author: By the Court. Woodruff, J.

text:
    George W. Beavers v. Nehemiah B. Lane, and others.
    It is settled law, that when the owner of personal property makes an unconditional delivery to his vendee, with the intent to transfer the title, a subsequent bond fide purchaser from such vendee acquires a valid title, although the owner was induced to sell by the fraud of his vendee.
    It is also settled, that even when the owner qualifies Ms delivery by annexing as a condition, that immediate payment shall be made, still a bond fide purchaser, without notice of the condition, acquires a valid title.
    But these rules are not applicable when it appears that the contract of sale to the subsequent purchaser was so far executory, that the thing sold had not been delivered, nor any portion of the price paid, so that, in the event of a recovery by the owner, such purchaser will sustain no damage beyond the possible loss of anticipated profits.
    Although the contract, under such circumstances, may pass a valid title as between buyer and seller, it would not be available as a defence against the paramount title of the original owner.
    It may be safely laid down as law, that no person, as against the true owner, is to be deemed a bond fide purchaser from the first vendee, when it appears that he had neither advanced money nor property, nor incurred liabilities upon the faith of such vendee’s apparent title. He is not a bona fide purchaser when a recovery by the owner would leave him in the same condition as if no contract of purchase had been made by him.
    It appearing to the court that such were the facts in relation to the purchase made by the defendants, held, that their situation in respect to the plaintiff, the original owner of the goods in controversy, was exactly the same as that of his vendee, and, consequently, that if the sale to him had been induced by his fraud, they had no defence to the action.

      Held, further, that upon the evidence given on the trial, and the known rules of law applicable thereto, the questions, whether the sale to the vendor of the defendants had not been obtained by fraud, and whether the delivery of the property by the plaintiff was not conditional, so that the price being unpaid, no title passed, ought to have been submitted to the ,iury.

