author: Hoffman, J.

text:
    Edward Morrison, survivor of Edward, and Lewis Morrison v. Chas. Currie and another.
    An agent 17110 Bells a bill of exchange without endorsing it, if he fail to disclose at the time, the name of his principal, is personally liable for the moneys received by him, if the bill proves to be a forgery.
    To render him liable, it is not necessary to prove that an inquiry -was made as to the name of his principal, -which he refused to answer.
    But the agent will be exonerated if it is proved that before a demand was made on him for reimbursement he had passed over to his principal the moneys he had received.
    Judgment for plaintiff affirmed, with costs.
    (Before Boswoimi, Hoffman and Slosson, J. J.)
    November 8; Nov. 18, 1854.
    Appeal by the defendants from a judgment entered on a verdict for the plaintiffs.
    The action wa§ brought to recover the sum of $2,204.44, with interest, which the plaintiffs alleged they had paid to the defendants, ás the consideration of the purchase from them of a bill of exchange for the sum of £450 10s. sterling, purporting to be drawn by the Guernsey Commercial Bank, but which, it has been ascertained, was a forgery.
    The answers denied all the allegations in the complaint.
    The cause was tried before Duer, J., and a jury, on the 15th May, 1854.
    On the trial it was clearly proved that the plaintiffs purchased from the defendants the bill mentioned in the complaint, at the time and for the price therein stated, but there was a conflict of testimony as to the conversation that passed between the parties at the time of the sale.

      To prove tlie forgery, tlie counsel for tlie plaintiffs offered to Tead in evidence tlie examination of one Francis De Patron, taken under a commission. The counsel for the defendants objected to several of the answers of the witness as evasive and uncertain, and insisted that the testimony ought not to be submitted to the jury. The objections were overruled and the testimony read, and the counsel for the defendants excepted.
    When the testimony was closed the Judge charged the jury, that if they should find the draft a forgery, the defendants were liable, although they acted as agents, and disclosed that fact, unless, also, they disclosed their principal; but it was for the jury to consider whether they disclosed that they acted as agents.
    The counsel for the defendants asked the court to charge, that defendants were not bound to name their principal unless plaintiffs inquired for or about him. That it was enough to give notice that they acted as agents, and would not endorse, unless, on inquiry, they refused to disclose their principal.
    His honor declined so to charge, and defendants’ counsel excepted, and also excepted to his charge.
    The court submitted, in writing, to the jury, the following questions specifically:
    1st. Is the bill a genuine bill of the Guernsey Commercial Bank?
    To which the jury answered, It is not genuine.
    2d. When the bill was sold, was the fact disclosed to the plaintiffs that the defendants were acting as the agents of Simmons, the payee ?
    To which the jury answered, It was not disclosed.
    The jury found a verdict in favor of the plaintiff for the sum paid, and interest, and judgment was thereupon entered.
    The cause was now before the court on a ease containing the exceptions taken on the trial.

      F. Moore, for the defendants,
    argued in support of the exceptions, and insisted that if the defendants, in selling the bill, acted as agents and not as owners, and that fact was known to the plaintiff, he was not entitled to reeover. The jury had found that the defendants did not diselose their principal, but had not found that they did not disclose that they were acting as agents. He cited Williams v. Fldridge, 1 Hill, 249; Canal Bank Case, id. 289; Fleming v. Hollenback, 7 Barb. S. 0. Rep. 271.

      H. Morrison, for plaintiff,
    insisted that the finding of the jury that the defendants did not disclose the name of their principal was sufficient, and in judgment of law conclusive, and that it was immaterial whether it was known to the plaintiff that they were acting as agents or not. As to the exception to the ruling of the Judge, that the evidence to prove the forgery was admissible, it was plainly groundless. He cited Raihbone v. Budlong, 15 John, p. 1; Sheffield v. Watson, 3 Caines, 69; Stone v. Wood, 7 Cowen, 453; Mills v. Hunt, 17 Wend. 332, and several other cases.
   By the Court.

Hoffman, J.

The plaintiffs and defendants are Money, and Exchange Brokers in New York. The defendants, on the 3d of July, 1852, sold and delivered to the plaintiffs a paper purporting to be a true and genuine Bill of Exchange, drawn by the Guernsey Commercial Banking Company, and purporting to bear the signature of M. De Agnew, as manager of said company, and drawn upon Messrs. De Lisle, Janvrin and De Lisle, in London. The bill was payable to the order of one Peter Simmons for £450. The plaintiffs, in the belief that the bill was genuine, paid the sum of $2,282.44 for it, being its value in American currency. They allege that it was ascertained to be a forgery, and now claim repayment of the money.

The defendants, after a general denial that the plaintiffs received such bill from them in the course of their mercantile business, as Money and Exchange Brokers, or otherwise, deny that the document was false, forged or counterfeited.

At the trial, the jury found a verdict for the plaintiffs under the charge of the Judge, and found specially as to two questions put to them by the court.

The Judge wás requested to charge in a particular , manner as to one point in the cause, and refused; and for this refusal, as well as for the charge actually made upon that point, an exception was taken.

Another exception was taken to the ruling of the Judge, in permitting certain testimony, as to the alleged forgery, to go to tlie jnry.

I. The first point arises in this way: some evidence was adduced as to the defendants representing, at the time of the sale, that they were acting as agents. ■ The Judge charged that if the jury found the draft a forgery, the defendants were liable, although they acted as agents and disclosed the fact, unless they also disclosed their principal; but it was for the jury to say, whether they disclosed that they acted as agents.

The defendants’ counsel asked the court to charge that the defendants were not bound to name their principal, unless the plaintiffs inquired for or about him. That it was enough they gaye notice that they acted a$ agents, and would not endorse, unless on inquiry they refused to disclose their principal. The Judge declined so .to charge, and the defendants excepted. The question was specifically submitted, whether, when the bill was sold, the fact was disclosed to the plaintiffs, that the defendants were acting as agents of Simmons the payee, and the answer of the jury was, that it was not disclosed.

Had the question been whether it was disclosed that they were acting as agents generally, and the answer had been the same, the error in the charge of the Judge, if any, would have been remedied.

The bill was endorsed specially by Peter Simmons to-E. Morrison, or.order. Ho other party appears on the bill.

The English cases are collected in Paley on Agency, 869 ; in Smith’s Mercantile Law, 66, 78, 79; and in Story on Agency, 266, &c. Ho rule of law is better established than this, that when an agent names his principal, the principal is responsible, and not the agent. This is the language of Lord Erskine in ex parte Hartop, (12 Vesey, 852,) and he adds, “But for the application of that rule, the agent must name his principal, as the person to be responsible.”

And in Owen v. Gouch, (2 Espin. 527,) Lord Kenyon said, “ If goods were ordered to be delivered on account of another, and after the delivery, the person who gave the order, refuses to inform the tradesman who the principal is, that he may sue him, he is himself liable. But wherever an order is given by one -person, and he informs the tradesman who that person is for whose use the goods are ordered, he declares himself to he an agent, and is not responsible.”

It is also a well settled rule in England, that if the principal is a foreigner, the credit, by universal understanding, is considered as given to the British buyer, and not to the foreigner. But the present case does not sufficiently raise this question. The only apparent principal is Simmons, and it does not appear where he resides, although a presumption may exist that it is in Great Britain. Z

Hansom v. Roberdeen, (Peake’s N. P. Cases, 120,) was the case of an auctioneer known, of course, to sell in his representative capacity, who did not disclose the name of his principal. He was held personally liable. The case of Jones v. Littledale, (6 Adol and Ellis, 486,) agrees with this, the auctioneer havirfg made himself liable by the form of the contract.

In Thompson v. Davenport, (9 B. & Cress. 78,) the court held, that where a person sells goods, supposing at the time that he is dealing with a principal, but afterwards discovers that the person is not a principal but a mere agent, he may recover the amount from 'the principal, unless the state .of the account between the principal and agent has been altered to the prejudice of the former. But Lord Tenterden says, If, at the time of the sale, the seller knows, not only that the person who is nominally dealing with him is not principal but agent, hut also knows who the principal really is, and yet makes the agent his debtor, dealing with him, and him alone, then the seller -cannot charge the principal.” He cites Addison v. Gaudesequi, 4 Taunton, 514, and Patterson v. Gaudesequi, 15 East. 62.

But the court proceed to state, that the case at bar was a middle case. The sellers, at the time of dealing for the goods, were informed that McKune, who came to buy them, was dealing for another, — that is, that he was agent; but they were not informed who the principal was. They had not at that time, therefore, the means of making their election. It is true they might have obtained these means, if they had made further inquiry, but they made no further inquiry. Not knowing who the principal really was, they had not the power at that instant of making their election. On this distinction, the court held, that the actual principals, when discovered, might be sued for the price of the goods. Justice Bayley puts the case very clearly. “ Iu the present case, the seller knew that there was a principal; hut there is no authority to show, that mere knowledge that there is a principal destroys the right of the seller to look to that principal as soon as he knows who he is, provided he did not know who he was at the time of the purchase. It is said that the seller ought to have asked the name of the principal, and charged him with the price of the goods. By omitting to do so, he might have lost his right to claim payment from the principal, had the latter paid the agent, or had the state of the accounts between the principal and the agent been such as to make it unjust that the former should be called upon to make the payment. The justice of the case is, that the seller shall be paid, and that the principal shall be the person to pay him, provided he has not paid any one else.”

It is apparent that much stress was laid upon the justice of the case, that the defendant or the principal had got the goods, and had not paid for them to the sellers, the plaintiffs, or to the agent, or any one else. Had they paid the agent, or settled the amount in account, the result would have been different. So here, had the defendants paid over the sum received to their employer, or settled an account including it, the defence would be sufficient, and the case of Thompson v. Davenport would apply.

