the defendant do not invalidate the note in the hands of the plaintiffs.
    1. The note was given for money in the hands of the defendant, received to the use of the payees, and he cannot set up the illegality of the executed contract on which he received it. (Tenant v. Elliot, 1 Boss. & Pull, 3; Farmer v. Russell, ibid. 296; and see Faikney v. Reynous, 4 Burr. 2069; Petrie v. Hannays, 3 Term R. 418 ; and Armstrong v. Toler, 11 Wheat 258.)
    2. The prohibition in the city charter is merely directory, the violation of which should be punished by removal from office. There is nothing in the charter which looks to the avoiding of contracts as the means by which the prohibition is to be enforced. But if so, that remedy should be confined to the party wronged, the corporation. (Brown v. Duncan, 10 B. & Cr. 93.)
    3. The prohibition in the charter, is merely a municipal regulation in a private statute, not a public general law, and a contract in violation of it is not void. (Ex parte Dyster, in re Moline, 1 Merivale, 155 ; S. C. 2 Rose Bank. Cases, 349; Kemble v. Atkins, 1 Holt, 427, and reporter’s note; see also Johnson v. Hudson, 11 East, 180; Hodgson v. Temple, 5 Taun. 181; Brown v. Duncan, above cited.)
    That the statute is a private one. (See Com. Dig. Tit. Parliament R. 7.)
    A statute which relates to a particular place, or town or county, is a private statute ; (4 Coke’s Rep. 76 ; Skin. 350; 1 Bl. Comm. 86.)
    Finally, the contract itself is not illegal or in contravention of any statute or rule of law; but it is said to be invalid, by reason of the participation in it of one who was under a temporary incompetency or disability so to participate. The rule relied on does not apply to such cases.
    This case differs from such as were immoral, or for a matter prohibited.
    All the illegality was wiped away by the only party who could legally take advantage of it, the corporation.

      E. Norton, for the defendant.
    I. The note in suit is void, because it grew out of an illegal transaction. (Story on Promissory Notes, § 189.)
    1st. The transaction was illegal, because prohibited by the charter of the city of New York. (Session Laws of 1830, pp. 126, 128, § 11 & 18. Chitty on Bills, 114, (Springfield ed. 136.)
    The cases cited on the other side were of agents, who were not permitted to set up illegality, to avoid paying over money received by them.
    The arrangement, wjtli tfce. defendant, was made by the payees before he contracted with the city, so that although in form his contract, it was in fact the contract of all three.

      2d. The transaction was illegal, because contrary to public policy. (Chitty on Bills, 95 ; Cole v. Gower, 6 East, 110.)
    II. The note is void for want of a good and valuable consideration. If it were truly the defendants contract, and not W. & F.’s, there was no consideration.
    III. Any defence to the note may be set up against the present holders, as it was past due when it was transferred; and it was not transferred for a present consideration.
   By the Court. Sandford, J.

The plaintiffs stand in the place of Williams & Ferguson, and cannot recover, unless the latter could have maintained a suit upon this note at the time they executed the assignment.

The amended charter of the city of New York provides that no member of either board,” (of the common council,) shall, during the period for which he was elected, be directly or indirectly interested in any contract, the expenses or consideration whereof are to be paid under any ordinance of the common council.” (Laws of 1830, ch. 122, § 11.)

In direct contravention of this statute, and of his duty as a member of the board, Mr. Williams- was interested in the contract for supplying the alms house with coal; and while by the contract he was made the judge of the quality of the coal in behalf of the city, by the secret arrangement with the defendant, he was to aid in purchasing and supplying it in fulfilment of the contract.

We have no doubt that the note, given for the share of the profits to which his firm was entitled in this illegal transaction, is void between the original parties. It is void, both because its consideration was the fruit of a positive violation of law, and because the transaction itself was against sound morals and the public interests.

The cases to which we were referred by the plaintiff’s counsel, are not sufficient to sustain his positions. In that of Tenant v. Elliot, 1 B. & P. 3, the defendant was not a party to the illegal contract. He received the money as the plaintiff’s agent, and it was held that he could not set up an illegality to keep back the money from his principal. The case of Farmer v. Russell, 1 ibid. 296, was decided on the same ground, and was not designed to extend the doctrine farther than it had been held in the previous decision. In Faikney v. Reynous, 4 Burr. 2069, the plaintiff had lent money to the defendant to pay the latter’s half of a difference they had jointly lost in illegal stock jobbing, and a bond was given for its repayment. The bond, was adjudged good, because the plaintiff was not concerned in the use which the defendant chose to make of the money advanced. The court said the bond did not appear to have been given on an illegal consideration. In Petrie v. Hannay, 3 T. R. 418, the King’s Bench, against the opinion of Lord Kenyon, decided, that one party who with the consent of the other, paid the joint loss incurred in such a transaction, to a broker, whom they had employed to settle and pay the difference lost; could maintain a suit against the other party for his moiety of the money. This decision was one of doubtful authority at the time, and scarcely sustainable upon that in 4 Burr. 2069, on which solely it was reposed by the majority of the court.

