author: Moncrief, J.,

text:
    George P. Pollen et al., Plaintiffs and Respondents, v. Thomas Otis Le Roy et al., Defendants and Appellants.
    1. A contract for the sale of a specific quantity of a certain kind of merchandise, while on board of a vessel at sea, is sufficiently performed by the delivery from on board such vessel, on its arrival,, of a like quantity and kind of merchandise, if it correspond with the rest of the" description of the goods sold in such contract, notwithstanding any designation of them therein as being of a brand, with a certain title composed of the names of individuals; if no similar goods, designated as an article of commerce, as being of such a brand, be known in the market whe¿e such sale took place; especially if all the names used, in such title be those of members of a firm by whom such articles were manufactured, the goods delivered be marked with two of those names, and the whole of such title nearly resembles that used by such firm.
    2. Under such circumstances the designation of the articles as of such a brand, may be rejected as surplusage, or an erroneous particular of description; or
      the naming of the brand may be .construed to intend a mere designation of the manufacturers, and that the articles sold should be marked with names usually employed by them to designate that they were of their manufacture.
    3. Thus where the plaintiffs agreed to sell and deliver to the defendants a quantity of soft English lead, to arrive by a specified vessel, designating the lead in the contract as “ Walker, Parker & Walker brandwhen, in fact, there was no firm of Walker, Parker & Walker in existence, and no lead so marked was known in the market as an article of commerce; but the lead on board the vessel was manufactured by a firm, two of whose members were named “Walker,” and one “Parker,” known as “Walkers, Parker, Walker & Co.,” and had been marked or branded by them “ Walkers., Parker & Co."

    Held, that upon these facts the contract was satisfied by a delivery of that lead.
    4. In such cáse, it is the province of the Jury to determine, upon evidence as to the usage of trade, what was the intention of the parties.
    5. In such a case, evidence that there was no other lead known in the market by the designation of Walkers, Parker, Walker & Oo.’s brand, or any similar brand, except that manufactured by such firm; that soft English lead so manufactured would be of equal quality and value, whether stamped “Walkers, Parker, Walker & Co.,” or “Walkers, Parker & Co.;” and that “soft English lead, Walker, Parker & Walker brand” would, according to the understanding among dealers in the article, designate lead stamped either way, is admissible to enable the Jury to determine, that the marks were merely employed to indicate the quality called for by the agreement, and that the terms employed to designate the brand in the contract, were so used merely to indicate the manufacturers, and were equally applicable to all lead manufactured by them and branded to indicate such manufacture.
    6. Evidence of conversations between the parties to a contract prior to its completion; however admissible to construe terms used in it, is not otherwise admissible for the purpose of determining the intention of such parties.

      7. In order to prove what article was intended in a contract, by a name used in commerce, it is proper to ask a witness-who is an expert, “ how the article is generally known in the market ? and how spoken of generally ?"
    8. The negative testimony of witnesses-familiar with a certain commodity, who have long dealt in it, that they never saw any of a specified brand, may be weighed against testimony of another witness that he had seen it, in determining whether such brand existed and was known in the market.
    9. Where, under an executory contract for the sale of goods, the buyer refuses to receive and pay for them, and the seller, after notice to the buyer of his intention so to do, sells them fairly at the best price he can obtain, and sues to recover the deficiency between the proceeds of the sale and the contract price, such sale, though the defendant was not notified of the time and place of making it, is a test as against him of the value of the article.

      10. Ttie Court will not allow an appellant to raise, upon the appeal, for the first time, an objection to an assumption by the Court below of a doubtful fact, where he took no objection below to such assumption, but only to conclusions of law based thereon. .
    (Before Moncrief, Robertson and Monell, J. J.)
    Heard, October 13;
    decided, November 29, 1862.
    This was an appeal from a judgment entered upon the verdict of a Jury in favor of the plaintiffs, and also from an order denying a motion for a new trial.
    This action was brought by George P. Pollen and Robert Colgate, against Thomas O. Le Roy and David Smith, to recover for an alleged breach of a contract by the latter to purchase a quantity of lead. The contract of sale was a bought and sold note in the following terms :
    ‘ Sold T. O. Le Roy & Co.,
    “ For acct. of Pollen & Colgate,
    “ 150 tons soft English lead of
    Walker, Parker
    & > brand,
    Walker )
    to arrive per Providence, from Newcastle, at 6| cts. per lb., cash.
    “ Turell Bros.
    “April 25th, 1853.”
    The quantity of lead called for in this contract had previously (in March, 1853,) been laden on board the ship “Providence,” and arrived in New York in July, 1853. That lead was stamped or marked “ Walkers, Parker & Co., Newcastle-upon-Tyne.” It was tendered to the defendants in fulfillment of the contract, and by them refused.
    The plaintiffs sold the lead, after notice to the defendants that they intended to do so, at the best price they could obtain, which at the time of sale was less than the contract price, and brought this action to recover the deficiency from the defendants.
    The complaint alleged that the’parties had made a contract which required the plaintiffs to deliver soft English lead of the manufacture or brand of Walker, Parker & Walker; and that the lead tendered by them was of the brand and manufacture of Walker, Parker & Walker, intended by the contract. The answer of the defendants insisted that they were entitled to receive lead marked or branded Walker, Parker & Walker, and that the lead tendered them was branded Walker, Parker & Go., which was an inferior article. It appeared upon the trial that the brand “ Walkers, Parker & Go.” was well known in this market.
    This brand had sometimes the word “ London ”• suffixed to it. These, and the brand “ Walkers, Parker & Go., Newcastle,” were the only brands of Walker lead sold in our market. There was no such brand as “ Walker, Parker & Walker.”

    The firm which manufactured the lead in England was “ Walkers, Parker, Walker & Go.” The reason for using the brand mark “ Walkers, Parker & Co.” was stated to be that to suit the American market, the pigs of lead were cast in smaller moulds than ¿usual, and were too short; to be branded with the full name of the firm; there was not any firm in England of the name of “ Walker Parker & Walker,” nor was there any lead made there branded “ Walker, Parker & Walker.”
    Upon a former trial of this case the plaintiff had been nonsuited, and on appeal to the Court of Appeals the judgment was reversed and a new trial ordered, the following opinion being rendered:
    H. Gray, J. “ The subject of the sale note was soft English lead to arrive from Newcastle by the ship Providence then on its voyage from Newcastle to New York. If there had been in existence at the time the note was given lead of “Walker, Parker & Walker” brand, the case would be relieved of any question. Soft English lead from Newcastle with that brand upon it must have been delivered, or the terms of the note would not have been complied with. (Beals v. Terry, 2 Sandf., 127.) “ There was no such brand. “ We are therefore left to determine whether, from the light afforded by collateral facts and circumstances, an ambiguity exists as to the intention of the parties, which rendered it necessary that the note, with the extrinsic evidence, should have been submitted to the Jury, that they might from, the note, aided by the surrounding circumstances, nave determined what the plaintiffs intended to sell, and what the defendants intended to buy.
    “ That soft English lead manufactured at Newcastle then on board the ship Providence on its voyage to New York, was the article intended to be sold is established, not only by the sale note, but by the concurrent facts and circumstances attending the transaction; and that it wa,s known in market and spoken of as Walker’s lead, is also a fact about which there is no dispute.
    “ The firm by whom it was manufactured was Walkers, Parker, Walker & Co., of Newcastle-upon-Tyne, and it was the only firm of that or any similar name engaged in the lead business at Newcastle or elsewhere in England, when the sale note was given. It did not occur to the broker, nor was it suggested by or to the defeúdants, that Walker, Parker & Walker was a new brand, nor was the brand itself the subject of conversation; but whenever, during the negotiations' for the sale, anything designating the quality or character of the lead was spoken of, it was called “Walkers,” and represented to be good soft English lead, fit for white lead.
    “The firm of Walkers, Parker, Walker & Co., had a branch in London doing business under the firm name of Walker, Parker & Co., and lead came to the New York market branded Walker, Parker & Co., London, and Walkers, Parker & Co;, Newcastle. And although the metal broker who negotiated the sale and gave the sale note, when recalled by the defendants near the close of the trial, testified that there were three brands which came to the New York market; one Walkers, Parker & Co.; one Walkers, Parker & Co., London ; and one Walkers, Parker & Co., Newcastle-upon-Tyne; the latter of which was ” not much known; that it was better than the London, and not as good as that branded Walkers, Parker & Go., without the additions of London or Newcastle upon it; and he thought it generally understood that lead smelted at Newcastle-upon-Tyne was Spanish lead; this broker, when introduced by the plaintiffs, near the commencement of the trial, and fully examined and cross-examined as to the different brands and their qualities, testified that he knew of but two brands—Walkers, Parker & Go., Newcastle, and Walkers, Parker & Go., London—except that he had seen a part of one pig marked Walker, Parker & W. and that the two brands described by him had been well known in the New York market for eight or ten years.
    “No other witness, except this one, testified to any knowledge of more than two brands of the Walker lead in the New York market, from which evidence given, it is quite clear that the Jury would have been warranted in finding that lead, whether branded Walkers, Parker & Go., without any addition, or Walkers, Parker & Co., Newcastle, or Newcastle-upon-Tyne, indicated precisely the same quality of lead, and was understood by those engaged in the trade as meaning one and the same thing; that the additions of Newcastle, or Newcastle-upon-Tyne, were only intended to indicate where it was manufactured, and that each indicated the same place; and that the lead shipped, branded as it was, was soft lead of a superior quality, manufactured by Walkers, Parker, Walker & Go., of Newcastle-upon-Tyne.
    “ If it was the intention of the parties to contract for a brand, soft English lead of an inferior quality with the new brand upon it would have satisfied the contract. There was no such brand or firm as Walker, Parker & Walker. There was a firm of Walkers, Parker, Walker & Co. of Newcastle; but lead branded Walkers, Parker, Walker & Go., did not come to the American market for the reason that the pigs cast for this market were too small for such a brand, and it was to suit this market that large pigs originally branded W., P., W. & Go. were re-cast into smaller size, which would admit of only the brand of 'Walkers, Parker & Co., upon any one side of them, and sent out by the ship Providence.
    “I think it cannot be questioned, that the contract referred to lead manufactured by that firm. (Powell v. Horton, 2 Bing. H. C., 665, 671.)
    “ And it should be so construed, if consistent with the words used and the surrounding circumstances shedding light upon them, as to give the plaintiffs' the advantages of the actual sale and delivery of lead, and the defendants the advantages of its receipt, instead of so construing it as to give the defendants a mere right of action for its breach, for no other reason than that no such brand existed.
    “ I am of the opinion that the fact that there was no such brand as that specified in the contract, connected with other collateral facts and circumstances, raised a doubt as to what description of lead the sale note referred to, and that the- whole question should, therefore, have been submitted to the Jury; and that the judgment should therefore be reversed, and a new trial ordered.”
    The cause was tried a second time, before Mr. Justice Robertson and a Jury, on the 3d of April, 1861, and the Jury rendered a verdict in favor of the plaintiffs. The defendarits moved at Special Term to set aside the verdict, on the ground that it was against evidence, and because of errors of law, which motion being denied, and judgment having been entered on the verdict, the defendants took the present appeal.