      Held, therefore, that the complaint ought not to have been dismissed, and that the motion for a new trial must be granted.
    (Before Duer, Slosson, and Woodruff, J.J.)
    November 7 ;
    December 27, 1856.
    Motion on the part of the plaintiff to set aside a nonsuit, and for a new trial.
    The action was brought for the delivery of the possession of thirty-six hundred bushels of oats, and the issues raised by the pleadings were tried before Oakley, Oh. J., and a jury, in November, 1854. When the testimony on the part of the plaintiffs was closed, the counsel for the defendants moved for a nonsuit, the court granted the motion, and the counsel for the plaintiff excepted to the decision.
    A motion to set aside the nonsuit, and for a new trial, after-wards made at a Special Term by an order of the court founded on the consent of the parties, was directed to be heard at a General Term.
    That the opinion of the court may be properly understood, it will be necessary to set forth the pleadings and the evidence given on the trial.
    The complaint alleges that the plaintiff was, at and before the commencement of the action, the owner and lawfuEy entitled to the possession; that on or about the 21st day of April, 1854, the defendants wrongfully took and carried away the said property from the plaintiff^ and wrongfully detain the same from him; that he has demanded the same from the defendants, and that they have refused to deliver the same to him.
    The answer of the defendants denies the plaintiff’s title, and Ms right of possession of the 3600 bushels of oats mentioned in the complaint; denies that the defendants took or carried away the same, or any part thereof, from the plaintiff; and denies that they unlawfully have detained or do detain the same, or any part thereof from the plaintiff.
    The answer then states, as to 2553% bushels of oats, parcel of the property claimed in the complaint, which was in the possession of the defendants at the commencement of this action, and the delivery whereof to him the plaintiff claims herein, that those 2553% bushels of oats were, at the commencement of this action, the defendants’ property, and that they were lawfully in the possession thereof.
    Upon the trial of the issue so joined, the evidence produced by the plaintiff showed that, on the night of the 18th of April, 1854, one Cox directed a person in his employment, to purchase for him “ along the North River” from eight to ten thousand bushels of oats, and instructed him, in case inquiry was made respecting the time of payment, to say “the usual time.” The agent, on the following day (Wednesday, the 19th), found the plaintiff’s canal boat at Pier No. 12, North River, with upwards of 7000 bushels (“ understood to be 7500 bushels”) on board, and purchased from the plaintiff “ all there was in the boat.” The price agreed on was fifty cents a bushel, and nothing was said about credit. “ The usual terms,” unless there is some other understanding, are cash on delivery. It was agreed that the oats should be sent to Pier No. 26, East River, to be there measured, and Cox, the purchaser, was to pay “for what they measured.” The plaintiff’s boat was removed to the place appointed on the East River, and the next day (Thursday) the measurer began to measure the oats. As the oats were measured they were poured into boats provided by Cox. One boat was filled, and the oats therein were, on the following Monday, taken by Cox (or his agent) to a ship, and were put on board, for what destination does not appear, nor is it material. The residue were poured, as they were measured, into another boat belonging to Cox, called the J. P. Whiley, and on Saturday morning the measuring was finished, and at about three or four o’clock in the afternoon, the measurer’s return of the quantity, 7175 bushels, was left at the store of the plaintiff. On Monday morning, at about ten o’clock, the plaintiff called upon Cox to ascertain, something respecting the apparent deficiency in the quantity of the oats, and inquired where the oats were. Up to this time no bill of the oats had been presented by the seller, and no demand of payment had been made, and there was testimony to show that on cash sales in that kind of trade, although the usual terms are cash on delivery, yet, that by the usage and custom, the bill is presented for payment the same day or the next day after the measurer’s returns are made to the parties; but that, nevertheless, the seller sends in his bill when he chooses.
    At 12 o’clock, noon, of Monday, the plaintiff presented his bill to Cox, and demanded payment for the whole quantity returned by the measurer, and he then learned that Cox had failed, and of course the bill was not paid; and he then demanded the oats.
    On the next day, Tuesday, April 25th, this action was commenced, and the sheriff, who was directed to take the property, found the boat of Cox (the J. P. Whiley) at Pier No. 2, East River, and the measurer then employed in measuring the same oats, and pouring them, as they were measured, from Cox’s boat into the boat of the present defendants.
    In the mean time, the quantity on board the J. P. Whiley had' been reduced by some other disposition thereof, to 2553|- bushels. In what manner the sheriff served the process does not appear by the case, but notwithstanding the measurer “ was stopped by the sheriff at noon” of Tuesday, he went on by direction of defendants, and completed his measurement, pouring the whole of the 2553^- bushels into the defendants’ boat.
    It also appeared by the testimony, that there were in the J. P. Whiley, 700 or 800 bushels - of oats before any were poured into her from the plaintiff’s oats; but that does not seem material, as the identity of the oats delivered to the defendants, is not questioned. At all events, a larger portion of them were clearly the oats sold by the plaintiff.
    In support of the defendants’ title, there is evidence that the defendants purchased the 2553£ bushels of oats, that is to say, “ what oats were in the boat” J. P. Whiley, on Monday the 24th April, from Rawles & Seymour, commission merchants, at 51i cts. per bushel; that the purchase was for cash. There was not only no evidence that the defendants had paid for the oats, but upon the face of the bill rendered by Rawles & Seymour was a direction, in the handwriting of one of the defendants, not to pay the bill. And no evidence was given respecting the title, if any, of Rawles & Seymour, or their authority to sell, except the fact that the oats continued in the boat of Cox, and were in process of delivery from that boat into the boat of the defendants when this action was commenced.
    The counsel of the parties now submitted the case upon printed points.

      F. B. Gutting, for the plaintiff, submitted the following points:
    The nonsuit, or dismissal of the complaint, was erroneous.
    I. There was evidence sufficient for' the consideration of the jury that Cox directed his clerk to purchase the oats, with the preconceived intention of not paying for them. This appears from, 1. His instructions to the clerk. 2. His insolvency, which was declared early on Monday, the 24th November. 3. The absence of all explanation as to the causes of his suspension. 4. The haste with which he attempted to sell the oats, through his broker. 5. The rendering of a bill before the oats had been delivered to the defendants, contrary to the usage of the trade.
    II. The oats were sold payable cash on delivery. As between Cox and the plaintiff, the title of the latter was not divested until performance by the former (Van Neste v. Conover, 20. Barb. 554, and cases there cited.) a. The oats were payable in cash on delivery, by agreement, by usage, and as matter of law. b. There was no delivery until the oats had been measured, and the quantity ascertained by the parties, so that the price to be paid could be ascertained, c. The plaintiff did hot receive the measurer’s return until between 3 and 4 o’clock of Saturday, the 22d April, and on Monday he presented the bill of sale; and demanded payment. There was then a dispute as to the quantity. On the same morning the plaintiff demanded payment of the quantity stated in the measurer’s return,- and then Cox avowed his insolvency. d. The plaintiff had the right to retain possession of the oats as between himself and Cox. e. The delivery was conditional on the payment of the price; and not having been paid for, there was no delivery in law.