It has since been entirely overturned in England by the cases of Steers v. Lashley, 6 T. R. 61; Aubert v. Maze, 2 B. & P. 371; and Cannan v. Boyce, 3 B. & Ald. 179. Indeed, Steers v. Lashley, is directly in point against the plaintiffs in the case at bar.

We were referred to two or three other modern cases in England, as feeing in favor of a recovery. The courts there appear occasionally to have strained a point, where the infringement of law was peculiarly venial, and injustice might ensue from enforcing the principle. And in one of them, (Brown v. Duncan, 10 B. & Cres. 93,) where one partner had omitted to comply with certain revenue regulations, and had violated another, in transacting the business for which his firm brought the suit; the firm was allowed to recover, because there was no fraud upon the revenue. The court distinguished between that case and those where the object of the statute infringed, was the protection of the public, such as the usury act, the act against stock-jobbing; and the hite. And the court said some of the prior-cases were decided on that distinction.

In Armstrong v. Toler, (11 Wheat. 258,) the court on the authority of the cases in 4 Burrow, 1 Bos. & Puller, and 3 Term Reports, sustained a recovery on the particular transaction ; at the same time assenting to the principle, that a contract growing immediately out of an illegal act; or connected with its consideration, though a new contract, cannot .be enforced in a court of justice.

The plaintiff further contended that the prohibition in the city charter was a mere municipal regulation‘in a private statute, and therefore a contract in violation of it, is not void. We will not say what the consequence would be, if the prohibition were found in an ordinance of the corporation instead of the statute law. The case in 1 Merrivale, to which we were referred, is in favor of the position that the contract would be void in that event, if positively forbidden, and the ordinance were authorized by the charter. The party in 1 Merrivale, was relieved, because there was not an express prohibition, but the city of London had enacted that if the party did the act, he should incur a certain penalty.

We repeat that the note in question is void, and the plaintiffs cannot recover.

Judgment for the defendant.


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    Fenby & Johnson v. Pritchard.
    On a sale on a credit, to be secured by notes as collateral, not yet due, the receipt of the collaterals five days after the delivery of the goods, makes the seller a bona fide holder of the notes for a valuable consideration, so as to protect him against any defence which the maker of the notes had against the buyer of the goods.
    This was held, although at the time of the sale, the notes in question were not specified or described, and were not in fact then in the possession of the buyer.
    Sept. 21 ;
    Oct. 28, 1848.

      Case subject to the opinion of the court. The action was assumpsit on two promissory notes made by the defendant, payable six months after date, to E. W. Pemberton, and indorsed by him; one for $471 18, dated December 6, 1845, the other ■ for $396 48, dated January 20, 1846.
    The following facts appeared on the trial. Soon after the date of the second note, an agreement was made between the defendant and Pemberton, by which these and other notes of the defendant, were to be delivered up to him, on his paying Pemberton $1000, and returning to P. merchandise of. the value of $3000, which he had theretofore bought of P. This arrangement was consummated by the defendant, January 31, 1846; and he was then entitled to the notes. For some unexplained cause, the notes were not delivered up to him by Pemberton.
    On the same 31st of January, Pemberton bought of Oliver P. Mills, his bills of exchange on a house in London for about £1000, on a credit of forty-five days. P. was to give his own notes at that date, and secure the same by collateral notes. He gave his own notes, and he delivered the collateral notes to Mills prior to the 15th of February; it was probably on the 8th, and was not before. Among these collaterals, were the two notes in suit. The bills drawn by Mills were protested, and' were never paid.
    On the 4th of February, 1846, Mills through a broker, bought of the plaintiffs, 500 barrels of flour, for which he was to give them his note at thirty days, with collateral security by notes. No particular notes were specified. The flour was delivered on the 5th of February, Mills’s own note was given four or five days after, and the collateral notes were furnished to the plaintiffs by Mills, part on the 9th or 10th, and the residue on the 14th to the 16th of February. The two notes in suit were transferred to the plaintiffs as a .part of such collaterals, in the first parcel delivered.
    Proof was given, that it was customary in New York, on a sale for cash or collaterals, to deliver the property, and then send for the payment a few days thereafter, where the buyer stands fair, and is in good credit. The seller in such cases, trusting to the honor of the buyer, and the delivery is absolute. Mills was in good credit and standing, at the time of the sale to him.

      G. M. Ogden, and D. B. Ogden, for the plaintiffs.
    I. By leaving the notes in the possession of Pemberton after they were paid, a possession entirely inconsistent with the fact of payment; the defendant voluntarily gave Pemberton the power to transfer them, and gave strangers good reason to believe that they still remained valid in Pemberton’s hands; and the defendant ought therefore to suffer, rather than the plaintiffs, who are entirely innocent.
    II. The plaintiffs received the notes in the usual course of trade, for a valuable consideration, and without notice or knowledge of any defence to them. (Lickbarrow v. Mason, 2 T. R. 63.)
    III. When the plaintiffs received these notes, they had a valid and effectual claim against Mills to have his agreement for the delivery of collateral notes specifically performed. He was then solvent and able to respond ; and by accepting these notes, they relinquished that claim, which was thereby satisfied. They therefore parted with a valuable consideration at the time at which they received the notes. (2 T. R. 63, before cited.)

