text:
    LEWIS S. LEVY, Plaintiff and Respondent, v. SYLVESTER BRUSH, Defendant and Appellant.
    The statute requiring contracts for the sale of land to be in writing, and subscribed by the party by whom the sale is to be made, has no application to a contract between two parties to become jointly interested in the purchase of lands.
    Such latter contract is not within the statute, and is valid.
    A parol contract between two persons to purchase lands on joint account is valid.
    Such contract is not affected by the statute of uses and trusts.
    Where two persons attending an auction sale of lands agreed, by parol, that one should bid and purchase for the joint account, each to pay one half of the purchase-money, and each be entitled to one half of the lands, and the party who was to do the bidding purchased lands at such sale, and took the deed in his own name—Held, he was bound to convey an undivided half to the other, or account for his interest therein.
    Before Monell, McCunn, and Fithian, JJ.

      [Decided December 4, 1869.]
    This case was tried at Special Term, before Chief-Justice Barbour.
    The action was brought to compel the conveyance by the defendant to the plaintiff of the undivided half part of certain lots of land in this city. The contract which it was sought to enforce was shown in the following testimony of the plaintiff:
    “ On the 10th of March last I attended the sale of real estate at the Exchange salesrooms, in New York city—Mr. Bleecker being the auctioneer—and there I met Mr. Sylvester Brush, the defendant; we stood beside each other; and when the first lot, on the corner of Sixth avenue and Fifty-ninth street, was knocked down, I pointed to the lot on the corner of Fifty-ninth street and Seventh avenue, and said, Here is a nice piece of property; I should like it; he replied, Let us buy it on joint account; 1 said, All right, go ahead; when the lot was put up, he commenced bidding, and I, as the bidding went on, gave my assent to his continuing his bids on the property, sometimes by a nod, sometimes by direct words; the property was struck down to him at $29,000; I then said, We must endeavor to buy these lots at the side of it; he asked me, about how much cash I wanted to invest; I told him about the sum I wanted to lay out in cash; we figured up the amount already purchased, and found we could buy, if they went cheap enough, some of the rear lots ; but these were sold at a higher price than we chose to give for them; therefore, the only lots we bought were the three lots on the corner of Seventh avenue and Fifty-ninth street; during this sale we talked about the deeds being made out in both our names; I wanted my brother Henry’s name also to be joined thereto, as I said to Brush that all purchases of real estate were on the joint account of myself and brother; he objected to that, and said my brother had too large a family of children, and that the deed had better be made out in his, Brush’s, and my name only; to which I assented; I left him at the sale before its conclusion, making an appointment to call at his house at eight o’clock next morning, to drive him up in my wagon, and look at these lots, and also other lots on Eleventh and Tenth avenues; it was agreed between Hr. Brush and pay-self, that each was to furnish five per cent, of the deposit-money ; pay each one half the auctioneer’s fees; and when the deeds were ready, we were to pay the balance of the thirty per cent, in cash, and give a mortgage for the residue.”
    The court rendered judgment for the plaintiff," from which the defendant appealed.
    The conclusion of law was, that the purchase of the lots was the joint purchase of the parties, and that the defendant was seized in fee of one undivided half of the lots, as trustee for the plaintiff.

      Mr. Osborne E. Bright for appellant.
    Taking the most favorable view of the facts presented, they are too indefinite and vague to afford a basis for a decree (12 Ves., 78; 1 Johns. Ch., 273 ; 14 Johns., 15).

      The material findings of fact that the plaintiff duly tendered one half of the auctioneer’s charges and ten per cent, of the purchase-money, according to the terms of sale, and offered to secure the bonds and mortgages as required by the terms of sale, are not warranted by the evidence.
    It does not appear what amount was tendered. The alleged tender, moreover, was made by offering a check on Friday, the bid having been taken and the first payment made, by Brush, on the Wednesday previous.
    There is no proof of an offer on the part of the plaintiff to execute or join in the execution of any bonds or mortgages.
    The conclusion of law, that Brush is trustee for the plaintiff, and that the plaintiff is entitled to relief, is erroneous.
    The agreement in question being for an interest in lands, and not in writing, was within the statute of frauds, and therefore void (8 R. S., 220, 5th ed.).
    Courts of equity do not undertake to enforce mere matters of conscience. To attempt the enforcement of every verbal agreement for an interest in lands, on the ground of the moral fraud involved in its violation, would be to repeal the statute which declares such agreements void (5 Vin. Ab., 523, 524; 1 Sch. and Lef., 123; Walker v. Walker, 2 Atk. R., 99; Montacute v. Maxwell, 1 P. Wms., 618; Sugden on Vendors, 9th ed., p. 139 ; Atkins v. Rowe, Mosely R., 133; Lamas v. Bayly, 1 Vern. R., 627; Ryan v. Dox, 34 N. Y., 307).

      Mr. Henry Morrison for respondent.
    The statute of frauds can only be invoked by a party for the protection of the law, from being imposed upon, and not for the prostitution of the law, to help him to protect himself as a recusant from the performance of his obligation (Ryan v. Dox, 34 N. Y., 304; Sandford v. Morris, 36 Transcript’s Appeal R., vol. I, p. 350; Morrey v. Herrick, 18 Penn., 8 R., 128; Soggin v. Heard, 31 Miss., 2 Geo., 426).
    The object of that statute is the protection of those who may be, but for the statute, dupes of the designing in real estate and other matters of moment, for the want of written testimony which otherwise might be supplied by oral testimony capable of being manufactured.
    “ Nothing in this title contained shall be construed to abridge the powers of courts of equity, to compel the specific performance of agreements in case of part performance of such agreements ” (2 R. S., Edmonds’ ed., p. 132).
    This agreement was not in relation to the purchase of land, as intended by the statute.
    All this agreement amounted to was that the parties agreed to attend an auction sale, and bid against purchasers for a piece of land, which, being consummated by the bidding, resulted in being taken as the best bidding.
   By the Court:

Monell, J.

It is objected in this case that the contract between the parties, not being in writing, was void under the statute respecting fraudulent conveyances and contracts relating to lands (2 R. S., 134). That statute provides (sec. 8) that every contract for the sale of any land, or interest .in lands, shall be void, unless the contract, or some note or memorandum thereof expressing the consideration, be in writing, and be subscribed hy the party hy whom the sale is to he made.

The contract in this case is, I think, sufficiently definite and certain to render it valid if it is not affected by the statute referred to. The contract was by parol, and related to the purchase of lands. Such a contract is not, in express words, declared to be void. The agreement was that the parties should jointly purchase, and it is only by implication that a sale can be inferred as enteripg into their intention. The statute, by its terms, relates to sales, and only requires that the contract of sale shall be subscribed by th& party hy whom the sale is to he made. In the case before us the agreement was, that the parties would huy the lands “on joint account,” and the only sale which, by implication, could have been contemplated, was a sale by themselves to third persons, and there is room for very grave doubt whether the statute has any application whatever to the case. The section, when reported by the revisers, had added to it, “ and unless the person to whom the sale is to be made shall subscribe such contract, or a counterpart thereof, or, at the time the same is executed, pay or give security for the payment of'the purchasemioney /” and they say in a note to the section that- the clause was added to meet a rule of construction by the courts, that it is sufficient as against the party sought to be charged, if the instrument is signed by him; and accordingly courts of equity will decree a specific performance to sell lands against a person who holds the written engagement of the other party, signed by him alone, though the latter may be wholly remediless; a rule of construction, which they say the ablest judges in England and in this country have regretted. Chancellor Kent said, in Clason v. Bailey (14 John. R., 489), that he thought the weight of argument was in favor of the construction that the agreement concerning lands, to be enforced in equity, should be mutually binding; and he yielded his judgment only to the established rule of construction in such a case. Therefore, if the contract is signed by the vendor only, it would seem within the principle laid down in several cases, that it is binding upon, and may be specifically enforced in equity against the vendee (Ballard v. Walker, 3 John. C., 60; Roget v. Merritt, 2 Caines, 120 ; Gale v. Nixon, 6 Law., 448 ; First Baptist Church v. Bigelow, 16 Wend., 28; Worrall v. Munn, 5 N. Y. R., 229). The eleventh section of the Revised Laws of 1813 (1 R. S.,p.78) differed from the Bevised Statutes in this, that it merely required the contract to be in writing, and signed by the party to be charged; the latter statute, as the court say in First Baptist Church v. Bigelow, supra, having, made ’ provision for binding the vendor only, and not the vendee. But it is somewhat doubted in that case, whether it was intended to make a subscription by the vendor obligatory upon the vendee. Certainly the change in our present statute from that part of the eleventh section of the former statute, which rendered the signing by the party to be charged alone necessary, and from the section as reported by the revisors, is very significant, and fairly raises the presumption that it was intended to recognize the rule of construction which had been adopted under the former statute.