      III. The defendants did not obtain title to the oats by their agreement to purchase from Rawles & Seymour, 1. Rawles & Seymour had no title. 2. The defendants had notice of the plaintiff’s rights before the oats were delivered to them. 3. They paid nothing on account of the oats.
    IY. The nonsuit ought to be set aside, and a new trial ordered.

      Wm. M. Bhiarts', for the defendants, submitted the following:
    I. The plaintiff’s sale to Cox of the boat-load of oats in the “ Champion,” on the 19th April, was executed and complete so as to pass the title. The delivery of the oats was complete either by placing the whole boat-load at Cox’s disposition on that day, or, certainly, when the oats had been fully measured out from plaintiff’s boat into Cox’s boats, and mingled with his other cargo therein, at or before ten o’clock, a. m., April 22d. Read v. Gibbs, (3 Sandf. S. C. R. 203); Smith v. Lynes, (1 Selden, 41.)
    II. This delivery from plaintiff to Cox was unconditional, and left no right in the plaintiff to reserve or reclaim the possession from Cox upon his default in payment, had the oats still remained in his hands.
    III. The defendants’ right is superior to Cox’s. They became purchasers in the market from Rawles & Seymour, who had possession of the oats, and sold them as owners, and, on such sale, delivered them to defendants.
    IY. The plaintiff has attempted no impeachment of the title or possession of Rawles & Seymour, and no presumption to the prejudice of either, can arise on the proofs. The defendants stand, then, as bona fide purchasers, in the regular course of trade, from regular and reputable dealers, whose right to sell is not discredited.
    Y. The fact that the defendants had not paid the price on their purchase from Rawles & Seymour is immaterial. By the executed sale the title had passed to them, and the property was at their risk. As bona fide purchasers they were entitled to their bargain, and the subject of it, and this whether they had paid for it or bought on credit. Olyphant v. Barber (5 Denio, 379), Crofoot v. Bennett (2 Coms. 258).
    YI. The defendants should have judgment, with costs.
   By the Court. Woodruff, J.

The counsel for the plaintiff, in support of the present motion, insists that the nonsuit was erroneous, because the defendants had, at the time of the commencement of this action, acquired no title to the oats in question, or if they had acquired any title upon which they could claim or retain the possession as against the plaintiff’s vendee, (Cox,) it cannot avail them as against the plaintiff himself, i. e., they had no other or better title than Cox himself. That Cox had no title as against the plaintiff for two reasons, that the purchase by Cox was fraudulent, and made with the preconceived intention not to pay for them, and also that the sale being for cash on delivery, the act of measuring, which for convenience was done from one boat into the other, did not constitute an absolute delivery, but was conditioned upon the payment therefor on the coming in of the measurer’s returns; and that there was evidence tending to establish all the facts which enter into these propositions, which evidence ought to have been submitted to the jury.

The counsel for the defendants, on the contrary, insist that the delivery of the oats to Cox was complete, absolute, and unconditional, and that the defendants are bona fide purchasers without notice of any defect in the title of the parties in possession, and are therefore entitled to retain the property and enjoy the fruits of their purchase, although they have paid nothing and had not received complete delivery when the action was commenced.

It is not denied by the counsel in this case that when an owner of property makes an unconditional delivery to his vendee, with the intent then to transfer the title to him as purchaser, a subsequent bona fide purchaser from such vendee will acquire a valid title, although such owner was induced to sell and deliver by the fraud of his vendee.

Uor is it denied that, where an owner, having sold his property, qualifies the delivery thereof by annexing a condition that pay-: ment shall be made, still a bona fide purchaser from the vendee, without notice of the condition, will acquire a valid title.

Both of these propositions have recently been considered and decided in this court, and the cases on the subject collected and discussed. (See Caldwell v. Bartlett, 3 Duer, 341; Keyser v. Harbeck, ib. 373.) Since the case of Mowry v. Walsh, (8 Cow. 238,) the former proposition has not been disaffirmed, and the case of Smith v. Syms, (1 Selden, 41,) in the Court of Appeals, distinctly affirms the latter.