      D. Hawley and William Curtis Noyes, for the defendants, (appellants.)
    I. It was error to admit:
    1. Testimony as to the resale of the lead, and the account made up against the defendants, for plaintiffs had not shown any right to charge defendants for a deficiency on a resale, and no notice of the time, place or mode of such resale had been given defendants. (Wheeler v. Newbould, 16 N. Y. R., 400.)

      2. Answers to questions, whether there was any difference in quality or value between lead branded Walkers, Parker, Walker & Co., and that marked or branded Walkers, Parker & Co.; or whether one would designate, with the same certainty, soft lead cast by the said firm, as the other. These do not in the least affect the question, whether there is any difference in quality or value between either of those brands, and lead branded “ Walker, Parker & Walker,” or whether either of those brands would designate with equal certainty soft lead branded “ Walker, Parker & Walker.” If they did, it would be wholly irrelevant:
    3. The inquiry as to how lead manufactured by Walkers’ houses was spoken of generally by persons who alluded to it. Bo such custom of speech, unless brought home to the knowledge of the defendants, should be allowed in proof. Besides, what may be used in loose conversation, is no criterion as to what would be used in a formal contráct-
    il. It was error to exclude :
    1. The conversation that passed on the subject of this sale, prior to the actual delivery of the sale note, for this was competent as part of the res gestee, (Gray v. Harper, 1 Story R., 574,) and also admissible to show misrepresentation or fraud. If there was any ambiguity in the term “ Walker, Parker & Walker brand,” it was made so by other proof admitted at the trial, in which case declarations of parties as to their intention are admitted in evidence. (Doe v. Hiscocks, 5 M. & W., 363 ; Doe v. Needs, 2 Id., 129 ; Goldshede v. Swan, 1 Exch., 154.):
    2. The inquiry in regard to the representations of the agent, that the lead was fib for making white lead, and would sell for that purpose, when it would not.
    III. It was error to refuse to nonsuit the plaintiffs, and dismiss the complaint.
    1. It was perfectly competent for the parties to make a contract for the sale of lead branded or marked “ Walker, Parker & Walker,” so that lead with any other brand upon it, though of equal quality and of the same persons’ manufacture, could not be legally tendered in fulfillment of the contract, and the plain language of the contract cannot be annulled by such extrinsic matter as was alleged against it in this case. (Beals v. Terry, 2 Sandf., 127; Shields v. Pettee, Id., 262.)

      (a.) The only true construction of the bought and sold note, taken by itself, is that it was the intention of the parties to sell lead branded “ Walker, Parker & Walker,” and not merely lead manufactured by them. In construing contracts, the Court is bound to give effect to the whole of the contract. Ho effect can be given to the position of the words and the dash with the pen after, except that they indicate an intention to sell lead branded “ Walker, Parker & Walker,” only. (Pothier, part I., c. 1, f. 1, art. 7; Rutherforth’s Institutes of Natural Law, B. 2, ch. 7, 2 Parsons on Contracts, 16 ; Syers v. Jonas, 2 Exch., 111; Morrell v. Fisher, 4 Exch., 591; Stokes v. Stokes, 1 Lev., 272.)

      (b.) If there was any doubt about the construction of the bought and sold note, from its ambiguity, in meaning either the brand or the manufacture, evidence was admissible in explanation, and the evidence shows conclusively that it was the intention of the parties to sell lead branded “ Walker, Parker & Walker.” Experts, dealers in the article, testify, without contradiction, that there is a substantial difference between the brand inserted in the bought and sold note in this case, and the brand tendered, so that the delivery of the latter would not fulfill a contract to deliver the former, and their construction in a matter of this kind ought to be followed by the Court. (Powell v. Horton, 2 Bing. N. C., 668, 3 Scott, 110; Lovatt v. Hamilton, 5 M. & W., 639.)
    2. Plaintiffs must prove that the lead tendered was English lead, and, to be English lead, it should be made of English ore; but no proof of this is given.
    3. In a sale like this, of an article to arrive, if the article for any reason does not arrive, there is no sale that either party can enforce. Proof, therefore, that no such article is in existence, so that the vendor could not go into the market and purchase it, to fulfill his contract, has no applicability to such a case. The article mentioned in the contract and in the complaint as the one sold to the defendant, not being- on board the ship Providence, not arriving here, and not being tendered to the defendants, there is no contract to be enforced.
    4. Ho legal notice was given to the defendants by the plaintiffs of their intention to sell the lead for the account of the defendants, because no notice of the place, time or mode of sale was given.
    IV. The Justice erred in several particulars in his charge to the Jury, to which exceptions were taken by the defendants, and also in his refusal to charge, as requested by the defendants. -
    There is error in the charge as to the amount of the damages founded on the error in-the complaint and account of sale. The sale was of 150 tons; this, by our statute, (2 Rev. Stat., 5th ed., 828, §§ 7,13,) would be 300,000 pounds. The charge against the defendants is for 345,276 lbs., which is 45,276 lbs. more than the contract called for, and the excess is included in the verdict aud judgment.

      Samuel E. Lyon, for plaintiffs, (respondents.)
    I. The true point at issue was this, was the lead such as plaintiffs agreed to furnish and defendants to accept ? and this was a question of fact for the Jury.

      (a.) Whether parties have agreed as alleged is a question of intent.
    (5.) Parol evidence is admissible to explain words in a written contract, of technical meaning, or which are indefinite. (1 Greenl. Evid., $ 288.)
    (c.) The intent of the parties, in every case of ambiguity or indefiniteness of expression, where acts are equivocal, or where terms are employed having a technical or conventional meaning, is to be ascertained by the Jury. And to complete a contract it is necessary that the parties should assent to the subject matter in the same sense. (1 Greenl. Evid., § 277, note 2; Hazard v. N. E. Mar. Ins. Co., 1 Sumn., 218; 8 Peters, 557; Potter v. Hopkins, 25 Wend., 417; Parks v. General Interest Ins. Co., 5 Pick., 34; Jackson v. Stanley, 10 Johns., 133; Sheldon v. Benham, 4 Hill, 129; Wigram on Ext. Ev., 57, 58, 118 ; Hite v. State, 9 Yerger, 357; Day v. Trig, 1 P. Will., 286; Tudor v. Terrell, 2 Dana, 47; U. S. v. Breed, 1 Sumn., 159; Thompson v. Sloan, 23 Wend., 71.)