      H. F. Clark, for the defendant.
    I. The notes sued upon were paid and discharged by force of the agreement between the defendant and Pemberton, and the liability of the defendant upon the notes had ceased. Therefore the plaintiffs cannot recover upon them, unless they are to be regarded as bona fide purchasers for a valuable consideration.
    II. The plaintiffs are not bona fide holders for a valuable consideration, within the rule which protects purchasers against the prior equities of third parties. They did not part with any money or property at the time of receiving the notes, or upon the faith and credit of them, but took them as security for an existing debt.

      ■ The notes were not in Mills’s possession or mentioned, and Mills did not know of any such notes. Therefore, these particular notes could not have been in the view of either party; and no faith or credit was given to them.
    III. The agreement of Mills to give collateral security for the payment of his note for the flour, was not a condition of the delivery. The delivery of the flour was complete and unconditional, and was made upon the credit of Mills alone, and not upon the credit of the notes in suit. It was on his promise to deliver collaterals, not upon any specified securities pledged. It must be a valuable consideration, parted with at the time, in money or property, as established by the case of Stalker v. McDonald, 6 Hill, 93.
   By the Court. Vanderpoel, J.

The question is whether the plaintiffs received these notes under such circumstances as to protect them from the alleged payment by the defendant to Pemberton the payee ; and this presents, in a form somewhat new, the ever recurring question, when the indorsees of a note are to be déemed bona fide holders in a commercial sense, so as to preclude a defence existing at the time of the transfer. From the evidence, it seems that the notes in suit were delivered to the witness Pemberton, in payment for merchandise sold by him ; that before he transferred the notes to Mills, an agreement was made between him and the defendant, by which the defendant was to return to Pemberton an invoice of goods, valued at about $3000, and to pay in cash $1000; in consideration of which Pemberton was to assume certain liabilities of the defendant; and the return of the goods was to be considered a payment of the notes upon which this suit is brought; that this agreement was consummated on the 31st of January; but Pemberton did not return the notes, and says he cannot tell why he did not return them; that afterwards, he purchased exchange from Oliver P. Mills on a credit of forty-five days, to he secured by the notes of the witness, and by collateral notes; that on the 8th of February he passed to Mills, as such col-laterals, the notes in suit.

On the 3d of February, Mills applied to the plaintiffs for the purchase of 500 barrels of flour. It was finally sold to him, on the following terms. Mills was to give in payment his own note at thirty days, and collateral security, which was to be notes. The flour was delivered to Mills on the 5th of February, 1846, and the collaterals were in pursuance of the contract, delivered about the 14th, 15th, or 16th of February. The note .of Mills has not been paid. At the time of the agreement for the sale of the flour, the particular collaterals to be turned out were not specified; but a witness testified, that collaterals meant notes, when not otherwise expressed. Now, are the plaintiffs such bona fide holders for value, as to enable them to recover the notes, notwithstanding the alleged payment of the defendant to Pemberton 1

The principle is well established, that receiving the transfer of a note as collateral security for the payment of a pre-existing debt, is not taking it in the ordinary course of trade and for a valuable consideration, as against the equities of the maker. (Wardell v. Howell, 9 Wend. 170; Coddington v. Bay, 20 Johns. 637.) To protect the holder of a negotiable security, which has been improperly transferred to him in fraud of' the prior legal or equitable rights of others, he must not only have taken it without notice, but must also have parted with something of actual value, upon the credit or faith thereof. Merely receiving it in payment or security of an antecedent debt, is not sufficient. (Stalker v. McDonald, 6 Hill, 93.) After the very able and elaborate opinion in that case, there can no longer be doubt as to what the law is on this subject. But in the application of the principle, the question whether a case comes within the well established rule, still leaves abundant room for controversy. This is not the case of receiving the notes as security for a pre-existing debt, without parting with any thing of value. The giving collaterals, was one and an indispensable condition or consideration, on which the plaintiffs parted with their flour. They would not, when the contract was made, receive the personal responsibility of Mills alone for payment. Had they received the collaterals simultaneously with the delivery of the flour, and as part of the consideration therefor, their title to pro, teetion as against the equities of the defendant, would have been unquestionable. Here the note of Mills, the vendee, was not given when the flour was delivered, but, according to the usage as proved, the vendor generally calls for the stipulated security on a sale to be secured by collaterals, a number of days after the goods are delivered, according to his leisure. Whether the notes were delivered at the time of the delivery of the flour, is not the true test in this case. The true and controlling question is, whether the plaintiffs parted with their flour on the condition and with the understanding that collateral security ■ was to be given. Of this, there can surely be no doubt. The collateral security was one of the inducements to parting with their property. If so, no good reason can be assigned why they should not have the same benefit of the collateral notes, that they would have had, had they received them simultaneously with the delivery of the flour. We therefore hold, that the plaintiffs received the notes in suit under such circumstances as to entitle them to protection against the alleged payment of the defendant to the payee, before they were transferred to the plaintiffs.