Before considering the question whether the title of Cox, the plaintiff’s vendee, to the oats in question, was valid as against the plaintiff, it is proper to inquire, whether the defendants are bona fide purchasers within the meaning of these rules ?

It is quite clear that there was no sufficient evidence in this case to warrant the court in saying that Rawles & Seymour, from whom they made their purchase, were such purchasers, and the defendants cannot therefore repose upon Rawles & Seymour’s title. They, Rawles & Seymour, are not shown to have in fact purchased from Cox or any one else. .They are not shown to have had the possession at any time; the oats remained in the boat of Cox. They are not shown to have paid any thing for the oats, or to have made any advance thereon. The fact, which is proved, that they assumed to negotiate a sale to the defendants, and that a delivery was begun in pursuance of their contract of sale, indicating that they had, for this purpose, a control over tho oats, is entirely consistent with the continued possession and ownership of Cox, because it is proved that Rawles & Seymour are commission merchants, and there is no proof that they acted in any other capacity. If, then, it shall appear that Cox had no title valid as against the plaintiff, the proof comes far short of showing that Rawles'& Seymour are bona fide purchasers from him, entitled to protection as such against the plaintiff’s claim. The evidence indicates rather that they were negotiating a sale for Cox to the defendants.

The defendants must, therefore, for the purposes of this branch of the case, rest upon their own position as purchasers, and this, we think, is insufficient. It is not enough to constitute a bona fide purchaser, (within the meaning of the rule,) that he has entered into an executory contract of purchase which, if not performed, will leave him in the same condition as if no such contract had been made. It has been said, it is true, that a mere contract for the sale of goods, where nothing remains to be done by the seller before making delivery, transfers the right of property, although the price has not been paid, nor the thing sold delivered to the purchaser. (Olyphant v. Barber, 5 Denio, 382, and cases cited.) This may be true as between buyer and seller for many, or all, purposes, and yet the right of a defrauded vendor of the latter have a paramount right, against which such a contract of sale will avail nothing. The general rule, that one shall not profit by another’s fraud, forbids such a result. But in the present case something yet remained to be done by the seller at the very time when this action was commenced, and when the defendants received notice of the plaintiff’s claim. They had purchased the oats which were in the boat of Oox, “more or less,” at 51J cents per bushel. Measurement was necessary, and neither measurement nor delivery was completed when the sheriff interrupted its progress, and the defendants received notice of the plaintiff’s claim. They had paid nothing. They had not obtained possession. If the oats were taken from them by the plaintiff, they would be in no worse position, (assuming, of course, in this view, that the plaintiff had a better title than Cox,)than they were before their contract of purchase was made. They would simply have failed to realize a profit which, if Oox had title, they might probably have realized from the transaction. The rule may safely be stated that no one is a Iona fide purchaser, in the sense now proposed, who has neither advanced money nor property, nor incurred liabilities, upon the faith of his vendor’s apparent title, and without notice of any defect therein; and by liabilities is meant those obligations from which the retaking, by the former and true owner, will not of itself relieve him. If, after such retaking, he will be in all respects in the same condition as if he had made no such contract of purchase, he is not a bona fide purchaser, having title paramount to that of the true owner.

Here, it cannot be said by the court that the defendants are proved to have paid any money, or incurred any such liability. Upon the facts now appearing, if the plaintiff be the owner as between him and Oox, the defendants can never be required to pay him for the oats, and they have given no property or securities, negotiable or otherwise, therefor. Unless we can say that they are liable for one-half the measurer’s fees, they can suffer no prejudice ; and on that subject the evidence in the cause indicates that those fees are paid, in the first instance, by the seller, and, if so, he can no more collect them, under the circumstances proved, than he can the price of the goods.

The’case must therefore be decided by determining whether the court is warranted, by the evidence, in saying that Cox acquired a valid title as against the plaintiff, for if the testimony was such as to require the submission of any question of fact to the jury, a new trial must be ordered.

If the purchase by Cox was a fraudulent device to obtain the possession of the plaintiff’s oats and sell them, applying the proceeds to his own use, knowing that he was about to fail in business, and without any intent to pay for the oats according to the terms of the contract of purchase, then, however absolute and unqualified the delivery to him may have been, he acquired no title.

