author: By the Court. Woodruff, J.—

text:
    Robbins, et al.. Plaintiffs and Respondents, v. Richardson, et al., Defendants and Appellants.
    When a note is made, without consideration, and for the accommodation of the payee, and is delivered to him by the maker, without any restriction as to its use, and is endorsed and delivered by the payee to the holder, as security for an antecedent debt, the latter can recover of the maker; at least, to the amount of the debt it was transferred to secure. It is no answer to an action, on such note, that the debt it was transferred to secure has not become due. If such debt has been paid, the burden of proving that fact rests on the maker of the note.
    A surrender of other securities, by the endorsee of such a note, as a consideration of the endorsement and transfer of it by the payee, makes the endorsee a holder for value.
    When the endorsee of a note, prior to his taking the note, inquires of the maker, whether it is a business note, and such maker answers that it is, and the endorsee receives the note, and gives value, or parts with securities, in reliance upon such representation, he is entitled to treat it, for all purposes, to the extent of his interest therein, as a business note, and hold the maker to the truth of his representations.
    Whether, if he so receive the note, as collateral security for the debt of the payee, the maker would be permitted to deny the truth of such representations, even to reduce the recovery to the amount of the debt for which it is held as security ? Quaere.

    When such endorsee, prior to his taking the note, sends it by a messenger to the maker, with instructions to inquire, if it is a business note, and the inquiry is made, and he answers, that it is; after proof of such facts, the endorsee may prove, that the messenger, on returning, reported to the endorsee what the maker said, by any person who heard him make such report. Proof of the latter fact is material to show, that the representation made, or answer given, was communicated to the endorsee before he took the note, and such proof may be made by any person who knows the fact.
    When, in an action on such a note, the answer, by not denying, admits the allegations of the complaint, that the defendant made and delivered the note to the payee, who endorsed and delivered it to the plaintiff; the defendant should not be permitted, at the trial, to amend his answer, by inserting an averment, that the payee of the note, at the time it was so made and endorsed, was a married woman. The refusal of a Judge to permit such an amendment, if he has power to allow it, is a matter resting in his discretion, and cannot be reviewed, on an exception to his decision.
    To allow it, in such a case, even if the power to grant it is unquestionable, would permit a technical matter to be alleged, to admit proof of a defence not meritorious.
    (Before Duer, Ch. J., and Woodruff, J.)
    Heard, October 14;
    decided, December 5th, 1857.

      This action is brought by the plaintiffs, as endorsees of a promissory note, for $1000, dated Nov. 5, 1855, at 6 months. The complaint avers the mating of the note by the defendants, payable to the order of one R. C. Jones; the delivery thereof, by the defendants, to the said R. C. Jones: that the said R. 0. Jones duly endorsed the said note in blank, and transferred and delivered the same to the plaintiffs.
    The complaint then adds, that the note is due, and payable; that it has not been paid, and that the plaintiffs are now the lawful holders and owners thereof.
    The answer, by not denying, admits the making and delivery of the note, by the defendants, to the payee, and the due endorsement, transfer and delivery thereof, by such payee, to the plaintiffs. But the answer says, “ that they (the defendants) have no knowledge or information, sufficient to form a belief, whether, at the time of the commencement of this action, the plaintiffs were, or whether they now are, the lawful owners or holders of the said note.”
    For a second defence, the defendants aver that the note was made and delivered to R. 0. Jones without consideration, and solely for her accommodation, and that it was, at that time, agreed that the note should not be put into the street to be negotiated, or sold to brokers, and that the payee promised to return the note to the defendants, at maturity. But, that the note was, contrary to such agreement, passed away to Wall street brokers, the plaintiffs in this action, and that the plaintiffs received it for an antecedent debt, and advanced no money, and parted with no value therefor.
    For a third defence, the defendants aver that it was made and delivered for the accommodation of R. C. Jones, and without consideration received by the defendants, and that it was delivered to the plaintiffs, by the payee, upon, and in consideration of, an agreement to forbear, and give time of payment of a sum of §1000, then due, or to become due, to them, for which the payee at the time of the delivery of such note, paid to the plaintiffs more than legal interest, to wit, a rate at least two per cent, a month, and that the agreement upon which such note was delivered, was usurious, and void.
    The case came on for trial before Mr. Justice Slosson and a jury, at the' November trial term, 1856. On the trial, the plaintiffs read the note in evidence, proved the co-partnership of the plaintiffs, and rested.
    ■ The defendants gave evidence, tending to show that the payee, when she obtained the note, promised to return it within two weeks, but they, also, read in evidence, a written receipt, procured from her, after the two weeks had expired, acknowledging that the note was received for her accommodation, and promising to pay the same at, or before, the maturity thereof. This receipt was given before the note was transferred to the plaintiffs.
    But the defendants gave no evidence showing, or tending to show, that the defendants imposed any restriction upon the payee, in respect to the use she should make of the note, nor that there was any agreement, or understanding, in regard to the purpose to which it was to be applied. Nor was there any evidence, proving, or tending to prove, the usury alleged in the answer.
    One of the plaintiffs was examined in behalf of the defendants, and he testified to various loans made to R. C. Jones prior to January 1st, 1856, and that the balance due thereupon, on that day, was $735.36, for which the plaintiffs held, as security, certain Texas scrip, and a promissory note, made by one Walter Mead, then past due. And that the plaintiffs, on the day last mentioned, and upon condition of receiving the note, now in suit, as collateral security, and in consideration thereof, took her note, or agreement, (which he then produced and read in evidence,) acknowledging that she had borrowed and received the $735.56, and promising to pay the same on demand, with interest; gave up to her the said scrip, and the note of Mead, and, also, received the note in suit, instead thereof. And it was further proved, on the part of the plaintiffs, that before giving up the collateral securities, they sent the note, now in suit, to the store of the defendants, by a messenger, and inquired of them whether it was a business note, and one of the defendants, in the presence of the other, declared that it was.
    On the examination of one of the plaintiffs, he was asked, what was the report brought to him by the messenger ? The question was objected to, and the objection overruled. The defendants excepted, and the witness said, “ The report was, that it was a business note.”

