author: By the Court—Bosworth, Ch. J. Hoffman, J.

text:
    The Minister, Elders and Deacons of the Reformed Protestant Dutch Church of the City of New York, Appellants, v. William H. Parkhurst, Defendant and Respondent.
    1. Where, by the terms of an indenture of lease, it is agreed that, at tne expiration of the term thereby granted, the lessor shall either grant a new lease upon terms stated, or shall pay the value of any buildings then standing on the premises which the lessee may have erected conformably to provisions contained in the lease, and that such value shall be “ascertained by appraisers,” one to be nominated by.the lessor, and the other by the lessee, and if such two appraisers cannot agree, that they “ shall nominate an umpire or third person,” and that the valuation of the three, or any two of them, shall be conclusive; and where such lessor, in the January preceding the expiration of the term, elected not to give a new lease, and he and the lessee thereupon severally nominated an appraiser of the value of the buildings, and the two appraisers so selected could neither agree upon the value, nor upon an umpire, and thereupon other two appraisers were, selected with a like result, and thereupon the lessor selected a third appraiser, and the lessee insisted upon the one whom he had secondly nominated, to act as appraiser on his part, and refused to nominate any other, and the parties themselves could not agree upon the value, it was held, that the lessor could institute an action against the lessee, to have the extent of the liability of the former ascertained and determined, and the liability itself extinguished by the payment by the lessor of such sum as should be ascertained to be the just value of such buildings.
    Before Bosworth, Ch. J., and Hoffman, Slosson, Pierrepont and Moncrief, J. J.)
    Heard, February 26;
    decided, April 30, 1859.
    This is an appeal by the plaintiffs from a judgment rendered against them, on a demurrer to their complaint.
    The plaintiffs, by an indenture of lease dated the 1st of February, 1836, demised certain real estate therein described to Wm. H. Parkhurst, Administrator, for a term of years, to wit: for twenty-one years from the 21st of May, 1836; which lease, with all the covenants contained in it, was subsequently extended and continued in force until the 1st of May, 1858.
    It was stipulated in the lease, that “ at the expiration of- the term thereby granted,” the plaintiffs,. “ at their election,” should either grant a new lease, upon terms stated, to the lessee, his executors, administrators or assigns; or should pay “ the value, in good and lawful money of the United States of America, of all such stone and brick buildings as shall or may be erected on the same demised premises by the said party of the second part, his executors, administrators or assigns, agreeable to such plan orplansas may be approved by the said parties of the first part, their successors or assigns, or by any committee by them to be appoint ed, and which shall then be standing on the hereby demised premises, and that the value of such stone and brick buildings shall in such case be ascertained by appraisers, one to be nominated by the said parties of the first part, their successors or assigns, and the other by the said party of the second part, his executors, administrators or assigns.
    “ And if the two persons so nominated shall not agree respecting the value of the said buildings, that then the said two persons shall nominate an limpire, or third person, which said three persons, or any two of them, shall make such valuation or appraisement in writing, under their hands and seals, and that the valuation or appraisement so to be made, shall «be conclusive- and binding upon the parties to these presents, and upon all others interested or concerned therein.”
    In 1847, the defendant became the owner in his own right of the indenture of lease, and of the term thereby granted.
    By a written agreement between him and the plaintiffs, made on the 3d of March, 1857, “ the said lease all the covenants therein contained,” * *' “were renewed and continued for one year” from the 1st of May, 1857, at a rent of $900, to be paid quarterly. '
    The plaintiffs, before the 1st of May, 1858, elected not to grant a new lease, and so notified the defendant. Thereafter, and in January, 1858, the plaintiffs and defendant being unable to agree on the value of buildings which had been erected on the demised premises, selected William R. Tucker and Peter R. Stelle to value them; the plaintiffs selecting the former and. the defendants the latter. They were , unable to agree upon the value, or to agree upon an umpire. ■
    Subsequently, and on the 23d of January, 1858, the plaintiffs selected William A. Thompson, óf the city of Hew York, and • the defendant selected David S. Manners, of Jersey City, to value the buildings. They could not agree upon the value, nor upon an umpire.
    On the 15th of February, 1858, the plaintiffs offered to make a third attempt to obtain a valuation, and selected Wyllis Blackstone to act as an appraiser for that purpose, provided the defendant would select, on his part, another. The defendant met the offer by naming the said David S. Manners as the appraiser on his part, and expressed no willingness to name any other.
    The plaintiffs own the demised premises in fee, and in their complaint, after setting forth the facts before stated, aver a willingness, and wish, and the ability to pay to the defendant “the just, true and fair value of said buildings,” and that they “have been also always desirous to have the said buildings appraised, and their true value ascertained, and to pay the same to the defendant.” The prayer of the complaint read thus:
    “ And the plaintiffs pray that this Court may decree the value, or appoint a suitable person or persons to appraise the value of. the- brick buildings on the premises above described, and known as number ninety-seven Fulton street, and that the defendant be adjudged to accept the sum which shall be fixed by this Court as the value of said brick buildings, in full for the same, and for all and singular any right, title, interest, and claim which he may have in said buildings, under said lease, or otherwise; and that he, the defendant, be adjudged to pay to the plaintiff the whole, or a just and equitable proportion of the costs and expenses of this action.”
    This action was commenced on the 12th of March, 1858. The defendant demurred to the complaint, on the ground “ that the same does not state facts sufficient to constitute a cause of action.”
    The demurrer was' argued at Special Term before Mr. Justice Hoffman, who, on the 3d of October, 1858, gave judgment for the defendant, dismissing the complaint with costs.
    From that judgment the plaintiffs appealed to theGeneral Term.

      Daniel Lord, for appellants (the plaintiffs).
    I. The value of the buildings is due in equity, although not in law, from the plaintiffs to the defendant; the buildings were erected and the lessors adopted and offered to pay for them under the conditions in the lease.

      1. The case, therefore, is not liable to the objection that the plaintiffs show that there is no claim on them. This was the objection in Field v. Holbrook, and on which .alone it was determined. (6 Duer R., 602.)
    2. It is not the case of a proposed bargain on the valuation of eithef the parties themselves or strangers, which valuation was to precede the vesting of property; as in the cases cited in the latter part of the opinion in Whitlock v. Duffield. (1 Hoffman Ch. R., 118.) But here the tenant’s erections had been made, the landlord had approved them, and offered to pay their value, as it should be determined under the lease.
    3. Eor is it the case of a covenant void for uncertainty, as in the principal case in Hoffman’s Reports.
    Those cases do not affect this decision.
    . II. The complaint' does not show a case where the defendant can recover at law; there has been no valuation, nor any default in the plaintiff, defeating one. ' .
    1. The plaintiff was bound only to one effort to value, which was fairly made, and was ineffectual. He, therefore, is not liable on the covenant in an action at law.
    2. But even if the third nomination had been the one to be considered, that was defeated without the plaintiff’s fault. They were not bound to take a nominee of the defendant who had formed an opinion on a previous disagreement. He was not an impartial man as between- the parties, and it was, in law, a fraud on the covenant to nominate him.
    3. The time for the appraisal was not premature; since it was only a reasonable time before the end of the term, the payment was then demandable, and the buildings might have been destroyed the day after the end of the term, and so the valuation become impracticable by actual examination.
    III. The case was one of a merely equitable liability, to the defendant, for a. sum to be ascertained in a mode which the Court should decide to be just. The defendant could have sustained a complaint in equity for the value, on the ground that his remedy at law had been lost by the accident of the appraisers’ disagreement
    1. The possession by ns of the buildings, or offer to pay previous to suit, and our complaint, show an equitable right.

      2. The defendant, in analogy to a claim for specific performance of the covenant, had a right to go' into equity; such right is mutual. (5 Price Ex. R., 526.)
    IY.—1. The defendant having a right to apply for equitable relief, the plaintiff has a like right, according to the law of the mutuality of equitable remedies.
    2. Also, because the state of the buildings to be valued is daily changing, so that the valuation cannot be made at any time so justly as at the nearest time to the end of the term.
    3. It is a case for the cancellation of a .claim; for the plaintiffs' defense becomes more uncertain and difficult by lapse of time.
    Y. The complaint is not analogous to one for the appointment of arbitrators, and substitute another tribunal than a Court of Justice. It is the reverse: the resort to a Court of Justice to have that done which has been defeated by the accident; that the appraisers have been unable to agree.
    YI. The judgment allowing the demurrer should be reversed, remitting to the Special Term for a judgment to be rendered according to the complaint, unless the defendant shall answer.

      James R. Whiting, for respondent (the defendant).
    ■ I. The plaintiffs, by their own showing, are in the possession of the premises in controversy, and show no injury; therefore, no action lies in their favor.
    II. If, indeed, the plaintiffs had shown, by their complaint, that they had sustained damage by the acts of the defendant, their only remedy is on the covenant. (The Mayor of New York v. Butler, 1 Barb. S. C. R., 325.)
    III. Conceding that the defendant had neglected to name an arbitrator under , the covenant, if the plaintiffs, as they did, reentered the demised premises and ejected the defendant, the relief demanded is not within the powers of the Court.
    IY. The complaint does not show that the plaintiffs, subsequent to the granting of the renewed lease for one year, had elected not to grant a new lease of the premises in the complaint described.
    Y. The action is premature, having been commenced before the expiration of the renewed term.
    YI. The defendant fully complied with the terms of his covenant. The plaintiffs are in fault. They have no right to refuse to permit their arbitrator to proceed with the person named by the defendant. What evidence is there that Mr. Blackstone and Mr. Manners would not have agreed?
    YH. This is, in fact, a suit by a debtor against his creditor. No such suit has ever been maintained; at least, we have not as yet found any such reported in the books.
   By the Court—Bosworth, Ch. J.