On Tuesday night he instructed his agent to purchase eight or ten thousand bushels of oats for cash on delivery (or on the usual terms, which imports the same thing). He gives no direction or limitation as to price. The purchase is made on Wednesday at the plaintiff’s price. The delivery into his boats is completed on Saturday. Before 12 o’clock on Monday, he had suspended payment ; and yet on Monday morning he had delivered three thousand seven hundred bushels on ship-board; he had, in some manner, disposed of at least five hundred bushels from his boat, the J. P. Whiley, and on that day commenced the delivery of the residue contained in that boat to these defendants; and when called upon by the plaintiff for payment, nor at any time after, so far as appears, not a word of explanation is given, or attempted, and no fact shown indicating any failure in his expectations, or any misadventure or accident preventing payment. And on the trial no proof is offered to show that his suspension was caused by circumstances over which he had no control, or to indicate that he was not aware some short time, at least, before his actual suspension, that such event was unavoidable, It is true that a failure in business is sometimes sudden and unexpected to the party himself, but when so heavy a purchase is made, and so immediate a disposition of the property follows the act of suspension, without an offer to return the property for which instant payment was due, and which had hardly come to his control, and when a very plight sense of justice would have prompted an offer, at least, of the proceeds of the sale, it seems not too much to say, that there is some evidence of fraud in the whole transaction. So long as the oats were not measured the title remained in the plaintiff, and the delivery was not completed until Saturday morning. In the absence of all explanation, it would be no violent presumption that when Cox took the possession, and removed the goods after that time, he knew he could not pay, and did not intend to pay, according to his contract. We are aware that this evidence is not conclusive, but whatever suggestions may be made, or hypothesis proposed, to diminish the force of the circumstances indicating fraud, we think the evidence clearly sufficient to be submitted to a jury, and to call for some explanation or rebutting evidence.

Again, if the delivery by the plaintiff was a conditional delivery, as mutually understood and intended by the parties, Cox acquired no title, as against the plaintiff, without payment of the price. On this point there is no difficulty in declaring the rules of law, 'though there may be some in applying them to the-evidence given on the trial. It may be said, in general terms, that no man shall be held to part with his title to his vendee without his own voluntary consent to do so; but on the other hand, a man is deemed to consent to the legal consequences of his own voluntary acts. When a sale is made for cash, to be paid on delivery, the title does not vest in the purchaser by the mere fact of manual delivery, unless the purchaser performs the condition, or the seller waives such performance. In general, delivery and payment are to be simultaneous acts; but in strict order of time, the seller must complete the manual delivery before his title to the money is complete; that is, he must perform the condition on his part; and where goods are of great quantity, requiring considerable time to deliver, it is not until the whole have passed through the process of delivery that the seller can demand any thing, but his lien continues, and his right to resume the actual possession is perfect unless payment is made, and until he waives the condition; and, on the other hand, if the delivery be absolute and without any circumstances indicating an intent that the title should not pass, such delivery vests the title though the condition be not performed.

Where the circumstances are such that the acts of the seller neither indicate an intent to make the delivery absolute, nor to part with the title without payment, and where an intent to insist upon the condition may have effect, in consistency with the acts of the party, the condition should not be deemed waived. In such case the vendor should not be held to have invested the vendee with the title if he never intended to-do so. On the other hand, when a delivery is made without any cotemporaneous qualification, the vendor must be required to show affirmatively on his part, acts, circumstances, or previous declarations from which it may be clearly inferred the condition was not waived, for the delivery will be deemed conditional if such was the intent of the parties, though not so declared at the time in express terms.

These principles are deducible from numerous cases in this state and England, and are reasonable and just, Indeed, they would not probably be denied by the counsel in the present case. (See Smith v. Syms, 1 Selden, 41, S. C., 3 Sand. 203; Caldwell v. Bartlett, and Keyser v. Harbeck, supra, and the numerous casés cited in each; Van Neste v. Conover, 20 Barb. Sup. C. R. 547; Ives v. Humphrey, 1 E. D. Smith R. 196.)