While I do not find any case in this State, since the Be vised Statutes were enacted, where a signing by the vendor only was held to be binding on the vendee, without any act on the part of the latter, I do find one or two cases in which it is perhaps asssvmed that the contract requires his subscription (Boles v. Bowne, 10 Paige, 526; Champlin v. Parish, 11 id., 405), and in First Baptist Church v. Bigelow, ubi supra, it is questioned whether the vendor’s subscription alone will make a contract binding on the vendee. The dictum in Worrall v. Munn, supra, of Mr. Justice Paige, is merely to the effect that a contract for the sale of lands signed by the vendor only, “ if accepted by the purchaser and acted on by him,” may be enforced against such purchaser. However that may be, the contract must 'be subscribed by the party making the sale, and a mere parol contract is nudum pactum.

The contract which the statute requires to be in writing, is one between seller and purchaser, by which the former agrees to sell and the latter to buy; and the statute may be satisfied if the contract is signed by the seller only. But even if it is not satisfied without a signing by both seller and purchaser, it nevertheless must be a contract between a seller and a buyer, and only such contracts are within the statute. All parol contracts relating to lands, or to interests in lands, are not necessarily void. For the sale of lands, they are void. Neither party can enforce them; but there is a wide difference between the kind of .contract which the statute deals with, and such as was proved in this ease. ThM was not a contract for the sale by vendor to vendee, but a contract which had for its object the purchase of lands on joint account, by which each was to contribute an equal part of the purchase-money, and take title to a moiety, as tenants in common, or as joint tenants. Such a contract constituted the parties partners in the enterprise (Sage v. Sherman, 2 N. R. R., 417), and, as it seems to me, it is not affected by the statute.

But some cases in neighboring States hold otherwise, to which I will first refer.

In Smith v. Burnham (3 Sumn., 435), there was an agreement to become copartners in the business of purchasing and selling lands and lumber in the State of Maine, upon a joint capital to be furnished by the parties, the profits and losses to be equally shared by them. It was averred that purchases and sales had been made by the defendant under the agreement, and moneys advanced by the plaintiff, who prayed for an accounting and dissolution of the partnership, and if any of the lands were unsold, that the defendant might be decreed to convey to the plaintiff his share. It was objected that the contract was void. Story, J., said there was no substantial difference in the language of the statute of frauds of .Massachusetts, Hew Hampshire, and Maine on that subject; or between them and the English statute of 29 Car. II., ch. 3, and after referring to several decisions upon these statutes, especially upon the English statute, holding such parol contracts to be void, he followed those decisions and gave judgment for the defendant.

An earlier case in the same court (Flagg v. Mann, 2 Sumn., 486) is somewhat opposed to Smith v. Burnham. It is held in Flagg v. Mann, that if parties are interested together by mutual agreement, and a purchase is made agreeably thereto, neither party can exclude the other from what was intended to be for the common benefit; and any private benefit, touching the com- ■ mon right, which is secured by either party, will turn him into a trustee for the benefit of both. Such an agreement, although by parol, can be enforced. The decision in that case, however, was strengthened by the fact that title to some of the lands had • been vested in the parties by actual conveyances.

In Henderson v. Hudson (1 Munf., 510), there was a parol agreement between the parties that the plaintiff should be let in as a partner in the purchase of certain real estate. The statute of Virginia was set up in defence, and the court held the agreement void. The meaning of the statute is there said to be, to reduce all parol agreements relating to lands to the level of a mere nudum pactum. And in. Ridgeway’s Appeal (15 Penn., 177) it was held that, where parties intend to bring real estate into the partnership, the intention must be manifested by deed or writing. The same is stated by Mr. Justice Story in his Commentaries on Partnership (sec. 83). And see, also, Gray v. Palmer (9 Cal., 616); Pitts v. Waugh (4 Mass., 426), where the general proposition is maintained that a parol agreement of partnership for the purchase of lands is insufficient. In Gray v. Palmer it was a mere dictum; and in Pitts v. Waugh the point decided was, that a dormant partner was not liable to the vendor upon a contract of purchase made by his copartners.

To the contrary, however, is Bunnel v. Taintor (4 Conn., 568), where two persons entered into a parol agreement to be jointly interested in the profits arising from the purchase and sale of certain tracts of land. One was to make the bargains, and the other to furnish the money and to take the deeds in his own name; and it was held, in an action for a share of the profits, that the agreement was not within the statute of frauds. A similar decision was made by Vice-Chancellor Wigram in Dale v. Hamilton (5 Hare, 369), where it was held, that an agreement to form a partnership for the purpose of buying and selling land might be proved by parol; and that it might be shown by parol that certain land had been bought for the purpose of the partnership, and consequently that the plaintiff was entitled to a share of the profits obtained by the resale. And in another case, Essex v. Essex (20 Beavan, 449), it was held, with respect to that part of the statute of frauds which relates to lands, that a partnership constituted without writing is as valid as one constituted with writing; and that if a partnership is proved to exist, then it may be shown that its property consists' of land, although there may be no signed agreement, as required by the statute (see, also, Lindley, Part., 92 ; Fall River Whaling Co. v. Borden, 10 Cush., 458).

The statute of frauds, in Massachusetts, under which the decisión in Smith v. Burnham, supra, was made,.providesthat “no action shall be brought * * to charge any person * * upon any contract for the sale of lands, tenements, hereditaments, or any interest in or concerning them, unless the agreement upon which such" action is brought, or some memorandum or note thereof, shall be in writing, and signed by the party to be charged therewith, or some person thereunto by him lawfully authorized.”

The Massachusetts statute is a transcript of the statute of 29 Car. II., c. 3, sec. 4; and the statutes of the several States in which decisions have been made invalidating parol contracts in respect' to lands, are also transcripts, substantially, of the English statute. .Those decisions, therefore, are authorities upon the constructions of the particular statute under which they were made, but do not aid us in the construction of our statute, which, as we have seen, is different in essential particulars from the English statute.

Even under the English statute and the statutes of other States, I am not satisfied that the clear weight of authority is in favor of the invalidity of parol contracts for the sale of lands, or any interest in or concerning them; and so far as the law is affected by the decisions, it may, I think, be considered as at least still an open question, whether, under any of the statutes, such contracts are required to be signed by both the vendor and vendee.

Assuming, therefore, that the contract, in the case before us, is not affected by the statute of frauds, it remains to be seen what rights and interests the plaintiff had, which can be enforced .or protected by a court of equity.

The lands which were the subject of the contract were purchased by the defendant for the joint account of the parties. The title was taken in the defendant’s name, he paying the whole consideration or purchase-money, and refusing to receive any part from the plaintiff, or to allow him to participate in any manner in the purchase. The interest, therefore, of the plaintiff, was an undivided half of the lands, upon paying one half of the purchase-money.

I am inclined to think the only question in this case is whether the contract is within the statute of frauds; and, having determined that it is not, the plaintiff is entitled to the relief sought.

Before the ¡Revised Statutes, a trust would have resulted in his favor by operation of law (Boyd v. McLean, 1 J. C. R., 582; Bottsford v. Burr, 2 id., 405 ; Steers v. Steers, 5 id., 1; Hess v. Fox, 10 Wend., 437).

By the ¡Revised Statutes, however, resulting trusts were, in most cases, abolished (1 R. S., 727, sections 51, 53), it being provided that where a grant is made to one person, the consideration having been paid by another, no trust shall result in favor of the latter (section 51), except where the former shall have taken an absolute conveyance, in his own name, without the consent of the latter, or in violation of some trust.

This case, however, does not probably fall within the 51st section, no part of the consideration having been actually paid by the plaintiff; but it may, perhaps, come within the exception contained in the 50th section, which excludes the preceding sections from operating upon trusts arising or resulting by implication of law.

The reasons for abol shing formal trusts, as stated by the revisers, were, that they answered no end whatever, but to facilitate fraud, to render titles more complicated, and to increase the business of the Court of Chancery. But as to implied trusts, they could not be abolished, as their existence was necessary to the prevention of fraud. The revisers proposed an important change, in preventing a secret resulting trust from being created by the act of the party claiming its benefit; and the enactment of the 51st section of the statute of uses and trust resulted from such recommendation. Justice Harris says, in Hosford v. Merwin (5 Barb., 57), the object of the legislature was to prevent the creation of passive or formal trusts ; and to accomplish this object, it became necessary to declare void every secret resulting trust, created by the voluntary payment by one person, of the consideration of a conveyance to another” (see also Sieman v. Austin, 33 Barb., 17).'