There can be no doubt that the plaintiffs are liable to the defendant, for the value of the buildings in question on the 1st of May, 1858.

I think there is no doubt of the right of the defendant to maintain an action at law to recover such value, inasmuch as the mode provided by the covenants in the lease to ascertain such value has failed to accomplish that result, without any fault of either party.

Thompson v. Charnock, (8 T. R., 134,) Haggart v. Morgan, (1 Seld., 422,) Greason v. Keteltas, (17 N. Y., 491,) Cooper v. Shuttleworth, (34 Eng. L. & Eq., 551,) Clarke v. Westrope, (37 id., 313,) and Avery v. Scott, (20 Eng. L. & Eq., 327, 8 Exch. R., 487, and S. C., 36 Eng. L. & Eq,, 1,) seem to support this proposition, and leave its accuracy free from doubt.

If this be so, then it follows that the plaintiffs may be sued for such value at any time before the statute of limitations will operate as a bar. They must pay the costs of such action. (Code, § 304, sub. 4.) The defendant may select his own time of litigating the question of value, with the certainty that the plaintiffs must pay the expense of the litigation.

If the facts, that the value of the buildings, on the 1st of May, was payable on that day, and that the plaintiffs have, at all times since, had the use of such value, in the rents and profits of the buildings, shall be held to make them liable to pay interest, then they must occupy the position of borrowers against their will, so long as the defendant chooses to be their creditor. ' -

The plaintiffs and defendant cannot agree upon the value of the buildings. Two several sets of appraisers have been unable to agree. It is, therefore, evident, (assuming, as we must, all the appraisers to have acted honestly,) that it is a matter of difficulty, even now, to ascertain such value. That difficulty has, thus far, proved to be insuperable, while the buildings are standing and'in the very condition in which their value is to be determined, and at the very time fixed to ascertain it. It is obvious that the difficulty must be, in reality, greater, when the buildings shall have been destroyed or Materially changed, and when an inspection of the buildings as they were when their value was to be ascertained cannot be had to aid witnesses in forming a judgment or to make it practicable for them to state the actual facts to enable a jury to determine it.

The plaintiffs are not in a condition to know what sum is the just valúe, so that they may tender it, and thus relieve themselves from all hazards as to liability for interest, and from the costs of any'suit the defendant may bring.

This difficulty is produced, not because they have improvidently made a contract which, by its terms, places them in this disadvantageous position, but because, notwithstanding provisions were inserted in the contract for ascertaining the value, which, according to common experience, have proved sufficient and effectual in like cases, those provisions have become spent, without accomplishing, in any respect, the purpose intended.

No action at law, and no remedy which the law has provided, is adequate to relieve them. Their right to pay, and thus terminate their liability, is as absolute and perfect as the right of the defendant to be compensated for the value of the buildings.

There can be no doubt of the accuracy of the general principles, (whatever difficulty may be experienced occasionally in making their true application,) that a court of equity has jurisdiction in cases of rights recognized and protected by the municipal jurisprudence, where a plain, adequate and complete remedy cannot be had in the courts of common law. The remedy must be plain; for, if it be doubtful and obscure at law, equity will assert a jurisdiction. It must be adequate; for if, at law, it falls short of what the party is entitled to, that founds a jurisdiction in equity. And it must be complete; that is, it must attain the full end and justice of the case. It must reach the whole mischief, and secure the whole right of a party in a perfect manner, at the present time and in future; otherwise, equity will interfere and give such relief and aid as the exigency of the particular case may require. (Story’s Eq., § 33.)

Bills in the nature of writs of prevention, commonly called bills in equity quia timet, are entertained to accomplish the ends of precautionary justice. They are ordinarily employed to prevent wrongs or anticipated mischiefs, and not merely to redress them when done. The party seeks the aid of a court of equity because he reasonably fears some future probable injury to his rights or interests, and not because any injury has already occurred ■ which requires any compensation or other relief. The manner in which this aid is given by courts of equity is, of course, dependent on circumstances. (Id., § 826.)

Hence, when one party has a defense valid in law, but which rests upon evidence which he is in danger of losing, if the adverse party is suffered to delay the prosecution of his claims, he may, on this ground, invoke the interposition of a court of equity to secure a determination of the controversy, and an exemption from the hazards of a purposed delay to prosecute.

It is asserted, not as a mere rhetorical expression, but as in itself just, that “ the beautiful character, or pervading excellence, if one may so say, of equity jurisprudence is, that it. varies its adjustments and proportions, so as to meet the very form and pressure of each particular case in all its complex habitudes." (Story’s Eq., § 439.)

We think it is unjust that a man should be compelled against his will and without his fault, to have a demand continually hanging over him.

This injustice is more marked and severe, when without fault on his part, or any neglect in not inserting in his contract provisions suitable, according to the common course of human ' experience, to put it in his power to discharge himself from liability by tendering full performance, he is left in the condition, that the law has provided for him no means to ascertain the extent of his liability, nor furnished him with any remedies which he can employ to make satisfaction.

The injustice is aggravated, when in addition to the embarrassments already suggested, lapse of time is rendering it, from year to year, more difficult to ascertain the measure of his just liability, and when even a few years may destroy the property, itself, the fair value of which, on a given day, in the condition it then was, is the sole measure of liability.

We think it no answer to this objection, that the difficulty of the defendant, six, or twenty years after the day when the value was to be ascertained, to show what it in truth then was, and his risk of losing by such delay will be as great as that of the plaintiffs.

The plaintiffs, unless guilty of some wrong or default deserving such a punishment, should not be exposed to such hazards.

The ends of justice cannot be promoted, human rights cannot be protected, nor can tribunals instituted to enforce rights, and prevent and redress wrongs, commend themselves to the esteem of mankind, by acting on the principle, that one party will stand as good a chance as the other by speculating on the issue of a suit, the trial of which is purposely delayed, until the best evidence attainable is impaired or destroyed, and acting on it because one party is willing and determined to take such chances, and on the further ground that the Courts have no power to relieve the bther from the perils of such a trial.

We cannot but think it would be a reproach to the- administration of justice, if the Courts by reason of their constitution and powers were coerced to hold that they were incompetent, on such a state of facts to relieve a party who desires and offers to do justice, but is unexpectedly and without fault placed in a condition that he cannot know what, in judgment of law, it is his duty to do, and has no means by any aid a court of law can extend to him, to ascertain the extent of that duty, or to perform it.

If these plaintiffs had entered into a contract like the present, without providing a mode of ascertaining the extent of the liability they were incurring, which, according to the ordinary course of human experience, would be adequate and effective, their claims to the interposition and aid of a court of equity might be different.

However that may be, it seems to us but a just and reasonable application of the rules we have stated, to a case of such peculiar facts and circumstances as the one before us, to hold, that the plaintiffs are entitled to relief; that it is strikingly unjust that the defendant should be permitted to compel the plaintiffs to litigate the question of the value of these buildings at a period so • remote that no vestige of them may then be left, instead of litigating it when they can be seen by persons competent to determ'' e their value, and who can thus determine such value, by a thorough examination of them, (the true value of which cannot be reached in any other manner,) and who can speak of that value not only on such inspection, but with their present, and a more perfect knowledge of such property, than they can be supposed to possess after the lapse of years, during which the opinions of all competent judges of value may vary from time to time, with the change of circumstances, and the constantly recurring depression and increase in values of such property generally, as well as in particular localities.

The great hazard of loss and injustice to which the plaintiffs would be exposed by subjecting them to such a necessity, in connection with the facts that they are utterly without any remedy at law, and that they are placed in this condition without fault, or neglect on their part, either by having made an unreasonable contract, or by omitting to do all that was reasonable in the premises, is sufficient, in our opinion, not only to justify the Court in taking jurisdiction of this action, but makes the exercise of jurisdiction a duty.

The judgment must be reversed and judgment entered in favor of the plaintiffs,- but with liberty to the defendant to withdraw his demurrer, and answer in twenty days, in which event, the plain.tiffs’ costs of the demurrer at Special Term, and of this appeal, are ordered to abide-the event of the action.

Hoffman, J.

I concur in the conclusion that the order made below should be reversed, upon a course of reasoning which has resulted in the following propositions:

1. It is perfectly clear that the defendant has a right to' an action at law for the value of his buildings, and that the covenants or stipulations in the lease as to an arbitration, could not interfere with such an action, with or without the fact of their having proven unavailing. (Thompson v. Chamock, 8 T. R., 139; Haggart v. Morgan, 1 Seld., 422; Greason v. Keteltas, 17 N. Y. R., 491; Cooper v. Shuttleworth, 31 Eng. L. & Eq. R., 551; Clarke v. Westrope, 37 id,, 313; Coffin v. Talman, 4 Seld., 465.)