In the case before us, the evidence was that the sale was for cash on delivery. The oats were first to be measured, and the delivery was to be actually completed before the payment was due, and if such payment was not then made, the title did not pass; it was upon that condition only that the property was to become Cox’s property. Was this condition waived? The agreement was,, that the oats should be taken to some pier up the East River, to be there measured; the measurer was sent on board, and the work of measuring progressed until Saturday morning. It does not appear that the vendor was present; the measurer’s return did not reach him certainly before three or four o’clock on Saturday afternoon, and it seems probable that he did not personally see it until Monday morning. At all events, it was after the usual hour of making and receiving payments on Saturday when it reached his store. On Sunday, of course, there yas no opportunity to demand payment; on Monday, at twelve o’clock, he presented the bill, and demanded payment. His delay even to that hour is explained by the fact that there was a wide discrepancy between the quantity returned by the measurer and the quantity the parties supposed to be in his boat, and, as it seems from the evidence, the actual quantity sold. He had been in the morning engaged in an endeavor to find out the mistake in that respect. It does not appear that until so engaged he had any actual knowledge that the oats had been removed from the place of measurement, if indeed they had down to that time been removed. It does not appear that he at any time consented to such removal; and though it may be said, that the person in charge of his boat, from which the oats were measured, must be deemed his agent, it does not appear that he had any authority to consent to a removal of the oats, nor is an authority to waive the condition to be necessarily implied from any evidence given on the trial. Under such circumstances, it ought, we think, to have been left to the jury to say, whether there ever was, in fact, any absolute delivery to the purchaser Cox ? If all that was done was consistent with an intent to insist upon the condition, or rather, if nothing that was done indicates that such condition was either actually waived or intended to be waived, the lapse of a few hours after the measuring was completed ought not to be deemed so clear evidence of waiver as to withdraw the question from the jury. And though it be conceded that a voluntary sole reliance upon the personal responsibility of Cox, and a voluntary giving to him a credit for some time, however short, after an unqualified delivery of the possession would have vested in him the title, we think that such a delivery and giving of credit were by no means clearly proved.

The nonsuit must, therefore, be set aside, and a new trial ordered, with costs (including the costs in the General Term) to abide the event.


source: Caselaw Access Project

license: Public Domain

text:
    Timothy T. Merwin, and another v. Jeremiah G. Hamilton.
    A broker who is employed to purchase stocks, and is authorized by usage or by an express agreement, to make the purchase in his own name without disclosing the name of his principal, has no right to maintain an action against his principal for not furnishing him with money to pay for the stocks, without showing that he had demanded payment of the price and had transferred or offered to such principal the stocks he had purchased.
    The transaction is in law precisely the same, and is governed by the same rules, that would have applied had the contract been an immediate sale from the broker as seller and his principal as buyer. The payment of the price and the transfer of the stocks are simultaneous acts and conditions mutually dependent.
    Hence, if the broker sells the stocks without demanding payment of the price, and without transferring, or offering to transfer them, to his principal, and without notice of his intention, thereby disabling himself from making the necesssary transfer or tender, he in effect converts them to his own use, and loses any right of action against Ms principal that he might otherwise have had.

      Held, upon these grounds, that each of the first four counts in the complaint was bad upon demurrer, as not stating facts sufficient to constitute a cause of action.

      The fifth count stated, as a separate cause of action, that they, the plaintiffs, reasonably deserved to have from the defendant for their commissions as stockbrokers, in making the said purchases of stock and in making other purchases and sales of stock, which they were employed by him to make, another large sum of money, etc.