      (d.) In case of a sale it is only required that the thing sold should be specific and capable of certain identification. An honest error as to the price, or as to the substantial and essential qualities of the thing sold, not as to its mere worth or condition, may annul the sale. (1 Pars, on Cont., 439; Story on Oont., §§ 412, 417, 779.)
    II. The Court were right in submitting to the Jury the inquiry as to what lead was in fact sold and purchased.
    III. The evidence fully sustains the verdict.
    IV. The defendants could not legally set up the absence of the particular brand they pretended to have expected, because they put their refusal to receive it on a totally different ground, not founded in fact.
    V. There was no error in the refusal of the Court to dismiss the complaint. Under the decision of the Court of Appeals the Judge was bound to submit the case to the Jury.
    VI. neither of the exceptions to the charge is well founded.
    If the lead was of at least a medium quality, and was merchantable, it answered the contract. Cleu v. McPherson, 1 Bosw., 480.)
    The rule of damages is correct. The sale was after notice, and in the usual way by broker. (Crooks v. Moore, 1 Sandf., 297; Stanton v. Small, 3 Id., 231; Sedgw. on Dam., 281. •
    VII. Hone of the exceptions to the plaintiffs’ evidence, or to the charge of the Judge, were well taken.
    By the Court — Robertson, J. The only difficulty in construing the contract in this case arises from attributing to the words “ Walker, Parker Sc Walker brand ” the meaning of “stamped with the names, Walker, Parker &c

      Walker." For that reason alone, the defendants refused to receive soft lead, manufactured in England by a firm, of which two members were named “ Walker" and a third, "Parker," and who transacted business at different places, under various partnership titles, in which "Walker" and "Parker ” were predominant, and which had arrived on board of the vessel named in such contract.
    The defendants went out of the words of the contract, according to their literal interpretation, in order to establish, by extrinsic evidence, that “ soft English lead,” used therein, meant lead made of English ores. And in attempting to exert a rigorous construction of the rest of the contract they fell into some absurdities. The term "brand," employed in such contract, was, according to all lexicographers, originally and strictly confined to burning with a hot iron, (Johnson’s, Worcester’s and Webster’s Dictionaries, word “ Brass,”) a thing which is never done with pig lead. In commerce, such word, by usage, has come to mean a mark, designating either origin or qualify, and, ultimately, the names of manufacturers, or places of manufacture. The case of Powell v. Horton, (2 Bing., [N. C.,] 665, 671,) is a striking example of the effect, of the peculiar commercial meaning of terms. There would have been no great difficulty, besides, in printing the names in question on the lead, if that had been all that Avas necessary; although it is difficult to see what particular advantage that would have been to the purchaser. The defendants themselves seem unconsciously to have felt the pressure of the frivolousness of an objection resting on such a basis, since they attempted to prove that there Avas a peculiar kind of lead, known in the New York market as I he “Walker, Parker & Walker” lead, and so branded. This was a palpable departure from a strict construction of the term “brand,” which must mean either actually branded with a particular mark, or else a particular kind. That question, however, Avas submitted to the Jury, who found there Avas no lead known by that designation in the New York lead market; consequently, the parties, if they intended to bargain for such lead, must have meant to make a contract for what did not exist, a conclusion which must be escaped from, if possible, by any means.
    But the law is not so entirely destitute of means to sustain the contract as an active and living one. It furnishes two rules of interpretation, which, when the application to language of its ordinary signification, without regard to extrinsic circumstances, fails to communicate to the contract, which it embodies, any vitality, may be applied. Besides the rule which permits extrinsic circumstances to be introduced to explain the meaning attached to special words in a particular trade or course of dealings, there is another, which enables us, when part of a description does not correspond with an existing subject, while the rest does, to reject the former, unless the part so rejected is applicable to something else, and the rest is not. It is only when there is nothing to determine to which of two subjects both parts of the description may be applied, that the whole is to be rejected. In this case, however, it was established that there was no lead branded “Walker, Parker & Walker ” in the world, but there was a cargo of soft English lead, manufactured by Walkers, Parker & Oo., and so branded or marked, on board of the vessel named in the contract, on its way to this port.
    I am fully aware, that in the view taken of this case by the Court of last resort, when formerly before it, stress was laid upon the inquiry, whether there was any evidence of an understanding, in the trade, of the meaning of “Walker, Parker & Walker brand.” But, it is clear to me that, by the similar stress laid in the opinion of the Court, upon the non-existence of any lead known in the trade, as impressed with that name, it was deemed necessary to show the impossibility of complying strictly with those terms, according to their assumed signification, before allowing evidence that dealers understood something else by them. Yet, it has’always been held, that parties dealing in a particular trade, must be understood to use the language of it, and not of common conversation. The fact, that no such brand as designating the •kind of lead, was known to commerce, would be a good enough ground for rejecting it from the description as a mistake or useless part. (Wig. on Ex. Ev., 99; Burr v. Broadway Ins. Co., 16 N. Y. R., 267.) But if the cargo actually on board of the vessel named, answered the rest of the description, proof that the trade understood “brand” to be equivalent to “ manufacture,” and “ Walker, Parker & Walker” to mean the house in question, would make such cargo answer fully the whole description in legal interpretation of it.
    It would seem from all the circumstances of the case, that the parties intended to deal rather in the particular cargo, than in any lead marked “ Walker, Parker & Walker,” or known by that designation. The defendant could, with more propriety, have' rejected other lead so stamped, than the cargo' in question, not so marked. By the purchase of merchandise at sea, he was entitled to .a merchantable article of medium quality. (Cleu v. McPherson, 1 Bosw., 480.) If “ Walker, Parker & Walker brand,” indicated a better quality or different kind, it would have operated as a warranty, and-not as a description. If the object had been to purchase simply, lead of a particular kind, there would have been no object in naming the vessel. Both parties were ignorant of the brand on the lead, and in that respect dealt upon equal terms: clearly, if the instrument had been an assignment instead of a contract, a transfer of so many tons of soft English lead on board of the Providence, on its way from Newcastle, “ Walker, Parker & Walker brand,” woidd have transferred the cargo in question. The plaintiffs in such a case, could not have set up as a defense, that the lead was not marked with those names.
    It appears to me, therefore, with due respect to the opinion of the learned judge, who passed upon this case in the Court of Appeals, that it could have been disposed of by rejecting the name of the brand as a mistake, and no part of the description. If, however, it was necessary' to give those words some effect, and the evidence in the case showed that they were neither unmeaning nor a mistake, on more full deliberation, since the trial,T have not been able to perceive hotv the case could have been submitted to the jury upon that question of interpretation, otherwise than it was. In regard to that, therefore, I must leave the* case to a comparison of the charge with the opinion of the Court of Appeals, which I think it follows.
    Evidence of a resale of the lead by the plaintiffs, and a statement of loss thereon, rendered to the defendants, was objected to on the trial. But such sale, after due notice, was at least a fair test of the value of the article, such notice being charged in the complaint and not denied in the answer. The statement admitted was admissible at all events, as a computation. The exceptions to its admission were properly overruled.
    Exceptions taken to the admission of evidence to prove three facts, were properly overruled. These were, First. The non-existence of any lead known in the lead market as Walkers, Parker & Walker brand, or any similar brand, unless manufactured by the firm in question. Second. The equality in quality and value of soft English lead, so manufactured by them, whether marked “ Walkers, Parker, Walker & Co.,” or “ Walkers, Parker & Co.” Third. The commercial designation of lead stamped either way, by ¡the terms “Walker, Parker & Walker brand.” Such evidence was admissible within the rule adopted by the Court •of Appeals, as the lead shipped and branded as it was, was manufactured by such firm, to enable the Jury to .determine, 1st. Whether, if the lead was soft English lead, ¿manufactured by the firm in question, such stamps upon it, by containing the names of “ Walker ” and “ Parker “indicated the same quality of lead and were understood by those engaged in the trade as meaning the same thing.” 2d. Whether the terms “ Walker, Parker & Walker brand,” Indicated the manufacturers only, and were equally applicable to all lead manufactured by them. And the facts which such evidence tended to prove were some of “ the surrounding circumstances,” indicating what was the subject of the contract as intended by the parties. Such evidence was therefore properly admitted.
    The following questions were put to a witness on behalf of the plaintiff, subject to an exception:
    “How was the lead, manufactured by the Walker houses, “generally known in this market?” “How was it desig- “ nated in common intercourse ? I mean, how was it spoken “of, generally, by persons who alluded to it?”
    These questions clearly pointed to the technical designation of the trade; to the habitual mode of indicating the kind of article, and on that account were proper. It is by conversation alone, whether loose or strict, that most articles get their mercantile title, which is usually adopted in a written contract. Such questions, therefore, were properly admitted. (Dana v. Fiedler, 12 N. Y. R., 40.)
    The following general question, by the defendants’ counsel, was excluded under an exception :
    “What conversation passed, upon the subject of this “ sale, prior to the actual delivery to these respective par “ ties, of the sale note ?”
    There appears to have been no preliminary suggestion as to any particular part of such conversation, or any bearing of it on any part of the sale. The question called for all the conversation, and the object of it is claimed to have been “ to show the sense which the parties attached “ to a particular term in the contract.” It is very true, that where a written contract leaves its meaning doubtful, evidence of extrinsic facts is admissible, to remove the apparent ambiguity, (Moore v. Meacham, 10 N. Y. R., 207,) and even the sense in which the parties understood an ambiguous word. (Almgren v. Dutilh, 5 N. Y. R., 28.) But to admit prior conversations to ascertain what the parties understood by a contract, after it had been reduced to writing, would be a violation of well established rules of evidence. Hone of the cases cited on the argument, go the length of holding that an article intended to be sold, being rendered uncertain by collateral evidence only, prior oral negotiations are admissible to prove what was intended. At all events, the question in itself was too general to render it admissible. There was no evidence of any representations as to the fitness of the article sold to make white lead, and therefore the questions in regard to that subject were also properly excluded."
    The defendants’ counsel also excepted separately to the following instructions given to the Jury:
    1st. The plaintiffs were bound to deliver Walker, Parker & Walker’s brand, if there were any articles of that name known among dealers as an article of merchandise.
    2d. Before looking elsewhere for the interpretation of the contract, the Jury must decide whether the plaintiffs could have furnished an article of a kind to have complied with the precise terms of the contract.
    3d. The negative testimony of witnesses familiar with lead, who have long dealt in it, that they never saw lead of a particular brand, may be weighed against evidence of a person that he had seen it.
    4th. Being a contract for lead to arrive, neither party knew the character of the cargo, at least there was no evidence that the plaintiffs knew how this lead was branded; therefore, both parties dealt upon terms of perfect equality.
    5th. Rather than to have the contract fall through, it is to be deemed to mean lead of a particular character, and the vocabulary of the lead market may be inquired into to show its character.
    6th. Under the circumstances of this case, the brand “ Walker, Parker & Walker,” could mean the manufacture of the Walkers & Parker, and the term “brand,” was equivalent to manufacture.
    7 th. If “ soft English lead” is considered, in commerce and in the lead traffic, to be lead manufactured in England, no matter from what ores it was made, it would be sufficient within the meaning of this contract.
    8th. The sale, without notice to the defendants of the time and place, was a test of the value of the article.