2. I consider it doubtful whether the plaintiffs can sustain any action at law, in any-form, for breach of covenant or otherwise, against the defendant. It may be, that under the case of Livingston v. Ralli, (30 Eng. L. & Eq. R., 280,) an action at law could be so shaped as to be tenable. But if so, it would be incomplete, inadequate, and leave the main controversy between the parties undetermined. It would not drive the defendant to assert his right to the value of the buildings, by way of counter-claim. He is not compelled to do this by an answer, but may subsequently resort to his action. (Halsey v. Carter, 1 Duer, 667.) Whatever could be attained, if anything, by an. action at law, would be inconclusive and inoperative upon the main question as to the rights and relations of the parties.

3. The plaintiffs are therefore without any legal redress, or mode of asserting any right upon the case they make, or without any appropriate, fuE and adequate mode of redress, unless they possess it through an equitable action—what could have been the subject of a bEl in Chancery before the Code.

4. The next question then is, Is there any admitted head or doctrine of a court of equity which wiE entitle the plaintiffs to its interference upon the case as made in the complaint?

After a careful study of the lease in question, I find in it a contract, by which the buddings were to be valued at the expiration of the term. I find an obligation on both parties that this shall be done at that period, and- an equal impEed obligation to unite previously in any measure necessary to accomplish this. The method pointed out, viz., by arbitration, could not be enforced in equity, and would not bar an action at law, but it is evidence of the intention and meaning of the contract, that the valuation shall be made at or by the prescribed period. The duty of the defendant to concur in aE legal means to effect this, is as clear to my mind as the duty of the plaintiffs to pay such value.

If the agreement had been in expEcit terms, that the buddings should be valued on or before a designated day, and the parties would unite in any measures for procuring it to be done by the arbitration of A and B,.or a suit in a competent Court, there can be no question that, after demand and refusal to arbitrate, an equitable action could be sustained. I find enough of agreement in the lease to make the same rule applicable.

“ Courts of equity wiE interpose in many cases to decree a specific performance of express and even of imiplied contracts where no actual injury has as yet been sustained, but only is apprehended from the peculiar relations of the parties. This proceeding is commonly caEed a bill quia timet"- (Story Eq. Jur., vol. 2, § 730.) The remark is true, that the principle of a hill of this nature is contract. The ordinary example of a surety compelling the debtor to pay the demand when due, illustrates this position.

5. -It is suggested that, upon this view of the case, there must' be mutuality of obligation. The one party, (the defendant here,) must have a right to go into a court of equity, or the other, (the plaintiffs here,) have no such right.

The doctrine of the necessity of a mutuality of legal obligation in its broad sense, as applicable to contracts, once asserted by Chancellor Kent, is indisputably wrong. Under the' statute of frauds, one party may be bound when the other is wholly freed. (Willard’s Eq. Jur., and cases, p. 267; Woodward v. Aspinwall, 3 Sandf. S. C. R., 272.)

In another sense, the proposition is strictly right. In the meaning that, in cases out of the influence of the statute of frauds, one party may not have an equitable remedy upon a contract, when the other cannot have any remedy at all, it is a rule intelligible and well warranted. But I do not understand that, in order to get relief in equity within this rule, it is essential to show that each party has redress in equity, and no redress at law; or to show that each party has some, but an inadequate, redress at law, and, therefore, a remedy in equity.

On .the contrary, when mutuality consists in the right of one party to get full relief and satisfaction of his contract, yet only through equity, and of the other to get all he can demand, but only at law, I cannot see why the law of mutuality, or reciprocal obligation, is not fully satisfied. The law gives redress. Some human tribunal administers it. It is unimportant which performs the office, or in whose favor. (Story Contr., vol. 2, § 741.)

But suppose this view is unsound, then the rule laid down • by Sir John Leach in Adderly v. Dixon, (1 S. & St., 607,) covers the whole case. He says “ that it has been settled, by numerous decisions, that the remedy in 'equity must be mutual, and that where a bill will lie for a purchaser, it will also lie for the vendor.” This was applied to the case of a seller of rights to future dividends upon a bankrupt’s estate, which debts had been proven. The price was 2s. 6d. in the pound. The purchase money was therefore definite, but damages at law would not accurately represent the value of the future dividends.

6. If I am warranted in deducing from the lease in question, an agreement, such as I have stated, to have the buildings appraised and paid for at or by a definite time, wholly irrespective of the method of doing this pointed out, then the power of the Court to enforce such a contract is indisputable. (Story, § 729.)

Judgment reversed, with liberty to defendant to answer.


source: Caselaw Access Project

author: By the Court—Bosworth, Ch. J.

license: Public Domain

text:
    Anthony, Plaintiff and Respondent, v. Smith, Defendant and Appellant.
    1. On an appeal from a judgment in an action tried by a jury, the appellant cannot be heard upon the question whether the Verdict is contrary to evidence.
    2. The only appeal on which he can be heard, on that question, is one taken from an order refusing a new trial
    3. On an appeal from the judgment, he can be heard on exceptions taken at the trial, if the exceptiohs have been duly settled.

      4. A physician, who has attended a party as such, on his being assaulted and bruised, may, as an expert, testify as to the effect produced thereby upon the health and mind of the party injured.
    5. The Court, in its discretion, may limit the number of witnesses to be exa* mined to a particular point; and the exercise of that discretion is not the subject of an exception which can be heard on an appeal from the judgment. If it is exercised indiscreetly, and to the actual prejudice of. a party, his remedy is a motion for a new trial upon a case.
    6. It is within the discretion of the Judge whether he will allow either party, after he has rested and the evidence on the part'of his adversary has been given,' to call other witnesses to points as to which he had previously examined witnesses.
    7. A motion for a new trial on a case, or on the ground of surprise, or of newly discovered evidence, cannot be made as a matter of right after judgment has been perfected.
    8. The separation of a jury, after they have retired to deliberate, without the consent of the Court, does not, per se; entitle a party to a new trial
    9. Where there is no reason to suppose that either party has been prejudiced by such separation, and where, during such separation, the jurors did not converse with any person concerning the cause, a new trial will not be granted on account of such separation, even though the motion be made before judgment perfected.
    (Before Bosworth, Ch. J., and Hoffman and Moncrief, J. J.)
    Heard, April 4;
    decided, April 30, 1859.

      This action comes before the Court at General Term, on two appeals taken by the defendant, which were argued together.
    The action is brought to recover damages - for an assault and battery committed by the defendant upon the plaintiff. It was tried before Mr. Justice Slossow and a jury, on the 5th of March, 1858, and. the plaintiff recovered a verdict for $500. On the 12th of March, 1858, judgment was entered on the verdict, and a judgment-roll filed. Notice of the judgment was served on the 7th of April, and a notice of appeal from the judgment was served on the 6th of May, 1858.
    On the 14th of April, 1858, the defendant served notice “ that, on the proceedings in this cause, and the case and affidavits ” served therewith, he should move the Court, on the 22d of April, 1858, “for an order setting aside the verdict in this action, and the judgment thereon, and granting a new trial in this cause, on the ground of irregularity and errors on the part of the Judge who tried the same, and on the part of the jury, and on .the ground that the verdict is against the weight of evidence, or for such other or further order or relief as the Court shall see fit to grant.” The motion was continued by adjournments into October, 1858, when it was made before Boswobih, Ch. J., and denied. The motion was not, in fact, argued; but it being stated that an appeal from the judgment was pending, that notice of the motion had been given after judgment was perfected, and that the defendant was desirous to be heard on the matter before the General Term, an argument was waived, and the order states that defendant’s “ motion for a new trial is denied pro forma, with leave to the plaintiff to object on the appeal to the right of the defendant to make this motion, because of the perfected appeal from the judgment now pending in the General Term on said case, and also to the reading of the affidavits herein on the ground that the verdict of the jury cannot be impeached by affidavits of a juryman as to what was said in the jury room.” From that order, the defendant appealed.
    The answer did not deny the commission of the • assault and battery, but alleged matters of provocation to mitigate damages. The defendant, after assaulting plaintiff in the street, took him by force into a back room in defendant’s store, and assaulted and beat him while kept by force in such store.

      When the defendant had examined six witnesses as to what occurred while the plaintiff was in the defendant’s store, his counsel “ then called William Schmidt as a witness, but was asked by the Court what was intended to be proved by him, when defendant’s counsel said it was as to the same matters as already proved by the other witnesses, and that he had a number of other witnesses also to the same matters; whereupon the Court refused to hear more testimony to those matters, as unnecessarily cumulative, and defendant’s counsel excepted.”
    The plaintiff was examined as to what occurred while he was in the store, and one witness was also examined as to a conversation alleged to have been had there between the plaintiff and the defendant.
    Dr. Rowland, the physician who attended the plaintiff, on account of the injuries inflicted by the battery, was recalled, and testified thus: “I know the plaintiff’s constitution.
    “ Q. What will be the probable permanent effect upon the plaintiff’s constitution and mind of such injuries, as he received?
    '(Defendant’s counsel objected to the question. The Court overruled the objection, to which defendant’s counsel excepted, and the exception was duly noted.)

      “A. It is impossible to answer the question as it is put. What would be, is one thing; what is, is another.
    “ Q. What is the éffect of the injuries upon the plaintiff?
    “(Defendant’s counsel objected to this question. The Court overruled the objection, to which defendant’s counsel excepted, and the exception was duly noted.)
    “ A. It made him very nervous. I discovered the effect of it for a year.
    “ Q. What effect did it have upon his mind?