In the leading case of Mauri v. Heffernan in our own courts, (13 John. Rep. 58,) the Judge at the trial had instructed the jury, that if a party would excuse himself from responsibility on the ground that he acted in the capacity of agent, he ought to show that he communicated to the other party his situation as agent, and that he acted in tbit capacity, so as to give a remedy over against the person whom he represented as his principal; and the Supreme Court held this to be unquestionably correct. This appears to involve the necessity of a disclosure of the name.

Rathbone v. Bedlong, (15 John. Rep. 1,) decides, that an agent who discloses the name of his principal at the time of the contract, is not personally responsible.

In Waring v. Mason, (18 Wendell, 425,) commission merchants wire held personally liable, though generally known as such, because they did not disclose the name of the principal.

Comyns v. Macgrath, (4 McCord, 392,) and Henderson v. Mahew, (2 Gill, 393,) are cases to show that a vendor does not lose his right of action against a principal, nnless at the time he knows who the principal is, and still makes the agent his debtor.

In Taintor v. Prendergast, (3 Hill, 72,) the contract was made with an agent residing in this state, of a principal residing in Connecticut. It was to recover a sum of money advanced on a contract to deliver wool, and not fulfilled. The action was sustained.

The court say: “It may be admitted, as was urged in the argument, that whether the principal be considered a foreigner or not, his agent omitting to disclose his name, would be personally liable to an action.”

In Raymond v. The Crown and Eagle Mills, (2 Metcalf, 319,) a vendor discovered subsequent to a sale, that the vendee was agent for another. It was held, that he might charge either, at his election, although at the time he relied solely upon the credit of the agent for payment. And the fact, that he had the means of knowing the principal at the time, was held not sufficient to prevent his resorting to the principal, unless he actually knew at the time who the principal was.

We are satisfied that the rule of law which governs this case is this: That where a person sells property, stating that he acts for another, but does not disclose the name of his principal, he makes himself responsible to the purchaser in any way in which the actual principal would be liable; but that he may exonerate himself from such liability by showing a payment over to his principal, or other special circumstances attending the transaction proving that it would be inequitable, as between the parties, to hold him responsible.

II. As to the other question in the cause as to the admissibility of the evidence as to the forgery, we are of opinion that there was no error in the ruling of the Judge. The grounds upon which he was required to suppress the examination of the witness De Patron, were plainly insufficient.' Whether the answers of the witness to any of the questions that were put to him were so evasive as to affect his credit, was a question for the consideration of the jury, but the objections which were relied on, were certainly not such as could have justified the court in the entire suppression of his testimony; and that they were deemed of slight importance by the jury was rendered evident by their verdict.

The judgment appealed from must be affirmed, with costs.


source: Caselaw Access Project

license: Public Domain

text:
    George Guynet and Joseph Sanchez de Agreda, v. John B. Mantel. John B. Mantel, v. George Guynet and others.
    It is in equity a settled rule, that under a contract to sell and convey lands, either general in its terms, or containing stipulations as to the nature of the deed or title to be given, the purchaser may insist upon a good and unincumbered title.
    But this general rule is subject to exceptions, one of -which is, that if the vendee can obtain substantially that for which he contracted, and the deficiency is of such a nature that it may justly be made a subject of compensation, the court will decree a specific performance.
    So also, if the vendee so enter into the possession withsa knowledge of objections that may be compensated or removed, the act, if not qualified by some agreement between him and the vendor, will be construed as a waiver of the objections.
    Judgments appealed from affirmed, with costs.
    (Before Boswoeth, Hoffman, and Slosson, J. J.)
    Nov. 8;
    Dec. 2, 1854.
    Appeal by the plaintiffs in the first action, and the defendants in the second, from judgments entered upon the report of a referge.
    The complainant in the first action set forth a contract by which the defendant agreed to sell and convey to the plaintiffs certain property in the city of New York, for the sum of $50,000. It alleged that the plaintiffs had paid $5,000, and had offered to pay, or secure the payment of the residue, but that the defendant had refused to make the conveyance to which they were entitled, and insisted that the contract was rescinded by his default, and that they were entitled to a compensation in damages.
    The cross action was by the vendor, to compel a specific execution of the contract.
    In January, 1854, both causes were referred to William Kent, Esq., who, on the 10th of June following, made the following report:
    In pursuance of the order of the court made in the above-entitled causes on the seventh day of January, 1854, whereby the said actions were referred to the undersigned to hear and decide all the matters at issue therein respectively, I, William Kent, the referee in said order named, Raying been attended upon the reference before me in the said actions, (the same having been heard as an original and cross action,) by the counsel for the respective parties thereto, and having heard the proofs and allega-gations of the respective parties, and having duly considered the same, do find therefrom the following facts, that is to say:
    Eirst. — That on the 28th of February, 1853, a contract in writing, under seal, was duly executed by and between the above-named John B. Mantel and George Guynet and Joseph S. De Agreda, for the sale and purchase of a plot of ground and premises at the comer of Broadway and 46th street, in the city of New York, which is set forth in the pleadings.
    Second. — That the said Guynet and De Agreda thereupon, on the day of the date of the said contract, and in part performance thereof on their part, paid to the said Mantel five thousand dollars, being ten per cent, of the purchase money in the said contract specified, and thereupon employed John B. Stevens, Esq., a counsellor-at-law, and one of the defendants in the said cross action, to examine the title to the said property, and to act for and advise them in the matter of the said purchase, which the said John B. Stevens undertook to do.
    Third. — That on the second day of May, 1853, (being the day fixed in and by the said contract for the delivery of the deed, and the completion of the said purchase,) the said John B. Mantel tendered and offered to deliver to the said Guynet and De Agreda, a deed of the same premises, containing full covenants of warranty, and against incumbrances, duly executed and acknowledged by himself and wife, thereby granting and conveying the premises in the contract mentioned and referred to, to the said Guynet and De Agreda, in fee, which deed had been perused by the said John B. Stevens, and was, and has been admitted by the said Guynet and De Agreda to be correct in form and manner of execution; that the said John B. Mantel thereupon demanded from the said Guynet and De Agreda the payment of the purchase money and the execution and delivery of the bond and mortgage according to the said contract and in fulfilment thereof.
    Fourth. — That the said Guynet and De Agreda then and there declined and refused to accept the said deed or further to perform the contract upon their part, alleging as a reason or excuse for such, refusal and non-performance on their part, that there was a mortgage for one thousand dollars made by the said Mantel to Richard L. Parish, dated 24th January, 1852, outstanding and unsatisfied of record upon a small portion of the premises agreed to be sold, and which they required to have first paid and can-celled of record, which was the only objection made, and the only excuse for the non-performance of the said contract.
    Fifth. — That at the time the said contract of sale was executed, the existence of the said mortgage was known to the said parties respectively, and although the same was not by the terms thereof payable until the 24th of January, 1855, still it was reasonably expected by the parties that the owner and holder thereof would at any time, accept and receive payment of the same, and that he would execute a proper satisfaction piece therefor, upon being paid the same, so as to cancel the same of record.
    Sixth. — That after the said John B. Stevéns was retained .to examine the title to the premises, and had proceeded with 'the work, and shortly before the said second day of May aforesaid, he did, without the knowledge of the said Mantel, apply to the defendant, 'William S. Toole, a partner in business with his brother, and requested him to become the assignee of the said mortgage, and he also proceeded to Oyster Bay, Long Island, where the said Parish resided, and obtained and procured from him an assignment of the said mortgage to the said William S. Toole; that the said John B. Stevens then and there executed a mortgage for one thousand dollars upon property of his own, which he delivered to the said Parish as a consideration or substitute for the mortgage of the said Mantel, which he assigned to the said Toole; that the said Toole never made any inquiry about the said mortgage, and never advanced any money on account thereof, nor was any charged to him in his account with his partner until in April, 1854, when the amount of the said mortgage was charged to bim in the said accounts; that he paid no compensation to Stevens for procuring the mortgage, and when applied to and requested to receive payment thereof, he referred the matter to his partner, the brother of the said John B. Stevens, as the person who would know about it.
    Seventh. — That the said Mantel, finding that the said mortgage had been assigned to the said William S. Toole previous to the tender of tlie said deed, applied to him, and requested him to receive payment of the said mortgage, and tendered and offered to pay to him the principal and interest thereon up to the time of tender and offer to pay, but the said William S. Toole declined to accept the same, alleging as a reason that the mortgage veas not then due; that the said Mantel having been referred by Mr. Toole to Mr. Stevens in reference to the said mortgage, applied to him, and, in like manner, offered to pay the same, but he, in like manner, declined to receive payment or satisfy the said mortgage.
    Eighth.- — That thereupon afterwards, and on the said second day of May, the said Mantel again tendered and offered to deliver the said deed to the said Guynet and Be Agreda, and, at the same time, offered and proposed to them to allow them to deduct and retain in their own hands so much of the purchase money, payable in cash on that day as would be sufficient to pay and satisfy the principal and interest upon the said mortgage up to that time; or otherwise, that he would deposit the whole amount of the said mortgage, with all the interest thereon up to the time when the same would become due and payable in the New York Life Insurance and Trust Company, to be applied to the satisfaction of the principal and interest upon the said mortgage as the same become due and payable, but the said Guynet and De Agreda, acting under the advice of the said John B. Stevens, declined and refused to accept of either of the said propositions, or to make any other arrangement for the completion of their said purchase, and while, at the same time, they tendered the balanee of the purchase money and a bond and mortgage, pursuant to the terms of the said constract, yet they refused to pay the same, or any part thereof, or to deliver the said bond or mortgage, until the said mortgage should be fully cancelled and discharged of record, which, by reason of the facts before stated, it was not in the power of said Mantel to perform.
    Ninth. — That afterwards and on the fifth day of May in the same year, and before the commencement of either of these actions the said Mantel wrote and caused to be delivered to the defendants, Guynet and De Agreda, a letter renewing his aforesaid offer, and a copy of which is annexed to the complaint in the cross action, to which no answer was given or received. That the said John B. Stevens acted thoiighout the whole business as the counsel of tRe said Guynet and De Agreda, who were aware tRat Re Rad procured an assignment of tRe said mortgage, to Re made to tRe said William S. Toole, as before stated. TRat tRe acts of tRe said Stevens in relation to tRe said mortgage were not called for under Ris employment by tRe said Guynet and De Agreda, and sucR acts of Ris were for tRe purpose of embarrassing and preventing tRe said Mantel from fulfilling and performing tRe said contract on Ris part, and were known to tRe said Guynet and De Agreda. TRat said Guynet and De Agreda, after tRe contract was signed, and after tRey knew of tRe said mortgage, exercised acts of ownersRip over tRe property.
    TentR. — TRat on tRe said , second day of May tRe principal of tRe said mortgage, witR interest tRereon to tRat date, amounted to tRe sum of $1,019.05, wRicR deducted from tRe $15,000, tRe residue of purcRase money due upon tRat day, left a balance of $18,980.95, wRicR, witR tRe interest tRereon to tRe date of tRis, my decision, viz.: tRe seventR day of June, amounts to $15,054.75.
    I do tRerefore accordingly report and decide, tRat tRe aforesaid contract of sale was and is valid and binding upon tRe parties; tRat tRe deed tendered and offered to be delivered was a foil warranty deed witRin tRe meaning of tRe said contract, tRat tRe same was legally tendered on tRe day wRen tRe contract was to be performed, and by sucR tender tRe said Mantel fully performed tRe said contract on Ris part, and entitled Rimself to Rave tRe same specifically performed by tRe said Guynet and De Agreda.
    TRat tRe mortgage Reid by tRe said William S. Toole did not justify tRe said Guynet and De Agreda in refusing to accept tRe deed and perform tRe contract on tReir part, inasmucR as by tRe true eontruction of tRe said contract, tRe said Mantel did not covenant or agree tRat tRe premises sRould be free and clear from incumbrances, by way of mortgage at tRe time of conveying, but, if otherwise, still tRe said mortgage did not affect tRe vaRdity of tRe title to tRe premises; but, being merely an incumbrance, it was a matter wRicR could Rave been and can now be compensated in money, and tRe said Mantel Raving on tRe second and fifth days of May, upon tendering the deed of the premises, offered to abate from the purcRase money then payable to Rim, so much as the said mortgage and the interest tRereon amounted to, and to leave' the same in their hands, the said Guynet and De Agreda should have accepted the offer as just and equitable, and have performed their said contract, and the said contract must therefore now he specifically performed by them. To this end the said Guynet and De Agreda must accept the deed tendered, and pay to the said Mantel the sum of fifteen thousand dollars, (abating therefrom one thousand and nineteen ⅝⅜ dollars, being the amount of the said mortgage held by Toole, 'with all interest thereon up to the said second day of May, and which sum they are to retain to pay and satisfy the said mortgage,) together with interest on the residue of the said fifteen thousand dollars to the date of this decision and report, amounting to the sum of (fifteen thousand and fifty-four dollars and seventy-five cents,) $15,054.75, and execute and deliver the bond and mortgage, as provided by the said contract, and must also pay the costs of these actions to the said Mantel, to be taxed. That unless the said contract be performed, and the balance of the aforesaid purchase money, with interest, amounting to the said sum of $15,054.75, together with interest, and the costs, be paid, and the bond and mortgage executed and delivered within fifteen days from the date of this decision, then that the premises mentioned and referred to in the said contract be sold at public auction, at the Merchants’ Exchange, upon such notice and in the same manner as in case of a foreclosure of mortgage, under and by virtue of the judgment or decree to be entered herein, subject to the said one thousand dollar mortgage. That upon such sale the said Mantel may become a purchaser, and that the proceeds to arise from the said sale be applied in the first place in and towards the payment of the costs and expenses of the advertisement and sale of the said premises, and the costs of the said Mantel in these actions, and in the next place to the payment of the whole purchase money of the said premises remaining unpaid, (less the sum of $5,000 paid on .account of the purchase money, with the amount that is to be abated for the said mortgage, that is to say, $1,019.05,) with interest thereon from the said second day of May, in the same way as if' the contract of sale had been for cash, and that the overplus, if any, be paid to the said Guynet or De Agreda, or their assigns; but in case the proceeds shall be insufficient to pay and satisfy the costs, charges, and expenses aforesaid, including the balanee due for said purchase money, -with interest aforesaid, then that the said Gruynet and De Agreda do pay the same to the said Mantel, and that he have execution therefor against the said Gruynet and De Agreda, according to law, to collect such balance.
    That the complaint in the original .action must be dismissed, with costs to the said Mantel, to be taxed, and that the complaint in the said cross action must be also dismissed as against the defendant William S. Toole, with costs to him, to be paid by the said Mantel, but without any extra allowance, and that it must also be dismissed as against the said John B. Stevens, but without costs as to him. That the said Mantel is entitled to his costs against the said Gruynet and De Agreda, in the original and cross action.
    That a decree must be entered in these actions by the clerk of the court in favor of the said Mantel against the said Gruynet and De Agreda, for, the specific performance of the said contract and otherwise in accordance with this decision.
    It also appearing that the said Mantel has been by order of this court appointed receiver of the property and effects, he must render his accounts, and if required by the said Gruynet and De Agreda, must have them passed according to law, before a referee to be appointed by the court, under the decree to be entered hereon, and thereupon be discharged.
    Either party may apply upon the footing of the decree to be entered hereon, for such further directions and order as they may be advised.
    (Signed) W. Kent, Referee.
    June 10, 1854.
    The judgment appealed from was entered upon this report, and in conformity to its terms, and was appealed from by Gruynet and De Agreda, plaintiffs in the original and defendants in the cross action.
    The case was argued upon a case settled by the referee.