      The defendants were clearly not prejudiced by the instructions that the plaintiffs were bound to deliver articles of the kind described, if there were any known to dealers as such; and that, before -looking elsewhere, the Jury must decide whether the plaintiffs could have furnished such an article; which is exactly what the defendants contend for. Of course, the negative testimony of witnesses, if admitted at all, may -lie weighed against positive testimony, leaving their comparative weight to be decided by the Jury. There was no principle of law contained in the assertion, that where both parties were ignorant of the character of a cargo, they dealt in regard to it upon terms of equality, particularly when accompanied by the explanation, that each party supposed the other knew what kind of lead he was negotiating about. The language of the instruction as to introducing the understanding of dealers, rather than have the contract fail, is very nearly that used in Dana v. Fiedler, (ubi sup.) The charge as to the meaning of the words “Walker, Parker & Walker brand,” substantially followed' the views of the Court of Appeals in this case. The understanding in the trade of “ soft English lead,” is subject to the same rule as the -name of the brand. The testimony in regard to it was very feeble, and it was disposed of by the Jury. One witness did not think lead mined from Spanish ore was “ soft English lead;” another, that such lead was understood in the trade to be lead manufactured from English ores. There was, besides, evidence on the part of the plaintiffs to show that the lead in question was manufactured from English ores. It was made in England, which would be prima facie evidence, at least, that it was made from English ore. Besides this, the defendants, in refusing the lead, made no objection to the kind of ore from which it was made. I cannot doubt, that a fair sale of an article is a test of its value, although the party to be prejudiced thereby were not notified to be present at such sale.
    The requests urged on the trial, for instructions, were either complied with or involved the same questions as the exceptions to the charge.
    I do not think it so clear, that there was nothing produced on the trial to show that an English, instead of a Hew York ton, might not have been meant, as to entitle the defendants to a deduction from the verdict. The subject of the contract was of English manufacture, and was on the high seas, and constituted the entire invoice; there was, therefore, room for the admission of evidence to show the custom of the trade in regard to such weight. The statement of loss, rendered by the plaintiffs to the defendants, was retained by them without objection; no objection was made, on the trial, to the amount; no request to charge the Jury to the effect now claimed; no exception was taken to the charge of the Court as to the amount, but only as to the principle of liability. I think the case comes fairly within the decision in People v. Cooks, (8 N. Y. R., 67,) which held, that where a Judge was wrong in his assumption of a fact from which he deduced a legal conclusion, and the objection was only made to the latter, the correctness of the assumption could not be reviewed. The Court, in this case, assumed that it had been established that the tons meant were 2,240 pounds; the objection was only to regulating the damages by the sale. The subsequent case of Brown v. Cayuga & Susquehanna R. R. Co., (12 N. Y. R., 486,) is still closer. A defect of proof as to a fact stated in the complaint, was held not to be available, if capable of having been supplied on the trial. The appellants, without pointing out the defect, rested his case upon grounds which, if sustained, would have rendered evidence .of such fact immaterial. Proof of a custom would have cured the defect. It is not just for a party to lie by, and, after turning the whole attention of the Court and his adversary to questions of law covering the whole case, suddenly to spring a mine upon him, upon appeal, by taking advantage of an oversight in proving a minor fact. The objection also was not made on the trial, or on the motion for a new trial, and now comes too late. (Mabbett
      v. White, 12 N. Y. R., 442; Rice v. Hollenbeck, 19 Barb., 664; Pepper v. Haight, 20 Id., 429.)
    Upon a full examination of all the decisions on the trial, and mature reflection, I am satisfied that no errors were committed prejudicial to the defendants, and properly objected to by them. The: judgment appealed from must, therefore, be affirmed absolutely, with costs.
   Moncrief, J.,

(after stating the facts.) The contract itself seems plain enough; it provides clearly for the sale of a certain quantity and description of lead then on board a particular ship, on its way to New York from Newcastle; an ambiguity arises in consequence of the extrinsic facts that no such “brand” marked lead was known in the lead market of this country, or in England, and no such firm existed in England as “ Walker, Parker & Walker.”

The Court of last resort have held that testimony having been given, tending to establish those extrinsic facts, the question should have been submitted to the Jury, to determine what was the “ common intention of the parties,” at the time of the making of the contract; and, as I understand the opinion of that Court, furnished by the counsel for the respondents, they held also, upon substantially the same testimony as now produced, that the contract clearly called for “soft English lead of the manufacture of Walkers, “Parker, Walker & Co.” (2 Bing., N. C., 665, 671.) It would seem to be quite clear that both parties could not have met upon the understanding or intent, the one to deliver and the other to receive an article with a specific brand or mark, of which brand or mark neither of the parties had ever heard, and which, in point of fact, did not exist; and that the contract should be held to mean “soft English lead,” then on board the ship Providence from Newcastle, of the manufacture of the well known lead manufacturers, Walkers, Parker, Walker & Co., with such mark, stamp or brand upon it as they usually put upon their lead sent to this market; otherwise the contract could be satisfied with lead with such brand mark upon it, though not of tfie manufacture of a firm of “Walker, Parker & Walker.” It was held in Loomis v. Jackson, (19 Johns., 449,) that the words “lot Ho. 51 ” might be rejected as surplusage, the description being sufficient without those words, it not appearing that the grantor ever owned any land in lot Ho. 51, and as it did appear that he did own a parcel of land known as lot Ho. 50; and the Oourt cite Oro. 0., 548, a case in which the deed was of seventy-eight acres of land, lately in the occupation of B, and it happened that the same never was in the occupation of B, and it was held that the land sufficiently passed; for, said the Judges, the addition of a falsity shall never hurt where there is any manner of certainty without it; (and see other cases there cited, and Wigram on Ext. Ev., 99.)

The question put to David Smith, one of the defendants, “What conversation passed on the subject of this sale, prior to the actual delivery of the sale note ? ” being objected to, was overruled and excluded; in my opinion, properly so. There was no dispute as to the fact that a contract had been entered into; it had been reduced to writing. Heither the declarations nor the conduct of the parties, were important or admissible with a view to the construction to be given to the words of their agree- . ment. To have allowed the question, clearly might have led to the contradiction or variance of the plain terms of the agreement, or tended to control its legal operation; and this is not permissible. (2 Seld., 64; 5 Hill, 437.) The contract being made obscure or ambiguous by extrinsic facts, “ the usage of trade and the circumstances surrounding the transaction in question,” furnished the evidence touching the subject, to which the contract related, and interpreted or removed the doubt as to the meaning of the words “Walker, Parker &c Walker brand.” The evidence' admissible in such a case is, to ascertain the nature of a contract in the absence of clear and unambiguous words or stipulations, and is not to contradict or vary it in the slightest degree. It is, to discover upon what common intention the minds of the parties met, so as to be enabled to say what contract was made between them. The conversation had by or with the defendant, Smith, tending to show his intent, was not admissible.

The other exceptions in the case, are either embraced by the opinion delivered in the Court of Appeals, or are untenable, except the one relating to an excess of the verdict over and above what the law allows. The statute has prescribed what shall constitute a ton. The contract in question was made, and to be performed within the.city of Yew York. A complainant under such a contract, would be precluded from showing that the parties intended to contract for the delivery of lead at the weight of 2,240 pounds to the ton. (Many v. The Beekman Iron Co., 9 Paige, 188.)

The point does not seem to me to have been taken upon the trial; and, it is said, is first presented upon the hearing of this appeal; it would appear from the concluding part of the charge of the learned Judge, that the counsel for the respective parties upon the trial must have conceded the correctness of the statement of the plaintiffs’ claim. It is plain that the Court so understood and treated it, in submitting- the ease to the Jury. A manifest error, however, having been made in preparing such statement of claim, being based upon 2,240 pounds, when it should be upon 2,000 pounds to the ton, the difference should be .deducted from the verdict. Upon the plaintiffs (the respondents) remitting such difference from the amount of the judgment, .the judgment and order denying the motion for a new trial should be affirmed, (Many v. Beekman Iron Co., 9 Paige, 188; Code of Pro., § 330;) otherwise a new trial should be ordered, and the. judgment be reversed with costs to abide the event.