It is urged in behalf of the defendant, that these particular notes were not specified as among the collaterals that were to be transferred. We cannot perceive how this can weaken the position of the plaintiffs.. Collateral security was with them an indispensable consideration for parting with their property. These notes were offered and accepted, in satisfaction of such consideration. What was general when the contract was made, was rendered specific and certain when the notes were delivered and accepted. It is not pretended that the plaintiffs knew, or are chargeable with notice, that Mills had no authority to pledge or part with the notes; and having been passed before they matured, the plaintiffs are entitled to judgment.


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    Clark v. Tucker and Lord.
    Where a sale of goods is made on an agreement that the price shall be applied to the payment of a precedent debt, such price must be actually applied by a receipt or otherwise, to bring it within the exception in the statute of frauds, founded on payment of all or part of the price.
    In order to constitute an acceptance and receipt of the goods, to take a sale out of the statute, there must be an act of delivery on the part of the seller, as well as an act of acceptance by the buyer.
    Where goods in the possession of a factor, were sold by a parol agreement, and a constructive delivery was set up, first by a letter at the time from the buyee’s agent to the factor : and second, by a letter a fortnight afterwards, by the seller to the factor; it was held, that the sale was void, because the seller did not participate in the act of delivery sought to be inferred from the first letter, and because the buyer did not accept and receive in connection with the second. Held also, that the second letter was too late ; and that an act of delivery by notice to the factor, must be concurrent, or substantially at the same time that the contract is made.
    Whether the taking out of a foreign attachment, (naming a garnishee,) giving bail therefor, and prosecuting it after service ; will make the attaching creditor liable in trespass or trover, for goods in the hands of the garnishee, whom the sheriff has summoned, leaving the goods in his possession ; there being no direction by the creditor to levy on any specified goods? Quere