      It appeared, on the examination of the plaintiff by the defendant, that he, the plaintiff, “had known Mrs. Jones and her husband ten years previouslythat he had not known any thing about him for three years past, but he said, “ I have no doubt that he is now the husband of Mrs. Jones. So far as I know, he was her husband ten years ago.” Other evidence showed, that E. C. Jones, the payee of the note, was a married woman, and that her husband was still living.
    'The defendants thereupon moved for leave to amend their answer, so as to aver that the payee of the note was a married woman, so that her endorsement and transfer conveyed no title to the note.
    The Court denied the motion, and the defendants’ counsel excepted.
    The testimony being closed, the defendants’ counsel moved to dismiss the complaint on the following grounds:—
    1. That the note being an accommodation note, and transferred as collateral security for an antecedent debt, the plaintiffs could not recover.
    2. That there was no evidence that the original debt had ever been demanded, or claimed, by the plaintiff, or that it had not been paid.
    3. That the endorsement and transfer, by a married woman, conveyed no title, and gave the plaintiffs no right of action.
    4. That upon the pleadings and the evidence, the complaint should be dismissed.
    The motion was denied, and the defendants excepted.
    The defendants’ counsel requested the Court to charge the jury, that if they believed,'from the testimony, that the note was between the defendants and the payee, without consideration, and that it was given by the payee solely to secure an antecedent debt, the plaintiffs could not recover. .
    The Court charged, that the evidence clearly showed that the note was an accommodation note; but that the transfer of an accommodation note as security for an antecedent debt, gives title, in the absence of fraud, and if made before maturity;—to which the defendants excepted.
    The Court further charged, that “ there is no evidence in this case that the note was diverted from its original purpose. There is no evidence that it was given under any restriction as to its use. That if they believed Robbins, (the plaintiff,) he did give value for the note, as he surrendered collaterals on receiving it.”
    To each and every part of which charge, separately, the defendants’ counsel excepted.
    The jury rendered their verdict for the plaintiffs for $780.30, being the amount of the note given by Mrs. Jones to the plaintiffs, with interest.
    From the judgment upon this verdict the defendants appealed.

      Edwards Pierrepont, for the appellants.

      C. F, Sanford, for the respondents.
   By the Court. Woodruff, J.—

The defendants wholly failed to prove, that there was any special agreement between the defendants and the payee, restricting the use of the note to any particular purpose, or restraining her in any wise as to the manner in which, or the persons to whom, it should be negotiated. And having given no evidence, that there was any usurious agreement, under which it was negotiated, no part of the second or third defences was proved, saVe, only, that the note was made, without consideration received by the defendants,, for the accommodation of the payee, and that it was transferred to the plaintiffs, as collateral security, for moneys previously loaned by the plaintiffs to such payee. In the endeavor to prove, that it was transferred, as such collateral security, the defendants also proved, that, although given as such security, the plaintiffs, in consideration thereof surrendered to the payee other securities theretofore held for the same indebtedness. This was clearly a parting with value, upon the faith of the note in suit; and if giving value was necessary, to entitle the plaintiffs to retain the note, as such security, and recover thereon, it was sufficient. The surrender of securities is giving a valuable consideration, as truly, as the giving of money on the faith of the note.