      “A. I think it incapacitated him for a time from doing business.”
    When the plaintiff rested, “ the defendant offered to call other witnesses as to what occurred in defendant’s office, in corroboration of those who had already testified, saying that it was manifestly a question of the weight of evidence. Plaintiff’s counsel expressed his willingness that all the testimony should be brought out.
    “ The Court declined to allow more witnesses for the defendant to be called on that point, and the defendant’s counsel excepted to the Judge’s refusal.

      “ The Judge then charged the jury, and they were directed to bring in a sealed verdict in the morning.
    “ At the openipg of the Court in the morning, the officer who had had charge of the jury informed the Judge that they had not agreed. Whereupon the Judge directed the jury to take their seats together again. Their foreman informed the Court that they had not been able to agree upon a verdict, the officer having kept them together from 6 until 10 o’clock of the previous evening, when they separated. Both parties were present, and their attorneys, but the defendant’s counsel, who conducted the trial for him, was not present. The Judge stated that, in ■his opinion, it was extremely desirable that they should, if possible, come to an agreement, and stated to the attorneys present that if no objection was made by them, he should send the jury out again. No objection was in fact made, but the defendant’s attorney stated to the Court that he was unwilling, in the absence of the defendant’s counsel, to express either assent or dissent. Whereupon the Judge again directed the jury to retire'and consider of their verdict; having first stated to them the substance of the legal propositions which he had stated to them the day before. Whereupon they again retired, and in . about an-hour returned with a verdict of $500 for the plaintiff.”
    The affidavits on which a new trial was moved for stated the fact as to the separation of the jury, and as to the proceedings had in Court when it opened the next morning. John Gibbons, one of said jurors, in one of said affidavits, deposed that, when the jury separated, his “ mind was entirely made up that the plaintiff was entitled to no more than six cents damages;” that, on the opening of the Court next morning,deponent” (Gibbons) “ was still of opinion that six cents was as much as the plaintiff ought to receive, and was very unwilling to render any other verdict.
    “That one of said jurors, named Bradley, thereupon stated that he was a personal friend of the defendant, and from what he knew of him he felt authorized to say that he would feel perfectly satisfied if a verdict was rendered against him for five hundred dollars, and would much prefer it to the expense and trouble of another trial; that, under the influence of these representations, and of the remarks of the Judge as to the expense and loss of time, deponent was induced to assent to a rendering of a verdict for five hundred dollars, contrary to his own convictions; that deponent has since learned that such representations of said Bradley were entirely unauthorized and incorrect; that deponent was only induced to assent to the verdict by believing that such representations were true, and having learned on the same morning after the rendering of the verdict that he had been thus misled, returned to his former opinion that a verdict for more than six cents is more than the plaintiff is entitled to recover, and he accordingly desires that such verdict may be set aside;”
    The defendant made affidavit that Bradley had no authority, or pretense of authority, for making such statements. There was no pretense that the jurors, while separated, held any communication with any person in respect to the cause.
    Five of the jurors made affidavit that they did not hear Bradley make any such remarks to Gibbons as the latter swore he did, and that Gibbons, before they separated, offered to consent to a verdict of $250 in favor of the plaintiff; that a majority of the jurors were in favor of a verdict for different sums varying from $1,000 to $5,000; and that, -before they separated, ten of. them had agreed upon $1,000 as the just and proper sum.
    The juror, Joseph Bradley, made affidavit to the same facts, and denied that he made any such remarks as Gibbons deposed that he did, or “ anything to that effect, or anything of the kind.”
    There was nothing in the affidavits tending .to show any attempt on the part of any one to interfere with the jury, either while they were separated or during their deliberations, except in so far as the affidavit of Gibbons tended to show it.

      E. C. Benedict, for appellant.

      Solomon L. Hull, for respondent.
   By the Court—Bosworth, Ch. J.

The appeal from the judgment brings under review only the exceptions taken during the progress of the trial. It does not raise the question whether the verdict is against evidence. That can only be considered at General Term on an appeal, from an order denying a motion for a new trial, taken under section 849 of the Code.

Dr. Rowland testified as an expert as to the effect produced on the plaintiff, by facts within his own knowledge. He spoke of the effect of injuries which he had seen, and in respect to which he was consulted at the time of their occurrence, and which he treated professionally. We think there was no error in his being allowed to answer the questions, “ What is the effect of these injuries upon the plaintiff?” and “What effect did it have upon his mind ?” or in receiving as evidence his answers to such questions..

The Court, in its discretion, may limit the party as to the number of witnesses to be examined as to what occurred, at a given time and place, between the parties. If he exercises his discretion to the actual prejudice of .either party, his decision in that respect is not the subject of an exception which can be reviewed on an appeal from the judgment. In this case, when the plaintiff rested, but two witnesses had been examined as to what occurred in the defendant’s store while the plaintiff was there. Neither of these two witnesses was present the whole time—one having been turned out soon after he entered it, and the other having got admission but a short time before the plaintiff was permitted to leave it.

The defendant examined six witnesses as to what the defendant did and said, and what the plaintiff said. The additional witnesses whom the plaintiff proposed to examine, were- called “ as to the same matters as already proved by the other witnesses.” Nothing new, or additional to, or variant from that to which the six had testified, was offered to be proved. On the contrary, the purpose to give such evidence was disclaimed.

The practice of interposing to prevent the examination of an unnecessary number of witnesses called to testify to the same fact, has long prevailed at the Circuits. A useless repetition of witnesses cannot further the cause of justice, and is discountenanced by the law. (1 Cow. & Hill’s Notes, 896.)

The exercise of that discretion- is not the subject of an exception. If probable prejudice has resulted from it, in the trial of any cause, the remedy is a motion for a new trial, on a case.

The defendant, who complains, in this case, that he was not permitted to call more witnesses, examined twice as many as the plaintiff, in respect to the occurrences in defendant’s store, and we think he could not have been prejudiced by not being allowed to examine more who would testify as those did whom he had examined.

It was not error for the court, after the, defendant had rested and the plaintiff had concluded his rebutting evidence, to refuse to allow the defendant to introduce additional witnesses, “ as to what occurred in defendant’s office, in corroboration of those who had already testified.” That is a matter purely in the discretion of the Court. (Shepard v. Potter, 4 Hill, 202; 1 id., 300; 20 Wend., 225; 3 id., 376; 4 Cow., 450; 5 Hill, 286.)

These views dispose of all the questions arising upon the appeal from the judgment.

The questions yet to be considered arise upon the appeal from the order denying a motion made by the defendant for a. new trial.

The notice of that motion was not served until after judgment had been perfected, and the judgment roll filed, and was not in fact made until several months subsequent to the taking of the appeal from the judgment.

By the settled practice,' as it existed prior to the enactment of the Code, a motion for a new trial could not be made on a case, or on the ground of newly discovered evidence or of surprise, after judgment had been regularly perfected. (Jackson v. Chace, 15 J. R., 354; Rapelye v. Prince, 4 Hill, 125; Roosevelt v. The Heirs of Fulton; 7 Cow., 107.)

Chapter 128 of the act of 1832, (Laws of 1832, p. 188,) allowed a bill of exceptions, duly made and settled, in an action in the Supreme Court, to be argued, notwithstanding judgment had been perfected.

In the several Courts of Common Pleas, except that for the city and county of New York, a bill of exceptions taken in them was not argued in such Court, but was heard on a writ of error from the Supreme Court.

The practice under the Code is the same as before it was enacted.

“A motion for a new trial,” on a case or exceptions, or otherwise, may be made under section 265 of the Code. When the Code, or the rules adopted under it, have not otherwise provided, the preexisting practice must be pursued. (Code, § 469.)

To secure the right to be heard on “ a motion for a new trial ” on a case, a stay of proceedings must be procured, or an order obtained, that judgment, if entered, be entered not absolutely but as security merely. (Benedict v. Caffee, 3 Duer, 669.)

If the judgment entered be absolute and unconditional, the party loses his right to be heard on a case. If a bill of exceptions has been settled, the exceptions may be heard on an appeal from the judgment, taken under section 348 of the Code, although no motion was made at Special Term for a new trial.

The defendant is not in a condition, therefore, to move for a new trial on the ground that the verdict is against evidence, or that the damages are excessive, or for anything that occurred in open Court, to which no exception was taken.

The separation of the jury, without the consent of the Court, is not, ■per se, sufficient to entitle the defendant to a new trial.

That two of the jurors eluded the care of the constable, left the jury room, and one of them remained all night- at a neighboring tavern, (Smith v. Thompson, 1 Cow., 221, n. a,) has been held not to be enough to set aside the verdict, if there be no suspicion of abuse. (Vide 3 Cow., 355; 4 id., 26, 38; 5 id., 283; 2 Wend., 52; 3 J. R., 252; 7 id., 32; 4 Barn. & Ald., 430.)

There is nothing shown justifying the inference that the jurors separated from any improper motive, or thought that they were thereby violating their duty. It is perhaps just to infer that the officer allowed them to separate, believing at the time that he was at liberty to do so, with the approbation of the court, on their failing to agree after being kept together as long as they were kept.

There is no pretense that, while separated, any one conversed with either of them in relation to this suit, the parties to it, the evidence given on the trial, or the witnesses.

There is no reason, therefore, to suspect that the plaintiff was prejudiced by the mere fact of their separation.