      Held, that these allegations, although not so definite as they ought to have been, and upon motion might have been required to be made, were sufficient upon demurrer.
    Demurrer to the first four counts sustained. To the fifth overruled.
    (Before Duer, Slosson, and Woodruff, J.J.)
    Heard, November 10;
    decided, December 27, 1856.
    Appeal by plaintiffs from a judgment, at Special Term, allowing a demurrer to the complaint.
    The complaint alleged that the plaintiffs on etc., at etc., were partners and stock-brokers; that by usage and custom, existing at the time of the transactions hereinafter mentioned, within the state and city of New York, and well known to the defendant, stock-brokers employed to purchase stocks for other persons, make such purchases in their own names, without disclosing their principals, and are personally liable for the performance of the contracts so made, and their principals are, as between them and the stock-brokers so employed, liable to perform the contracts of purchase so made in their behalf, and to indemnify and save harmless such brokers against their liability upon such contracts at the maturity thereof.
    The complaint then, as a first cause of action, avers that the plaintiffs on etc., were employed to purchase, and did purchase for him, in accordance with such usage and custom, from certain persons named, one hundred shares of the capital stock of the New York and Erie Railroad Company, at $69-§- per share, payable on the delivery of the stock at the option of the buyer within 60 days after such purchase, whereof the said defendant had due notice. Yet, the said defendant did not perform the said contract at or before the maturity thereof, and did not accept a delivery thereof or pay the price; and did not indemnify and save harmless the plaintiffs against their liability upon the' said contract at the maturity thereof; whereby the said plaintiffs were compelled to, and did, at the expiration of the time limited, accept from the vendors a delivery, and did pay them therefor the agreed price, amounting to $>6980-j3nr; that the said stock had then greatly declined in value, and was not and never since has been, worth the sum so'paid by a, large amount, whereby the plaintiffs have been, and'are, greatly injured and damnified.
    The complaint proceeds, as a second, third, and fourth cause of action, to set out other purchases of other stocks from other parties, upon the like employment with like averments, in respect to each as contained in the amount of the first cause of action.
    The fifth cause of action consists in an averment that the plaintiffs reasonably deserve to have from the defendant for their services, as such stock-brokers, in making the said purchases of stock, and other purchases and sales of stock, which they were employed by the defendant to make, and which they did make, as his brokers, during the said year of 1854, a large sum of money, to wit, the sum of $115 or thereabouts, and that the said defendant hath not paid the said commissions, or any part thereof, to the said plaintiffs.
    In conclusion, it is averred, that all the said stocks have been sold by the plaintiffs for the best prices they could obtain, and for all they were worth at any time between the maturity of the several contracts of purchase and the times of such sales, and after crediting the proceeds of sales, a large balance of the said sums, so paid by the plaintiffs on account of the defendant, remains due to them, to wit, $3573-^, besides the said commissions and interest, whereupon the plaintiffs pray judgment, etc.
    To this complaint, the defendant demurred generally, that the complaint does not state facts sufficient to constitute a cause of action; and specially, to each of the said alleged causes of action, that the facts alleged in respect to the same .are not sufficient to constitute a cause of action.
    On the trial of the issues thus presented, at the Special Term, judgment Was ordered for the defendant upon the demurrer, with leave to the plaintiffs to amend within twenty days, on payment of the costs of the demurrer.
    From this order the plaintiffs appealed to the General Term.

      J. Larocque, for the appellant,
    Insisted that the defendant, having had notice of the purchases, and having given to the plaintiffs no notice of his dissent therefrom, the plaintiffs had a right to treat them as binding contracts, and he not having forbidden them toperform them, or given notice that he should insist upon their invalidity, but left the plaintiffs to go on and perform them, he is now estopped from insisting that they were invalid if not in writing, or, if within the act in reR tion to stock-jobbing. That even if the contracts were not valid, the plaintiffs were under an honorary obligation to perform them, and, in the absence of such notice from the defendant, might do so, and hold him responsible to themselves for their indemnity. (1 Mees. & Welsb., 511; 4 Scott R., 489; 8 T. R., 610; 1 Mass. R., 139; 11 Mass. R., 359; 6 Shep., 79; 2 Johns. Ca., 424; 13 Johns. R., 58.) It was not, therefore, necessary to aver in the complaint that the contracts of purchase were in writing, nor to state facts showing their validity under the said act.
    Even if, under the Code, it be necessary, (in declaring on a contract, which is required by the statute of frauds to be in writing,) to state in the complaint that it was in writing, which the plaintiffs’ counsel denies, that rule does not require such averment in the present case, where the contract sued upon is an agreement to indemnify for which the employment of the defendant and the purchases by him are the consideration or inducement.
    That the defendant’s contract was broken by his not performing the contracts of purchase, and the right of action complete at the maturity of such contracts. And the plaintiffs had a right to sell the stocks for their own indemnity, and without further notice to him. And if the defendant was entitled to notice, or to a tender of stocks, the omission wrought no prejudice, since the stocks brought their full value. (3 Comst., 78; 17 Wend., 91.) And, finally, that the claim of the plaintiffs to commissions is sufficiently stated in their fifth cause of action.