In this respect, we say, unhesitatingly, that the charge of the . Judge to the jury was correct, and had the ease been submitted to the jury, upon this point alone, the second and third defences must have failed; for the evidence, to the effect stated, was wholly uncontradicted, and we. see nothing in the case to warrant the jury in disregarding, or even doubting it.

Besides this, the proof was, in like manner, clear and uncontradicted, that the plaintiffs took the note, in reliance upon the representation of the defendants, that the note was a business note. The plaintiffs had a right to rely upon that representation, and to deal with the note, in all respects, as if such representation was true; and if the title, which was either admitted in the pleadings, or proved on the trial, was such as would have entitled the plaintiffs to recover, had the note been given for value received, the plaintiffs were clearly entitled to recover here. And we think the Judge would have ruled correctly, if,, upon proof, that the note was received and collateral securities surrendered, in reliance on the truth of such a representation, the evidence, that the note was. an accommodation note, should, so far as the right of recovery was concerned, be wholly disregarded. If the defendants had a right to give such evidence at all, in the face of their representation, it was only to restrict the recovery to the sum for which the plaintiffs held it as security; and even that may be doubtful (Gram v. Hendricks, 7 Wend. 569.)

Under such circumstances, we think it was not necessary, for the purposes of this case, to consider the question; whether the transfer, by the payee, of an accommodation note, as security for an antecedent debt, without fraud, and before the maturity of the note, gives title. We are, nevertheless; equally clear,, that the charge was correct, on this point also.

We regard it as fully settled, that, where, a note is made for the accommodation of a payee, and delivered without any restriction or limitation of his authority to use it, he may appropriate it to such uses, (being themselves legal,) as his convenience- or pleasure may dictate; and the holder is not bound to prove, that' he parted with value, as the consideration of the transfer to himself.. He may recover thereon, although he received it in payment of a preexisting debt, or received it as collateral security for such an indebtedness. Indeed, mere proof, that a note is an accommodation note, is not sufficient to cast upon an endorsee the burden of showing, upon what consideration he did receive the note. He may rest upon, the consideration which the endorsement to himself legally imports. Although some misapprehension has formerly existed, upon this point, it is now, we think, too firmly settled to be open to discussion. (Lathrop v. Morris, 5 Sandf. S. C. R. 7; Grandin, et al., v. Le Roy, 2 Paige, 509 ; Bank of Rutland v. Buck, 5 Wend. 66; Grant v. Ellicott, 7 Wend. 227; Young v. Lee, 2 Kern. 552; Ross v. Bedell, 5 Duer, 467, and cases cited.)

There was, therefore, no error in the charge to the jury, and the Judge properly refused to charge as requested by the defendants.

We are no less clear, that it was unnecessary for the plaintiffs to prove a demand of payment from Mrs. Jones, the payee. Indeed, this seems to follow, from what has already been said. They were (so far as relates to this point) the lawful holders of the note, for a sufficient consideration, not defeated by the proof, that the note was an accommodation note. Establishing their title to the note, established their right to recover thereon, according to its tenor.

But in no aspect of the case was such a demand necessary. The transfer to them was not dependent upon any condition precedent, viz., to become available, in case the note of Mrs. Jones was not paid, on demand, or provided, on demand, payment should be refused. In reference to this question, their title was precisely the same, as if the note had, in fact, been given to the defendants for full value. They had- a right, and, in the last case supposed, it might, perhaps, have been their duty, to require the defendants to pay the note, when it became due. True, if the note of Mrs. Jones had been paid, she would have been entitled to a return of this note; but the burden of showing, that the plaintiffs’ title had been defeated, was upon the defendants.

In relation to the admission of the evidence, that the plaintiffs’ messenger reported to the plaintiffs what the defendants said, in 'answer to the inquiry,- whether this note was a business note; there was no error. The objection is, that the evidence was hear-say, only.

It was competent, and it was deemed material, to prove, that the defendants, by representing, that the note was business paper, had induced the plaintiffs to deal with it as such, and surrender other securities. For this purpose, it was necessary to prove two things: First, that the representation was made; and second,

that the plaintiffs had acted upon that representation. The plaintiffs proved, by the messenger, that the defendants made the representation ; but, had they stopped there, this ground of claim would not have been established. They must prove, that the representation was communicated to them by their messenger; otherwise, it could not have been acted upon. Whether this was proved by the messenger, or by any other witness, was wholly immaterial. This seems, to us, too plain to require further discussion. It was not attempting to prove the defendants’ representation by what a third person (the messenger) said; but it was giving direct and positive proof, that what the defendants said (which bad already been proved) was communicated to the plain-, tiffs.