      O. P. JSdrTcland, for the appellants,
    said that the respondent-Mantel, was bound by the legal construction of his contract to convey the premises free from all incumbrances whatever, and that, as on the day fixed for performance, he was unable, and was still unable to make such a conveyance, the contract was rescinded Ry Ms default, and the appellants Recame entitled to tRe damages wMcR tRey claimed. He cited Clute v. Robinson, 2 JoRn. R. 595; Judson v. Wass, 11 JoRn. 525

      JS. S. Owen, for tRe respondent,
    contended tRat Ry tRe true construction of tRe contract, Mantel was not Round to convey tRe premises free from incumRrances except taxes and assessments wMcR were specially mentioned, and tRat if Re were so Round; Re Rad so far complied witR Ms oRligation as folly to entitle Rim to a decree for a specific performance. He cited, on tRe first point, Yanderhar v. Yanderhar, 11 JoRn. 122; Yan Bps v. Schenectady, 12 JoRn. 436; Parker v. Parmele, 20 JoRn. 13; Fuller v. Subbard, 6 Cow. 13; and otRer cases, and upon tRe second; Ten Broeck v. Livingston, 1 JoRn. C. R. 862; Winnee v. Reynolds, 6 Paige, 412; Halsey v. Grant, 13 Vesey, 73; and otRer cases: also, Story Eq. Juris. §§ 775, 777
   By the COURT.

Hoffman, J.

TRe case comes up on a judgment entered upon tRe report of a referee, and an appeal from sucR judgment. TRe complaint in tRe original action was dismissed witR costs to tRe defendant, and relief as sougRt Ry tRe cross action was adjudged, witR some variations, not important to Re noticed.

TRe complaint in tRe first suit was Ry tRe purcRasers ■under a written contract for tRe purcRase of .real estate, in order to oRtain tRe rescission of tRe contract, tRe repayment of tRe money deposited, tRe expenses for examining tRe title, and a certain sum for damages. TRis complaint proceeded on tRe ground tRat tRe defendants in tRat action could not fulfil tReir agreement.

TRe cross or second action was RrougRt Ry tRe vendors, in order to compel tRe specific execution of tRe contract.

TRe case, tRen, is one of a purely equitaRle cRaracter, and is to Re governed Ry tRe rules wMcR prevailed in a Court of CRan-cery up oil tRis suRject. We do not, tRerefore, enter upon tRe consideration of tRe point principally argued Ry tRe counsel of tRe appellants, as to tRe effect in a court of law of tRe covenant in tRo articles of agreement, tRat tRe “vendor would execute and deliver a full warranty deed for tRe premises.” We content ourselves witR noticing tRe leading case of Parker v. Parmele (20 Johnson’s Rep. 130.) In that the previous cases were reviewed, and it was held, that a covenant “ to execute a good warranty deed of conveyance of the premises,” would he fulfilled by tender of such a deed, and that want of title was not a good plea. But the learned Chief Justice twice alludes to, and admits the existence of, a different rule in a court of Chancery, and allows that the party would have a remedy there, when its power was invoked to enforce the specific execution of his contract.

I take it to be a settled, as well as most salutary rule of that court, that either under a contract general in its terms, to sell and convey land, or accompanied with any stipulations as to the covenants and nature of the deed to be given, or title to he made, the purchaser may insist upon a good, valid, unincumbered title. This i§ the fixed and general rule; but the same spirit of equity which has dictated it, has established certain exceptions and qualifications.

One of these is, that if the party can obtain substantially the thing for which he contracted — if the deficiency in quantity of the estate, or extent of incumbrance, can be made the subject of compensation — and if such compensation can be given consistently with the conclusion that the purchaser would not have declined the contract, had he known of the deficiency or burden, then the court will enforce it upon him.

The familiar case in the books, is the purchase of a farm by a known name, described as containing one hundred acres, and falling short by two or three acres. The object of the contract was the farm; the deficiency is compensated by a deduction from the purchase money.

This doctrine was carried to an unwarrantable extent in the noted Wharf case, where the real object of the purchase was the wharf, and the purchase of the adjoining parcel was only made as contributory to the full enjoyment of the wharf. But that case is now considered as overruled.

The leading authorities exhibiting the rule, and 'its application to particular cases, are Halsey v. Grant, (13 Vesey, 76;) Magennis v. Fallon, (2 Malloy, 588;) Hill v. Buckley, (17 Vesey, 394;) King v. Bardeau, (6 John. C. R. 38.) Numerous others are referred to by Mr. Sugden in his Treatise on Yendors.