The formal trusts abolished by the statute are such only as would otherwise result from the payment of the consideration by one, and taking the title in the name of another. Other trusts arising or resulting by implication of law are not affected by the statute. So far as such trusts relate to real property, and are not within the' statute of frauds, they are valid, notwithstanding the statute of uses and trusts (Hess v. Fox, 10 Wend., 436).

There is nothing in the agreement between the parties to this case, which brings it within any of the reasons which induced the abolition by the legislature of the class of formal trusts which were designed to facilitate frauds. The contract was merely to join in the purchase of certain lands for their joint profit, each to contribute an equal share of the purchase-money, and equity and good conscience require that each party shall carry it into effect. <

But even if the trust resulting in this case were within the provisions of the 51st section, it might very properly perhaps be relieved by the exception in the 53d section, of a conveyance taken without the knowledge or consent of the party paying the money, or in violation of some trust.

In Lounsbury v. Purdy (16 Barb., 376), it was held not to be necessary that the consideration should be paid in specie, but any thing representing it, arising from or on behalf of the cestui que trust, was equally available to protect the beneficial interest. Therefore, the agreement, or obligation to pay, may be regarded as equivalent to payment, within the meaning of the exception referred to. A similar view is taken in Swinburne v. Swinburne (28 N. Y. R., 568), where a resulting trust was sustained, a part of the purchase-money having been paid by the trustee; the only effect, the court say, of such payment, being to give the trustee a lien on the trust property till he is repaid. And in Burham v. Van Zandt (7 N. Y. R., 523), one of several tenants in common purchased, with 'his own money, the lands sold for a municipal assessment, and it was held the purchase must enure to the common benefit. To the same effect is Van Horne v. Fonda (5 J. C. R., 388), where one tenant in common purchased and took a conveyance in his own name of an outstanding title.

In the case of Gardner v. Ogden (22 N. Y. R., 327), a trust was raised, by implication of law, against the clerk of a broker employed to make sale of land, who, having access to the correspondence between his principal and the vendor, in violation of the trust and confidence, became the purchaser, and it was held he should re-convey or account for the value of the land.

Any doubt there may be of the effect of the statute of frauds upon the contract in this case, should be given to the plaintiff; and we may, in the language of the court in Sieman v. Schurck (29 N. Y. R., 612),“ without doing violence to the language of the statute, except this case from its operation, in accordance with the manifest equity of the transaction.” In the construction of that statute, a general principle has been adopted, that, as it is designed as a protection against fraud, it shall never be allowed to be set up as a protection and support of fraud. Hence, where the contract has been suffered to rest in confidence, courts of equity will enforce it against the party guilty of a breach of confidence, who attempts to shelter himself behind the provisions of the statute.

In a case in the late Court of Chancery, Burrill v. Bull (3 Sandf. Ch. R, 15), where one of several persons interested in a lease was intrusted to procure a renewal for the common benefit, and took the new lease in his own name, the assistant vice-chancellor pronounced it an attempt to shut out his associates from sharing in its advantages, and “an unmitigated"fraud, against which courts of equity have ample jurisdiction to grant relief.”

The questions in this case are new and important, and by no means free from difficulty or doubt. But my opinion is that the plaintiff is entitled to share in the purchase and to the relief demanded.

Whether the judgment, as entered, is or is not defective in the form, of the relief which has been awarded, might be a question; but as no objection was taken to it below, or raised upon the appeal, it is not necessary to consider it.

The judgment should be affirmed, with costs.


source: Caselaw Access Project

author: Monell, J. McCunn, J. Fithian, J.

license: Public Domain

text:
    SAMUEL A. LAMBERT and Another, Plaintiffs and Respondents, v. HIRAM BENNER and Others, Defendants and Appellants.
    Shippers of goods having made a prima facie case by showing the shipment of butter in good order, it became necessary for the carriers to show that the butter had been stowed on board the vessel in a proper and suitable place. Having shown that, the burden of proof was changed, and the shippers were required to show either that the place of stowage was not a suitable, or not the most suitable place in the ship.
    Where, upon a shipment of butter in the month of August to a Southern port, the carriers had shown stowage in the coolest and best part of the ship, they had laid the foundation for the inference that any damage to the butter was caused by its quality, or from imperfect packing, or from perils of the sea, of which the shippers took the risk.
    Where the evidence of proper stowage was uncontradicted, and there were other causes which might have caused the injury, the jury have no right to totally disregard such evidence. Per Monell, J.
    Under such proof, it was the duty of the judge to have directed a verdict. To hold that, as the jury are to judge of the credit to be given to witnesses, their verdict can never be disturbed, would prevent the court from ever setting aside a verdict as being against the weight of evidence.
    Before Monell, McCunn, and Fithian, JJ.

      [Decided December 4, 1869.]
    The action was to recover against the defendants, as common carriers, the loss, by melting and leaking, from seventeen firkins of butter, shipped by the plaintiffs, at the port of New York, on board of the steamer “ Western Metropolis,” owned by the defendants, to be conveyed to the city of New Orleans.
    The complaint alleged that the butter was so negligently and carelessly stowed and carried by the defendants, that it leaked from the firkins or was otherwise damaged.
    The action was tried before Mr. Justice Barbour and a jury.
    At the close of the evidence, the defendants moved the court to dismiss the complaint, on the ground that the evidence failed to establish the liability of the defendants Lor the alleged injury. Also, upon the ground that the evidence in the case proved that the injury was not caused by any negligence, default, or improper conduct of the defendants, but was occasioned by the natural heat of the weather, and the inherent qualities of the article conveyed.
    The court denied the motion, to which decision the counsel for the defendants excepted.
    The defendants’ counsel then requested the court to charge the jury that, upon the evidence in the case, the plaintiffs were not entitled to recover. The court refused so to charge, to which refusal the counsel for the defendants excepted.
    The jury rendered a verdict for the plaintiffs.
    A motion made at Special Term for a new trial was denied.
    Judgment was thereupon entered upon the verdict, and the defendants appealed from the judgment and order.

      Mr. Erastus Cooke for appellants.
    Common carriers are not insurers against injury growing out of the intrinsic qualities of the goods carried (Nelson v. Woodruff, 1 Black, 156).

    The facts are undisputed, and the evidence uncontradictory.
    The defendants proved affirmatively that the goods were properly stowed, safely carried, and not injured through any fault of theirs. The only pretext afforded in the case for the verdict was the conjecture of some of the New Orleans witnesses, not amounting to evidence, that the butter must have been badly stowed. , - '
    The verdict is palpably against evidence, and should be set aside.
    Captain Hilton had testified that, on arriving at New Orleans, the packages were in good order, that is, externally they presented a good appearance.
    He noticed more or less grease from the contents having oozed out.
    He was then asked: “ Gan you state whether that was from

      the liquefaction of the butter f” The plaintiffs’ counsel objected to the evidence as irrelevant, and the Court ruled it out; to which ruling defendants’ counsel excepted.
    This decision was clearly erroneous.
    It was a vital question to be determined, whether the packages, which were received in good order in New York, were broken by bad handling on the voyage, and thus made to leak; or, whether the oozing out of the contents was the result of their liquefaction and consequent expansion (1 Black’s Rep., U. S., 166).

      Mr. W. W. Goodrich for respondents.
    Where merchandise is delivered in good order to a vessel and comes out at the port of delivery in a damaged condition, the burden of' proof is upon the shipowners to excuse themselves, and to show that the damage was occasioned by one of the exceptions in the bill of lading (Rich v. Lambert, 12 How., U. S., 357; Clark v. Barnwell, 12 How., U. S., 280; Nelson v. Woodruff, 1 Black, 160; Ellis v. Willard, 5 Seld., 529; Hastings v. Pepper, 11 Peck, 43).
    This testimony proves that the damage to the butter, the cooked state of the butter, could not have been occasioned by the weather. The jury was justified, therefore, in believing that the damage was occasioned by the heat of the fires in boilers, or by bad stowage in some improper place. The burden of proof was upon the defendants. They had all the means of knowledge in their power, and were bound to prove to the satisfaction of the jury what was the real cause.
    The jury had the right from the testimony to infer bad stowage, either exposure on deck or to the heat of the boilers or fires, and the evidence clearly shows that the injury must have been occasioned by one or both of these causes.
    If the butter was injured on the wharf at New Orleans before delivery, the ship is responsible.
    The motion to direct a verdict for defendants was properly denied, there being evidence to submit to the jury.