The remaining questions are: First, whether, under the pleadings, the plaintiffs’ title could be defeated by proof, that the payee of the note was a married woman? and second, whether the Judge should have permitted the defendants to amend their answer, so as to set up that specific defence?

The answer of the defendants, by not denying, admitted, (Code, § 168,) that they made the note in suit, and delivered it to the payee, and that “ the said payee, the said R. C. Jones, thereupon duly endorsed the said note, in blank, and transferred and delivered the same to the said plaintiffs.”

The fact of endorsement, that it was duly made, and that the note was actually and, of course, legally transferred to the plaintiffs, here stand admitted. Whether the plaintiffs continued to be the holders and owners, at the time of the commencement of the suit, may, perhaps, be deemed put in issue, by what follows in the answer; but the regularity and validity of the transfer of the note to them is not put in issue. Certain facts are afterwards alleged, as second and third defences, which have already been noticed ; but there is no intimation of a want of legal capacity in the payee to endorse or transfer the note.

We say, unhesitatingly, that, under such an answer, the defendants were not at liberty to prove, that no transfer had been made to the plaintiffs; nor to do indirectly, by showing, that the payee had no capacity to transfer, what they would not be at liberty to do directly. In truth, the fact of due endorsement and transfer to the plaintiffs was not in issue.

It is settled by the Court of Appeals, that a defence which is not set up in the answer, will not avail a defendant, although it is proved on the trial. (Field v. The Mayor, 2 Seld. 179; Brazill v. Isham, 2 Kern. 1.)

It is eminently just, that this rule should be adhered to. A plaintiff comes to trial prepared to meet the defences upon which the answer assures him the defendant will rely, and presumptively prepared to meet none other. It is true, that he may object to proof of any other defence; but it is also true, that in the course of the trial facts' may, and frequently they do appear, in some form or process of examination, or cross-examination, which are so connected with the res gestœ, or, proper as a means of testing the memory or credit of the witness, that they could not be altogether excluded, and which suggest, that, had they been set up by answer, might defeat the action. But the plaintiff was not bound to bring witnesses to contradict them. In this way, even payment might be testified to by some witness; or, in an action for assault and battery, in which the answer contained nothing but a denial, a witness called by the defendant to mitigate damages, might state facts, as a part of the res gestœ, which, if true, would amount to a complete justification.

Second. Ought the Judge to have permitted an amendment ? Whether the propriety of granting the amendment did not rest so fully in the discretion of the Judge presiding at the trial, that the refusal to allow it cannot be reviewed on appeal, has been already twice considered in this Court, in General Term, and it is held, that such a refusal furnishes no ground of exception, and will not be reviewed. (Brown v. McCune; 5 Sandf. 229 ; Hunt V. Hudson River Fire Ins. Co., 2 Duer, 489; and see Roth v. Schloss, 6 Barb. 308.)

In the present case, the considerations above suggested, in regard to the right of the defendant to prove a defence not set up in the answer, bear also upon the propriety of allowing the amendment. The motion was not made, to prevent a- variance; it was sought to introduce an entirely new defence—a defence that was contrary to the admissions in the answer—a defence not in itself meritorious, but resting, so- far as concerns this case, upon purely technical grounds; for if, in fact, the note in question was without consideration, the husband had no beneficial interest in it—it could never be collected for his benefit—he was in no wise prejudiced by suffering the plaintiff to recover, or by requiring the defendants to pay according to the very terms of their promise, i. e., to the party whom the payee should appoint.

The cases of Egert v. Wicker, (10 How. Pr. R. 193,) and Catlin v. Hansen, (1 Duer 309,) show that an. amendment introducing a defence, new and substantial, ought not to be allowed at the trial.

We do not, therefore, deem it necessary to inquire whether, under the circumstances disclosed on the trial, the defence would have availed to defeat a recovery. The general doctrine, that a promissory note, made during the coverture, payable to a married woman, and having no connection with her separate property, is, in legal effect, payable to her husband, we do not question; nor, that she cannot transfer such a note, by endorsement, without her husband’s authority. But there are circumstances in which the title of an endorsee of a note, payable to her, and transferred by her endorsement, will be sustained. (Miller v. Delamater, 12 Wend. 433.)

The judgment should be affirmed.

Judgment affirmed.