The authorities which more pointedly bear upon the present case in their circumstances are Howland v. Norris, (1 Cox. Cas. 59;) Drew v. Hanson, (6 Vesey, 678;) and Collier v. Jenkins, (1 Young’s Rep. 295.)

In the former there were outgoings from the estate, which were not discovered until after the contract of sale, and performance was decreed with compensation. In the latter, the contract was for an estate in fee simple, free of incumbrances and in possession, and it was ascertained that there was an outstanding life lease at a low rent. Performance was refused.

To apply these authorities. The only objection to the judgment asked is, that there was a mortgage of $1,000 outstanding, not payable until about eighteen months from the date of the contract, without the consent of the holder. Here is a purchase for the sum of $50,000; sixty per cent, of which was to remain on bond and mortgage for the term of ten years. Can it be rationally imagined that if this mortgage and its terms had been fully known at the date of the contract, the purchaser would have refused to enter into it ? This is the strongest form in which the question can be placed in his favor.

In my opinion the case may be decided on this broad ground.

But again, the purchaser, before executing the contract, was apprised that there was a mortgage for $1,000 outstanding, though probably not apprised of its special terms. He had, however, notice sufficient to put him on inquiry, which could at once have been satisfied.

Again, the purchaser, after making the contract, entered into the possession of the premises, and the general rule certainly is, that when the purchaser is aware of objections^ not irremediable, but which may be removed or compensated, his taking the possession, without any agreement with the vendor qualifying the act, operates as a waiver, (1 Sugd. Yendors; p. 10;) and here the referee has found that Guynet and De Agreda exercised acts of ownership over the premises, after they knew of the existence of the mortgage. It is here proper to add, that the offers of Mr. Mantel, the vendor, have been in a high degree fair and liberal, and ought to have been accepted. The judgment appealed from must be affirmed with costs.


author: Bosworth, J.

text:
    Switzer v. Valentine.
    When personal property is purchased by a married woman, with the knowledge of her husband, and is used by the wife in keeping a boarding-house, which is kept as a mode of supporting the family, the property is the husband’s, and he is liable for its price to the vendor, although it was bought in the name of the wife, and the boarding-house was conducted by her.
    A mortgage of the property by the wife, as being her property, to secure the payment of a note made by her, and given for rent -paid, furniture bought for the house, and for provisions used in the house, is void, unless made by the authority of the husband.
    The acts of 1848 and of 1849, in relation to married women, do not confer upon them any new capacity, to make contracts, valid in law.
    The husband is entitled to the profits of any business conducted by his wife, and is liable for articles bought with his knowledge and assent for the purpose of prosecuting it.
    Those acts empower her to hold a separate estate, freed from all control of her husband, or interference with it, by his creditors, and to dispose of and convey it, with like effect, as if she was unmarried.
    But they do not capacitate a married woman, having no separate estate, to make any valid personal contract, which she could not have made previously.
    (Before Boswokth, Hoffman, and Slosson, J. J.
    Nov. 9;
    Dec. 2, 1854.
    This action was brought by Andrew Switzer, to recover the value of certain household furniture, alleged to have been wrongfully taken from the plaintiff by the defendant, and converted to the use of the latter.
    The defence set up by the answer, was, .that one Caroline Swit-zer owed the defendant $560.74, for furniture purchased for her, for moneys paid for rent of premises occupied by her, and for provisions furnished to enable her to carry on a boarding-house kept by her in the city of New York. Being so indebted, she gave to defendant her promissory note, dated the 20th of February, 1853, payable three days after its date, for the said $560.74. To secure the payment of the note, she executed to defendant a mortgage of the property in question, the property being her property, which mortgage authorized the defendant, on the note not being paid at maturity, to seize and sell the property, to satisfy the note. That the note not having been paid when due, the defendant, by virtue of the mortgage, seized and sold the property, to pay the amount due on the note. The action was tried on the 8th of May, 1854, before Mr. Justice Duer and a jury. It was proved on the trial, that the defendant having lent the sum of $560.74 to Caroline Switzer, who kept a boarding-house, she gave her note to defendant for that sum, and executed a mortgage of the property in question to secure the payment of the. note. The note having become due, and being unpaid, defendant took the property by virtue of the mortgage, and sold the same to pay the note.
    The evidence showed that the plaintiff and Caroline Switzer, during the whole period in which the transactions occurred which gave rise to this action, were husband and wife, and lived together as such. The house in which they and their family resided was rented by her in her name, and she kept boarders. Some of the furniture in the house was bought by the plaintiff and some by his wife. The latter rented the rooms to boarders and received payment of the bills for board. Part of the mortgaged furniture was bought by the defendant on his own credit, of Dwight Bishop, for the plaintiff. Defendant knew that Caroline Switzer was a married woman.
    The plaintiff’s daughter, in testifying as to the value of the property, among other things, stated what her mother said had been paid for the property. This evidence was not objécted to. The defendant insured the mortgaged property to the amount of $800.'
    When the testimony was concluded, his honor, the presiding Justice, charged the jury that they must find a verdict for the plaintiff. That the only question of fact for their consideration was the amount of damages.
    To which charge and every part thereof the defendant excepted.
    The counsel for the defendant requested his honor to charge the jury:
    I. That it is a question of fact for them to determine, from all the facts and circumstances, whether the wife of the plaintiff was not authorized by her husband to execute the mortgage.
    II. That it is a question of fact for them to determine, who owned the goods seized by the defendant under the mortgage; whether they were those of the plaintiff, or belonged to his wife, as her separate property.
    TTT. That if the jury believe, from all the facts and circumstances, that the plaintiff permitted his wife to use the property as her own, and in her own name, he cannot recover.

      IV. That if the jury believe the property received by plaintiff’s wife from defendant, Valentine, was included in the mortgage, and was received by her from defendant, by gift or grant, that it was her own- property, and that the plaintiff, as to that property, cannot recover.
    The Judge refused to charge as requested by the third and fourth propositions of defendant’s counsel. And in respect to the first and second propositions, he charged that there was no evidence showing authority or consent from the plaintiff to his wife, to execute the mortgage; neither was there any evidence to show that she was the owner of the property or any part thereof. To which refusal and charge, the counsel for the defendant excepted.
    The jury found for the plaintiff $471:66 damages.
    ⅝ A judgment having been entered on the verdict, the defendant appealed to the General Term.
    On the appeal, the defendant was heard upon the question whether the verdict was against evidence. No motion had been made at special term, for a new trial, on that ground. Some further facts are stated in the opinion of the court.

      T. M Tomlinson, for Appellant.

      W. McDermott, for Respondent.
   By the Court.

Bosworth, J.

The plaintiff proved that the property in question was taken from his possession, gave evidence of its value, and rested.

The defendant sought to justify the taking, by proving the facts set up in his answer. They were, in brief, that Caroline Switzer owned the property, and mortgaged it to the defendant, to secure the payment of a note of the same date as the mortgage, also given by her and payable to the defendant’s order, and that he took the property under the mortgage. The answer does not intimate that Caroline Switzer was the plaintiff’s wife, and had a separate property, nor does it aver that the plaintiff transacted any business in the name of “ Caroline Switzer,” or that she'was authorized by him to transact such business for him, or to mortgage the property in question, either in his name or in her own.

The fair meaning of the answer is, that the property belonged to her, in her own right, and that being such owner, she mortgaged it to secure a debt which she personally owed to the defendant.

The evidence showed clearly that she and the plaintiff were husband and wife, and that the defendant knew this when he took the note and mortgage. That they lived together as husband and wife, that he worked at his trade, and that she kept a boarding-house. That she made the purchases for the house, made contracts with the boarders, and received from them their board. All this was done with the husband’s knowledge.

Prior to the acts of 1848 and 1849, allowing married women to take, hold, and dispose of property as if they were single and unmarried, there is no doubt, that for all purchases made by the wife, with the knowledge and assent of the husband, and especially, when the articles bought come to his possession, in the manner and to the extent that the articles in question did, he would be liable to the vendor for the price. They could be seized and sold on an execution against him. In judgment of law, they would be his property and not hers.

In this case, many of the articles mortgaged to the defendant were bought by him. Some were purchased and paid for by her. Some were bought by the defendant, arid sent to her by his order, and the price formed part of the amount of the note which the mortgage was given to secure, and the articles themselves were covered by the mortgage. Of the latter class, were the articles bought of Dwight Bishop, by the defendant, and the bill of them amounted to $156.

Have the acts of 1848 and 1849 any bearing upon the questions arising in this action? By these acts, she may take by gift or grant, from any person, except her husband, either real or personal property, and hold, convey, and devise it, or any interest in it, with like effect, as if she were unmarried. Does thjs do more than to capacitate a married woman to hold as her own a separate property, and to dispose of it, as effectually, as if she were unmarried ? Does it authorize a married woman, even if she have a separate property,' to become a general trader, and make valid contracts, in respect to any business which she may be disposed to undertake, or in respect to any speculations in which she may choose to engage ? Is not the whole capacity which is given to her to purchase, limited to purchases which she may make on the credit of her separate estate, or for which she may pay, with such estate, or parts of it?

And is not all the new capacity, which is given to her to convey or devise, limited to a conveyance or devise of her separate property ?

Can a married woman who has no separate estate, make now any valid contract which she could not have made before these acts were passed?

In the present case, there is no pretence that Caroline Switzer ever had any separate estate. Even the property bought by Valentine of Dwight, was not given to her, for she gave her note for it. Was it granted to her, within the meaning of these acts, so as to make it her individual property ?

It went to the plaintiff’s house and possession, it was appropriated to his use, by being employed in a business prosecuted as a means of supporting his family. He is liable in law for its price, and it could be taken on execution to satisfy his debts. In judgment of law it was sold to him, and was his property, and the defendant is liable to him for its value. (Lovett v. Robinson, 7 How. Pr. R. p. 105; Hurd v. Cass, 9 Barb. S. C. R. 366; Shumway v. Cooper, 16 Barb. S. C. R. 556.)