    Sept. 14th ;
    Oct. 28th, 1848.
    The declaration in this cause, contained two counts in trespass for taking certain hats of the plaintiff in the city of Philadelphia, and one count in trover for the same hats. The defendants pleaded not guilty.
    Upon the trial before Sandford, J. in June, 1848, the plaintiff called as a witness, Nichols H. Babcock, who testified that he was a hatter, and in the spring of 1846, was doing business in the Third Avenue, in the city of New York, having his store and shop on the first floor, and residing in the residue of the building. On the 3d of April, 1846, he found himself insolvent, and at that time he was indebted to the plaintiff in more than two thousand dollars,, for borrowed money. Two promissory notes were produced for $1000 each, made by the witness to the plaintiff, one at nine months, dated Sept. 1st, and the other four months, dated Sept. 16th, 1845, which he stated were for the plaintiff’s notes of the same amount, lent to him, and paid by the plaintiff. On the note last mentioned, there was an indorsement of $941 12, dated April 3d, 1846. The witness further testified, that on the 3d of April, 1846, he sold his stock of hats in his store in the Third Avenue, to the plaintiff, who resided at Clyde, Wayne Co. Theodore Clark, the plaintiff’s brother, residing in New York, acted as his agent in the transfer. A bill of sale or invoice, was shown to the witness, which he said was made and delivered at the time. This bill was dated April 3d, 1846, and contained a long detail of items of hats, caps, and hatter’s stock and fixtures, with the prices carried out. It was footed at $941 12, and was receipted in full by the witness.
    The witness further testified as follows :
    The hats amounted to $941 12, and were endorsed at the time on one of the notes for $1000. I transferred at the same time, a quantity of hats which I then had in the hands of John W. Kester, in Philadelphia, upon which I had received an advance of about $891, besides his commission. The hats were invoiced at the time at $1592, and I considered them worth the invoice price. (The witness was here shown two papers, being an invoice and accounts of sale from J. W. Kester, in letters of January 30, 1847, and February 4, 1847.) There was no bill of sale of the Philadelphia hats; they were transferred on the same day as the others, 3d April. They were not included in the bill of sale; the transfer was verbal. We could not make an inventory of them, not knowing how many of them had been sold by Kester. The plaintiff came down from Clyde to New York, about a week after the sale of the hats. At his request, I gave Mr. Kester notice of the transfer, on the 17th of April, 1846. This notice was in writing, and a true copy of it is now shown me.
    Witness still owes the plaintiff; the amount depends upon how much balance would be due on the Philadelphia hats, after paying Kester’s claim. In May, after the hats were attached in Philadelphia, I called on Kester and told him I was prepared to pay what was due on the hats. He refused to deliver them because of the attachment. My estimate of $600 being due on the hats, went on the idea of the hats fetching what they were invoiced at. I considered they were worth what they were invoiced at. At the time of this transfer, Theodore Clark acted for the plaintiff, who was at Clyde ; he was sent for and came down.
    Being cross-examined, the witness said—The hats in Philadelphia were not included in the bill of sale produced here. We made no inventory of them, not knowing how many had been sold. Mr. Clark was to allow the invoice price of them. They were worth the invoice price. No provision was made for any that might be sold by Kester below the invoice price. 1 had no regular invoice of the hats. They were left at different times. I had memorandums of them. Don’t know that I had any written memorandums of the amount which Kester had advanced on them. He had advanced me his notes on them. I know the amounts of the notes. Clark took the hats at the invoice price. I did not know what particular sum they would amount to, after paying Kester. No particular sum was agreed on for the price, as it was not known what Kester had sold nor what he had on hand. There was neither a bill of sale, nor a receipt, given for the Philadelphia hats; no paper was given on the transfer of the Philadelphia hats prior to the letter of 17th April; no bill of sale ; no receipt for the price ; no papers were made. On the 17th April, I wrote the notice in Kester’s office, and delivered it there to Kester. At the time the letter was written, no particular amount was fixed upon to be allowed for the Philadelphia hats. Nothing was agreed as to the price, in case any hats had been sold. No provision was made about the price of the hats, in the event of sales made below the invoice price by Kester, as to Clark’s bearing the loss. There was no paper made afterwards in relation to the hats in Philadelphia.
    Direct examination resumed.—(It is now agreed that the defendants in this suit arrested the witness on a Stillwell warrant, on the 7th May, 1846, and that he was examined on the 8th and 9th of May, 1846, before Judge Oakley.)
    In the course of May, 1846, I went again to Philadelphia, at the request of Mr. Clark, to pay off Mr. Kester, and sell the hats. The time I went to Philadelphia for this purpose, was after my examination here on a Stillwell warrant. Mr. Kester refused to deliver the hats until the attachment suit was settled.
    Cross-examination resumed.—I had no money from the plaintiff to redeem these hats from Kester, but I had his signature to a blank paper, with authority from him to raise the money and pa3r Kester, and sell the hats to my customers in Philadelphia ; if I could not negotiate his paper, I was to return and he would raise it otherwise ; and in case I could not sell the hats, to bring them to New York and let him have them. Some of the Philadelphia hats were sold by Kester below the invoice price. I failed the last of March or first of April, 1846. I owed the defendants $590, and upwards. The whole of my indebtedness at that time was about' $5000 or $6000. I think not a fifth of it has been paid. I have paid defendants nothing.
    Direct examination resumed.—I was to sell the hats for the plaintiff. He wished me to go on and sell the Philadelphia hats if I could, and if I could not sell them, to redeem them and bring them to New York.
    The defendants then further cross-examined the witness, to show that there had been no change in the possession of the goods sold in the Third Avenue; but the point was not discussed at bar, and the testimony is omitted.
    Theodore Clark, called for the plaintiff, testified that he was the agent of the plaintiff, in 1846, when the sale of goods contained in the bill of sale, spoken of by Babcock, was made. At the same time that goods in the 3d Avenue were sold, Babcock sold to my brother his remaining interest in the hats in the hands of J. W. Kester, in Philadelphia. No bill of sale was made, but it was a bona fide sale. I don’t recollect whether an order was given by Babcock. I don’t remember that there was any transfer in writing, or any receipt endorsed. I wrote to Kester, I think, on the 3d of April. I have no copy of the letter.
    The plaintiff then read the examination of John W. Kester, who testified as follows:—He resides in Philadelphia. There was an attachment served upon me for goods in my possession belonging to N. H. Babcock. I know it by the sheriff’s officer serving and leaving a summons with me at my store in Philadelphia, on the 9th May, 1846. Witness now produces a copy of the summons served on him, in a suit by the now defendants against Babcock. There has been no other paper than this served upon me at the suit of the defendants, except some interrogatories in that suit.
    No other attachment has been served upon me at their suit; nor were any goods taken out of my possession under their attachment.
    Being cross-examined he said—When the sheriff or his deputy called, I stated of course that there had been goods in my hands belonging to Babcock, but that he had left a transfer of them to another party, Mr. Clark, of Clyde, and that I should hold them, or the proceeds whatever there might be left after paying myself, till I knew to whom I should pay the balance. I was to know this through the proceedings in court under this attachment. I understood this summons to attach the goods, or any balance that might remain in my hands, after paying my claim, that had belonged to Babcock, or that were placed in my hands by him.
    I told the sheriff that I would hold the goods after my own claim was satisfied, subject to the attachment, and I have since so held them and the proceeds.
    The attachment suit of Tucker and Lord v. Babcock, is still pending in Philadelphia, and it bars my paying the money over to Sylvester Clark. The sheriff did not take an account of the goods or their proceeds.
    The witness produced an account of sales and proceeds, to June 12, 1847, which he said was correct. The balance, after paying himself, was $86 52, and he had 120 hats then unsold.
    Clark demanded these goods or the proceeds through his brother, by letter, and Babcock, as the agent of Clark, called and offered to pay off my claim and take the balance of the goods or proceeds; but I declined to deliver the goods on account of the pendency of this attachment suit. I still hold the property subject to that suit, and shall, unless the sheriff releases me from the attachment; but I should not deliver it to him without consulting counsel.
    The letter written by Babcock in the witnesses store, was as follows:
    “ New York, April 17, 1846.
    “Mr. J. W. Kester,
    “ Sir—All the hats which I left with you as collateral security for the payment of the -amounts you have advanced me, I wish you to hold subject to Mr. Sylvester Clark’s (of Clyde) order, as I have sold all of them to him, and he is to pay the amount now due on them to you.