        ■ Benedict t. Qaffee (5 Duer, 23V); Burrall v. Be Groot (Id. 383).


source: Caselaw Access Project

license: Public Domain

text:
    Jenny Gray, Plaintiff and Appellant, v. Fanny Lessington, Defendant and Respondent.
    Whether an infant can bring an action during her minority, to rescind a purchase made by her of personal' property, and to obtain a surrender of promissory notes and a chattel mortgage of such property made and executed by her, for, and to secure, payment of the contract price? Quiere.

    When, in an action to rescind, she bases her right of action on the fact of her infancy at the time of making the contract, and on the further fact, that the defendant fraudulently misrepresented the value of the property, and imposed upon the plaintiff’s inexperience, the burden of proving misrepresentations made, and imposition practised, is upon the plaintiff.
    Upon the question of good faith, as to the representations made of its value, it. is competent for the defendant to show that, shortly previous to such sale, the defendant bought and paid for it, at the prices represented by her to belts value.
    The terms, on which a rescission will be allowed, are a restoration of the property to the defendant, and the payment of such sum as, with the payments made on account of the purchase, equals the deterioration of the property in value, caused by the plaintiff’s use of it.

      When the value of the property at the time df the infant’s purchase of it, upon the evidence given, would appear to exceed very greatly its value at the time it was restored to the defendant, or was offered to be restored, and it becomes a fair subject of inquiry, whether this difference in value results from a misuse of the property, or whether its value, at the time of the infant’s purchase, is over-estimated, the uses to which it has been put by the infant is a proper subject of inquiry.
    "When such property has been sold, pendente lite, by a receiver appointed by the Court, the plaintiff is to be allowed, as the value of the property when it went into the hands of the receiver all that it sold for, though that sum may exceed its value as established by the testimony given upon that point. If it sells fqr less, the defendant is, nevertheless, to be deemed to have taken possession at the time it went into the receiver’s hands, and the contract being rescinded, is to be charged with such sum, as its value, as the evidence shows it was then worth, and takes the proceeds of the sale, as a substitute for the property in the condition it then was.
    (Before Duer, Ch. J. and Woodruff, J.)
    Heard, October 15;
    decided, December 5,1857.
    The plaintiff, by her complaint, alleges a sale on the 18th of July, 1854, to herself, by the defendant, of sundry household furniture and chattels, for the price,of $5425, and the execution and delivery by the plaintiff to the defendant .of certain promissory notes, and a mortgage to secure the payment of the purchase money. That the plaintiff has paid upon the said notes and mortgage the sum of $2580. That the plaintiff, at the time of the said purchase, and at the commencement of this action, was an infant. That the defendant, knowing such infancy, took advantage of her youth and inexperience, to defraud her, and falsely represented the said furniture and chattels to be worth the price at which the defendant so sold the same, well knowing that the same were not worth over $2000, or, at most, $2500. That, in truth, the property was not worth more than $2000; and that the payments already made, amount to more than the value of the property when so sold, or at the time of bringing the action.
    That the defendant is irresponsible, and that she threatens to foreclose the mortgage and take possession and sell the property.
    The plaintiff therefore prayed that the contract of sale be rescinded, on account of the infancy of the plaintiff, and be set aside; that the mortgage and the unpaid notes be cancelled, and the defendant be adjudged to repay the whole amount received on the said sale, deducting only whatever the deterioration in value of the property may be, by reason of its use by the plaintiff, upon the plaintiff’s restoring the property to the defendant; or that the mortgage and notes be cancelled and the plaintiff be declared the absolute owner of the property, the contract of sale and delivery being allowed to stand so far as executed, with the further prayer for an injunction and receiver.
    The answer admits the fact of sale, etc., but denies all the facts alleged by the plaintiff as grounds for the relief sought, and alleges that the property, by the careless and negligent conduct and want of care on the part of the plaintiff, etc., has been irreparably injured, and deteriorated more than one-half in value.
    The action was tried at the Special Term, in October, 1856, before Mr. Justice Bosworth, without a jury. Although the orders and proceedings intermediate the bringing of the action and the trial, for the appointment of a receiver and the sale of the property, are not set out in the case submitted on the appeal, it nevertheless appears to have been assumed on the trial and by the finding of the Judge, and in the j udgment, as it was on the argument of the appeal, that a receiver had been appointed, and the property sold by the receiver before the trial, and that he held the proceeds, subject to the decree of the Court in this action.
    The Judge who presided at the trial has found, that the plaintiff was an infant at the time of the purchase and at the commencement of this action, but that the defendant had neither knowledge nor notice thereof. That the price of the property was not an unreasonable one, considering all the circumstances under which the sale took place, and the terms thereof. That the defendant did not impose upon or deceive the plaintiff to induce her to make the purchase, nor fraudulently misrepresent the value of the property.
    He therefore finds the value at the price agreed to be
    paid . ......$5425 00
    The value, at the time the action was commenced, he
    finds to be . . 1317 77
    And the depreciation in value therefore . . $4107 23
    And the amount already paid upon the purchase
    money . . . . . 2589 00
    And the amount requisite to make good the deficiency ...... $1518 23