We see no reason to grant a new trial, on account of any charge made at the trial, nor on account of any refusal to charge, as requested, by the defendant.

No- objection appears to have been made at the trial, to the competency of any of the evidence, given by the plaintiff to prove the value of the property taken. What Harriet Switzer heard her mother say was paid for the property, should not have been received as evidence of its value, if it had been objected to. But no complaint seems to have been made at the trial to the reception of that evidence. It appears that the defendant effected an insurance on the property to the amount of ,$800. • We cannot see that the damages are so clearly excessive as to require the court to grant a new trial, merely on that ground. We think the judgment should be affirmed.


author: Boswoeth, J.

text:
    Danforth & Edwards, respondents, v. Dart and Vandervoort, Executors, &c., of Peter H. Schenck, deceased, Appellants.
    It is sufficient to impeach the bona fieles of a purchase of chattels from a fraudulent vendee, that the purchaser had notice of such facts and circumstances, as would naturally excite the suspicion of a man of ordinary prudence and caution. If he has such notice, and forbears to make inquiry, he is not a purchaser in good faith, within the meaning of the rule, that a bona fide purchaser from such a vendee, in the ordinary course of business, for value, will acquire a valid title as against the defrauded vendor.
    (Before Boswobth, Hoffman, and Slosson, J.J.)
    Nov. 10;
    Dec. 2, 1854.
    The plaintiffs, Danforth <& Co., in August, 1851, sold on credit to the defendants, C. and E. Schenck, of Ansonia, Connecticut, machinery, of the value of about $2,800. It was sold, as the jury has found, on such misrepresentations and fraudulent concealment, by them, of their pecuniary condition, as in law made the sale voidable, as between them and the plaintiffs. C. and E. Schenck, composing the firm'of Courtney Schenck & Brother, were engaged in the manufacturing business, and the goods in question were delivered to them, partly in August, and partly in September, 1851. They were charged in the complaint, with having represented themselves to be very good — that they were doing a safe and prosperous business — that said business was exclusively for cash, and was highly prosperous. It was also alleged, that a house, to which they referred for information as to their means, represented them to be worth from $12,000 to $14,000. From the time of this purchase, to about the first of October, they purchased new machinery and put it in their manu-factory, amounting to some $25,000. On the 25th of October, 1851, they failed, owing about $70,000. On that day, they sold and transferred to their father, Peter H. Schenck, who resided in Dutchess County, in this state, all their property, including the goods in question, for about $25,700; the greater part of which sum they owed him at the time. The plaintiffs, on discovering the fraud, demanded severally of Courtney Schenck & Brother, and of P. H. Schenck, a return of the property, and offered to give up a note, they had taken for the contract price of the goods. The demand not having been complied with, an action for the conversion of the goods, was, brought against the three, as defendants. The complaint, among other things, charged, that Peter H. Schenck, before and at the time of the transfer to him, knew of the sale in question, and that it was made on credit, and that the goods had not been paid for, and of the fraudulent representations and concealments, on which possession of the goods had been obtained; and that the transfer to Peter H. Schenck, was for an antecedent debt. The jury .found a verdict against all'the defendants for $8,580.66. The defendants, Courtney Schenck, & Brother, submitted tcT the verdict. The executors of P. H. Schenck, appeal from an order, denying as to him, a new trial, which was moved for, on the ground that the verdict, as against him, was contrary to the evidence. Soon after the application was made to the plaintiffs to sell on credit, but before any sale was made, the- plaintiffs wrote to P. H. Schenck, and received a reply, which letter and reply are as follows:
    “ Paterson, July, 80, 1851.
    “ Peter H. Schenck, Esq.,
    “Dear SiR, — The object of this is to make inquiry in relation to the standing of Messrs. Courtney Schenck & Brother. They have ordered from us abouT$2,800 worth of machinery, on eight and nine months, through their superintendent, Mr. Thomas C. Servoss, who represents them as very good; but we deem it prudent to make ourselves better acquainted with their means, and take the liberty to address you, thinking that you can give us the desired information. Your reply by an early mail will greatly oblige - “Your most ob’t Serv’ts,
    “ Chas. Daneoeth & Co.”
    “ Matteawan, 5th August, .1851.
    “ Messrs. Charles Daneoeth & Co.,
    “ Gentlemen, — Your letter of. the 30th July, owing to my absence from home, was not received till yesterday. You inquire the standing of Courtney Schenck & Brother. . I started them in business with a very handsome capital, which would.be depend-ant on tbeix business. They say to me that they are doing a very good business, and a good prospect of its continuance; and, I presume they will be able to pay whatever they undertake. Since tbe fall of cotton, they appear to be much flattered by an increase of profits on their business. Remain, Gentlemen,
    “Yours, respectfully, “Peter H. ScheNCK.”

      Robert Willetts, a witness for the plaintiffs,
    testified as follows: In the latter part of August, 1851, I met Mr. Peter H. Schenck, in Matteawan, at the east end of a bridge there, and passed the compliments of the day with him; he inquired of me in reference to a carder for the mill at Ansonia; I told him that Mr. Danforth had stated .to me, that he had written to him in relation to the pecuniary standing of his .sons; he told me that he had received a letter from Mr. Danforth which he had written to him; he said that he had started his sons in business with a very handsome capital, which he had given to them. I stated to him that Mr. Danforth had some apprehensions, as he had'supposed he had let his sons have money, but. did not know on what conditions. He said they were doing a good business, and that he need have no apprehensions, that he never expected to get the principal or interest on the capital he had given them. He told me that he had written a letter to Mr. Danforth, and had written as favorable a letter as he could, and not make himself liable; that he did not like to do. I had long known Mr. Schenck. Mr. Danforth is a relative of mine, a brother-in-law;. I am distantly related to Schenck.
    Extracts from the books of Peter H. Schenck were given in evidence, by the plaintiffs, as follows:
    Page 3. “ Property at Ansonia, Connecticut, purchases from Courtney Schenck and Edward Schenck, 25th Oct., 1851.”
    REAL ESTATE.
    Two-story brick house, Ansonia, occupied by T. GL
    Servoss, (mortgage, $1,000.) ....... $1,500 00
    3 double wood tenant houses, . . . . $4,000 00 Due builders,'about, ". ... . . 2,000 00
    —- 2,000 00
    $3,500 00

      COTTON MACHINERY.

      Picker Boom.

    Items given, $651 75

      Carding Room.

    12 36-ineb cards and clothing, $2.75. . . $33 00
    3 railway drawing frame-heads and troughs, 480 ■ 00
    1 grinding machine for small rolls, ... 95 00
    And other articles amounting in all to . . 6,135 00
    Miscellaneous articles,.313 49
    6,648 49
    Spinning room, (particulars,) 6,483 72
    Eilling room,. 4,703 24
    Weaving room, .... 5,135 00
    Dressing room, .... 567 92
    $24,191 02
    Carpenter’s shop, blacksmith’s office, belting, shafting, &c. Particulars given amounting to . . 3,000 28
    So as to make total,.$27,191 50
    Stock (in several rooms) estimated value, .... 1,902 09
    “ The foregoing is inventoried by the agent of every article in detail in the mill. The real value is not over half, but $25,700 in demands against 0. & Br. was given up for the machinery and real estate and stock, as per deeds of sale.”
    Page 7. “ Sundry accounts Dr. to sundry accounts.' — For the purchase (by compulsion) of the machinery, stock, &c., in the cotton mill at Ansonia, belonging to and leased from the Colburn Manufacturing Co., and some real estate, as per the inventory of sale from Courtney and Edward Schenck, on the 25th October, 1851, to secure me for the bonds, notes, and demands I had against them.”
    The amount paid for the real estate was .... $4,000
    Machinery, gearing, &c.,. 19,700
    Amount of stock, as.found, was about ..... 2,000
    $25,700

      To bills receivable—
    For the following bonds and notes I held against them, which has been surrendered to them;
    Bond of Courtney Schenck, dated 1 Nov., 1848, $3,000
    do do “ 1 Feb., 1849, 1,500
    do do - “ “ 1851, 1,600
    do Edward Schenck, “ “ 1849, 1,500
    do do 1851, 800
    Note of Courtney Schenck & Br., dated 23 Dec., 1850, 1,000
    do do 15 Feb., 1851, 1,000
    do do 17 “ 1,000
    do do 25 1,200
    do - do .7 Aug. 2,000
    do do 5 Sept. 1,700
    do do 16 “ 1,600
    do do 2 Oct. 1,800
    do do 9 Sept. 2,000
    do do 2 Oct. 2,000
    do do 24 July 1,000
    $24,700
    To interest— For the interest on above, say 1,000
    $25,700
    Besides the above, a note for $1,500 for cash paid them 24 Oct. There was no evidence given or offered,, to show that Courtney Schenck & Brother met with any losses after they purchased of the plaintiffs, and prior to- their failure.

      Wm. Ourtis Noyes, and Edwards Pierpont, Esqrs., for appellants.

      G. O. Goddard, Esq., for respondent.
   By the Coubt.

Boswoeth, J.

The charge of the Judge who presided at the trial, is not contained in the ease made. We must, therefore assume, that it was in all respects correct, and that there was nothing in it, of which the appellant can justly complain.

The appellant contends, that in order to impeach the bona fides of the sale to Peter H. ¡Schenck, it must appear, that at the time of the transfer to him, he had notice of such specific frauds practised by Courtney Schenck & Brother, as would be sufficient to avoid the sale, as betweep. them and the' plaintiffs.-

We do not understand that to be the rule. It is enough that he had notice of such facts and circumstances as would have led a man of ordinary care and caution to suspect, that they did not get possession of the goods by honest means. If he'had such notice, it was- his duty to inquire; If,- having such notice, he did not choose to inquire, his condition is no better than if he had inquired and obtained knowledge of such facts, as proper inquiries would have furnished.