      A verdict can only be directed where there is no conflict of evidence, where the party asking such direction “ has established, by evidence uncontroverted and admitting of no 'reasonable' doubt, every fact essential to his right to recover ” (St. John v. Mayor of New York, 6 Duer, 317).
    The defendants’ request to charge that, upon the evidence in the case, the plaintiffs were not entitled to recover, was properly refused.
   Monell, J.

The plaintiffs having made a prima facie ease, by showing the shipment of the butter in good order, it became necessary for the defendants to show that the butter had been stowed on board the vessel in a proper and suitable place, and in a proper and suitable manner. Having shown that, if they, did show it, the burden of proof was shifted, and the plaintiff was required to show, either that the place of stowage was not a proper or suitable place, or not the most proper and suitable place in the vessel, or was not stowed in a proper or suitable manner; or that, otherwise, the injury the butter sustained was through some other fault or neglect of-' the carriers.

The rule is, as stated in Clark v. Barnwell (12 How., U. S., 272, 283), that if the evidence on the part of the defence lay a foundation for a reasonable inference that the damage resulted from an imperfection in the goods when packed, or had occurred previously to their being shipped on hoard, the burden is thrown upon the shippers to rebut the inference; and when the commodity shipped is of a kind affected by heat, the shipper takes upon himself the risk of all loss proceeding from that cause (Nelson v. Woodruff, 1 Black, 156); and upon proof of proper stowage, the presumption will be that 'the injury occurred from improper packing, or from the quality of the commodity, or from damages of the seas.

The evidence in this case abundantly established that the butter was well stowed, and in the best and coolest part of the ship. One of the defendants’ witnesses described with much exactness the place where the butter was put, about forty feet forward of the boiler, and was separated from the boiler by a bulkhead and a space of nine or ten feet for the coal bunk, and then another bulkhead some inches thick. He said it was stowed where the heat of the boiler could not affect it, and m the coolest part of the vessel. Another witness testified that there was no other place on board the ship as cool as where the butter was stowed, and that it Avas well stowed.

Upon this evidence, it seems to me, the burden of proof was changed. The defendants had shown that they' had done all that they, as carriers, were required to do, and had laid the foundation for the reasonable inference that the damage resulted from the quality of the commodity (a risk which the shippers took), or from imperfect packing, or from perils of the sea.

-Was such reasonable inference rebutted by the plaintiffs? I think not. The evidence in rebuttal was mostly of a negative character. Excepting the proof of the sound condition of the butter at the time- of-shipment, there was nothing of a positive character to show that it was damaged by reason of any fault or neglect of the defendants. It was not shoAvn, nor attempted to be shown, that the butter was placed in an improper or unsuitable part of the vessel, of that it was not properly stoAved. The eA'idence, which the defendants had given on these subjects, was left wholly uncontradicted and unimpaired by any direct or positive proof.

But it is claimed that there was enough evidence of another kind to justify a jury in finding that the injury occurred through the defendants’ fault.

It was shown that the butter Avas received by the consignees on the day of its discharge from the vessel, and, upon examination on the same or a subsequent day, was found to be in a seriously damaged condition; some of the packages nearly one third, some nearly one half, and some even more empty, and was oily, and what the witnesses termed “cooked.” It was also proved by several shippers, accustomed to forwarding butter to Hew Orleans in the month of August, that it would arrive in good order, and was not liable to leak or drip, if it was well “stowed,” and, as some of the witnesses said, “well packed.” This -was the substance of all the evidence, and, from it, the jury were to find that the damage to the butter resulted from improper stowage or other misconduct of the defendants. They could not find that it arose from improper stowage against the' positive, uncontradicted evidence of the defendants’ witnesses, and there was no proof whatever of any other supposable misconduct on their part.

It was further shown, in order to furnish a reason for the damage, that on the day the 'butter was taken on board the weather was very hot, between eighty and ninety degrees— eighty-four on the 9th August, and eighty-seven on the 10th— and when it was discharged at New Orleans, one hundred and one degrees at noon, in the pilot-house of the vessel. The temperature of the water was from eighty-five to eighty-six degrees. There was also some evidence that butter exposed at a tempera-' ture of eighty or ninety degrees would melt and be injured. Several witnesses, residing in New Orleans, stated it as their im-. pression that the weather, at that place, in August, 1865, was about the same as usual, “about eighty degreesbut the defendants’ positive evidence of the precise state of the weather was left wholly otherwise uncontradicted.

1 do not look upon this as a case of conflicting evidence, but as one lacking any proof whatever to charge the defendants, after they had shown that the butter was stowed in the coolest, best, and most suitable part of the vessel; and I cannot agree that the mere proof of the good condition of the article on shipping, and its damaged condition on arriving, could justify the jury in wholly discrediting the defendants’ evidence, which otherwise was entirely unimpeaclied.

If there had been no other possible cause for the damage than a supposed improper stowage of the cargo, then a jury might' perhaps be authorized in finding, upon such evidence as was given in this case, that there must have been improper stowage. But such is not the case. On the contrary, the jury might have found that the butter melted from the heat of the weather, either while loading, or during the voyage, or when lying upon the wharf at Hew Orleans—of which melting the plaintiffs took upon themselves the risk. Much of the evidence strongly tended to establish the belief that it was injured from its inherently defective quality, which was developed by the heat of the weather; especially as it was also shown that a very large quantity of other butter was taken upon the same voyage, and delivered in good condition.

Where the testimony of a witness is fairly open to suspicion, and there are facts and circumstances strongly tending to discredit him, it is the right of a jury to pass upon his credibility. But where the circumstances do not necessarily contradict the witness, inasmuch, as the damage might be attributable to different causes, and are thereby entirely consistent with and do not oppose the truth of the witness’s evidence, it would be wrong to allow a total disregard of such evidence.

It is only, in this case, by wholly discrediting the testimony of the defendants’ witnesses, and attributing the damage solely to improper stowage, that the defence can be overruled, for, if such testimony is to be believed. the verdict was not supported by the evidence. I cannot go to the length that, as the jury are the judges of the credit to be given to witnesses, their verdict must never be disturbed. To hold to such a doctrine would prevent the court from ever setting a verdict aside, as being against the weight of evidence.

On the ground, therefore, that there was no sufficient reason for discrediting the testimony of the defendants’ witnesses in regard to the stowage of the butter, inasmuch as the jury could have found other causes producing the damages, I am of the opinion that, taking the whole of the evidence, the defendants had established a defence, and the jury ought to have been instructed, as requested by the defendants, to give them a verdict.

There was enough in the evidence to authorize the jury to say that some one of the other causes had produced the damage; and they had no right, by arbitrarily discrediting rinimpeached witnesses, to find that there was not and could not be any other cause than improper stowage.

The judgment and order should be reversed, and a new trial granted, with costs to abide the event.

McCunn, J.

(concurring). There is not a particle of evidence showing the cause of the damage to the butter; and the rule is that where the carrier has shown to the court that he has exercised all pi’oper care and diligence in stowing and taking care of his freight during its transit, the onus is thereby thrown upon the shipper; and before he can recover for negligence toward the property shipped, he must establish the fact that the injury resulted from the want of proper care on the part of the carrier whilst the goods were under his care.

Now, the proof here shows that the butter was well and carefully stowed in the forward hold, near the foremast, and in the coolest part of the vessel and the best place for stowing butter, and where the heat of the boiler could not reach or affect it. And, as I have said, there is not a lisp of evidence to the contrary of this ; it must follow, therefore, as a matter of course, that the learned Chief-Justice would have been warranted in taking the case from the jury and directing a verdict for the defendants.

Fithian, J.