      He-further finds, that the plaintiff did not offer to return the property before bringing the action.
    Upon these facts, his conclusions of law are:—
    That the plaintiff had a right to elect, by a suit properly brought, during her minority, to rescind the contract. That, after an election to disaffirm, she was not entitled to an injunction to restrain the defendant from taking possession. That the plaintiff, is, in equity, entitled to rescind, only, upon the terms of restoring the property, and paying such sum as, with the amount already paid, will make good to the defendant the depreciation resulting from her use of it.
    Judgment was directed in accordance with these rules, declaring the contract of sale rescinded. That the mortgage and unpaid notes be delivered up, upon the payment, by the plaintiff to the defendant, on or before the first day of July then next, of $1518^%-. The decision of the Court then declared, that a judgment to the effect stated is equivalent to allowing the plaintiff, by way of deduction, from the price she agreed to pay, the difference between the net proceeds of the property sold by the receiver and its actual value at the time he took possession of it, and also the interest which had accrued in favor of the defendant, upon a statement of an account of the contract price and the payments thereon. '
    In default of the payment of the said sum of $1518 23/100 and interest, and the costs of the action, the complaint was ordered dismissed with costs.
    The plaintiff appealed to the General Term.

      A. R. Dyett, for the plaintiff, appellant.

      Jas. T. Brady, for the defendant, respondent.
   By the Court. Woodruff, J.—

The principal grounds upon which it is insisted that the judgment herein should be reversed, are, that the various findings of the Judge, at Special Term, are without evidence, or against evidence.

We have examined the evidence with care, and in connection with the views of the plaintiff’s counsel, as given us on the argument, and submitted in the points.

The burthen of showing that the plaintiff had been deceived, or defrauded by false representations respecting the value of the property, was upon her. Ho witness testifies that the property was, at the time of the sale, worth less than the price at which it was sold to the plaintiff. Some of the defendant’s witnesses testified, in relation to the great bulk of the articles, and their value, at a time shortly before the sale, and their testimony tended to show that the property was not over-estimated. On the other hand, the plaintiff’s witness testified to the value when the receiver took possession, and one of them stated, that at that time (nearly two years after the sale) the property would not be worth, if new, over $2635.54. Under such a state of the proofs, we cannot say that the finding of value is against evidence. The proofs may not be so clear and convincing as to admit of no doubt. We are free to say it is not. And the very large depreciation which results from the value found, would at first view seem incredible. But even this, the Court might, and no doubt did, consider sufficiently explained by the evidence, showing the purposes for which the property had been used by the plaintiff, and the usage to which it had been subjected by the rough, noisy and riotous men who frequented the plaintiff’s house, and the destruction which they are testified to have caused.

The price of the sale being found reasonable, and there being an entire failure of any affirmative evidence, (other than such as related to value,) showing, or tending to show, fraud or misrepresentation, or improper influence of any kind, to induce the plaintiff to purchase the property, the amount of depreciation was a necessary arithmetical result, from the further proof given, on the part of the plaintiff herself, that the property, when taken possession of by the receiver, was worth only the sum which the Court have found.

Upon the fact so found, the principle of the decision is not, as far as we understand, sought to be impeached by the appellant. Indeed it is in precise accordance with the prayer of the complaint itself. That prayer proposes to charge the plaintiff, on a rescission of the contract of sale, with the deterioration in value of the property by reason of its use by the plaintiff; and this was done by the Court. The prayer of the complaint proposes a restoration of the property to the defendant; and this was done. And the plaintiff is allowed the full value of the property when the possession was delivered to the receiver, without any abatement.

It is quite true, that the application of the principle of the decision to the facts, did not, result so favorably to the plaintiff, as it would, had the facts been proved as alleged; but that is not because the plaintiff has sought relief upon an erroneous principle, but because she failed to prove a state of facts, which would produce a favorable result. Obviously, if the deterioration in value had not exceeded the sums which she had already paid, it would, upon the principle of the decision, have only remained to cancel the outstanding obligations, and direct the delivery of the property, or its proceeds, to the defendant.

The seeming hardship of requiring the plaintiff to pay- a still further sum, as a condition of rescinding the contract, is only a necessary result of the same rule, which, under other circumstances, would have required no payment from her whatever, and might, perhaps, have permitted her to reclaim what she had paid.