This is the rule with respect to an endorsee of negotiable paper, obtained from the maker by fraud. There are no considerations of public policy, which would give to a purchaser of chattels from a fraudulent vendee, greater immunity, than would be ¡extended to an endorser of negotiable paper. (Chitty on Bills, 279-282. Pringle v. Phillips & Nesi, 5 Sand. S. C. R. 157.)

The evidence shows clearly, that P. H. Schenck was informed, before the sale was made, that his sons had applied to the plaintiffs to purchase on a credit of eight or-nine months, representing that they were very good. His own answer to the letter the plaintiffs wrote' him, informed them that Courtney Schenck & Brother had been started in business with a very handsome capital, and did not bring to their knowledge the fact, that they then owed him $12,600. He knew, at the time of the transfer, .that in about eleven weeks after the letter written by himself, they had failed, owing about $70,000. He knew at that .time that they owed him enough to exhaust their whole estate. He knew that in nearly every week, between this sale and- the transfer to himself, they had been borrowers of him, refunding nothing. It is difficult to resist the conclusion, that he inquired and learned the cause of this rapid succession of pecuniary wants. If he had not done so, he- could not well have failed to learn before . the transfer to. himself,, that Courtney Schenck & Brother, when they applied .to the plaintiffs to purchase from them on credit, instead of being in a very good, .were in a very bad condition, and must have so known at the time. He knew that whatever the representations were which had been made to the plaintiffs, they desired further assurance as to the means of his sons before trusting them, and had written to him as a person who could probably give the desired information. Such a letter, followed by immediate and continued applications from his sons, for loans of money, would naturally have led him to ascertain their condition. We do not feel at liberty to say, the jury were not authorized in finding, on the evidence submitted to them, that he had notice at the time of the transfer to himself, of such facts and circumstances as would naturally lead him to the conclusion, that Courtney Schenck & Brother obtained possession of the goods by a fraudulent misrepresentation or concealment of their pecuniary condition. The testimony of Willetts, if credited, was open to the construction, and in connection with the other evidence, would justify the conclusion, that he did not consider, at the time he wrote his letter of the 5th of August, 1851, that their circumstances were very prosperous. As the case is presented to us, we cannot say that the evidence does not warrant the verdict rendered by the jury.

The motion for a new trial was properly denied, and the order appealed from must be affirmed.


author: Slossok, J.

text:
    Samuel Wescott v. Alexander W. Gunn and others.
    The omission to file a chattel mortgage does not affect its validity, as between the parties, and a delay in filing it, only renders it void as against an intervening purchaser in good faith, or an intervening creditor by execution.
    "Whether a mortgage which, on its face, is given to secure a present debt, but which is known to have been given only to secure future advances or credits, is valid, as against creditors or purchaser's, is a doubtful question, in respect to which there is a conflict in the decisions.
    But if any part of the sum it purports to secure, is proved to have been a subsisting debt at the time of its execution, the mortgage, if duly filed, to the extent of such debt, is certainly valid.
    Where a mortgagor, after the delivery of the mortgage, gives his promissory notes for the debt, the acceptance of such notes by the mortgagee is not a waiver of the mortgage security. A creditor has a right to take as many securities as his debtor is willing to give.
    Judgment for plaintiff, with costs. ■ ■
    (Before Bosworth, Hoffman and Slosson, J.J.)
    November 10;
    December 16, 1854.
    This was an action to recover tbe value of certain bousebold and ornamental furniture, which the complaint averred belonged to the plaintiff as a mortgagee, and that the defendants had unlawfully seized and converted the same to their own use.
    The answers set up as a justification, that on the 1st of May, 1850, an attachment was issued out of a justices’ court, in the city of New York, at the suit of'the defendant G-unn, against one Henry J. Duff, which was delivered to the defendant, Under-hill, then one of the constables of the city, who, by virtue thereof, seized and took the goods and chattels mentioned and described in the complaint as the properly of Duff; that such proceedings were afterwards had, that on the 7th of May, Gunn recovered a judgment in the same court against Duff for the sum of $75, besides costs, and that an execution upon this judgment was issued and delivered to the defendant Underhill, who, by virtue thereof, levied upon the said goods and chattels, and on some day in the month of June, sold a part thereof at public auction and delivered the remainder to Duff. And the answers further averred, that during all this time the goods in question were' the sole and absolute property of Duff.
    The reply averred that the justices’ court had no jurisdiction, and that the attachment, judgment and execution mentioned in the answers were illegal and void, and also insisted that if these proceedings were regular and valid, they constituted no defence to the action.
    ‘ The cause was tried the second time before Oakley, Ch. J., and a jury, on the 26th May, 1854.
    On the trial, the plaintiff read in evidence a mortgage to him by H. J. Duff, covering the goods mentioned in the complaint, conditioned to be void on the payment of $2,596.19, on the 4th of June, 1850, and containing a provision that until default in the payment of that sum, Duff was to remain in possession of the goods and chattels mortgaged. The mortgage bore date on the 15th, and was filed in the Begister’s Office on the 18th of June, 1849, and a copy thereof, with a certificate of the plaintiff, declaring the sum remaining due to be $1,408.94, was again filed on the 15th June, 1856.
    The plaintiff proved by Duff, that on the 18th June, 1849, the balance due from him to the plaintiff for ale previously sold to him by the plaintiff, was between $1,500 and $1,900, and that the mortgage was given at the request of the plaintiff to secure this, balance; and also certain orders for ale not then delivered. He also proved that from time to time he had given notes to the plaintiff for ale, some of which had been paid, and that the sum remaining due on the mortgage at the time of the" trial, was upwards of $1,400. It was also proved, that on the 20th óf May, 1850, a notice in writing was served on the defendant Gunn, that the articles which he had attached and levied on, were covered by the mortgage, and were claimed by the plaintiff.
    When the testimony on the part of the plaintiff was closed, the counsel for the' defendants moved to dismiss the complaint upon several grounds that will hereafter be stated.
    The Chief Justice denied the motion, and the counsel excepted.
    The counsel then gave in evidence the attachment, judgment, and execution mentioned in the answers. The execution was for $79.53, damages and costs, and was indorsed with a receipt of full satisfaction by the defendant Gunn, dated July 5,1850. The Judge said that for the purposes of the trial he should overrule the defence, and would instruct the jury that the only question for their determination was, the amount of the damages that the plaintiff was entitled to recover.
    The counsel for the defendants excepted to the decision.
    The jury rendered a verdict for the plaintiff for $383.25, the estimated value of the goods sold, with interest.
    The Judge suspended judgment on the verdict, and directed the exceptions to be heard in the first instance, at General Term, with power to the court, in case they should be allowed, to' dismiss the complaint.

      G. Bowman for the plaiütiff
    now moved for judgment on the verdict, contending that the plaintiff’s title under the mortgage was fully established, and that the defendants were not in a position to dispute his title, the attachment and all the subsequent proceedings being irregular and void.

      Q. W Stevens for tbe defendants,
    maintained that tbe attachment, judgment, and execution were regular and valid, and insisted that tbe mortgage to tbe plaintiff was fraudulent and void against creditors, of whom the' defendant was one, upon tbe following grounds: 1. That although it was executed on tbe 15th of June, 1849, it was not filed until tbe 18th, and no proof to excuse tbe delay bad been given. 2. That in fact it was given to secure future credits and advances, while on its face it appears to have been given for a sum certain payable on a certain day; and lastly, That tbe plaintiff bad accepted Duff’s notes in payment for tbe ale sold to him, and that tbe taking of these notes operated as a waiver of the mortgage security. He cited 2 "Wend. 596; 24 Wend. 485; 8 Denio, 284.
   By the Court.

Slossok, J.

Whether tbe attachment, judgment and execution were regular, it is unnecessary to consider, since, as tbe mortgage by default of payment became forfeited on the 4th of June, 1850, and before tbe goods covered by it were sold under tbe execution, if tbe goods then belonged to the plaintiff, the sale was itself a wrongful conversion. It may be that tbe temporary interest of Duff as mortgagor, bis right to retain tbe possession until default, was bound by tbe attachment; but if so, it is certain that when his interest ceased, the-lien created by tbe attachment also ceased. From that time, if tbe mortgage was valid, Duff bad no property in tbe goods whatever, but they belonged to the plaintiff as absolute owner, and as such he must be entitled to recover their value in tbe present action.

Tbe case therefore turns wholly upon the objections that have been, raised to the validity of the mortgage, and these I shall consider in their order.

1. The fact that the mortgage was not immediately filed, it is certain would not affect its validity as between the parties, and the only effect of the delay in filing would be to render it void as against an intervening purchaser in good faith, or an intervening creditor by execution. (Smith v. Acker, 23 Wend. 653.)

Gunn, the landlord of Duff, if he was a creditor at all at that time, became such before the date of the mortgage. He did not become a creditor in the interval between the date and filing of the mortgage. If he was a creditor at the date of the mortgage, tbe omission to file it on tbat day did not render it absolutely void as against bim; its only effect was to render it inoperative as against bim, until it was filed.

But be was not a creditor either at tbe date of tbe mortgage, or at tbe period of tbe filing, witbin tbe meaning of tbe statute. (2 R. S. 2d edition, p. 71, § 9.)

Tbe courts bave construed tbat word as meaning a judgment creditor. (Sayre v. Eastwood, 19 Wend. 515. Smith v. Acker, above cited, p. 670.)

He was not even a creditor at large, for no rent was due from Duff under bis lease, at either of these periods.

IL Tbe objection tbat tbe mortgage is void, because on its face it is expressed to be a security for a sum certain, payable at a day certain, while in proof it appears to bave been given, in part, at least, for further or future advances or credits, might, under other circumstances, be one not free from difficulty.

Tbe authorities are not all agreed on this point, some bolding tbat tbe intention to secure future advances must be expressed on tbe face of tbe instrument, and tbat a mortgage expressed to be for tbe security of a present debt, cannot be made to cover future advances on the strength of a mere parol agreement. (Walker v. Snediker, 1 Hoff. Ch. R. 145; Driver v. McLaughlin, 2 Wend. 596; James v. Morey, 2 Cowen, 293.) While others bold a contrary doctrine, and maintain tbat the intention need not be expressed. (Craig v. Tappin, 2 Sanf. Ch. R. 78; Bank of Utica v. Finch, 3 Barb. Ch. R. 293.)