      “ Yours respectfully,

      “ N. H. Babcock.”
    The witness said this letter was never delivered to Clark. He was not there. I think I had no correspondence with Theodore Clark, until after the attachment.
    The witness identifies two letters written by himself to N. H. Babcock, one dated February 4, 1847, and the other dated January 31, 1847. These letters were read; they contained invoices of the hats Kester had received from Babcock, in 1846, taken from Kester’s books.
    The plaintiff also read' an exemplification of a foreign attachment, and the subsequent proceedings thereon, in the county court of the city and county of Philadelphia, in favor of the now defendants against N. H. Babcock.
    The writ was issued May 9, 1846, and was entered as being issued on bail given. It directed Kester and one McCalla, to be summoned as garnishees. The sheriff’s return stated that he had attached as within commanded, by giving an attested copy to Kester, &c., and summoned them as garnishees. Tucker and Lord obtained judgment against Babcock by default, and a scire facias against Kester as garnishee, was issued and pending, on which he had been examined on interrogatories.
    The plaintiff called J. N. Cordozo, who testified that he had been a counseller at law in Pennsylvania, and was familiar with the law of foreign attachment in that state. It is entirely statutory. He proved the statute from Dunlap’s Laws, and said, the supreme court of that state have decided, that by service of such a copy of the summons as is contained in the exemplification, the goods of the defendant in- the hands of the garnishee, are deemed as actually taken and seised, without being actually taken by the sheriff.
    The plaintiff also offered to read two letters from Theodore Clark to Kester, one 22d May, and one 24th December, 1847, to which the defendants objected as being written after the attachment in question, and the same were excluded by the judge.
    Hereupon the plaintiff rested, and the defendants’ counsel moved for a non-suit on the grounds; 1st. That the plaintiff had not in law shown title to the goods sued for, there being no evidence of any memorandum in writing containing the terms of sale, or of any payment of price either in money or by any agreed credit, or of any delivery of the goods to the plaintiff by Babcock; and that in connection with the insolvency of Babcock at the time of the pretended transfer, the same was null and void.
    2d. That the plaintiff had shown no such taking by the defendants, as subjected them to an action of trespass.
    3d. That the plaintiff not being entitled to the possession of the hats in Philadelphia, at the time of the attachment, he could not, under the evidence given, sustain an action of either trespass or trover.
    The judge ordered a non-suit to be entered, which the plaintiff now moves to set aside.

      R. H. Waller, for the plaintiff,
    cited Tuxworth v. Moore, 9 Pick. 347; Carter v. Willard, 19 ibid. 1; 2 Kent’s Comm. 502; 7 T. R. 278 ; 1 Esp. R. 598 ; 3 B. & C. 423. As to the taking by defendants, Wintringham v. La Foy, 7 Cow. 735 ; Phillips v. Hall, 8 Wend. 610 ; Root v. Chandler, 10 ibid. 110 ; and as to his own possession, Thorp v. Burling, 11 John. 285 ; Buck v. Aiken, 1 Wend. 466.

      D. Lord, for the defendants.
   By the Court. Sandford, J.

The subject of the sale relied upon by the plaintiff, was a quantity of hats in the possession of Kester in Philadelphia, and held by him -for sale and for the repayment of his advances. The contract of sale was made in New York, and its validity depends upon our laws.

There was no note or memorandum of the contract made in writing. The letter delivered by Babcock to Kester, two weeks afterwards, aside from other objections to its effect, did not contain, or profess to contain, a statement of the contract of sale. The entire omission of all written evidence of the alleged sale,when so much form was used on the same occasion in respect of the goods in Babcock’s store, is quite unaccountable; and on another point of the case, would present a serious barrier to a recovery.

No part of the purchase money was paid by the buyer. It is true that the price was to be paid by crediting it on the indebtedness of Babcock. Such was the agreement, but no act was done to carry it out. It was no payment until the application was made. In the other cotemporary sale, the contract was consummated by actually indorsing the price on one of the notes. In this instance no indorsement was made or receipt given. It went no further than the mere contract to pay in that mode ; and so far as the statute is concerned, it no more aids to prove the contract valid, than does the agreement to pay the price, in an ordinary sale, where actual payment is expected.

There is but one other circumstance left, which could relieve this contract from the operation of the statute of frauds. Did the buyer accept and receive a part of the goods sold, or the evidences, or some of them, of Babcock’s claim for the surplus after paying Kester? It is not claimed that the plaintiff ever actually received any of the goods, or any such evidences of Babcock’s right; but it is contended that there was a sufficient constructive delivery to the plaintiff.

The letter of Theodore Clark, (the plaintiff’s agent in the affair,) to Kester, on the day of the sale, is relied upon. But that is wholly insufficient. It was merely a belief of his that he wrote such a letter, while Kester’s testimony is very decided that he did not. It does not appear what the supposed letter contained, or that it stated anything respecting the sale. And finally, if it were written and were ever so explicit on that point, it would not support the sale, because the seller did not join in it. An act of delivery, must of necessity, proceed from the seller. The buyer can only accept it and receive the property.

The letter of Babcock to Kester, written in Philadelphia, two weeks after the bargain was made, is the only ground remaining, to sustain a constructive delivery. As to this, it came too late. In order to make such an act a constructive delivery, it should be concurrent with the bargain. Not perhaps at the same moment of time, but substantially at the same time and as a part of the same transaction. This agreement is claimed to have been made on the 3d of April, and to have been valid when made. An act of delivery on the 17th of April, is too far removed to give force to a bargain, otherwise invalid, on the third.