Judgment and order affirmed.


source: Caselaw Access Project

author: By the Court—Monell, J.

license: Public Domain

text:
    Bushnell Stevens, Plaintiff, v. Gideon Palmer, Defendant.
    1. An order of the Court, made in proceedings in bankruptcy under the act of Congress of 1841, authorizing the official assignee to convey assets, is valid though it do not fix the time and manner of the sale.
    2. A conveyance of land, by an official assignee in bankruptcy, pursuant to an order of the Court, is not within the prohibition of the statute against conveying lands held adversely.
    3. In order to establish title to land, under a lease by the corporation of the City of New York, for non-payment of taxes, it is necessary to show- that every prerequisite to the power to sell had been complied with. . .
    4. Production of what purport to be the assessment rolls, without proof of their authenticity or the genuineness of the assessors’ signatures, is not sufficient evidence that the taxes therein mentioned were duly imposed.
    (Before Moncrief, BobertSon and Monell, J. I.)
    Heard, October 14;
    decided, November 29, 1862.
    This action was brought to recover possession of a lot of land on Forty-sixth street in the City of Hew York. The cause was tried on the 21st of April, 1862, before Mr. Justice Robertson and a Jury.
    The plaintiff, having shown title to the lot in question, in Daniel B. Tallmadge, by a deed to him from Henry J. Seaman and wife, dated March 1,1836, offered in evidence: First. The petition of said Tallmadge to the District Court of the United States for the Southern. District of Hew' York, dated October 28, 1842, praying for the benefit of the United States bankrupt act, passed August 19, 1841. Second. A decree in bankruptcy, upon such petition entered December 10, 1842. Third. The order of that Court appointing William Coventry H. Waddell, official or general assignees in bankruptcy. Fourth. A report made by such assignees to the District Court, dated June 19, 1861, setting forth, that he had been applied to, to procure the interest of such bankrupt in the lot, for a nominal consideration and costs, the title being of no value to the estate, and asking for authority to sell the lot at private sale. Fifth. Am order of thé Court, that the assignee convey the interest of the bankrupt in the lot. This order was in the following terms: “ On motion of the official or general assignee in bankruptcy, and filing his report: Ordered, that he convey the interests of the bankrupt in certain lots of land situate in the City, County, and State of New York, according to the description of said lands contained in said report.” Sixth. A deed from the assignee to the plaintiff, dated June 20, 1861, conveying the lot in question. The consideration named in the deed was one dollar. It was proved upon the cross-examination of one of the plaintiff’s witnesses, that the defendant was in possession of the lot at the date of the assignee’s deed, and that he had erected a cottage thereon, more than two years prior thereto.
    The defendant moved to dismiss the complaint upon the grounds: 1st. That sufficient authority had not been shown to execute the deed; and, 2d. That the defendant was in possession at the date of the deed.
    The Court overruled the motion and the defendant excepted.
    The defendant produced and proved the record of the proceedings of the sale for alleged taxes in 1846, and proved by the record a sale of the lot in question for alleged taxes, for the years 1841, 2 and 3. The lot was sold for a term of fifty years. He also read in evidence a notice to redeem (among others) the lot in question, published in a city newspaper; also a receipt of the receiver of taxes for the sum of $6.36, received from Francis Nicholson, the purchaser, for purchase-money of two lots, (including the one in question,) at sale for taxes for years 1841, 2, 3, sold to him for fifty years; also a notice of Nicholson, addressed to John Hauser, the last assessed owner of the lot, notifying him of the sale, and a similar notice served on Henry Harnstein, the occupant of said lot; also a lease for fifty years, from the corporation to Nicholson, reciting the tax sale, &c.; also an assignment of the lease, from Nicholson to Edward D. Ewen, under whom the defendant was in possession as his tenant.

      William G. McLaughlin, one of the defendant’s witnesses, testified as follows: “ The book I have in ray hand, “ purports to be the assessment roll for the twelfth ward “for the year 1841; it is the only one in existenceit “ shows the valuation, the amount of tax, with a column “to credit the payment; this is the original book, by the “ certificate here; the names of the assessors are at the “ end—William V. Becker and Alexander-; it is an “ assessment roll of all the real estate in the ward.” The book contained the assessment of a tax upon the lot in question. The witness' gave similar testimony of a tax in 1842, and also in 1843. On his cross-examination, he testified that he knew nothing about the assessment, except what appeared in the-books.
    The defendant’s counsel requested the Judge to charge the Jury that the defendant was entitled to a verdict. The Judge refused so to charge, and directed the Jury to find a verdict for the plaintiff, to which refusal and direction the defendant’s counsel excepted. ,
    The Jury found in favor of the plaintiff. The Judge suspended the entry of judgment, and directed the exceptions to be heard in the first instance at the General Term.

      John Townshend, for plaintiff.
    I. The decree declaring Tallmadge a bankrupt, ipso facto divested him of his estate in the premises, and vested the title in the assignee, and the assignee’s deed passed it as if Tallmadge had conveyed prior to the decree. (U. S. Bankrupt Act, §§ 3, 15.)
    II. The assignee was an officer of the Court, and made the sale pursuant to its order. The sale was not, therefore, within the statute forbidding the sale and conveyance of land held adversely. (Hoyt v. Thompson, 1 Seld., 320; Tuttle v. Jackson, 6 Wend., 224; Truax v. Thorn, 2 Barb., 159.)
    III. Ho sufficient evidence was adduced of the imposition of any tax.
    IV. The property was not properly assessed. It should have been shown that it was assessed in the name of the owner or occupant, or as unoccupied lands of a non-resident owner.
    Y. The Comptroller had no power to sell until notice in writing had been given to the person from whom the tax was due, requiring payment of such tax, or until an affidavit had been filed, that upon diligent search the person from whom the tax was due. could not be found. The lease was not evidence of the regularity of the proceedings prior the sale. (Laws 1843, 318, ch. 230, art. 2, §§ 7, 8, 9; Id., 321, ch. 230, art. 3, § 1; Id., 328, ch. 230, art. 4, § 2; Laws 1845, 330, ch. 308, § 3; Doughty v. Hope, 3 Denio, 598; Varick v. Tallman, 2 Barb., 113; Beekman v. Bigham, 1 Seld., 366; Van Alstyne v. Erwine, 1 Kern., 331; Leggett v. Rogers, 9 Barb., 406; Tallman v. White, 2 Comst., 66; Platt v. Stewart, 8 Barb., 501; Carter v. Koezley, 14 Abb. Pr., 147.)
    VI. There was no proof of service of notice to redeem. notices, with affidavits that they had been served, were read; but those affidavits constituted no proof either of the service or that the persons served were, in fact, the person last assessed as owner, and the occupier.

      George W. Stevens, for defendant.
    I. There was no evidence of seizin, in fact, of either Tallmadge or Waddell, and no action can be maintained by the plaintiff as grantee of Waddell against a party who was in possession of the premises claiming adversely to Tallmadge or Waddell. (1 R. S., 739, § 147; 2 Hilliard on Real Property, 437, 438.)
    II. A constructive adverse possession is sufficient to defeat the plaintiff’s claim. (Cameron v. Irwin, 5 Hill, 272.)
    III. The fact that the defendant improved the premises by building a house, and exercised acts of ownership over them, is evidence of an adverse claim to the title of Tallmadge and Waddell. (Sherry v. Frecking, 4 Duer, 452.)
    IV. There was no authority given by the Court of bankruptcy to Waddell to make a sale of the premises in question to the plaintiff, or to any other person. The bankrupt act, (§ 9,) requires that the Court shall fix- the time and manner of the sale of the bankrupt assets. No such order is shown in this case.
    V. The suit was not commenced within two years after the decree of bankruptcy in Tallmadge’s qase, nor within two years after the right of action accrued to Waddell,'the official assignee. Hence it is barred by the provisions of the bankrupt act. (5 U. S. Stat. at Large, p. 446, § 8.)
    VI. This limitation need not be pleaded in this action.

      (a.) It is not a limitation created by any statute of this State.
    (6.) Where a party claims under a statute, and the same statute bars his right, the bar need not be pleaded as a defense, because he must prove himself within the statute.
    "VII. The defendant’s title, under the tax sale by the City of New York, is valid. The regularity of the levying of the tax having been admitted, the lease is conclusive evidence of the regularity of the sale, and that payment of the tax had been properly demanded. (Lawrence’s Tax Laws, p.79; Striker v. Kelly, 7 Hill, 9.) And the notice to redeem, and the service thereof, was sufficiently proved.
   By the Court—Monell, J.

I am of opinion that, the plaintiff acquired the title of .Daniel B. Tallmadge, to the lot sought to be recovered in this action.

The decree in the bankruptcy proceedings vested in the official or general assignee, all the title Tallmadge had in the lot. (U. S. Bankrupt Act, §§ 3, 15.)

The order to sell was made by the Court, and the conveyance to the plaintiff under it, gave him all the title of Tallmadge. I cannot discover any want of power in the Court, to make the order, nor any irregularity in the proceedings or sale, which would vitiate it. The title of Tallmadge prior to the bankruptcy proceedings was not disputed.

The sale was under judicial authority, and therefore not within the prohibition of the statute of sales of lands in the actual possession of a person claiming under a title adverse to that of the grantor. (Tuttle v. Jackson, 6 Wend., 224; Truax v. Thorn, 2 Barb., 159; Hoyt v. Thompson, 1 Seld., 320.)

The plaintiff, therefore, is entitled to recover, unless the defendant has shown a right to hold the premises under the corporation lease.

The statute which provides for tax sales, (Davies’ Laws, p. 864,) unlike the act which authorizes sales for assessments for improvements, (Laws 1816, p. 115, § 2,) does not make the lease evidence of the regularity of the sale, nor is it even prima facie evidence of the power to sell. (Tallman v. White, 2 Comst., 66.)

It was therefore necessary, in order to establish a title under the corporation lease, to show that every prerequisite to the power to sell had been complied with. (Jackson v. Shepard, 7 Cow., 88.)