The defendant’s attorney, while he declined to express any assent to the jury being sent out a second time, also declined to dissent. He “stated to the court that he was unwilling, in the absence of the defendant’s counsel, to express either assent or dissent.” This was said in response to the observation of the presiding Judge, “that if no objection was made by them,” (the attorneys,) “ he should send the jury out again.”

This was clearly leaving it to the Judge, without objection, to take such course as in the exercise of his discretion he thought would promote justice between the parties.

We think, therefore, that a new trial should not be granted on account of the separation of the jury merely.

The affidavit of the juror, John ■ Gibbons, that Mr. Bradley, another of the jurors,'stated the matters detailed in the affidavit of the former, is denied by Bradley, and-the latter is corroborated by the affidavits of five other jurors. Mo juror corroborates Mr. Gibbons, by stating that any such or any other communication was made by Bradley.

Under such circumstances we cannot, with any propriety, interfere with the verdict, on the assumption that any such communication was made, even if the fact that it was made could be shown by the affidavit of a juror, to impeach the verdict of the jury.

Mo part of the charge to the jury is contained in the case. We have no right to presume that it was prejudicial to the defendant, or adverse to the views of the law applicable to the case, on which his counsel insisted.

It is not a case in which the Court would be justified in interfering with the verdict, on the ground that the damages are excessive. Being of the opinion that the defendant was not prejudiced by not being allowed to examine more than twice as many witnesses as the plaintiff did, as to what occurred while the plaintiff was in the defendant’s store, and that a new trial cannot be granted on the other grounds on which it is sought; the judgment and order appealed from must be affirmed, with costs.

Affirmed accordingly.


author: Moncrief, J.

text:
    Placide, Plaintiff and Appellant, v. Burton, Respondent.
    Where by the terms of an agreement between the plaintiff, (an actor,) and the defendant, (a theatrical manager,) it was agreed that the plaintiff should, between October 9th, 1854, and June 1st, 1855, perform as an actor for the defendant, during four terms of four weeks each, and that there should be an interval of four weeks between the terms, the commencement of each term to be appointed by the defendant, and notice thereof given to the plaintiff, and where they subsequently agreed that the plaintiff should not perform in January or February, 1855, and where, after that, the plaintiff commenced playing about the 9th of October, 1854, and before the end of the second week, it was agreed, at his request, that such first term of four weeks should be divided into periods of two weeks each, the plaintiff to discontinue playing at the end of said first two weeks, then leave, and return and play the other two weeks so as to complete the same on or about the 1st of January, 1855, and the plaintiff left at the end of the first two weeks, and did not again return or offer to return, and was not requested to return, held,

    1. That the plaintiff was bound by the agreement, as modified, to return and play or offer to play said remaining two weeks, without any notice or request from the defendant so to do, and that the plaintiff’s failure to do so, ' was a breach of the agreement on his part; and that he was liable to the defendant for the damages resulting therefrom.
    2. That after such breach by the plaintiff of the agreement on his part, the defendant was under no obligation to employ the plaintiff further, and that no action would lie against the defendant for not having notified the plaintiff of the time of commencing other terms of four weeks each, and for not furnishing him employment for such terms, although the plaintiff might have been ready and willing to perform on being so notified.
    (Before Bosworth, Ch. J., and Hoffman and Moncrief, J. J.)
    Heard, April 6th;
    decided, April 30th, 1859.
    This is an appeal by Henry Placide, the plaintiff, from a judgment in favor of William E. Burton, the defendant, entered on the report of Henry Nicoll, Esq., as Referee.
    In 1854, the defendant was the manager of a theatre in the city of New York, known as Burton’s Theatre, and the plaintiff was an actor.
    This action is brought to recover damages on the theory, that in July, 1854, it was agreed between the parties, that the plaintiff should “ take part or give his services in the performances exhibited in said theatre, whenever required by the said defendant so to do, during every other or alternate four weeks, from the commencement of the then next theatrical season” to the close of it; that is to say, between September 4th, 1854 and June 2d, 1855, for a specified compensation, which the defendant agreed to pay, viz., $150 weekly, for each of said alternate four weeks, and one-third of the proceeds or receipts of said theatre for one night at the end of each alternate fourth week for his benefit, of the value of $125. That the plaintiff has always been ready to perform when called upon,' but that defendant has not complied with the agreement on his part, and that under such agreement he owes the plaintiff $1,950, with interest from the 4th of October, 1855, for which sum the complaint prays judgment.
    The answer alleged the facts hereinafter mentioned, and claimed that the plaintiff had broken the agreement on his part and demanded damages as a counterclaim for such breach.
    The facts, as in substance stated in the answer, and as found by the Referee, (with the exception that the answer states the agreement to have been, that the plaintiff should play, daily “every other or alternate four weeks” from the 9th of October, 1854, until the close of the season, about June 1st, 1855,) are, that prior to the opening of the defendant’s theatre in October, 1854, it was agreed between the plaintiff and the defendant, “that the former, at and for a compensation in that behalf agreed upon between them, should, between the 9th day of October, 1854, and the close of the theatrical season at said theatre, on or about the 1st of June, 1855, perform as an actor at said defendant’s theatre, nightly, during four terms or periods of four weeks each, the commencement of each of such terms or periods to be fixed and appointed by the said defendant, and notice thereof given to the plaintiff.” That afterwards and prior to said 9th day of October, 1854, the defendant, at the request of the plaintiff, consented to a modification of said agreement, by which it was agreed, between them, that the plaintiff might go to the city of New Orleans, on or about the 1st of January, 1855, to perform as an actor at a theatre in said city, and that the plaintiff might for such purpose remain absent from the city of New Tork until on or about the 1st of March, 1855. “ That afterwards and. in pursuance of the said agreement, the plaintiff, on or about the 9th day of October, 1854, commenced playing nightly at defendant’s theatre, and which playing was to be continued for a term or period of four weeks, that the plaintiff played for and during the first two weeks of the said term or period; that- on or about the expiration of the second week of the said term or period, the plaintiff proposed to the defendant that the said term .or period which the said plaintiff was then playing, according to his said agreement, should be divided into periods of two weeks each ; that at the expiration of said second week he' should discontinue playing at said defendant's theatre, but should return and play the remaining two weeks of said term, so as to complete the same just prior to his departure for New Orleans, on or about the 1st day of January, 1855, that the defendant assented to the said proposition, and that thereupon the said plaintiff Ceased playing at the defendant’s theatre at the expiration of the second week of the said term; that the said plaintiff did not thereafter return and play at defendant’s theatre the remaining two weeks of the said term or period, or ever after tender or offer to the defendant to play at said defendant’s theatre during the aforesaid theatrical season.”
    That the said defendant, after the said 1st day of March, 1855, did not fix or appoint any other terms or periods of four weeks for the plaintiff’s playing at defendant’s theatre as aforesaid.
    That the services of the plaintiff to the defendant' in playing as an actor at defendant’s theatre, were reasonably worth to defendant $100 per week, over and above the amount agreed by the defendant to be paid to the plaintiff for such services.
    The Referee found as conclusions of law—
    1. That by reason of the acceptance by the defendant of plaintiff’s proposal to divide the first term or period of playing as aforesaid into terms of two weeks each, and for the plaintiff’s return to play the remaining two weeks thereof as aforesaid, the original agreement was in that respect modified and the plaintiff became and was bound so to return and play for the said two weeks so agreed upon without further notice from defendant, and that by reason of his failure so to do, there has been a breach of the said original agreement as modified as aforesaid.

      2. That the plaintiff having failed to perform said original agreement, so modified, cannot bring an action against the defendant for any breach of said agreement occurring after the .breach thereof by the plaintiff as aforesaid, and that by the said breach thereof by the plaintiff, the defendant became and was absolved from all liability to the plaintiff, under said' agreement, accruing after such breach, and had the right to treat the said agreement as at an end.
    3. That by reason of plaintiff’s failure to perform the remaining two weeks of the said first term or period as aforesaid, he is liable to the defendant in damages, and that the measure of such damages is the value to the said defendant of the plaintiff’s services to him as an actor, over and above the compensation agreed to be paid to him.
    As a final conclusion of law in the premises, the Referee directed judgment in'favor of the defendant as against the plaintiff upon the causes of action in the complaint in this action alleged, and further judgment upon the counter-claims in said action for $200, and that the plaintiff pay "to the defendant the costs of this action.
    The action was commenced in October, 1855, and the Referee’s report is dated April 19, 1858. The plaintiff duly excepted to each of the Referee’s conclusions of law, and appealed to the General Term from the judgment entered on the report. Some portions of the testimony appear in the opinion of Mouckief, J.