(dissenting). There is but one exception to the rulings of the court on the trial. Evidence was given on the part of plaintiffs showing the condition and appearance of the packages of butter when shipped on board defendants’ steamer; also their appearance and condition when delivered at the port of destination. The master of the vessel was called for the defendants, and testified, among other things, thus : “ When we arrived, the packages (firkins) were in good order; that is, externally, they presented a good appearance; there was no leakage ; I noticed more or less grease from the contents havi/ng oozed out.” He was then asked to state whether that was from the liquefacth of the butter?” This question was objected to, and the answer excluded by the court. The question was objectionable. It called for an opinion of the witness as to whether the greasy appearance' on the outside of the casks or package indicated a liquefied condition of the contents. From aught that appears in the case, the jury were quite as competent to form an opinion on that subject as the witness. The latter was not shown 'to possess any peculiar or exclusive knowledge on the subject which would make his opinion competent as evidence. Beside, this was one of the questions to be passed upon by the jury, the defendants claiming that the liquefaction, if at all, occurred after the butter was delivered. I think the evidence was properly excluded. The only remaining question is, whether the verdict of the jury is so decidedly against and unsustained by evidence as that it ought to be set aside for that reason.

The plaintiffs gave evidence, which was not materially contradicted, tending to show that the butter, when shipped, was in prime order and condition, well and properly packed in proper and sufficient packages or firkins; that, on delivery to the consignee at the port of destination, the packages were found to be externally soiled and greasy, and, on being opened, it was found that from one third to one half the contents of each package was lost or missing, and the remaining butter was in an “ oily or cooked” condition. Other witnesses testified that the butter was “ melted,” liquefied,” and had run out of the casks in consequence. After considerable evidence of this character, and other evidence on the' question of damages, plaintiffs rested. Defendants then called the .master of the vessel and the steve-, dore who superintended the stowing of the cargo, both of whom testified positively in substance that the packages of butter in question were carefully and properly stowed near the foremast of the ship, somq eighty feet distant from the boilers, and eighteen feet below the water-line, which was the coolest and safest place possible on board the ship for the stowage of such freight. Evidence was also given to show that at the time of tins voyage the weather was very hot, the thermometer ranging from eighty to eighty-five degrees in the shade in New York, and from ninety-two to ninety-three degrees in New Orleans ; that the temperature of the water was . about eighty-five degrees, and that he supposed the temperature in the hold of the ship was about the same ; and that he had ten thousand dollars' worth of butter in that cargo, none of which was injured but this particular lot. Upon this evidence counsel for defendants claims that he has, by positive and uncontfadicted evidence, so conclusively rebutted the presumption of negligence arising from the lost and damaged condition of the butter when delivered, as to demonstrate that, if the liquefaction and loss of the butter occurred on board ship, it must have arisen from the heat of the weather acting upon the inherent qualities of the article. And for such damage, it is conceded, the defendants are not liable. The plaintiffs, in reply, however, gave evidence tending to show, and which, if credited by the jury, did show, that butter, well and properly packed and stowed, could and constantly did make the voyage from New York to New Orleans without loss or damage, in a temperature of eighty-five degrees and upward. And from this evidence, and the fact that other butter was carried safely on this ship and voyage, and other circumstances, the plaintiffs’ counsel insists that the jury were justified in discrediting the testimony of the master and stevedore ' as to the place and manner of stowage of these seventeen firkins, and that they must have so decided. A jury is not bound to accept as true every statement made by a witness, although sworn to positively, and within the witness’s knowledge, and not directly contradicted. If the witness be in any respect impeached in his credibility, or if there be other facts sworn to in the case which are inconsistent with such statements, they may be disregarded by the jury. In such case there is a conflict of evidence authorizing the jury to determine. And unless the verdict be so clearly against the weight of evidence as to indicate passion, prejudice, or inattention to duty on the part of the jury, it will not be disturbed. Such I understand to be the settled rale in applications to set aside verdicts as against the weight of evidence. In Lewis v. Blake (10 Bosworth, 198), Monell, J., states the rule to have been uniform for many years that the court will not interfere with the verdict of the jury unless it is dearly against the weight of evidence. In that case there was positive testimony on one side and indirect and inferential on the other. So in Cathron v. Collins (29 How. P. R., 155), the General Term of the Supreme Court, per Grover, J., held, that although in that case his impression was strong that the verdict was not in accordance with the truth, still, as it was not so flagrant as to show passion, prejudice, or inattention to duty, it should be sustained.

In the case at bar the condition and quality of the butter when shipped, its wasted and damaged Condition when delivered and examined at the port of destination, and whether that damage occurred from want of care and attention on the part of defendants’ servants, or from some other cause for which they were not responsible, were all questions of fact, in respect to which the evidence was conflicting, and the verdict of the jury should cond/ude the parties.

Judgment should be affirmed, with costs.


author: Freedman, J.

text:
    ANDREW COAKLEY, Plaintiff, v. JAMES F. CHAMBERLAIN, Executor, &c., Defendant.
    An action for damages for the breach of a covenant of quiet enjoyment, contained in a lease executed by a person having a life-estate in the premises, which breach was occasioned by the death of the life-tenant, will not lie against the executor of such life-tenant and the remaindermen jointly, nor against the remaindermen in any form, and the mere fact that the remaindermen collected the rent reserved by the lease from the death of the life-tenant up to the time of the final partition of the premises, in an action instituted for that purpose, cannot be construed into an adoption and ratification oi such covenant on their part.
    An unexpired lease executed by a person having only a life-estate in the demised premises becomes void and inoperative upon the death of the life-tenant as against the remaindermen, and from that time constitutes no further lien or incumbrance upon the premises.
    No tenure and no relation exist between remaindermen and the tenant of the life-tenant.
    The acts of 1848 and 1849 did not confer any greater authority upon married women, to make contracts generally, than previously existed, and did not remove the legal incapacity of a married woman to enter into a personal obligation, nor did those acts authorize a married woman to charge her separate estate for a debt which did not arise in connection with it, or which was not contracted for her own benefit or the benefit of her separate estate.
    The reported cases arising under these acts reviewed, and the case of Kolls v. Do Leyer, 41 Barb., 211, explained.
    Where a married woman having a life-estate in certain premises executed, prior to the year 1860, a ten-years lease of such premises, with a covenant contained therein that on payment of the rent thereby reserved the lessee may quietly have and enjoy the said premises for the full term, and thereupon died before the expiration of the term, and the lessee was dispossessed by the remaindermen—Held, that no action for damages occasioned'by the breach of such covenant can be maintained by the lessee against the executor of such married woman.
    Before Barbour, C.J., Monell and Freedman, JJ.

      [Decided December 4, 1869.]
    One William Burch was, at the time of his death, the owner in fee of premises No. 326 Eighth avenue, in the city of New York, and, by his last will, gave the use of said premises to his wife, Mary Ann Burch, during her natural life, and the fee to his children. In 1856 the widow of William Burch became the wife of Paul Burdock, and they lived together as husband and wife until her death-in 1864.
    In 1857, while the wife of Paul Burdock, she leased to the plaintiff the said premises for the term of eleven years, by lease, duly executed and recorded, at a yearly rent of $750; and, in that instrument, covenanted for herself only that the plaintiff, on paying the said yearly rent, &c., should peaceably and quietly have, hold, and enjoy the said demised premises for the term aforesaid.

    In 1864, before the term expired, she died, and the children of William Burch commenced an action in the Supreme Court for the partition of the premises, mating the plaintiff a party; and, on the 3d day of March, 1865, judgment was entered in said action, adjudging that William Burch died seized of the premises; that Mary Ann Burdock had -only a life estate therein; that upon her decease plaintiff’s lease became void and inoperative, and constituted no further lien or incumbrance on the premises. Under this judgment the premises were sold, the plaintiff dispossessed, and the proceeds distributed amongst the heirs of William Burch, deceased. After Mrs. Burdock’s death the said heirs received the rent for the premises from the time of her death up to June 1, 1865.
    The action is based upon the breach of Mrs. Burdock’s covenant of quiet enjoyment, and is brought to recover, as damages, the value of the unexpired term in said lease. The defendant (Chamberlain) is sued as the executor of the last will and testament of Mary Ann Burdock, deceased, and the other defendants as heirs, who received the proceeds of the sale in partition and the rent of the premises from the time of Mrs. Burdock’s death up to June 1, 1865.
    The action was tried before Mr. Justice Jones and a jury. Wlien the plaintiff rested, the evidence substantially disclosed the foregoing state of facts; and the counsel for the heirs-at-law thereupon moved to dismiss the complaint against them. The court granted the motion, and plaintiff excepted.

      Counsel on behalf of the only remaining defendant, James F. Chamberlain, sole surviving executor of Mary Ann Burdock, deceased, introduced some further evidence establishing the marriage between Pa„ul Burdock and Mrs. Burch; and that thereupon they lived together as husband and wife until she died, and also introduced and yead in evidence the will of William Burch, deceased. • ,
    At the close of the testimony, the jury, under the 'direction of the court, found a verdict for the defendant Chamberlain, to which direction and finding plaintiff excepted. The court directed the exceptions to be heard at the General Term in the first instance, and that judgment in the mean time be stayed.