I do not think it necessary to pass upon tbe abstract question since, in tbe present case, there are two sufficient answers to tbe objection.

1. At tbe date of tbe mortgage, Duff was indebted to plaintiff to between $1,500 and $1,900, and it was to secure this indebtedness, as well as what are called future advances, or further credits, tbat tbe mortgage was given.

To tbe extent of tbe actual debt, tbe mortgage was good in any event. (Driver v. McLaughlin, above cited.)

2. Gunn was not a creditor who could avail himself of tbe objection if it has any foundation. At tbe time tbe mortgage was given, be was neither a judgment creditor nor a creditor in respect to rent due and unoaid by Duff.

A mortgage to secure future advances is good, except as against purchasers or creditors intervening before the advances are made. (Bank of Utica v. Finch, 3 Barb. Ch. R. 293, above cited.)

Now, there was no period, from the date of the mortgage, when the actual indebtedness secured by it was reduced below SI,200. (See p. 77.)

HI. The third ground of the motion for a nonsuit is, that the plaintiff received Duff’s notes in payment for the ales sold which were not covered by the mortgage, and the taking of these notes operated as a waiver -of the mortgage security.

From the testimony of Duff, I think the reasonable and fair inference is, that the mortgage was given to secure the balance due on these notes, then laid over and unpaid, — in other words, that the notes were given previously to the mortgage, and that the balance due on 15th June, 1850, the date of the mortgage, was created by these notes not having been paid. But if this were otherwise, and the notes were given after the mortgage, I can perceive no reason for treating it as a waiver of the mortgage security. A creditor has a right to take as many securities as his debtor sees fit to give him. The notes and mortgage being for the same debt, the payment of the former would have extinguished the lien or security of the latter, pro tanto, but that,is all.

This disposes of all the grounds upon which the defendants have relied for a dismissal of the complaint, and each of them being found untenable, it follows that the plaintiff is entitled to judgment upon the verdict.

Judgment for plaintiff with costs.


author: SlossoN, J.

text:
    Henry Phillips v. Henrietta Burr and Zephaniah Waller.
    At common law, a married woman can only plead her coverture in proper person. She is incompetent to appoint an attorney.
    But in all actions under the Code, in which a married woman is made a defendant without her husband, although she cannot appoint an attorney, she must appear, and answer by a next friend.
    If her answer is put in by an attorney, the proper course of the plaintiff is to move to have it stricken out.
    But if the plaintiff go to trial upon an answer by an attorney, setting up the coverture of the defendant as a bar to the action, he is precluded from objecting to the regularity of the answer; and if the fact of coverture is established by the proof, the complaint will be dismissed.
    Complaint dismissed with costs.
    (Before Bosworth and Slosson, J. J.)

    Nov. 13 ;
    Dec. 16, 1854
    The action was brought to recover the price of certain goods, which the complaint alleged that the plaintiff had sold and delivered to the defendants, as partners, trading under the firm of Waller & Burr. The sale was stated to have been made between the 1st day of December, 1852, and the 1st of April, 1853.
    No answer was put in by the defendant Waller, but the defendant H. Burr, put in an answer by an attorney, denying the partnership, and averring that at the time of the sale of the goods, she was, and had ever since continued to be, the wife of one James P. Burr.
    The cause was tried upon the issues raised by these pleadings, before Oakley, Chief Justice, and a jury, on the 17th April, 1854.
    The case of the plaintiff as stated in his complaint was proved. It was then proved on the part of the defendant H. Burr, that she was married to James P. Burr, in 1882 or ’33, and that her husband had been absent for some years in California, but was still living. A verdict was rendered for the plaintiff, for $422.93, subject to the opinion of the Court at General Term.

      D. D. Field, for the plaintiff,
    moved for judgment on the verdict.

      J. M. Martin, for tbe defendant,
    H. Burr, insisted tbat upon the evidence given on the trial, the complaint ought to be dismissed as to both defendants, and if not as to both, certainly as to the defendant Burr, with costs. 'He cited, 10 Paige, 201; 20 Wend. 570; 5 Sand. Sup. C. R. 662; 4 How. Pr. R. 386; 2 Selden, 97. ⅝
   By the Court.

SlossoN, J.

The action is for goods, sold and delivered to the defendants, as composing the copartnership firm of Waller & Burr, the complaint alleging that Waller was doing business in the name of his wife, Rachel Waller.

Henrietta Burr answers by attorney, putting the copartnership in issue, and for a further answer, setting up coverture, before and at the time of the alleged delivery of the goods, and that James P. Burr was then, and still is her husband, and is living. The answer was sworn to by her in the usual form. Upon these issues the parties went to trial, and a verdict was rendered for the plaintiff, under the direction of the court, subject to the opinion of the court, on a case to be made by the plaintiff, and to be heard in the first instance at a General Term, with the usual liberty.

The only question necessary to consider, is that arising upon the plea of coverture. At common law, a married woman could only plead her coverture in proper person. She was incompetent to appoint an attorney. Such an appointment would be error on the record, and void. (1 Sellon’s Prac. 100 ; Archibald’s Prac. tit. Attorneys; id. tit. baron and feme, actions by and against; Wood, arguendo, 3 D. and E. 628, 629 ; Oulde v. Samson, 3 Taunt. 261.)

Eor the plaintiff it is now contended, that having appeared by attorney, she is estopped by that act, from setting up her cover-ture : in other words, that she is concluded by an act, which she was not competent to perform, from alleging the disability which rendered her incompetent.

On the part of the defendant, it is contended that this common law rule no longer prevails — that it is abolished by the Revised Statutes, (2 R. S. 276; marg. page, § 11,) that a plea in abatement no longer exists under the Code, and that the present is not a casé of an appearance by attorney, but of an appearance in person; and further, that tbe plaintiff, by going to trial without taking steps to have a next friend appointed for her, has waived the defect.

If this answer is to be treated as an appearance in person, then undoubtedly, under the Code, she should have answered by next friend, or the answer, might, on motion, have been stricken from the files. (Henderson v. Easton, 8 Pr. E. 201; Code, § 114.) We consider, however, the answer as by attorney, and not in person. Then, assuming the common law rule not to have been abolished by the Eevised Statutes, is she estopped from setting up her coverture by her appointment of an attorney ? It is difficult to understand this proposition.

It is a novel idea that a married woman, who is not estopped by her own covenant," in a deed, (17 J. E. 167; 2 Barb. Oh. E. 814,) can be estopped by the act of appointing an attorney, which she is equally incompetent to perform.

If she is incompetent to appoint an attorney, then her answer by attorney is a mere nullity, and might, on motion, have been stricken from the files, and this should have been the plaintiff’s course of proceeding, under his view, of this question.

The provision of the Eevised Statutes referred to, as abolishing the old common law rule, that a married woman could not appear by attorney, is but a re-enactment of the provisions of the Eevised Laws of 1813. (See 1 E. L. 416, § 1, re-enacting the law of 1801., 1 Kent & Eadcliff ⅛ edition, 219, § 1.)

It is, however, unnecessary to consider whether these provisions, in effect, abolish the rule or not.

It is a conclusive answer to all these objections, that the parties have treated the answer as a good one, and gone to' trial upon it. Evidence of Mrs. Burr’s marriage was received without objection, and the coverture fully established. We think the plaintiff too late in his objection. (Corning v. Corning, 2 Seld. 97.)

The complaint should be dismissed as to both defendants, with costs, unless the plaintiff elect to take judgment against the defendant Waller alone, in which case it must be dismissed as to Mrs. Burr, with costs. Such election to be made within twenty-days after notice of this judgment. ,


author: Duer, J.

text:
    Samuel Taylor v. John B. Monnot.
    The decision in Wintermute y. Ciarle, that a hotel in a city, which receives transient persons as guests, is a common inn, approved and followed.
    In an action by a guest against an innkeeper to recover the value of property lost, the plaintiff is a competent witness to prove the character and value of the property lost, so far as it formed a part of his personal baggage, and no farther.
    Money in a trunk, not exceeding a reasonable sum for the personal expenses of a guest or traveller, is a part of his baggage.
    The opinions of innkeepers and others, that a guest who keeps his money in a looked trunk or portmanteau is guilty of negligence, are not admissible in evidence.
    Judgment tor plaintiff, with costs.
    (Before Oaklet, C. J., Dueb and Campbell, J. J.)
    December 6 ; December 23, 1854.
    This was an action to recover a sum of money wMcb tbe complaint averred bad been stolen from tbe portmanteau of tbe plaintiff, in a hotel or inn kept by tbe defendant.
    Tbe answer denied that tbe hotel was a common inn, or that ' tbe money in question bad been stolen or lost, and averred that tbe loss, if any, was owing to tbe negligence of tbe plaintiff.
    Tbe cause was tried before Duer, J., and a iury, on tbe 15th May, 1854
    It appeared on tbe trial that tbe plaintiff was an English gentleman traveling in tbe United States, and be proved by tbe testimony of two of bis traveling companions, that on tbe 10th of January, 1853, be put up as a guest at tbe defendant’s hotel; that on tbe 11th, on. bis return from dinner, be found tbe door of bis chamber unlocked, and bis locked portmanteau broken open and its contents scattered about tbe room, and by tbe same testimony, that be bad been accustomed to keep bis money, which was mostly in gold, in his portmanteau. .
    .The deposition of tbe plaintiff taken de lene esse, was then offered to be read, to prove bis loss, and its amount. Tbe reading was objected to by tbe counsel for tbe defendant; tbe objection was overruled, and tbe counsel excepted.
    Tbe deposition proved that tbe plaintiff’s purse, containing $353.54, chiefly in gold, was stolen from bis portmanteau at tbe time mentioned, and tbat no part of tbe money bad been recovered.
    The defendant then offered to prove by the testimony of hotel keepers .and others, that a portmanteau, even when looked, was an unsafe place in which to deposit money. The evidence being objected to, was excluded by the court, and the counsel for the defendant excepted.
    The jury, under the direction of the court, found a verdict for the plaintiff for $384.80, being the sum, with interest, that was proved to have been lost.
    Judgment on the verdict was suspended, and the exceptions ordered to be heard in the first instance at General Term.