The act of 1813 (2 R. L., 509, § 2,) prescribes the mode of laying or assessing a tax on real estate. The valuation is determined by assessors, who enter in a book or roll, the valuation, amount of tax, description of property and name of owner or person upon whom the tax is imposed. The book or roll is then signed by the assessors and deposited by them (in the country with the Clerk of the County,) with the receiver of taxes, (Laws 1843, 317, art., 2, § 1,) with a warrant annexed under the hands and seals of the Supervisors, (Id., § 2.) The 9th section of said act provides that immediately after the first of March, the receiver shall publish notice, notifying all persons who have omitted to pay their taxes, to pay the same on or before the first of April next thereafter. Section 1 of art. 3, of the same act, provides, that if the tax remains unpaid on the 15th of April, the Comptroller, upon being furnished with an affidavit that notice had been served by the receiver upon the person from whom the tax is due, as required by the 7th and 9th sections of said act, shall have power to sell.

The only evidence furnished by the defendant, was what purported to be the, assessment, rolls for the years 1841, 1842,1843, for the 12th ward. Ho proof was offered or given to establish their authenticity. Ho evidence that they were indeed the tax books in which the tax on the lot was levied. Hothing to show the genuineness of the signatures of the assessors. In short, they were introduced and relied on, as if proving themselves, or as if the Court could take judicial cognizance of their verity. They were records, and susceptible of being proved in the usual manner ot proving such documents.

There was also an entire absence of proof of the affidavit required by the several sections of the act before referred to, without which the Comptroller had no power to sell.

, A question similar to this was before this Court in Carter v. Koezley, (9 Bosw., 583.) The defendant by his answer claimed the. premises under a corporation lease. The answer did not state by whom, for what causes, or under what- statute the alleged tax was “ imposed nor did it state the amount of tax, or that any part of it was unpaid. Upon demurrer the answer was held insufficient.

It seems to me the defendant’s evidence fell far short of establishing any right in the Comptroller to make the sale, and it follows that the lease, as proof of title, is not sustained.

If this view is correct, it is fatal to the defense.

Without, therefore, examining the, alleged errors and irregularities in the. sale, and subsequent proceedings intermediate the sale and the delivery of the lease,. I am of opinion that the direction given by the Judge to the Jury to render a verdict for the plaintiff was correct.

The plaintiff should have judgment upon the verdict.

Ordered accordingly.


author: By the Court—Robertson, J.

text:
    John A. C. Gray, Plaintiff and Appellant, v. Henry C. Bowen, Defendant and Respondent.
    1. In a written stipulation entered into during the pendency before a Referee, of trials in several actions, it was agreed by one of several plaintiffs and one of several defendants in such actions, that such trials should “proceed at once, be determined with all practicable dispatch, and .be fully ended, and judgment entered therein, on or before ” a certain day thereafter. Also, “ in case the judgments in both such actions shall both be in favor of the defendants therein * * as a compromise ” that such defendant should secure to such plaintiff, the payment of a certain sum, by installments, by giving his bond therefor; and that such plaintiff should pay the costs of such actions, and on payment of the bond, indemnify the defendants therein against the claims on whiclj they were brought, and transfer to such defendant certain securities and evidences of such claims.
    Held, That the entry of such judgments on or before the day fixed in such stipulation, in case they were in favor of the defendants, was not a condition precedent to the right to demand the execution of such bond by such defendant.
    2. An agreement by a plaintiff, with one of several defendants, that the cause shall be tried without delay, and if the defendants prevail, the defendant entering into the agreement shall pay the plaintiff a certain sum, and receive an assignment of the claims and securities on which the action is brought, is valid. The plaintiff’s stipulation to transfer the securities, is a sufficient consideration for the defendant’s promise to pay, in the contingency contemplated. Nor is such agreement void on grounds of public policy.
    (Before Moncbief, Robbbtson and Monbll, J. J.)
    Heard, October 15;
    decided, November 29, 1862.
    The relief demanded in this action, was to enforce an agreement on the part of the defendant, that- he would execute and deliver a bond to the plaintiff, and to recover payment of the amounts which would have become due thereon.
    In 1856, the defendant became a special partner in a limited partnership known as the firm of Ely, Bowen & McOonnell; that firm failed, and in February, 1858, executed an assignment of their property to Isaac 0. Kendall, to pay all the creditors of such firm.
    Prior to December, 1860, the plaintiff became the owner, or had the control of certain promissory notes of, and claims against such insolvent firm, amounting to $106,000 and upwards, such notes being given by them before their assignment. Prior to that date, he also commenced two actions in this Court; one against the defendant, upon some of such claims, seeking to charge him as a general partner of the firm of Ely, Bowen & McConnell, in which other persons were joined as plaintiffs, and the other members of such firm were joined as defendants. The other, in which the present plaintiff and others were plaintiffs, and the present defendant, and the- general assignee, (Kendall,) were defendants, was brought to set aside the assignment before mentioned.
    While such actions were pending, and before the same had been brought to trial, the present plaintiff and defendant signed the following stipulation, entitled in both of such actions, and dated the 1st of December, 1860.

    It is agreed by and between the above named plaintiff, John A. 0. Gray, and Henry C. Bowen, one of the defendants in the above two actions, to settle all the claims and obligations involved in said actions, and other claims and notes now held, owned and controlled by said Gray, (a schedule whereof is hereto annexed,) amounting in all to the sum of one hundred and six thousand dollars and upwards, as follows: The case now on the calendar of the Superior Court, and all issues therein embraced, are to be referred to Henry Mcoll, Esquire, as sole Referee, to hear and determine, and report thereon; the reference therein, as well as in the other ease against Kendall and others, shall proceed at once, and be determined with all practicable dispatch, and be fully ended, and judgment entered therein, on or before the first day of February next; and in case the judgments in said actions shall both be in favor of the defendants therein, then it is further agreed, as a compromise and settlement of all claims involved in said actions and between all parties therein, and specified in said schedule, that said Bowen will pay and secure to said Gray the sum of twenty-seven thousand dollars, by the bond of said Bowen for that sum, dated January 1st, 1861, and to be conditioned to pay the sum of nine thousand dollars, on or before the 1st day of April, 1861, and the balance in sums or installments of two thousand dollars each, payable on the first days of each month succeeding the month of April, and commencing on the first day of May next, with interest on all unpaid sums, from said first day of January; and the said Gray agrees to pay all costs and expenses in said suit and the trials thereof, except the costs of the defendants’ attorneys therein, which said defendants are to pay; and said Gray hereby undertakes and agrees to indemnify the said Bowen and the defendants in said action against all claims, demands and liabilities whatever, upon, on account of, or connected with the said notes and claims in said schedule, and to deposit all of said notes and claims, and the evidences of such claims, in the hands of William Allen Butler, Esquire, to be held by him and delivered up to said Bowen, to whom the said notes and claims, and all rights and property therein, are hereby assigned and transferred upon the payment of the said bond; and it is further agreed, that all questions of difference arising under this agreement shall be submitted to and decided by the said Butler, and that his decision shall be final and binding upon both parties hereto, William H. McOonnell having been released from all personal liability on said notes and claims.
    Dated New York, December 1st, 1860.
    Jno. A. C. Gray
    H. C. Bower.

      At the time of such stipulation, the action brought against the defendant and his partners, had been referred to the Referee mentioned therein, and its trial was then pending before him. The trial proceeded before such Referee, and in the course, of it he was attended by both parties and their counsel. He made his final report in favor of the defendants, in both actions, but not until June, 1861, and on the 25th of that month, .judgment was entered in their favor. Nothing was done in such actions before the Referee, by either party, except the examination of one witness, until the early part of'April, 1861, when the trial was proceeded in, after various adjournments. It was concluded in the. beginning of June. During such reference the plaintiffs’ counsel notified, the defendants’ counsel that'he was proceeding under .such agreement, to which .the latter assented. . Ho evidence, was offered either of any delay by the plaintiffs’ counsel, except'his omission to proceed in such trials, or of any attempt by the defendants’ counsel to expedite them. Mr. Butler, the arbitrator proposed in such agreement, was notified by the plaintiff and defendant of the settlement, a day or two before the stipulation was signed, and of the intention to' place -in his hands the securities mentioned therein. . They were so placed^ apparently at various times, until asíate as March, 1861. It did not appear whether any of them weró not or were so deposited before the 1st of February, 1861. The plaintiffs’ counsel in such actions, was prevented by illness from proceeding in the trial thereof, until April, 1861. •
    This action was tried before a single Justice, at Special Term, without a Jury. Upon such trial he found, in his decision, as facts, £he making of the agreement contained in the stipulation in question, the recovery of judgments in June, 1861, in the actions mentioned therein; a demand on defendant for the bond mentioned therein, and a tender to him of such a bond for execution, and the defendant’s refusal to give it, and also a demand of the sums provided to be paid thereby. He also found, among other things, that such trials did not proceed at once, nor were they concluded and judgments entered therein with all practicable dispatch; nor before the 1st of February, 1861. Also, that the time mentioned in the agreement was important to the defendant, and was of the essence of the contract and not caused by his default; and that the securities specified were not placed in Mi;. Butler’s hands until March, 1861; and that the plaintiff gave no indemnity beyond the agreement, and that no submission of any matters in dispute, were offered to Mr. Butler. The Court placed its decision in favor of the defendant, solely upon the ground that time was of the essence of the contract, and the agreement not being performed within the prescribed time, the plaintiff could not maintain the action, and accordingly granted judgment dismissing the complaint.
    From that judgment an appeal is now taken.