      Mr. S. B. Noble for plaintiff.
    The Court erred in dismissing the complaint against the defendants, the heirs-at-law. At all events those defendants are liable to respond to the plaintiff' in damages for one year, $900, from May 1, I860, inasmuch as the plaintiff continued in the possession of the premises on an implied agreement, the duration of which, there being nothing expressed to the contrary, was until May 1, 1866, in the city of New York (1 R. S., 744).
    The covenant on the part of the lessor, Mary Ann Burdock, for the quiet enjoyment of these premises during the demise, can be enforced against her executor, James F. Chamberlain. Under the acts of 1848 and 1849, a wife may execute a valid conveyance of her separate property, the covenants in which will bind her representatives (Winans v. Peebles, 31 Barb., 371; Goelet v. Gori, 31 Barb., 314).
    A married woman is liable for a breach of the covenants in a deed which she has given; the covenants induce the hiring, enlarge the price, and thus benefit her estate (Kolls v. De Leyer, 41 Barb., 208 ; 26 How. Pr. R., 408).
    The statutes of 1848 and 1849 charge the separate estate of the wife for debts contracted for the benefit of such estate in the manner and to the extent previously authorized by the rules of equity in respect to separate estates (Ballin, &c., v. Dillaye, 37 N. Y., 35 ; Yale v. Dederer, 22 N. Y., 450).
    The covenant in the case under consideration is declared in the instrument itself, and is for the benefit of the separate estate. It inheres to the very subject-matter, and is the essence of the thing. The covenant for quiet enjoyment in the absence of any restriction in the statute of 1848 and 1849 must be enforced in the same manner as the covenants of femes soles (per Brown, Justice, Rolls v. De Leyer, 41 Barb., 211).

      Mr. R. H. Bowne for defendants.
    The complaint was rightly dismissed as to the heirs-at-law. Ho proceedings were taken to show that the personal estate of the decedent was not sufficient to pay her debts, nor had any proceedings been taken against her personal representatives (3 R. S., 5th edition, p. 750, see. 33).
    And it was shown that the suit was brought against the heirs within three years after the death of the testatrix—she died in 1864, and the suit was commenced in 1865 (3 R. S., 5th edition, p. 197, sec. 197).
    The verdict was right as to the remaining defendant, and the judgment will not be disturbed. Mrs. Burdock was a married woman under coverture at the time she made the lease. The acts for the protection of the rights of married women conferred no powers upon them to enter into personal covenants (Fisher v. Marvin, 47 Barb., 156).
    These acts do not charge the separate estate of a married woman with any debt she may create, unless charged upon it (Yale v. Dederer, 18 N. Y., p. 265 ; same, 22 N. Y., p. 450).
    The covenant in the lease on which Mrs. Burdock’s estate is sought to be made liable was made in 1857, and is to be construed as the law then stood. The act of 1862 has no application. The covenant was made in 1857. The act has no reference to such an estate (a mere use for life) as Mrs. Burdock had in the premises.
   By the Court:

Freedman, J.

The defendants, Mary Ann Seaman, Charlotte Maria McKenzie, William Henry Burch, Emily Jane French, George Frederick Burch, and Matilda Augusta Burch, were not, in respect to the premises in question, the heirs of Mrs. Burdock, but of William Burch. Therefore the statute, by which the heirs and devisees of every person who has made any covenant or agreement are held answerable, upon such covenant or agreement, to the extent of the lands descended or devised to them, does not apply to them, and the mere fact that they collected rent up to the time of final partition cannot be construed into an adoption and ratification by them of the covenant for quiet enjoyment contained in plaintiff’s lease. They were remaindermen, and between them and the plaintiff, as tenant of the life-tenant, no tenure and no relation existed. When the partition of the premises took place, the rights of all parties, including the plaintiff, were judicially determined; the judgment provided for a partition of the premises between such of the parties as had any rights therein, and according to such rights, but at the same time adjudged that the plaintiff had no right or interest whatever, that his lease became void and inoperative upon the decease of the tenant for life, and from that time constituted no further lien or incumbrance upon the premises. This judgment must be deemed a complete and final determination of the rights of the plaintiff as against the remaindermen.

Nor can this action be maintained against the heirs, against whom a dismissal of the complaint took place, upon the ground of the receipt of assets, as next of kin, under 2 Rev. Stat., 451, sec. 23. Whatever assets may be deemed to have been received by them belonged to the estate of William Burch, deceased, and not to the estate of Mary Ann Burdock. There was no evidence to show that any assets belonging to her estate were ever paid or distributed to these persons, as next of kin or legatees, by her executor, so as to entitle the plaintiff, as a creditor, to institute an action against them.

Again, the same defendants could not be proceeded against upon the theory that they were the heirs of Mrs. Burdock, until after the expiration of three years from the time of the granting of letters testamentary to her executor, for the statute expressly prohibits it (3 R. S., 5th ed., p. 197, sec. 64); and even then they could be held liable only for a debt of the testatrix, upon proof either that the deceased left no personal assets within this State to be administered, or that the personal assets of the deceased were not sufficient to pay and discharge the same or that, after due proceedings before the surrogate and at law, the plaintiff as t creditor has been unable to collect. such debt, or some part thereof, from the personal representatives of the deceased, or from her next of kin, or legatees (2 Rev. Stat., 452, sec. 33, as amended by laws of 1859, p. 293); and in such case the heirs could not be joined as defendants in the action with the executor (11 Barb., 271; 3 Comst., 261). In any aspect, of the case the complaint was properly dismissed against the heirs.

Whether the verdict, as directed, was right as to the remaining defendant, depends upon the question whether Mrs. Burdock, as a married woman, had the legal capacity to enter into the covenant which forms the foundation for this action, at the time and in the manner she did. The covenant is a personal one, which a married woman could not make at common law; and as it was made in 1857, the question will have to be determined under the acts of 1848 and 1849, passed for the more effectual protection of the property of married women. These acts enable a married woman to hold her real and personal property, and the rents, issues, and profits thereof, as her sole and separate property, as if she were a single female, and also to take by inheritance, or by gift, grant, devise, or bequest, from any person other than her husband, and hold to her sole and separate use, and convey and devise real and personal property, and any interest or estate therein, and the rents, issues, and profits thereof, in the same manner, and with the like effect, as if she were unmarried, &c. And it has been held that under said acts a married woman may acqxiire title to real and personal property from any person other than her husband, in almost any manner; that she may do so by buying the same for cash or upon her credit; that she may purchase a stock in trade, a business and the good-will belonging thereto, for cash or upon her credit; that in all these cases, if done bona fide, and not for the purpose of covering up her husband’s property, and if the vendor will take the risk of payment, the transfer and her title is perfect, and that no interest in any such property passes to her husband, whether she had antecedently any separate estate or not; that, after having thus obtained the property, she may manage it either personally or by the agency of her husband or any other person, and hold the profits and increase to her separate use (Sherman v. Elder, 24 N. Y., 381; Knapp v. Smith, 27 N. Y., 277; James v. Taylor, 43 Barb., 530; Buckley v. Wells, 33 N. Y., 518, overruling S. C.,. 42 Barb., 569) ; and may recover 'for work, labor, and services done and performed and materials furnished by her in course of such business, and since 1851 may sue alone under sec. 114 of the Code for her separate property, without joining her husband with her (Darby v. Callahan, 16 N. Y., 71).

But on the other hand it has been settled that, under the acts referred to, a married woman cannot contract with or convey to her husband (White v. Wager, 25 N. Y., 328 ; Winans v. Peebles, 32 N. Y., 423 ; Savage v. O’Neil, 42 Barb., 374); that she has no power to make contracts generally, which are binding upon her personally according to the general rules of law (Yale v. Dederer, 18 N. Y., 265 ; Draper v. Stouvenel, 35 N. Y., 507); although a court of equity may enforce payment, out of her separate estate, of a debt contracted by her for her own benefit Aim on the credit of her separate estate (Ledelicy v. Powers, 39 Barb., 555).