      J. W. Edmonds, for the plaintiff,
    moved for judgment on the verdict. To prove the liability of the defendant as an innkeeper, he cited 2 Kent’s Com. 5th ed. 595; Thompson v. Lacy, 3B.& Aid, 283; Richmond v. Smith, 8 B. and Or. 9; Piper v. Manny, 21 Wend. 282, and many other oases. To prove that the plaintiff was a competent witness, he referred to 1 Greenl. on Evid. § 348 p. 2.

      E. Logan, for the defendant,
    contended that the testimony of the plaintiff ought not to have been received, and that the question whether he had not been guilty of negligence, ought to have been submitted to the jury. He cited on the first point, David v. Moore, 2 Watts & Sergt. 230, and Snow v. Eastern B. B. Co., 10 Mete. 44; and on the second, Burgess v. Clements, 4 M. & Sel. 306; Foot v. Wiswall, 14 John. 304; Story on Bailments, § 483, 2 Kent’s Comm. 592, 593.
   Bv the Court.

Duer, J.

The question raised in the answer, and upon the trial, whether the hotel of the defendant is in judgment of law a common inn was not pressed upon the. argument before us, and so far as this court is concerned, must be - regarded as settled by our decision in Wintermute v. Clark, 5 Sandf. S. C. Rep. 242. The cases, in regard to this question, are not distinguishable.

The liability of an innkeeper is by no means so restricted as that of a carrier of passengers. It is not confined to the personal baggage of the guest, but probably extends to all the property which, as belonging to the guest, the innkeeper consents to receive. Hence, if in this case the plaintiff’s loss and its amount had been proved by other witnesses than the plaintiff himself, not a reasonable doubt could have been stated as to his right of recovery. Rut if the testimony of the plaintiff must be rejected, it cannot be denied that the proof upon the trial was wholly insufficient to sustain the action. The cause, therefore, turns entirely upon the question whether the plaintiff was properly admitted as a witness.

We are by no means prepared or disposed to say that, in actions like the present, the plaintiff is a competent witness to prove the nature and extent of his loss, whatever may be the character or value of the property which it is alleged the loss involved. On the contrary, we are clearly of opinion that his admissibility as a witness rests upon the same ground, and is subject to the same limitation, as that of a passenger admitted to prove his own loss in an action against a carrier. And after a careful examination of the authorities, we think the law ought to be considered as settled that in such cases the passenger is, to some extent, a competent witness on his own behalf. He is so to prove the contents of a trunk lost or broken open, but only in respect to those articles which may be properly considered as a part of his personal baggage, that is, as intended for his personal use or accommodation. It is presumed that the contents of the trunk, in respect to such articles, are known to the owner alone, and, consequently, that, were his testimony excluded, he would be without a remedy. He is admitted, therefore, as a witness to prevent a failure of justice, — in other words, from a moral necessity. (12 Yiner Ab. 32; Bull, N. P. 181; Story on Bail, § 454, note; 1 Greenleaf on Evidence, §- 348, p. 417, and note 2; Sneider v. Geiss, 1 Yeates, 34; Herman v. Drinkwater, 1 Green. R. 27; Clark v. Spence, 10 Watts, 335 ; Johnson v. Stone, 11 Humphrey, 419.) It is plain that the same necessity exists when the traveller is a temporary guest at an inn, and equally so that it extends no fur■.ther in the one case than in the other.

It is insisted, however, that money in a trunk, although not , exceeding in amount the sum which the traveller in good faith 'has judged to be necessary to defray his personal expenses, cannot properly be regarded as forming a part of his “ baggage” in the limited sense of the term; and, consequently, that in respect to money, tbe testimony of the traveller, whether a passenger or guest, cannot be received to prove the fact or the amount of this loss. But we think that Mr. Justice Nelson, in delivering the judgment of the court in the case of the Orange County Bank v. Brown, (9 Wend. 119,) laid down the true rule, namely, that money intended to defray the personal expenses of the traveller may be justly included in the term baggage,” and we adopt this opinion not only as reasonable in itself, but as best sustained by the authorities. In the case of Cole v. Goodwin, (19 Wend. 251,) the trunk, for the loss of which, and its contents, the defendants, as carriers, were held to be liable, contained a small sum of money, which the verdict of the jury embraced, but which, had it not been considered as forming a part of the “ baggage” of the plaintiff, ought to have been, and we must presume would have been, deducted from the judgment. It may be said that, in this case, the question as to the liability of the defendants for the money was not distinctly raised, but this exception cannot be taken to the case to which I shall next refer, in which the question, whether money in a trunk, not more than sufficient for the travel-ler’s expenses, may be considered, as part of his baggage, was not only raised and argued, but, as we think, positively and affirmatively decided.

In this case, (Weed v. The Saratoga and Schenectady R. R. Co. 19 Wend. 534,) the verdict of the jury was rendered solely for a sum of money, ($285,) contained in a trunk which the defendants, as carriers, had lost; and their counsel, upon the trial, contended that they were not liable, upon the grounds that they had received no reward for carrying the money, and that no notice had been given to them that any money was contained in the trunk. The Judge overruled the motion for a nonsuit, and charged the jury that, if -they were satisfied that the trunk had been committed to the care of the defendants, and was lost by them, the plaintiffs were entitled to recover, unless they should be of opinion that the amount of money in the trunk was so large as to render the want of notice a fraud upon the carriers, or that it was more than a reasonable and sufficient sum for travelling expenses. The jury having found a verdict for the plaintiff, the defendant’s counsel, upon the exceptions which they had taken to the charge of the Judge, moved for a new trial.

In delivering tbe opinion of tbe court, Cowen, J. said, that tbe question wbetber tbe money in tbe trunk “ was more tban sufficient for travelling expenses, and so not a part of tbe baggage, bad been left to tbe jury, in a shape as favorable to tbe defendant as tbe law would require, and perhaps more so.” And be referred in support of bis opinion to tbe case of tbe Orange County Bank v. Brown, thus adopting tbe rule there suggested by Nelson, J., as that by which tbe. court meant to be governed. Tbe motion for a new trial was, however, granted, but granted upon tbe sole ground, that there was no such privity of contract between tbe parties as could entitle tbe plaintiffs in their own names to maintain the. action. Although tbe money belonged to them, it was contained in tbe trunk of their clerk, who was travel-ling as their collecting agent, and was reserved by him for tbe expenses of bis journey. Had tbe action been brought, as it ought to have been, in tbe name, of tbe clerk, it is certain that judgment would have been rendered in bis favor. We see, therefore, no reason to doubt that tbe decision of tbe court upon tbe question we are considering, is entitled to tbe same weight and authority as if tbe action bad been properly brought and a judgment for tbe plaintiff actually rendered.

We cannot think that these authorities are countervailed or at all shaken by tbe doubts expressed by Mr. Justice Bronson, in tbe case of Hawkins v. Hoffman, (6 Hill, 589.) Tbe learned Judge rested bis doubts entirely upon tbe assertion, that men usually carry money to pay travelling expenses about their persons, and not in their trunks and boxes.” But we have no knowledge judicial or personal of any such general usage, as he supposes to exist. We are persuaded on tbe contrary, that tbe usage varies according to tbe character, of tbe journey, tbe sum necessary to be carried, and tbe personal habits of tbe traveller, and that in a large class of cases; including that now before-us, tbe general usage is directly opposite to that of which tbe existence is assumed. Foreign travellers in tbe United States, in order to save themselves from tbe embarrassment and losses they would otherwise incur from their ignorance of tbe local-currency in tbe different states which they .visit, .usually take with them in specie tbe sums which they deem to be necessary for their personal expenses, and that it is safer as well as more convenient to carry a purse of gold or silver in a locked trunk than about tbe person, we think will hardly be doubted. In the absence of proof to the contrary, we have no right to say that such is not the usage.

Since the case of Hawkins v. Hoffman, the exact question has arisen and been determined in the Supreme Court of Massachusetts, in the case of Jordan v. The Fall River Railroad Company, (5 Cushing, 69.) The learned Judge who delivered the opinion of the court, reviews and examines the cases I have cited,, and expressing his dissent from the views of Mr. Justice Bronson, arrives at the conclusion: “ That money in a trunk taken hand fide for travelling expenses and personal use, may properly be regarded as a part of a traveller’s baggage, for the loss of which the carrier is responsible,” and consequently to prove the loss of which the trav-eller is himself a competent witness. The like decision has been made by the Supreme Court of Tennessee, in two cases. Maxwell v. Humphrey, (9 Humphrey, R. 61,) and Johnson v. Stone, (11 Humph. 419.) In the last case the plaintiff was admitted as a witness to prove the loss.

In the case before us, it was sufficiently proved and was not denied upon the trial, that the money lost by the plaintiff was intended for his personal expenses, nor was it assertecL that it exceeded a reasonable amount for that purpose. Hence these questions were not submitted to the jury, nor was there any exception to the charge of the Judge upon the ground of the omission.

The only exceptions that were taken, in addition to that which we have considered and overruled, were, to the refusal of the Judge to submit to the determination of the jury, the question of negligence on the part of the plaintiff, and to his rejection of the offer to prove by the opinions of hotel-keepers and others, that the locked portmanteau of the plaintiff was an unsafe place for the deposit of his money. We are all of opinion that neither of these exceptions was well taken. No facts were proved from which the jury could have been warranted to infer that the plaintiff was guilty of any negligence which contributed to the loss, and upon such a question the opinions of witnesses ignorant of the facts, were certainly not admissible as evidence.

The plaintiff is therefore entitled to judgment upon the verdict as rendered.