We have no doubt of the correctness of the rule. At law, the infant might successfully have defended an action upon her notes. But, even at law, she could not recover back what she had paid, without restoring the whole consideration, either in specie, or by a full equivalent.

And when it becomes necessary for her to go into a court of equity, to cancel her obligations, or regain the pledge given for their performance, seeking equity, she must do equity. Making full satisfaction for the deterioration of the property, arising from its use, is doing no more. Presumptively, she has derived from the use of the property a profit, or benefit, equivalent to such deterioration. Whether that presumption is, under all circumstances, conclusive, it is not necessary to say, since there is nothing in this case to rebut the presumption. The deterioration here, is found to have resulted from the use which she has enjoyed; and if it resulted from an abuse of the property, the plaintiff’s equity is no greater. In a ease in which the. property to be returned is shown to have depreciated in value from other causes, the inquiry may be, what benefit, if any, has the infant derived from the property, and that only may be chargeable; unless, in such case, the impracticability of restoring the defendant to the condition in which she was, before the sale, would be a reason for not interfering to give any relief.

We think, therefore, that the decision, making it a condition that the plaintiff restore the property, with all the benefit presumptively derived from its use, which, in this case, is regarded in the complaint itself, as well as the decision, as the deterioration arising from such use, was correct, and in accordance with well-settled principles. (7 Hill, 110; 17 Barb. 428; 11 Paige, Ch’y R. 107; 2 Id. 191; 3 Sandf. Ch’y, R. 431; Story on Conts. §63, and cases cited.)

A doubt may exist upon the question, whether the infant can herself elect, before she arrive at her majority, whether to affirm, or disaffirm her purchase. Her contract was not void. She could affirm it when she became of age, or elect to disaffirm it. But that it is, upon the proofs in this case, for her interest to rescind, is not questionable. And no exception is taken to the ruling, in her favor, on that subject. Besides, we find on recurring to the evidence, that, although she had not attained to full age when the action was commenced, the Court gave her two months, after attaining her majority, within which, to elect, whether to affirm or rescind. So that, in this respect, no duty of the Court, in protecting the rights of infants, was left unperformed.

It remains to consider the plaintiff’s exceptions to the rulings of the Court, in receiving and rejecting testimony.

The defendant’s counsel, with a view to show or to account for the great deterioration in the property, arising from its use, inquired of one of the witnesses, for what purpose the house was occupied while the witness resided with the plaintiff (viz., about sixteen months)? We need hardly say, that the purposes to which a house is devoted, may tend directly to account for the injury and depreciation resulting therefrom to its furniture. The Court could not know, on the objection being taken, what the answer to the question would be, and, therefore," so long as the Court could see that a house might be occupied for some purposes which would manifestly tend to cause an injury to the furniture, or account for an extraordinary deterioration, of which evidence already appeared, the question should be allowed. Whether the immediate answer to the question showed a purpose which would of itself tend to thus injure and impair the value of the furniture, we are not able to say, but the answer was not objected to, nor made the ground of renewed objection to the question, and the question, as put, was proper. The further answer of the witness, in relation to the conduct of the visitors at the house, was clearly competent.

The questions, what the defendant paid for the furniture which she purchased from one of the witnesses, Stover, and what was its value, were both objected to. First, that the cost was no proof of its value, and second, that the property was - not sufficiently identified as the furniture in question.

On the question of the identity of the furniture, there was enough to warrant the submission of that very question of fact to the Court, and that warranted proof of the value which would become material, if the Court was satisfied of such identity. It was furniture of the same general description, in the same house, in the possession of .the defendant shortly before, the sale, and she. had apparently sold the entire furniture of. the house she had theretofore occupied, to the plaintiff. There was a just and fair presumption, that the furniture was the same.

As to the evidence of its cost, it should be, borne in mind, that the defendant was charged with falsehood, fraud ,and misrepresentation in relation to the value' of the property. On a question of fraud, it is clearly competent to show that, the party charged had, very shortly before the sale, purchased the property at prices corresponding with her representation of value. Whether it is any proof of actual value or not, it is some evidence of good faith.

What has been said in regard to the identity of the property, and to the charge of fraud, applies also to the objection to the testimony of another witness, (Parker,) who testified to the sale of other articles of furniture. If there were particular articles in the bill of sale produced, which on the face of the bill appeared not to be part of the furniture in question, that furnished no reason for excluding the whole bill. The objection was not pointed to particular items, and the Court must, of necessity, in the application of the evidence, discriminate between .the items.

On the examination, one of the plaintiff’s witnesses had testified to the value of the property, and that $1317.77 was the fair value when it was delivered to the receiver; and he had also testilled, that the furniture was sold at public auction for all that it was worth, and the case then states, that the defendant objects to evidence of how much it sold for, and the Court sustains the objection.”