When the case of Yale v. Dederer came before the Court of Appeals for the second time (22 N. Y., 450), Judge Selden, in delivering the opinion of the court, held that, in order to create a charge upon the separate estate of a married woman, her intention to do so must be declared in the very contract which is the foundation of the charge, or the consideration must be obtained for the direct benefit of the estate itself, and that accordingly, where a married woman signed a promissory note as mere surety for her husband, though it was her intention to charge her separate estate, such intention did not take effect. The learned judge showed that the foundation of the power of a feme covert to charge her separate estate rested solely upon her incidental power to dispose of that estate; that, therefore, no debt can be a charge which is not connected by agreement, either express or implied, with the estate; that, if contracted for the direct, benefit of the estate itself, it would of course become a lien, upon a well-founded presumption that the parties so intended, and in analogy to the doctrine of equitable mortgages for purchase-money; but that no other kind of debt.can be thus charged wfithout some affirmative act of the wife evincing that intention. And in his concluding remarks Judge Selden points out that the -legislature did not, even by the passage of the act of 1860, remove the common-law disability of married women to bind themselves by their contracts at large; that, in order to be obligatory upon them or their estates under that act, their contracts must relate entirely either to their separate property, or to the particular trade or business in winch they are engaged.

The principles decided in the case of Yale v. Dederer, supra, have been reaffirmed by the Court of Appeals in White v. McNett, 33 N. Y., 371; compare also Brown v. Hermann, 14 Abb., 394; White v. Story, 43 Barb., 124; Manchester v. Sahler, 47 Barb., 155.

- Thus, it seems to be settled beyond question that the acts of 1848 and 1849 did not confer any greater authority upon femes coverts to enter into contracts generally than previously existed, and did not remove their legal incapacity to contract debts ; also that those acts did not authorize a married woman to charge her separate estate for a debt which did not arise in connection with it, and which is not for her own benefit or the benefit of her estate. The authorities relied upon by the plaintiff in this action do not cast a doubt upon the correctness of these propositions. The decision in Winans v. Peebles, 31 Barb., 371, has been reversed by the Court of Appeals, 32 N. Y., 423. Goelet v. Gori, 31 Barb., 314, is an authority against the plaintiff. In Ballin v. Dillaye, 37 N. Y., 35, the separate estate of a married woman, as a whole, was held chargeable in equity with the payment of a deficiency arising upon a bond and mortgage given by her, for the reason that she had thereby derived, in point of fact, not only a benefit in respect to the premises described in the mortgage, but an additional substantial benefit for her entire separate estate, namely, a release of thirty-two other lots, &c.

And even the decision of the Supreme Court at General Term, in the case of Kolls v. De Leyer, 41 Barb., 211, although frequently misunderstood, will, on a careful examination, be found to be in entire harmony with the propositions hereinbefore laid down as conclusively settled. The following facts appeared by the complaint in the last-named case: The defendant, as a married woman and possessed of a separate estate in lands in her own right, in 1858 conveyed out of the same a lot of ground to the plaintiff by the usual deed of conveyance, with covenants of seizin, and the same were free from incumbrances of every description. Her husband united in the deed so far as to convey his interest, if any he had, but he did not join in the covenants of warranty. At the time of making this conveyance the lot was, however, subject to the incumbrance of certain unpaid taxes, which were a lien thereon, and which the plaintiff subsequently had to pay. The action was brought to recover the amount so paid as being a charge on the wifds remaining separate estate. It consequently was a suit in equity. The defendant demurred, and the question raised by the demurrer was whether the complaint stated facts sufficient-upon which the separate estate of the defendant could be held liable in equity. The court held that it did. Therefore, however broad the language may be which the learned justice who delivered the opinion of the court on that occasion used, the correctness of the decision itself cannot be questioned.

The case at bar is an ordinary action at law. The covenant relied upon did not create a debt at the time, but only a contingent liability, which cannot be charged against Mrs. Burdock’s estate without express words to that effect; even if it had been so charged, the liability would not attach except upon proof that it was for the benefit of Mrs. Burdock or her separate estate, and in such case it could be enforced in equity only. Mo error, therefore, has been committed by directing a verdict for the defendant Chamberlain, as sole surviving executor of the will of Mary Ann Burdock, deceased.

Plaintiff’s exceptions should be overruled and judgment absolute rendered upon the verdict m favor of the defendant Chamberlain, as executor, and in favor of the other defendants upon the nonsuit, with costs.


text:
    HENRY DEMOTT, Plaintiff and Respondent, v. LYDIA McMULLEN, Defendant and Appellant.
    Necessaries purchased by a married woman are not chargeable upon her separate estate, unless perhaps purchased expressly on the credit of it and charged upon it by some affirmative act on her part sufficient in law for that purpose.
    In passing the act of 1860, the legislature could not have intended to make the separate estate of a married woman liable for necessaries purchased by the husband through the agency of his wife, although the statute says so.
    The legislature probably intended to enact that the, separate estate of a married woman may be held liable for a debt contracted for the support of herself or her children by her husband as he)' agent. i
    Before a plaintiff can, in any event, be permitted to collect the husband’s debt out of the wife’s property, under the first section of the act of 1860, as it reads, he must bring himself within the strict letter of it and show that the debt was contracted for the exclusive support of the wife or her children.
    Before Barbour, C.J., Monell and Freedman, JJ.

      [Decided December 4, 1869.]
    Appeal from a judgment entered upon the report of a referee in favor of the plaintiff.
    The referee found as follows:
    1. That the defendant was a married woman, and had been during all the times in said complaint mentioned; and that William McMullen, during all said times, was and now is her husband.
    2. That William McMullen, the husband of the defendant, contracted the debt mentioned in the complaint, at the times therein mentioned, for the support of his said wife, Lydia McMullen, and her children, by her as Ms agent.
    3. That the defendant, Lydia McMullen, was the owner and possessor in her own right, in fee simple, of the real estate mentioned and described in said complaint, and that the same was her separate estate.
    4. That the plaintiff recovered the judgment mentioned in said complaint, and at the time therein specified, against William McMullen, the husband of the defendant, which was duly docketed as therein set forth, and that an execution was duly issued on said judgment, as alleged in said complaint, and returned wholly unsatisfied, as alleged in said complaint, and that said judgment remains wholly unpaid and unsatisfied.
    5. That the husband of the defendant had not, at any time during the marriage, neglected or refused to support the defendant and their children.
    6. That the defendant owed debts contracted for articles consumed by his family, and had not been able to pay the same.
    7. That the articles purchased of the plaintiff, and for which the judgment was recovered, were used in the family, and that during the time the family consisted of defendant, her husband and children, and one boarder ; and that the boarder paid his board, to the defendant.
    8. That in the months of July and August, of the year 1866, the defendant and her children were absent from home from four to six weeks, and that during such time purchases were made from day to day, and the articles were used in the house.
    The conclusions of law were :
    That the defendant’s separate estate and property, described in the complaint, were liable for the debt so contracted, and for the judgment and interest on the same from the 24th day of June, 1868.
    Judgment was entered that the plaintiff collect the amount of said demand out of the property of said defendant, described in said complaint.
    The defendant excepted to the second finding of fact, and to the conclusion of law found, and the direction for judgment given by the referee, and appealed from the judgment.

      Mr. William I. Butler for appellant.
    The act of March 20,1860, chapter 90, page 157, provides that a married woman may hold certain property, specifying the same, and that “it shall not be subject to the interference or control of her husband, or liable for his debts, except such as may have been contracted, for the support of herself or her children, by .her as his agent”

    The wording of the clause under consideration is in the form of an exception. It is not an enactment; and unless the wife’s property was liable by statute, or by the common law, previous to the passage of this act, then this act does not create any such liability.
    In the act of 1848, and in the amendment of 1849, it is provided that any married female may take, by inheritance, gift, &e., and hold to her sole and separate use, and convey and devise, real and personal property, and that the same shall not be liable for her husband’s debts.

    The act of 1860 repeals that of 1849, with respect to one species of debts, thus leaving in force the common-law liability. But that cannot affect the real estate of the wife, and she is not alleged to be the owner of any other than real estate. “ No debt can be a charge that is not connected by agreement, either express or implied, with the estate.” If contracted for the express benefit of the estate, it would, of course, become a charge upon it; but no other debt can be thus charged without some affirmative act of the wife evincing such an intention.

      Mr. Oscar Frisbie for respondent.
    This action is brought under the statute of 1860, the last part of the first section of which provides th&t a married woman’s estate shall not be liable for her husband’s debts, “ except such debts as may have been contracted, for the support of herself or her children, by her as his agetit.”