Independent of this objection, there is a further difficulty which cannot be obviated. The buyer was not present or represented in the alleged delivery. The buyer must accept and receive the property, or the attempted delivery is unavailing. It may be said Babcock was the agent of the plaintiff at that time ; but if he were, he could not in this delivery act in his own behalf as seller, and at the same time act as the buyer’s agent to accept and receive the property sold. It will hardly be contended, that he could sell his goods to the plaintiff, by an agreement made by himself as seller, with himself as the plaintiff’s agent. Yet the delivery and acceptance by the letter of April 17th, is equally objectionable. Kester cannot in any sense, be deemed the agent of the plaintiff, to accept and receive the property sold. The authorities cited by the plaintiff, do not sustain his positions, and one of them, Carter v. Willard, 19 Pick. 1, decides that if there had been a bill of parcels made and delivered by Babcock to the plaintiff on the 3d of April, the sale would not have been valid, without giving notice to Kester.

The cases in our courts are numerous, hut it is needless to cite them at large. The last in point of time, Schindler v. Houston, (1 Comstock’s R. 261,) is in our highest court, and is conclusive against the plaintiff.

We are perfectly clear, that the alleged sale of the property in question was void by the statute of frauds. The case proves the wisdom of the statute. Babcock had no invoices of the property and scarcely the materials for making one. He had no account of the sales made by Kester, either as to the articles sold or the price. No price was fixed between him and the plaintiff; none could be fixed, upon the information they possessed. It was all indefinite and uncertain, and left open upon parol evidence, to be moulded or applied, as subsequent emergencies, or the fallible recollection of the parties, might direct.

Our conclusion on the first question presented, relieves us from passing upon the other points made at the trial, neither of which appears to be free from difficulty.

Motion to set aside non-suit denied.


text:
    De Wolf v. Murray.
    Where a notary certifies that he attended at the office or place to which a bill of exchange was addressed, for the purpose of demanding payment, and found the office closed, and no person there to give an answer respecting the bill; (it not appearing to have been a bank or banker’s office ;) it was held to be a sufficient presentment of the bill to charge the indorser.
    The certificate imports a presentment during the proper hours of business.
    A statement, made up by the indorsee, charging the indorser in terms with the “ protested exchange,” describing it by the drawer’s name, the acceptor’s name, and the amount, and adding to it expenses of protest, interest and damages, was submitted to the jury as sufficient notice of the dishonor of the bill,. if the indorser were thereby distinctly informed that it had been dishonored, and that payment was expected of him as indorser.
    Where notice of dishonor is given too late, the indorser will be bound by a subsequent promise to pay the bill, if made with a knowledge that the notice was not in time.
    Sept. 27;
    Oct. 28, 1848.

      Assumpsit against the indorser of a hill of exchange for £230, dated at New York, August 14, 1847, drawn by W. Russell to the order of the defendant, and payable sixty days after sight. It was addressed to H. 0. Collard, as mentioned in the opinion, and was accepted by him on the 28th of August, 1847.
    The protest of the bill, signed and sealed by the notary, was read in evidence, in these words, viz.:
    “ On this 30th day of October, 1847,1, Arthur Ellis, Notary Public, duly admitted and sworn, dwelling in Liverpool, in the county of Lancaster, kingdom of Great Britain, at the request of the holders thereof, did attend to exhibit the original bill of exchange, (whereof a true copy is on the other side,) at the office of H. 0. Collard, No. 18 Chapel Walks, Liverpool, the person upon whom the said bill is drawn, for the purpose of demanding payment thereof, (the time limited for payment thereof having expired,) when I found the said office closed, and no person there to give an answer respecting the said bill. Wherefore I, the said notary, at the request aforesaid, have protested, and by these presents do protest, against the drawer and indorsers of the said bill, and all others concerned, for all exchange, re-exchange, and all costs, damages and interest, present and to come, for want of payment of the said bill.”
    The plaintiff called a witness, who testified that the plaintiff received the protested bill in New York, on the 22d of November, and on the same day presented to the defendant a statement in these words, viz.:
    “ Christopher Murray, Esq., 111 Broad Street,
    “ To Thos. L. De Wole, Dr.

    “Nov. 22.—For W. Russell’s protested exchange on H. O. Collard, Liverpool, G. B., for £230 sterling, due 30th October, and expenses of protest 23s. Ad. sterling, at $4 84 per £1 sterling, $1118 04
    Interest from 30th October to date, 22 days, at 7
    per cent., 5 10
    $1123 14

      Amount brought forward, $1123 14
    Damages, 10 per cent., 112 31
    Cash, $1235 45

      “New York, Nov. 22, 1847.” -----
    The defendant said he would call and see the plaintiff, and afterwards promised to pay the bill.
    It was proved that the first arrival in New York of letters from Liverpool, written on or after October 30th, was on the 22d of November, 1847.
    The plaintiff here rested his cause, and the defendant moved for a non-suit, on the following grounds: 0

      First. Because no notice of protest sufficient to charge the defendant as indorser, was proved to have been delivered to him. The paper delivered does not apprise him of the due presentment and demand of payment of the bill, nor that he is looked to as the indorser for payment.