      N. Dane Ellingwood, for appellant.
    I. The Referee, in his report, has found that the time of the commencement of each of the terms, was to be fixed and appointed by the defendant and notice thereof given to the plaintiff.
    II. The Referee, however, erred in finding that a breach of the agreement to divide the first term into two terms of two weeks each, had been committed by the plaintiff; because, whether the theatrical season was divided into four or five terms is wholly immaterial; the same condition applies in the one case as well as in the other. The defendant had reserved the right to fix the time of the commencement of each term, and the plaintiff the right to be notified; without such notice was given, the plaintiff could commit no breach on his part.
    III. The defendant himself did not pretend that the plaintiff had broken his agreement with him, upon the ground taken by the Referee, but upon another ground, namely, that the plaintiff had refused to perform after the end of the first two weeks, and that he so desisted from performing, contrary to the wish of the defendant; denying, expressly, that there was any agreement to divide the first term into two terms of two weeks each.
    IY. But admitting that there had been no express agreement that the defendant was at liberty to fix the time of the commence ment of each term, and that the plaintiff was entitled to be notified, the nature of the employment was such that the right so claimed by- the plaintiff and defendant respectively, would be implied. (Graddon v. Price, 2 Carr. & Payne, 610; Story on Contracts, § 974.)
    Y. The Referee also erred in finding that the plaintiff could not bring an action upon the original agreement after the said alleged breach by the plaintiff, and that the defendant, after the said alleged breach, had the right to treat such agreement as at an end.
    If the defendant had such right, (which is, however, denied,) he did not avow it, but, to the contrary, permitted the plaintiff, who was always ready and willing to perform at any time during such theatrical season, to believe that the original agreement -was still subsisting and in force. (Story on Contracts, § 977; Chitty on Contracts, p. 741; Lawrence v. Dale, 3 J. C. R., 23; Ibid., 17 J. R., 437.)

      H. A. Cram, for respondent.
    I. The whole question in this case was a question of fact, which the Referee has found more favorably for the plaintiff than the evidence warranted. Placide, in fact, broke his engagement by leaving at the end of the two weeks; he did this without the permission of Burton.
    - The modified agreement, also, is stated more favorably for Placide than the evidence warrants. Under the modified agreement, as made out from the testimony of both plaintiff and defendant, there was a clear breach by plaintiff in not returning to complete the first term of four weeks. Plaintiff was bound to do this without further notice.
    II. After this breach of the modified agreement found by the Referee, the plaintiff could maintain no action on the original agreement.

      HE. None of the various exceptions, either at the trial or to the findings of the Referee, were well taken.
   Moncrief, J.

There is no question that, on or about the 25th July, 1854, the defendant,'being the manager of a theatre in the city of New York, entered into an agreement with the plaintiff for his services as a performer in such theatre from the 9 th of October, 1854, to the 1st day of June, 1855, or until the time of the closing of the theatrical season of that year; the plaintiff, by the terms of such agreement, promising to play during four successive terms, of four weeks each, between the said 9th day of October and the time of the closing of such theatrical season, with an interval of four weeks intervening between each of said terms; the commencement of each of said terms to be fixed and appointed by the defendant and notice thereof given to the plaintiff. Nor is there any dispute that this agreement was, subsequently, and about September, 1854, modified by the defendant, at the request of the plaintiff, whereby the plaintiff was permitted to go to New Orleans on or about the 1st of January, 1855, to be absent until on or about the 1st of March following. This, substantially, is alleged in the complaint, stated in the answer, and found by the Referee.

The plaintiff commenced his service under this agreement on the 9th of October, 1854, and performed for two weeks. At about the end of this two weeks he proposed to the defendant that said first term, which the plaintiff was then playing, should bo divided into periods of two weeks each; that, at the expira-: 'tion of said second week, he should discontinue playing at said theatre, but should return and play the remaining two weeks of said term, so as to complete the same just prior to his departure for New Orleans on or about the 1st day of January, 1855; and the defendant assented thereto.

This finding of the Referee' is sustained, and is substantially, in respect to the terms of the modification, as testified to by the plaintiff himself.

There was no other or different agreement or understanding between the parties with reference to the performance by the plaintiff of the last two weeks of the first term, under the original agreement.

The plaintiff never tendered his services, or performed further or other than said two weeks under his - agreement, and now claims that he .was entitled to notice from the defendant of the time when he should commence the performance thereof. No such notice was given. The only question discussed upon the argument, and, it would seem, from the conclusions of fact and of law found by the Referee, that the only question in the case is, whether or not the plaintiff was entitled to such notice, or was •bound to tender his services at such reasonable time as to be enabled to complete the first term of four weeks, just prior to the 1st of January, 1855, according to the contract as modified in October, 1854.

The plaintiff had fixed and determined for himself, by his own proposition and the defendant’s acceptance of it, the time of the commencement of the last two weeks of his first term. The defendant had given notice to the plaintiff of the commencement of the first term, and the plaintiff began his performance of it, but, before completion, sought and obtained leave to make a different arrangement. He fixed, by that arrangement, the period for commencing the performance of this unfinished term, as he states in his evidence, by proposing to “divide that four weeks into engagements of two weeks each; that is, to perform two weeks, then go into the country and stay two weeks, and then to return and play two weeks.” Again, he says: “I propose to divide this four weeks’ engagement, play two weeks of it now, and return time enough before the 1st of January to play two weeks, then play those two weeks,” &c. This latter statement does not materially vary from the fact as found by the Referee; and the first statement has a specified time assigned. According to that, after an interval of two weeks he was to return and play: by the latter, it was left optional to the convenience of the plaintiff at. what time he should return, so long as he returned time enough to play the two weeks before the 1st of January. The plaintiff was bound to have returned and played, or tendered his services to play, the unfinished portion of his term, without notice from the defendant; and.not having so done, he not only has no claim upon the defendant in respect to that two weeks, but he thereby committed a breach of his agreement and became liable to the defendant for his damages sustained thereby.

The agreement had b.een reconstructed at the request of the plaintiff. At first, he was bound to have performed four weeks commencing in October, and other four weeks in-.each of the months of December, February, March and May. It was modified in September, by the plaintiff obtaining permission to be absent eight weeks from about January 1st to March 1st, 1855; and again changed so that, as it stood at the completion of two • weeks’ servicé, the plaintiff had excepted the December and February terms or periods of service, and left unfinished half of • the first term. This modification of the original contract would seem, necessarily, to require from the plaintiff an offer to perform, and to relieve the defendant from giving notice of a time when his services should commence. The plaintiff had received notice of the commencement of the first term, and was bound to complete it without further notice, unless he expressly stipulated to the. contrary; and there is no such provision in the agreement of October, 1854, but, on the contrary, that, substantially, fixes the middle of December as the time when the plaintiff would return and complete it. The plaintiff having broken his agreement in not returning and completing the first term, and never afterwards offering or tendering his services to the defendant in fulfillment thereof,- the defendant had a right to treat the contract as broken by the plaintiff, and was not bound to employ him in April or June, and is not liable by reason of not having notified him to perform a term in each of those months.

The damages found by the Referee were awarded as compensation to the defendant for the non-performance by the plaintiff for the residue of the first term; and his finding is sustained by the. evidence.'

After an examination of the whole case, I am of opinion that the conclusions of fact and of law, as found by the Referee, are correct, and should be sustained. The judgment, therefore, must be affirmed, with costs.

. Bosworth, Ch. J., and Hoffman, J., concurred in the conclusions stated in the opinion of Moncrief, J.

Judgment affirmed.


text:
    Studwell, Plaintiff and Appellant, v. Terrett, Respondent.
    One Jane B. Jones, by a written order dated May 26, 1856, and directed to the defendant, requested him to pay to the plaintiff or order defendant’s note at three months for $250, “whenever I (said Jones) haye put on the third tier of beams upon the five brick houses now building by me, * * to apply on the third payment as per contract for building said houses between us, datedMarch 27th, 1856.” By the contract of March 27th, Jones agreed to build and complete for the defendant five buildings, in a manner and by a time specified, and the defendant agreed to advance to Jones a building loan of $3,500 as the houses progressed, as follows, viz.: (1st,) $500 cash when the first tier of beams was on and the walls up all around; (2d,) $500 cash when the second tier of beams was on and the walls up all around ; (3d,) Three other payments, in notes or acceptances of $500 each, not to fell due before the browning of the whole five houses was on and floors laid. The defendant accepted said order of May 26th, 1856, by a writing on its face reading thus: “Accepted May 29th, 1856; Gr. R. Terrett,” and delivered it thus accepted to the plaintiff, who furnished lumber to be used and which was used in said five buildings. They were so far proceeded with that the side walls were raised up to the third tier of beams, and the third tier was put on, but the front walls were never raised higher than the sills to the basement windows. Held,