    , The application of the last clause of the statute above quoted to the facts of this case will determine this action.
    The statute says, in effect, that if a married woman /contract a debt for the support of herself or her children, as the agent of her husband, her estate shall be liable therefor.
    The manner in which she was constituted his agent, whether it be by an implied or positive authority, makes no difference, so long as she has the authority; in either case she would be his agent.
    We are to take this word “ agent” as used in the statute in its common acceptation, leaving the manner in which the wife is constituted the agent to be established by the facts of the case.
    On this branch of the case it is claimed, on the part of the plaintiff, that the following propositions are established by the evidence:
    That the d "bt in question was contracted by the defendant as the agent of i ter husband.
    That the debt was contracted by her, as such agent, for tile support of herself or her children.
    This action is brought to charge the “ sole and separate estate” of the defendant; it only has relation to her estate, not to any estate that belongs to any one else, or an estate over which any one but the defendant has any control.
   By the Court:

Freedman, J.

By the judgment in this action the separate property of a married woman, consisting entirely of real estate held by her in her own right, is sought to be made liable for the payment of the amount of a judgment previously recovered against 'her husband for a debt, which the referee found was contracted by him, but through her as his agent, for her support and the support of her children. To sustain the action of the referee, the plaintiff and respondent relies upon the first section of chapter 90 of Laws of 1860, which provides, among other things, that the separate property of a married woman shall not be subject to the interference or control of her husband, or liable for his debts, except such debts as may have been contracted for the support of herself or her children, by her as his agent.

It certainly cannot be denied that this language is sufficiently broad to give color to the claim advanced by the plaintiff. But the proposition contained therein to the effect that the estate of a married woman can be held liable for necessaries which in law the husband is bound to furnish, whenever they are purchased by her in her husband’s name, and under express authority derived from him for that purpose, is of so novel and startling a character as to call for further investigation. Necessaries purchased by a married woman are not chargeable upon her separate estate, unless, perhaps, purchased expressly on the credit of it, and charged upon it by some affirmative act on her part sufficient in law for that purpose; if purchased by the bus-band for her, in his own name, he alone is liable for them; so, if he make the purchase through' his son or daughter, or any other agent recognized as such by the seller for that purpose, with the exception of his wife, no one will be bold enough to assert that the agent incurs a liability which can he enforced either against the person. or the property of such agent.' How then could the legislature have intended to make the separate estate of a married woman liable for necessaries purchased by the husband in his name and upon his credit, but through her agency, and upon that ground alone ? The fact that the husband in' the case at bar afterwards turned out to he insolvent is of no importance; for if the wife’s estate can be held liable at all under this statute, the liability attaches irrespectively of the solvency or insolvency of the husband, and if it can he held liable for the purchases proved to have been made in this instance, the separate estate of every married woman may he held liable for every item of family expense, which the husband should direct, or allow the wife to supply, on his credit. In this manner the whole burden of family support could be shifted from the husband to the wife, and a designing husband would thus not only he enabled to impose upon the wife burdens from which the policy of the law has at all times protected her, but to destroy her separate estate, hi case it is not too large to he overcome in that way. This is so contrary to the policy pursued by the law-making power of this State during the last twenty years that I cannot believe the legislature of 1860 intended to effect any such result. The object of all legislation upon the rights of a married woman has heretofore been to shield her against the power of her husband and against Ms disposition to appropriate and squander her property. It may be a question whether this object has in all eases been successfully accomplished, but that this was such object cannot be disputed. The first radical change in the common-law rule that the husband, upon marriage, becomes entitled to all the personal property of the wife, and to the rents and profits of her real property during their joint lives, but becomes liable to pay her debts and perform her contracts, was made by the passage of the acts of 1848 and 1849. Under these statutes any married woman was enabled to take and hold real as well as personal property separate and apart from her husband, and to enjoy the same, and the rents, issues, and profits thereof, in the same, manner as if she were a single female, and to manage it either personally, or by the agency of her husband, or any other person; she could even purchase a business, and the good-will belonging to the same, and carry it on for her sole benefit, although meeting with many difficulties in this respect, for she had no capacity to make contracts at large which were binding upon her personally, according to the general rules of law, and those who dealt with her had to run the risk of getting their pay; she could only contract a debt for her own -benefit, and on the credit of her separate estate, which might be enforced in equity, but in no event could her property be held liable for the debts of her husband. The statute protected it against such liability in express terms. ■

The act of 1860 is more comprehensive than thosé which preceded it. It confirms her. title to her separate property in stronger terms than those used in the previous acts; it preserves her previous powers in respect to her separate estate; in addition thereto, express authority is conferred upon her to bargain, sell, assign, and transfer her separate personal property, to carry on any trade or business, and perform any labor or services on her sole and separate account, and the act makes her earnings from her trade, business, labor, or services, her sole and separate property, and enables her to use or invest the same in her-own name. The power thus conferred to carry on a trade or business includes the ability to make bargains and contracts in relation to it in almost, any mode .known to the law, and according, to the practice of the commercial community, and such bargains and contracts have been held valid against her, notwithstanding her coverture, provided they were made in the regular course of her trade or business, and as an incident to it. By the act of 1862, the remaining common-law disabilities of a married woman were still further reduced. Thus it seems to have been the set •. tied policy of the law-making power to render the wife, in respect ' to her separate property, as independent of the husband as the welfare of society generally, in the judgment of the legislature, permitted. The intention of the legislature in, passing the first so-called married women’s act may be sufficiently gathered from the title of said act, which recites that it is an act for the more effectual protection of the property of married women; and the fact that all subsequent acts of a similar character were .made with the same intent most clearly appears from the gen • eral language thereof.

In view of this general legislative intent, which thus manifests itself throughout, and in view of -the fact that, under' the acts of 1848 and 1849, the courts at all times were cautious and guarded in their action, and scrupulously protected the rights of .married women as to their estates, even against their own acts (see Coakley v.Chamberlain, decided at the present term), I am satisfied that, when the legislature did pass the act of 1860, they did not mean to enact that the separate estate of a wife should be made liable for the debts of the husband, contracted for necessaries by her as his agent. I incline to the opinion that. it was their intention to make the concluding portion of the first section of said act read, that the said separate property “ shall not be subject to the interference or control of her husband, or liable for his debts, except such as may have been contracted for the support of herself or her children by him as her agent,”-and that an unintentional transposition of the words “him” and her,” and a subsequent transformation of the word “ him ” into “ his,” took place. If the statute can be thus construed, it is within the power of the courts to bring it into harmony with the other provisions of law defining and regulating the rights and liabilities of husband and wife, and whatever objections might still be made as to the propriety or expediency of its enactment in the form suggested could be left to be addressed exclusively to the power which is responsible for the creation of the entire statute. But although it has been determined that the acts for the more effectual protection of the property of married women are remedial statutes, and that, as such, they demand a liberal construction to carry into effect the beneficent intent of the legislature, regardless of the strict letter of the law itself, I entertain serious doubt as to my power, as well as to the propriety of adopting a construction which demands a reversal of the very words used by the legislature upon the point referred to; and inasmuch as I find, upon examination of the facts of the case, that justice may be done without resort to such construction, I shall content myself with the foregoing expression of my views.

I think it is but just and fair to hold that, before the plaintiff can insist upon a liability heretofore unknown and unrecognized even by the moral law, but created solely by statute, against the estate of the defendant, he must bring himself within the strict letter of the statute. The facts, as found by the referee, show that the husband of the defendant has not, at any time during the marriage, neglected or refused to support the defendant and his children by her; that all the articles purchased of the plaintiff, for which the plaintiff first had judgment against the husband, were articles for general family use; that the family consisted of the defendant, her husband and children, and one boarder; that the said articles were consumed generally by the family thus described, and a part of them were so consumed by the husband and boarder during the absence of the defendant and her children from home, which absence lasted from four- to six weeks. These findings tend to show, as the evidence in the case conclusively does, that it was the husband who kept the house; if the purchases were made by the wife as the agent of the husband, the payment of board to the wife must be deemed a payment to the authorized agent of the husband ; and as the husband and boarder participated in the consumption of the articles, it cannot be truly said that the debt was contracted by the husband for the support of the defendant or her children. To entitle the plaintiff to a recovery, he was at least bbund to show that the debt was contracted by the husband for the exclusive support of the defendant or her children. Another objection, which seems to me fatal, is that the debt of the husband became-merged in the judgment which plaintiff recovered against him, with costs of suit. ' •

I am of the opinion, therefore, that, upon the facts as found, the referee’s conclusions of law and direction for judgment are erroneous; that the judgment appealed from should be reversed, the order of reference vacated, and a new trial granted, with costs to appellant, to abide the event