If there were no explanation of this ruling to be gathered from the other parts of the case, it would seem liable to this criticism, that, inasmuch, as the plaintiff was to be charged with the whole deterioration in the value of the property, and the proceeds of the sale were to be paid over to the defendant, it would follow, that if the actual proceeds of the auction sale were larger in amount than the estimated value when the receiver took possession, which was taken into view in ascertaining the depreciation, the amount at which the property actually sold should have been credited to the plaintiff instead of such lower estimate of value; it would not be just to permit the defendant to receive the larger sum in actual cash, and then test the deterioration by the lesser sum at which the value was estimated. The property could not, for the purposes of this account between the parties, be deemed worth less than it actually produced on the sale.

The obvious justice of this criticism, and also the fact that no such point appears to have been specifically taken at the trial, and that we find no such view of this question in the points of the appellant, plainly suggest that it was perfectly understood (though no formal admission appears, in this case as made up) that the proceeds of the sale did not exceed the valuation of the witness, and that the whole trial proceeded upon that concession. That this was so, appears from the decision of the Court above recited, in which it is declared that the judgment allows to the plaintiff, by way of deduction from the price she agreed to pay, the difference between the net proceeds of the property, sold by the receiver, and its actual value at the time he took possession. Of course, then, the amount of such proceeds was less, and not more than such value; or, in other words, she was, in fact, allowed more than the amount of the proceeds.

It is, therefore, clear, that the plaintiff was not seeking to prove, that the property sold for a greater sum than was, in fact, allowed therefor to the plaintiff.

No doubt, the plaintiff sought the evidence, as a part of her endeavor, to depreciate the value of the property, as much as possible, for the purpose of insisting upon the evidence, as tending to show, that the sale to her was made upon a gross and fraudulent over-valuation.

The question which was put to the witness, and upon which the Court made the ruling, is not stated in the case. It seems to us, that the subject had already been exhausted so far as the witness was concerned. He had stated the value according to his judgment, at $1317.77, and that it sold for all it was worth. So far, the testimony was not objected to, nor rejected. It was the plaintiff’s witness; as to her he must be taken to have testified truthfully, and if so, the question, how much it sold for, was already answered, viz., $1317.77.

We are aware that this latter suggestion is inconsistent with the evident concession already mentioned, that, in truth, the property sold for less.

But it is equally clear, that if proof that it sold for less was to be taken as evidence that it was worth less (when it came to the receiver’s possession) than the witness had stated, and the sum allowed, the plaintiff is benefited rather than prejudiced by the exclusion of further inquiry. For if by showing a sale for less, the plaintiff would have shown that the property was worth less than was allowed to her therefor, then clearly she would have been chargeable with a larger sum for deterioration.

But, laying aside all speculation and conjecture in regard to the subject, into which we have been drawn by the singularity of an objection to the witness’ naming the amount of the proceeds in dollars and cents, we cannot perceive, in the connection in which the ruling stands, but that the witness had answered the question. . When he stated that the value of the property was $1317.77, at the time the receiver took possession, and that it sold for all it was worth, he had given the Court to understand, that it sold for $1317.77, unless it is possible, that in the interval a further depreciation had taken place.. This may, perhaps, be the real explanation of the obscurity which we find. It might be very true, that the property, when it came to the hands of the receiver, was fairly worth the sum named, and yet, at a subse quent sale, have, to some extent, further depreciated.

It was not competent, for any purpose, to show such further depreciation. If the property, when the plaintiff surrendered it, was worth $1317.77, no subsequent value, and no subsequent sale, could tend to show that the price at which it was sold to the plaintiff, by the defendant, was unreasonable, or founded on a false valuation.

In the argument upon the facts, it was suggested, that a picture of Washington, mentioned in the testimony of the witness Vultee, had come to the possession of the defendant, and yet, that no allowance had been made to the plaintiff for it; and her possession of the picture was admitted.

We find nothing more in the testimony on the subject. Ho such picture is mentioned among the property sold and mortgaged, in any terms, by which we can say it formed any part of the sale in question. There is no evidence in regard to its value, and no point upon the subject appears to have been presented to Court at Special Term. We think that the proof in regard to the picture, is so incomplete and unsatisfactory, that we cannot say that the plaintiff ought to h'ave had any further allowance.

We think that there are no' sufficient grounds for disturbing the judgment. It must, therefore, be affirmed.

Judgment affirmed.

       Parson’s Merc. Law, p. 4, and Vent v. Osgood, 19 Pick 5Í2..