    1. That the defendant was not liable by reason of his said acceptance, to give anote to the plaintiff for $250, until after the buildings had been so far completed in the manner specified in the contract of March 27th; that the first and second payments had become due, and in addition to that the third tier of beams had been put on, in the further prosecution of the work as usual and customary in such cases.
    2. The contract of March 27th, 1856, is, by force of the reference made to it in the order of May 26th, 1856, incorporated into the latter in such sense that its provisions are to determine when the payment of $250, by note, is to be made.
    3. The order of May 26th, 1856, and its acceptance, do not, together, constitute a contract binding the defendant unconditionally to give his note for $250; to any person who may furnish materials for the buildings, on the security of such, contract, irrespective of the stage reached in the progress of the work of erecting the buildings at the time such a note may be demanded.
    (Before Bosworth, Ch. J., and Hoffman and Moncrief, J. J.)
    Heard, April 7;
    decided, April 30th, 1859.
    This is an appeal by Augustus Studwell, (the plaintiff,) from a judgment against him in favor of Gilbert R. Terrett, (the defendant.) entered on the report of Hamilton W. Robinson, Esq., as Referee.
    The summons, by the service of which the action was commenced, was served January 13th; the complaint February 12th, and the answer March 12th, 1857.
    The defendant is sued upon his written acceptance of an order, which, with the said acceptance, reads thus, viz.:
    “Brooklyn, May 26th, 1856.
    “ To Gilbert R. Terrett, Esq.:
    “ Sir,—Please to pay A. Studwell, Esq*, or order, your note i| at three months, for two hundred and fifty dollars, whenever s| I have put on the third tier of beams upon the five brick houses now building by me on Putnam avenue, eighty feet S* west of Bedford avenue, in this -city, to apply on the third | payment as per contract for building said houses between us, f dated March 27th, 1856, and oblige,
    “Yours, &c.,
    “ Jane E. Jones.”
    By the said “ contract for building said houses, * * dated March 27th, 1856,” said Jane E. Jones (inter alia) covenanted to and with said Gilbert R. Terrett, “to build” on certain lots therein described, “ situate on and fronting on Putnam avenue, five three story brick houses, with high basements,” &c., to be finished in every respect like a certain house on Lafayette avenue designated as a model house; and to complete them on or before the 1st of September, 1856; and Terrett covenanted to furnish said Jones a building loan of $3,500, “ to be advanced as the said houses progress,” as follows: “First payment, when the first tier beams is on, and the walls up all around, five hundred dollars in money; second payment, when the second tier beams is on, and the walls up all around, five hundred dollars in money; three other payments, to be made by advancing notes or acceptances of five hundred dollars each, drawn by the party of the first part, (said Terrett,) not to fall due before'the browning of all the said five houses is on, and floors laid.” The sixth payment, of $1,000, was to be made when the houses were all finished ready for occupancy.

      The plaintiff furnished lumber and materials to said Jones in erecting said buildings, and gave evidence tending to show that he furnished them on the security of the defendant’s acceptance of said order of May 26th, 1856. He also gave evidence of having demanded from the defendant, his note for $250 before this suit was commenced, and claimed that the evidence showed that, at the time such demand was made, the third tier of beams had been put on said five houses, within the meaning of the provision in that behalf contained in the said contract of March 27th, 1856.
    The Referee foum^ among other things—
    “ That the side-walls to the houses, mentioned in the order, were built up to the third tier of beams, and the third tier of beams was put on before this suit was brought, and before the refusal of the defendant to give the note.
    “That before this suit was brought defendant refused to give the note.
    “ That the contractor never erected the front walls higher than the sills to the basement windows, and never became entitled to the first or second payment, or advance.
    “ That the defendant had made payments on account of the first and second installments.
    “ The Referee found, as matter of law, that there was a valid agreement by the defendant to give the note named in said order, upon the condition therein mentioned.
    “ That this agreement referred to and adopted the building contract, between defendant and Jane E. Jones, and that whatever of obligation existed on the part of the defendant to give the note, arose out of his obligation to pay or advance money to Mrs. Jones, from time to time, as she progressed with the erection of the buildings, in the manner therein'specified.
    “ That this agreement to pay $250, -in a note, when the ‘ third tier of beams was on,’ which was ‘ to apply on the third payment,’ did not become operative, unless all the work which entitled the contractor to the first and second payments was completed.
    “That it became a condition precedent to the giving the note,that1 the walls should be erected all around,’ at least to the height of the second tier of beams.

      “ That this condition precedent was not performed, and that by reason thereof no right of action accrued to the plaintiffand that the complaint should be dismissed, with costs.
    The plaintiff duly excepted to the following findings of the Referee, as matter of law:
    “ 1st. That the agreement, by defendant to give the note, referred to and adopted the building contract, between the defendant and Jane E. Jones, and that whatever of obligation existed on the part of the defendant to give the note, arose out of his obligation to pay or advance money to Mrs. Jones, from time to time, as she progressed with the erection of the buildings in the manner therein specified.
    “2d. That this agreement to pay $250, in a note, when the 1 third tier of beams was on,’ which was to apply on the ‘ third payment,’ did not become operative unless all the work, which entitled the contractor to the first and second payments, was completed.
    “3d. That the condition precedent to the giving the note, required the erection of the walls 1 all aroundat least to the height of the second tier of beams.
    4th. That this condition precedent was not performed, and that, by reason thereof, no right of action accrued to the plaintiff, and that the complaint should be dismissed with costs.”
    The Referee wrote an opinion containing the reasons for his decision.
    Judgment having been entered upon the report, the plaintiff appealed from it to the General Term.

      George W. Mead, for appellant.
    I. The questions for review in this case will be seen, mainly in the findings of the Referee, and the exceptions thereto.
    Our difference with the Referee is, mainly, upon his conclusions of law, contained in our exceptions.
    This difference will best be made to appear, in the first instance, by a statement of the conclusions of law, that, we think, are inevitable, from the facts found.
    1st. We say, that the written order and acceptance, the execution of which is admitted, in themselves, constitute a valid promise and agreement in writing, with the consideration expressed, by the deféndant Terrett to and with the plaintiff Studwell, to pay to the latter the note mentioned in the order, upon the condition therein mentioned. That this instrument contains an independent, original agreement, between plaintiff and defendant, to which the statute of frauds has no application.
    2d. We say, that if the statute of frauds had any application to it, it fully meets the requirement of the statute.
    3d. We say, in the third place, that, if this instrument did not, alone, constitute an agreement by defendant, to give the note to plaintiff; still the only proper conclusion of law, from the facts found, as to the agreement to give the note, was that for the consideration contained on the face of the order, and in consideration of the delivery by plaintiff, to Jane E. Jones, of the lumber, the defendant agreed, to and with the plaintiff, to pay to him the note, whenever Jane E. Jones had put on the third tier of beams upon the houses. That here was an independent, original contract between them, unaffected by the statute of frauds, having no other limitation or condition than the one named in the order.
    4th. That the only condition precedent to the giving of the note, was that named in the' acceptance, to wit: putting on the third tier of beams, upon the houses named; and this having been done, and the defendant having refused to give the note, the plaintiff was entitled to judgment for the amount of it in money, with interest and costs.
    II. 1st, Therefore, we say that the Referee was right in finding, as conclusion of law, that “ there was a valid agreement by the defendant to give the note named in said order, upon the condition therein named,” but that he was wrong in finding “that,” (by a proper construction of this order, of course,) this agreement referred to and adopted the building contract, between defendant and Jane E. Jones, and that whatever of obligation existed on the part of the defendant to give the note, arose out of his obligation to pay or advance money to Mrs. Jones, from time to time, as she progressed with the erection of the buildings, in the manner therein specified. That this agreement to pay $250, in a note, when the “ third tier of beams was on,” which was “ to apply on the third payment,” did not become operative unless all the work which entitled the contractor to the first and second payments, was completed.

      That it became the condition precedent to the giving the note, that “ the walls should be erected all around,” at least to the height of the second tier of beams.
    That this condition precedent was not performed, and that by reason thereof no right of action accrued to the plaintiff.
    2d. The theory upon which the Referee tried this case may be thus stated, to wit: That the statute of frauds was an insuperable barrier to the establishment of any agreement, except by considering it as “ a mere alteration of the mode in which a subsisting debt or obligation to pay or advance money was to be discharged,” so as to bring the case within the principle of the authorities cited by him.
    • It being competent (as he says) for the parties to agree, that upon a valid consideration, passing from the plaintiff to Mrs. Jones, any moneys, which, by virtue of any subsisting contract, were to become payable to her from the defendant, should be paid to the plaintiff instead.
    Sd. The findings of law excepted to are plainly consequent upon this theory.
    4th. We are confident the Court will regard the theory and the findings of law referred to, as wholly erroneous.
    The judgment should be reversed.

      Joseph Neilson, for respondent.
    I. The order was conditional, its payment depending upon the performance of the contract by Jones. Jones did not perform, but abandoned the contract.
    II. No error of law was committed by the Referee, and the judgment should be affirmed. (See opinion of the Referee; also the case of Van Wagner v. Terrett, 27 Barb. S. C. R., 181.)
   By the Court—Bosworth, Ch. J.

Whether the judgment appealed from be erroneous, depends upon the true construction of the contract made by the defendant, (dated May 29th, 1856.)

It is not an agreement to pay to the plaintiff $250 in money on any day named, or which can be ascertained by the contract itself; but it is an agreement to make and deliver to the plaintiff the defendant’s promissory note for $250, “ at three months.”

When and on what contingency it was to be so made and delivered, are the material questions.

If the words, “ to apply on the third payment,” were transposed and inserted after the figures 1856, the agreement would express clearly the idea, which, as the defendant contends, it is apparent from a careful consideration of its terms, when viewed in the light of the facts then existing and known to all the parties, the parties to it meant to- express. • With that transposition made, it would read thus:

“Brooklyn, May 26th, 1856.
“ To Gilbert R. Terret, Esq.:
“ Yours, &c.,
“Jane E. Jones.”

If, by the terms of the contract of March 27, 1856, Jones might be entitled to any payment whenever she had put on the third tier of beams, “to be made by the advancing notes or acceptances of five hundred dollars each,” none could be required to be given, which would fall due “ before the browning of all the said five houses are on, and floors laid.”

A note made when the third tier of beams was on, and dated at that date, and payable three months thereafter, might fall' due sooner than the time fixed for the maturity of the notes, to be advanced for the third, fourth and fifth payments.