      Secondly. That no proof has been given of notice of protest being sent from Liverpool at all; or if sent, that there was no proof when it was sent from England, or that notice of protest was sent by the first vessel sailing after the bill was protested, or when it arrived at New York, or that notice was given within due time after the arrival of information of the protest received in New York.

      Thirdly. That there is no sufficient evidence of a demand on the acceptor to charge the defendant as the indorser. That the facts stated in the protest, are not sufficient for that purpose.

      Fourthly. That the notice of protest should have been given by the notary who protested the bill of exchange, and should have been accompanied by a copy of the original protest, or that notice of the protest should have been given here by a notary public, accompanied with a copy of the original protest, it being a foreign bill.
    The court overruled the motion.
    The defendant then called a witness, who testified that it was on the 24th of November, and not on the 22d, that the statement was delivered by the plaintiff to the defendant.

      The judge charged the jury as follows :

      First. That the proof of demand of payment of the bill and of its dishonor, was sufficient. Second. That the notice of dishonor of the bill, if given on the 22d of November, was in time and sufficient, if the defendant was distinctly informed that the bill had been dishonored, and that payment was expected of him as indorser. Third. If notice was given on the 24th day of November, it was not in time ; and in that case, the plaintiff could not recover, unless the jury should find that the defendant promised to pay the bill with a knowledge that the notice was not in time.
    The defendant excepted; and the jury found a verdict for the plaintiff.

      E. Sandford, for the defendant.

      J. Larocque, for the plaintiff.
   By the Court. Vanderpoel, J.

It is contended in behalf of the defendant, that no sufficient evidence was given of a demand of payment from the acceptor of the bill in England, to render the defendant liable as indorser. The statute gives the notary’s certificate as a substitute for his personal testimony at the trial. (2 R. S. 212, § 46, 2d ed.)

The bill was directed to H. O. Collard, No. 18 Chapel Walks, Liverpool. The notary says in his certificate, that on the 30th day of October, 1847, he did, at the request of the holders, attend to exhibit the bill of exchange, at the office of H. O. Collard, at No. 18 Chapel Walks, Liverpool, for the purpose of demanding payment thereof, (stating in parenthesis, that the time limited for the payment thereof had expired ;) when he found the office door closed, and no person there to give an answer respecting the said bill. The demand was made at the place which the bill itself indicated as the drawee’s residence or place of business. It was directed to him at the place where the demand was made, and although the certificate of the notary does not state the time of day when demand of payment was made, yet it is not, as against this official act, to be presumed to have been made at an unseasonable hour.

In The Cayuga Co. Bank v. Hunt, (2 Hill, 635,) the notarial certificate of a protest of a bill of exchange, stated a presentment for payment at the office of the acceptor on the proper day, and that the office was closed, but was silent with respect to the hour of doing the act; yet it was held sufficient, as regularity in this particular should be presumed. We say here, as Justice Cowen said in that case, the certificate in fair construction, imports a presentment of the bill during the proper hours of business. These, except where the paper is due from a bank, generally range through the whole day, and in the evening till bed time. (Cayuga Co. Bank v. Hunt, 2 Hill, 635 ; Wilkins v. Jadis, 2 Barn. & Adol. 188.) In the latter case, it was held, that presentment of a bill of exchange for payment at a house in London, at eight o’clock in the evening of the day when it becomes due, is sufficient to charge the drawer; although at that time, the house was shut up, and there was no person there to pay the bill. Lord Tenterden says, that as to bankers, it is established with reference to a well known rule of trade, that a presentment out of the hours of business is not sufficient; but that in other cases the rule was, that it must be presented at a reasonable hour, and that eight o’clock in the evening was not an unreasonable hour. We hold the certificate here to be sufficient evidence of a presentment of the bill for the purpose of demanding payment.

2. It is contended, that no notice of protest sufficient to charge the defendant as indorser, was given. The judge charged the jury, that notice of the dishonor of the bill, if given on the 22d of November, was sufficient and in time, but that if given on the 24th of November, it was not sufficient; and in that case, the plaintiff could not recover, unless the jury found that the defendant had promised to pay the bill with a knowledge that the notice was not in time. The jury found for the plaintiff. The defendant positively promised to pay the bill, not once, but twice. He seemed to be informed of its return, before the agent of the plaintiff disclosed the fact to him; for as soon as the witness opened the door, the defendant said, “ Well, that thing has come back.” The bill of parcels was handed to him, and two or three days afterwards, upon being applied to for the amount, he promised to pay it. Afterwards he called at the plaintiff’s office, and again promised to pay it. The bill of parcels sufficiently informed him of the ground on which the demand was made, and we cannot under the evidence in the case, hold that he was not fully cognizant of every fact necessary to render his unqualified promises to pay binding. Without intending to imply that any pre-requisite, necessary to render the defendant liable as indorser, has not been complied with, we would, if there had been any non-compliance with such pre-requisites, find it difficult to hold that the defendant made his promises to pay in ignorance of such omissions. After carefully looking at the evidence in this case, and the verdict of the jury, we deny the motion for a new trial.