      Joshua M. Tan Cott, for plaintiff, appellant.
    I. The judgment erroneously assumes that the stipulation as to time is a condition. Also that the stipulation was made by Gray, and not by both parties, whereas it is mutual. The decision also erroneously assumes, that time (as to entry of the judgments) was of the essence of the contract, whereas it was not. (See Dumond v. Sharts, 2 Paige, 182; Add. on Cont., [ed. of 1847,] 197; Adams’ Eq., 88; 1. Sugd. on Vend., [10th ed.,] 406, 429-435; 1 Story’s Eq., § 776.)
    Again, even if time had been a condition, or of the essence of the contract, it could be and was waived. An act inconsistent with an intent to insist upon a condition, waives it. (Young v. Hunter, 6 N. Y. R., 203; Carpenter v. Blandford, 8 B. & Cr., 575; Smith v. Trowsdale, 77 E. C. L. R., 83.)
    (1.) There was an express waiver by Bowen’s counsel. And his retainer authorizes this. (Thomas v. Harris, 3 Hurl. & N., 961; Gibbs v. Ralph, 14 Mees. & W., 804.)
    (2.) Bowen treated the' contract as in force, and took a benefit under it, by receiving the Referee’s fees from Gray. (Penniman v. Elliott, 27 Barb., 316; Bennett v. Judson, 21 N. Y. R., 238.)
    (3.) The circumstances are sufficient evidence of waiver.
    (4.) The record in Gray v. Kendall, introduced by the defendant, conclusively proves Bowen’s waiver of time and affirmance of the compromise. (Cutler v. Wright, 22 N. Y. R., 472.)

      Edwards Pierrepont, for defendant, respondents
    I. A suitor in equity who seeks to enforce specific performance, must show performance on his own part, and that the agreement is equitable. (Colson v. Thompson, 2 Wheat., 336; Acker v. Phœnix, 4 Paige, 305.)
    II. There is a total failure of performance on the plaintiff’s part.
    III. Time was of the very essence of this contract; the judgment which was, to have been entered “ on or before the 1st of Feb.,” was not entered until the last of the following June, and without fault of the defendant. (Mitchell v. Wilson, 4 Edw., 697; Wells v. Smith, 7 Paige, 22.)
    IV. The plaintiff did not give the indemnity to Bowen and the other defendants, as he agreed to do; nor did he submit the matter to Wm. Allen Butler, Esq., or offer to submit it; nor did he even place all the notes in Mr. Butler’s hands until after the time had passed for the entry of the judgment, as agreed.
    V. That in case of difference, there should be a submission to Mr. Butler, and thus save the harassment and injury to the credit of the defendant which a suit might cause, was an essential part of the agreement, and without which Mr. Bowen could never have been induced to sign the contract.
    VI. But the agreement itself is void, and can never be enforced in a Court of equity.
    1. It is without consideration, and it is not under seal.
    2. There is no mutuality. Gray does not agree that judgment shall go against him at all. (Chitty on Cont., [10th Am. ed.,] 14; German v. Machin, 6 Paige, 288.)
    VII. This was not a settlement of an honest suit, for if judgment went for the defendant, then, surely there was nothing for him to settle. (Ford v. Adams, 2 Barb., 349.)
    VIII. The whole contract is illegal, against public policy and void. The law will leave the parties where they have placed themselves; it will not aid either party. (Hooker v. Vandewater, 4 Denio, 349; Hilton v. Eckersley, 32 E. L. & Eq., 198; Mount v. Waite, 7 Johns., 440.)
   By the Court—Robertson, J.

This case turns upon the solution of two questions:

First. Whether the entry of a judgment in favor of the defendants in the two actions mentioned in the agreement in question, before the 1st of Eebruary, 1861, was a condition precedent to the plaintiff’s right to the bond of the defendant therein specified.

Second. Whether such condition was waived.

The reasons for not considering the entry of such judgment by the day fixed to be a condition are numerous and weighty. No qualification of such time is expressly affixed to the giving of the bond, the only condition attached is “ in case the judgments in both actions are in favor of the defendants.” The stipulation as to the time of entering the judgment is entirely separate and independent, and applies as well to a judgment in favor of the plaintiffs as of the defendants; no duty is imposed upon either of entering it up. At all events, it hardly contemplated the entry by the plaintiffs, of a judgment-in favor of the defendants, after a trial, so as to give the present plaintiff a right to such bond. If the object had been simply to facilitate the defendants in such actions, in obtaining judgment in their favor, it is difficult to conceive why both parties were to remain exposed to the hazard of a litigation. An immediate retraxit would have answered every purpose of that kind. The right to go on in such actions and endeavor to make the defendants liable, was evidently retained, therefore, for the plaintiff’s benefit, as was also- his right to the bond, if defeated. Yet, the prospect of getting such bond was held out as an .inducement for him to relax his efforts. He could make his election at any time to abandon his action, or his right to the bond of the defendant. • If it was within the duty and power of any one, therefore, to expedite the judgments, in order to complete the obligation to give the bond, it was that of the plaintiff.

Even if such stipulation, however, had expressly required the plaintiff to procure such judgments to be entered by a fixed day, unless the giving of such bond was made expressly to depend on that act, it would not be a condition precedent. Most of the cases in regard to the independence of such stipulations have arisen on charter-parties or agreements to pay freight. An agreement by the plaintiff that his vessel should sail by the next wind, was held on demurrer to the defendant’s plea of his not so sailing, not to make his so sailing a condition precedent to a right to a sum of money agreed to be paid by the defendant, if he went such voyage and returned. (Constable v. Cloberry, Palm., 397; Bornmann v. Tooke, 1 Camp., 377). A like decision was made in regard to an agreement to sail by the first convoy, where the defendant’s agreement was in consideration of “everything before mentioned.” (Davidson v. Gwynne, 12 East, 381.) A like decision had been made in regard to an agreement to sail on or before a certain day. (Hall v. Cazenove, 4 East, 476.) .It was noticed, in the case from Palmer, that the words were not “if the plaintiff would sail by the next wind” the defendant would pay. In Davidson v. Gwynne, (ubi sup.,) it was said that the voyage was the main object, and the sailing by the first convoy a mere covenant sounding in damages, which was also the view taken in Hall v. Cazenove, (ubi sup.) In the present case, the rendering judgment for the defendants is evidently, as well as expressly, the main object and consideration for giving the bond. The time is a mutual covenant, the only sanction for which is, either giving damages or power of resisting a postponement.

Another consideration which strengthens this view is that, besides the recovery of judgment by the defendants, the plaintiff was to pay the costs of the suits, and deposit certain securities with a third party, (Mr. Butler,) to become the defendant’s property. ¡No time was fixed for those acts, and, unless the defendants succeeded, the plaintiff was not bound to do them at all. He clearly was under no obligation to do them by the first of February; yet they were as much rendered conditions precedent, as the recovery of the judgment. Doing within a reasonable time is not sufficient, since the defense is the failure to enter on the exact day. ,The entry of such judgments, after the day fixed, clearly could not preclude the plaintiff from all rights under the agreement, since the mere entry at any time secured under it the defendant’s right to indemnity against the claims in such actions. (Kingdon v. Cox, 2 C. B., 661; 15 L. J., [C. P.,] 95; Payne v. Banner, 15 L. J., [N. S.,] 227.) Time, therefore, could only have been.of the essence of the contract, if it had been entire and indivisible that the bond was only to be given in case the plaintiff .procured judgments, to be entered against Mm and his co-plaintiffs, paid the expenses, and transferred the securities by the day fixed. (Addison on Cont., [2 Am. ed.,] 875.) As the contract stood, it was not.

I do not see that the plaintiff’s want of original ownership of the claims sued, on, the effect of such actions on the defendant’s standing, or that of his firm, can have any bearing on the rights of the parties. The right to buy and collect notes was a legal one. If a speedy determination of such actions was important to the defendant, he should have served it by an agreement more effectual for that purpose, or by pressing it on. If he-is injured, and the stipulation be one on which an action can be maintained, he has his remedy for it. As things occurred, he acquiesced in a delay from December to April, without a movement on his part. The illness of his adversary’s counsel was no excuse for his delay.

Unless the record in such former actions be evidence of a waiver of any condition, (Cutler v. Wright, 22 N. Y. R., 472,) the evidence of it is slight. There is no precision in the testimony of the plaintiff’s attorney as to the time of his notifying the attorney for the defendant, of his proceeding under the agreement in question. The payment of the Referee’s fees was a voluntary act, and it does not appear by whom the judgments were entered up. If, by the defendants, it might amount to a waiver, upon the principle of Havelock v. Geddes, (10 East, 564,) where employing a vessel, before the acts required to put her in a certain condition were done, was held to be a waiver of the doing of such acts as a condition precedent to such employment.

The agreement to transfer, or indemnify the defendants against, claims amounting to $106,000, was a sufficient consideration for the promise to give the bond. If the defendant succeeded in procuring the recovery of judgments in his own favor, he was entitled, under such agreement, to such transfer, upon tendering such bond, which was of far less amount, without regard to the' time of recovering such judgments. It was, in'fact, a stipulation not to appeal; the entry of the judgments was to be sufficient, and the defendants could have enforced the contract forthwith. Bor is it sound to say that if judgment went for the defendant, there was nothing left for him to settle. The plaintiff would have still retained his claim for a share of the estate, against the partners and assignee of the defendant, which would, in this case, become the property of the defendant by such transfer.