“ To apply on the third payment, as per contract,” &c., is an expression difficult to be understood, if the words “ as per contract,” &c., are to be deemed to have been introduced, merely to show the manner of applying the $250 on the third payment.

But if the words “ as per contract,” &c., be regarded as introduced to render somewhat definite the time at which, and the contingency on which, the note was to be given to the plaintiff, that expression is more intelligible. Eor, although the putting on the third tier of beams is not specified as a stage in the process of erection, or even named in terms, yet it would be quite clear that it could not happen, within the meaning of the contract, until after the first and second tier of beams were on, “ and the walls up all around.” All that must be done to make the first two payments demandable. And all that having been done, and the work having been subsequently carried forward, in the usual mode of building, it might be within the parties’ meaning of the contract, that when such further progress had been made as to have contributed $500 further security, a note of $500 was to be advanced, which would mature not sooner than the time specified for the maturity of the notes to be given for the third, fourth and fifth payments.

We think it a just conclusion, therefore, that the contract between the plaintiff and the defendant, by its fair and reasonable construction, does not import or express any undertaking by the defendant to give his note for $250 to the plaintiff, until after the buildings had been so far completed, in the manner specified in the contract, that the first and second payments had become due, and, in addition to that, the third tier of beams had been put on in the further prosecution of the work, in the manner usual and accustomed in such cases.

The plaintiff, so far as the question of securing the defendant's responsibility was concerned, took the risk of Jones, so prosecuting the work as to put on the first and second tier of beams with “ the walls up all around,” and of progressing so much further, as is usual and customary in such cases, as to put on the third tier of beams, and the defendant took the risk, when all that was done, of finding in Jones’ contract, and in what, in that event, would have been done under it, security for and indemnity against such an advance.

This view of the contract would make it substantially such a contract as formed the subject of the action in Van Wagner v. Terrett. (27 Barb. S. C. R., 181.)

We think this view accords with the intention of these parties, as shown by the terms of their contract, when viewed in the light of the facts existing and known to them when it was made. And that, inasmuch as Jones never so far completed her contract .that the first and second payments to be made by the defendant under it became due, it follows that Jones has “ not nut on the third tier of beams upon the five brick houses,” specified in her contract of ihe 27th of* March, 1856, within the meaning of that contract, nor within the meaning of the contract between the plaintiff and defendant, on which this action is brought.

This view of the rights of these parties, disposes of every question raised by the present appeal, and the judgment appealed from must be affirmed, with costs.

Judgment affirmed.


author: By the Court—Hoffman, J.

text:
    Bernhard et al., Plaintiffs and Appellants, v. Brunner et al., Defendants and Respondents.
    1. In an action by the payees of a check against the drawers, the defendants may show the transaction in which it originated; that its delivery was not absolute but conditional, and that according to such condition it was the plaintiffs' duty to return it to the defendants, and that they had refused, before suit brought, to do so. ¡
    2. When there is conflicting evidence in respect to the allegations of fact stated in an answer as a defense, it is the duty of the Judge to submit the evidence to the jury, and consequently an exception to his refusal to charge that it established the facts, as either party claimed them to be, is manifestly untenable.
    (Before Bosworth, Ch. J., and Hoffman and Moncrief, J. J.)
    Heard, April 7;
    decided, April 30, 1859.
    This is an appeal by the plaintiffs from a judgment against them, entered on a verdict rendered at a trial before Mr. Justice Woodruff and a jury, on the 21st of June, 1858.
    Isidor Bernhard and Seigel Bernhard, composing the firm of . Isidor Bernhard & Son, are the plaintiffs, and William Brunner, Samuel Brunner and Jacob Brunner, composing the firm of ■ William Brunner & Co., are the defendants. The action is upon a check in these words, viz.:
    “No. 8874. New York, Sept. 14,1857.
    “ Bank of the State of New York:

    “ Pay to the order of Messrs. Isidor Bernhard & Son, twenty-four hundred and thirty-five TW dollars.
    William Brunner & Co.”

      The defense set up in the answer, and attempted to be proved at the trial is, that the check was a memorandum check; that the defendants applied to the plaintiffs, on the 7th of September, 1857, to borrow money; the latter said they had none they could lend, but had a note for $2,435.50, made by Coffin & Haydock, having about 18 days to run, which the plaintiffs had no doubt, as they said, the defendants could get discounted at their Bank as the note was so near its maturity, and the makers were perfectly responsible; that the defendants took the note to see if they could get it discounted, the next day being discount day, and gave the check as a memorandum, and the agreement was that the note was to be returned if the bank would not discount it, and the check given up. That on the 8th the bank refused to discount the note, oh the ground that the makers had failed, whereupon the defendants returned it, and the plaintiffs refused to accept it, or surrender the check in suit. '
    The defendants gave evidence tending to' prove the truth of the facts stated in their answer. The plaintiffs, on their part, gave evidence tending to show a sale of the note, or an exchange of it for the defendants’ check.
    The plaintiffs objected and excepted to the admission of evidence to prove the defense stated in the answer, on the ground that the check was, in terms and legal effect, payable absolute^, " and could not be shown by parol to be payable- on a contingency.
    The evidence also disclosed, that on the same 7th of September, the defendants received from the plaintiffs a note for $4,500, made by Van Wyck, Townsend & Warren, and gave their check to the plaintiffs for the same amount, dated subsequently, but a few days before such note matured; that the defendants procured such note to be discounted on the 8th, and paid their check ou the day of its date. The plaintiffs gave evidence tending to show that the transfer of both of said notes was a single transaction, and was in pursuance of one contract, and the defendants gave evidence tending to show that the- transactions were separate, but that the one, in its substance, was the same as the other.
    The plaintiffs requested the Court to charge,
    1. That the evidence established a sale of the Coffin & Hay-dock note, and that the plaintiffs are entitled to recover.

      2. That the contract being for the two notes, taken for the two checks, the defendants cannot rescind without returning both notes, they cannot divide the transaction, keeping one note and returning the other. The Judge refused to charge according to cither request, and the plaintiffs excepted.
    The Judge charged, {inter alia,) thus: “ The question is, therefore, what was the real transaction between the parties, as understood by them, and agreed to at the time ? If the note was taken, and the check was given, as a purchase; or if the note was taken as an exchange of the check for the note—the note to be used by the defendants as their own, the defendants are liable; but if the note was taken on the understanding, that the defendants could get it discounted at their bank, and should try to get it discounted there, and the check was given only as a security to the plaintiffs in that event, then, the defendants are not liable, as they returned the note on the discount being refused. (To this last portion of the Judge’s charge, the plaintiffs’ counsel excepted.)
    The jury rendered a verdict in favor of the defendants. The plaintiffs moved, on a case, for a new trial, and the motion was denied. From the order denying it, and from the judgment entered on the verdict the plaintiffs appealed to the General Term.

      James W. Gerard, for the appellants,
    Insisted that the evidence entitled the plaintiffs to the instructions which they requested the Court to give to the jury; that the exceptions to the refusal to charge as requested were, therefore, well taken; and contended that, a check on a bank, absolute and unconditional on its face, cannot be shown, by parol, to be payable only on a contingency, which would destroy, qualify or limit-its legal effect; or only out of a particular fund, and cited Edwards on Prom. Notes, pp. 147, 148; Chitty, 162, ed. of 1836; Johnson v. Titus et al., (2 Hill, 606,) Thompson v. Ketcham, (8 John. R., 192,) Barnum v. Barnum. (8 Conn., 409.)

      S. Sanxay, for the respondents.
   By the Court—Hoffman, J.

The consideration of a check or note may be inquired into: that nothing was given for it, or what was given for it, is open to proof. This involves the whole examination of the facts and circumstances attending the transaction, so far as the point of consideration is concerned. (Chitty on Bills, 69, and notes; Edwards on Bills, 311, et seq.)

If, then, the allegation is, that one security or evidence of debt was given for another of a similar nature, the inquiry is open; was there a mutual, unconditional sale or exchange of one for the other; or was there any other condition or purpose for which the interchange was made ?

We think it clear that the Judge was right in admitting testimony to show on what agreement the check was given, upon the delivery of the note of Coffin & Haydock. The testimony was directed to the original consideration of the check.

The Judge would have erred, in our opinion, had he taken the question of the fact of a sale or no sale of the note from the jury, or expressly directed them to find a sale, as he was requested to do. There was evidence enough to go to the jury upon this question—indeed, evidence enough to sustain the conclusion they arrived at.

We consider, also, that his refusal to charge, as requested, that they could mot rescind the contract as tó this check and note without doing so as to the other, a proper refusal. There was nothing in the case, so connecting the one with the-other, as to make an indivisible contract.

The charge of the Court was, in our opinion, correct. The inquiry upon the testimony was legally open, whether the note was sold and the check given as its price—the defendants taking the note to use it as their own absolutely; or whether the note was delivered for the special purpose of trying to get it discounted, and the check given as a security to the plaintiffs in case the defendants succeeded in getting the money upon it, and to enable them to have the price a few days earlier than the note matured.

The case, then, went to the jury upon the point of the true-original consideration of the check. There was evidence requiring the Judge to submit this question to them. They have found that the delivery was made for the special purpose mentioned.' Their verdict is warranted by the testimony; and we conclude that no error was committed by the Court or jury.

The judgment must be affirmed, with costs.

Judgment accordingly.