I do not find in such agreement any of the elements of a perversion or obstruction of justice, or the due administration of the laws. The parties to an action have a right to dispose of any rights to result from it, as they may think proper. The plaintiff had a right to agree to allow judgment to be taken against him by default, or on an omission to sustain his claim. The defendant had a right to agree to hold out to him the prospect of receiving his bond, as an inducement for the plaintiff to relax his efforts, and both parties had a right to agree to make the exchange of securities for such bond depend on the result of such action.

The foregoing views would be sufficient to enable the plaintiff to recover in an action at law against the defendant the value of the bond, as damages for not performing his agreement. He has also a right to join the equitable action, to compel the execution of the bond with the legal one for damages upon it, if executed according to the terms of the agreement. (N. Y. Ice Co. v. N. Western Ins. Co., 23 N. Y. R., 357. For these reasons, the judgment must be reversed, and a new trial had. The costs are to abide the event.


author: By the Court—Robertson, J. Monell, J.

text:
    William H. Crommelin, Plaintiff and Appellant, v. The New York and Harlem Railroad Company, Defendants and Respondents.
    1. An implied agreement between a railroad company and an owner of merchandise transported by such company, as common carriers upon their road, for a per diem compensation for the use of their cars, during any delay by such owner in removing such merchandise after its arrival, does not give the company a lien upon the merchandise for such compensation during the time it may remain upon their cars in a public highway.
    2. Common carriers, in whose possession goods, transported by them, are left remaining in their vehicles, by the delay of the consignee to receive them, do not acquire, under such an implied agreement, a lien on the goods for such compensation. (Per Monell, J.)
    (Before Moncriee, Robertson and Monell, J. J.)
    Heard, October 16;
    decided, November 29, 1862.
    This was an appeal from a judgment entered on a verdict recovered on a trial before Mr. Justice Barbour and a Jury, on the 11th day of May, 1862.
    The plaintiff, who is a stone cutter, was in the habit of having marble brought over the Harlem railroad from South Dover to Forty-second street, in the City of New York. The defendants had established a rule or regulation, that in addition to the freight, one dollar per day would be charged for the use of each car, after the marble had remained forty-eight hours at the depot. The plaintiff had notice of this regulation. In October,' 1860, three car loads were brought over the road for the plaintiff. On the arrival of the three cars, the plaintiff was notified thereof, and also that one dollar per day for each car, would be charged, after -forty-eight hours. The cars, with such marble upon them, remained in the street in front of the depot for. several days. On the 19th October, plaintiff paid the freight, but refused to pay the one dollar' extra per day for the detention of the cars. The defendants refused to deliver the marble without payment of the extra charge, and the plaintiff brought this action to recover possession of the property.
    The defendants proved by Baker, their freight agent, that in August or September, previous to the shipment of the marble, he was inquired of by the plaintiff respecting cars; that Baker replied that they were very short of cars. The plaintiff said that he expected, in a week or two, some more marble down. Baker said, that they would do the best they could to supply the cars; that they had been short of cars all summer; so short that he had received notice from the president that all persons having freight upon the road must take it awáy within forty-eight hours, or he must charge them. one dollar a day for the use of each car. This was three or four weeks before the arrival of the marble. The plaintiff objected to the arrangement and said that he would break it up if he could.
    The Judge submitted to the Jury the question whether the plaintiff had notice as to what the charge of the company would be. He was requested by the plaintiff to charge that the “ defendants had no lien for the detention.” He refused so to charge, and the plaintiff excepted.
    The Jury rendered a verdict for the defendants.

      John R. Flanagan, for plaintiff, appellant, cited Lambert v. Robinson, (1 Espinasse, 119;) Clendaniel v. Tuckerman,
      (17 Barb., 184;) Rome R. R. Co. v. Sullivan, (14 Geo., 277,) Mich. Cen. R. R. Co. v. Ward, (2 Mich., (Gibbs,) 538.)

      Charles W. Sandford, for defendants, respondents, cited Morgan v. Congdon, (4 Comst., 552;) 3 Maule & Sel., 168; 5 Id., 180; Schmidt v. Blood, (9 Wend., 268.)
   By the Court—Robertson, J.

The defendants claim to have had a lien on the plaintiff’s marble, for a per diem compensation for allowing it to remain upon the cars by which it was brought, for several days in a public street. There was no evidence adduced of any right on their part-to such permanent occupation of the highway; the obstruction, -therefore, of it by such cars and marble was a public nuisance. So far as any safety of the merchandise was concerned, its bulk would probably have rendered it equally safe, if taken off from the cars and laid on the pavement. Leaving articles in an open vehicle exposed on a highway, is not the kind of storage for which a lien can be acquired. Even, the right of the defendants to make contracts for continuous storage of merchandise, although transported by them previously, under their charter, may be doubted. Upon any ground I think the claim for such lien is untenable.

The judgment must be reversed, and a new trial ordered, with costs to abide the event.

Monell, J.

The only question in this case is, whether the regulation of the defendants, to make an extra charge for the detention of their cars, known to, and, as I think the evidence establishes, acquiesced in and assented to, by the plaintiff, constituted a lien upon the marble, which would authorize the defendants in retaining it, until the charge was paid. I think the transaction, as testified to by Baker, constituted it in effect an implied,- if not an express contract, that the defendants would charge, and the plaintiff would pay, the extra charge. With notice of the regulation, he shipped the marble, and there is enough to raise an implied assumpsit, upon which, I have no doubt, the defendants could recover in an action for that purpose.

A lien is defined to be the right which one person, in certain cases, possesses of detaining property placed in his possession, belonging to another, until some demand which the former has is satisfied. (Whitaker on Liens, p. 2.) They are of two kinds, particular or special, and general. A special lien is the right to retain the property of another, on account of labor bestowed or money expended on the same property, and is established by the common law and i>y express agreement. A general lien is the right to detain property for a general balance due from the owner, and arises by the usage of trade, the usage of the parties, or by express contract. (Ib.) The lien of a common carrier is a special, and not a general lien. Hence, in this case, if any lien exists in favor of the railroad company, which would authorize them to detain the- plaintiff’s marble until the charge for detaining the cars was paid, it must be established, either by express contract or by the common law. It is not pretended that there was any agree-. ment that the defendants should have alien on the marble until the extra charge was paid; and I have been unable to discover that it is sanctioned by the common law. The lien at common law exists only in respect of freight actually earned by the carrier of the goods, at the stipulated place of destination. (Angelí on Carriers, § 383.) “And therefore,” says this elementary writer, “ covenants .for demurrage, or for providing a full cargo, cannot be enforced by the specific remedy of lien, even though the charter-party contain such penal clause. The remedy for such matters rests entirely in covenant, and the mere penal clause will not extend the right of lien.”

The question arose in Birley v. Gladstone, 3 M. & Sel. R., 205. The ship was chartered for a voyage out and home, and by the terms of the charter-party, the merchant covenanted to pay for the homeward cargo, at certain rates per ton, on delivery at Liverpool; to load with full cargo, and to pay demurrage. He bound the goods to the performance of his covenant. The Court of King’s Bench held, that the carrier could not detain the goods either for the freight of such as was put on board and afterwards reclaimed by compulsion, nor for the dead freight, nor for demurrage. Ld. Errehborough said that covenants for providing a full cargo, or for demurrage, give no lien. In this case it was claimed that the charter-party gave the lien for demurrage in express terms, as it was stipulated that the goods should be bound for the due performance of the covenants, but Le Brahc, J., says: “ it is impossible that this obligatory clause can be construed to mean that the owners of the ship would have a lien on the goods brought home for every breach of covenant in the charter-party ; as for instance, the not loading a full cargo and for demurrage. The remedy for such matters rests entirely in covenant.” It was not denied that such a lien might be created by express contract, but it was held that the words in the charter-party expressed no such agreement.

The only other case I have found bearing directly on this question is, Lambert v. Robinson, (1 Esp. R., 119,) which was trover for the conversion of goods. The goods had been taken up on the road. On their arrival at the inn, the plaintiff (owner) was there to receive them. The carriage came to three shillings six pence, which the plaintiff tendered. The tender was refused unless the further sum of two pence per parcel was paid for “ booking.” This was refused, as the goods had not been booked. The defendant then demanded the two pence as warehouse-room. This was also refused, as the goods had not been brought into the warehouse, but delivered from the wagon. Eyre, Ch. J., said: there was no lien given by law in this case; but if there was, the charges were not lawful, and a lien exists only for lawful charges.

The elementary books and cases to which I have referred would seem to settle the law that a lien exists for freight, only after it has been earned, unless there be an express contract creating the lien, in clear and unequivocal terms. The defendants in this case, claimed to detain the marble until the plaintiff paid the'extra charge of one dollar per car. The freight had been tendered and paid. At most,.there was an implied agreement only, that the plaintiff ¡would pay- the extra charge. He did not, by an express stipulation-, bind the goods, or create a lien upon them,,until the ] charge was paid. Thé remedy, if any, rested entirely in the implied assumpsit; there was no right of lien, if or can the defendants' be regarded as warehouse keepers, and entitled to a lien for storage. They did not, in any sense, store the plaintiff’s marble. It was left npon the cars standing npon the railway track in the public highway. Upon its arrival at the place of destination and notice-to the plaintiff, and a - reasonable time given to accept and take, by the consignee, the defendants had discharged their whole duty, and could not be held responsible for any loss or damage; and hence no right of lien could arise for housing,' unless the defendants were warehouse men as well as carriers, which they were not in this case. '

Under the view of the law of lien which I have taken, it was error to refuse to charge as requested by the plaintiff."

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