      David D. Field, for the respondent,
    Insisted that if the plaintiffs had paid for the stock, they had done so in their own wrong, because it did not appear that the contracts of purchase were in writing, or that the sellers of the stocks owned or had authority to sell them. (1 R. S., 710, §§ 6, 7, 8; 2 R. S., 136, § 3; 2 Duer, 609; 1 Kern., 437; 1 Parsons on Contracts, 392, 3, 4.)

      That if the contract had been legal, the employment of the plaintiffs by the defendant to purchase as his brokers, furnished no reason why the plaintiffs should render themselves personally liable to the sellers, and take from him the right to settle his own affairs. There being no averment that he authorized them to buy in their own names, or to conceal the name of the defendant. The averment of the usage and custom in the complaint, and the consequences, therefore, are here only statements of legal conclusions, and not of facts.
    That the plaintiffs, having taken the legal title to the stocks to themselves, and having sold the stocks without notice and without a tender thereof, or an offer to transfer the same to the defendant, cannot call upon him to pay the price, or any part of it. (1 Kernan R., 453.)
    And, finally, the facts alleged as constituting the fifth cause of action are insufficient.
   By the Court. Woodruff, J.

It is not necessary for us to consider the question, whether, if the purchases made by the plaintiffs for the defendant, were in truth made from persons who neither owned any stock at the time nor had authority from any person who did own stock, the defendant would be, nevertheless, liable to the plaintiffs under any obligation to indemnify them against losses sustained by them by performing what-they might deem an honorary obligation. When it becomes necessary to decide that question, the case of Ward v. Van Duzer in this court, (2 Hall, 162,) Gram v. Stebbins, (6 Paige, 124,) and Gould v. Staples, (5 Sand., 411,) will, perhaps, suggest views which may properly affect the decision.

For in the view hereinafter taken of the rights of the parties will it be necessary to decide whether it is in general necessary, in declaring upon a contract, void by the statute of frauds if not in writing, to aver in the complaint that such writing exists; upon which question we do not intend to intimate here a dissent from the decision at the Special Term,(reported 2 Duer, 609, and Id. 626).

For whether, if such be the general rule, it is necessary for an agent, in a case like the present, who sues to recover indemnity, to aver that the contract made by him for his principal, and performed by him on behalf of his principal, was a contract in writing.

The present case may be disposed of, we think, upon another ground, in considering which, let it be assumed that the usage and custom exists which is averred in the complaint, and that it was known to, and binding upon, the defendant, and that the legal conclusions stated in the introductory part of the complaint are as therein alleged, viz.: that stock-brokers employed by other persons to purchase stocks, make such purchases in their own names, without disclosing their principals; that such brokers are personally liable for the performance of the contracts of purchase so made; that their principals “ are liable to perform the contracts of purchase” so made in their behalf, and to indemnify and save harmless such brokers against their liability upon such contracts, at the maturity thereof; that the plaintiffs are stock-brokers, and, as such, were employed by the defendant to purchase the stocks mentioned in the complaint, and did purchase the same for him, as therein alleged, and gave him notice of such purchases in due season; and let it be further assumed, that such contracts of purchase were in writing, and that, at the time of such purchases, the respective vendors were owners in their own right of the shares sold, and in the actual possession of the certificates thereof.

This presents the Case no more strongly in favor of the plaintiffs than if the defendant had expressly authorized the plaintiffs to purchase the stocks for him, in their own names, without disclosing his name as principal, and had in terms agreed that he would perform the contract of purchase, and would indemnify and save them harmless against the liability upon such contracts which, in such case, the law (irrespective of any usage or custom) imposes upon them, at the maturity of the contracts respectively.

In either case, whether this relation of the parties is established by express agreement, or by the alleged usage and its legal consequences, certain propositions may be stated that are obvious.

First, The plaintiffs, by reason of their acceptance of such employment, are not as between them and their principal bound to advance any money for him. They may insist upon his performing the contracts so made, by accepting the stocks when they shall be tendered for delivery and making payment therefor; or, they may, if they so elect, (still concealing the name of their principal,) perform the contracts themselves, accepting a transfer of the stocks and paying the price in discharge of their owil liability. This election may be conceded to them as reasonably resulting from the authority to contract in their own names, and make themselves liable to the sellers of the stock.

Second, On the other hand, the defendant was not bound to part with his money without at the same time receiving the stock. If he were dealing in person with the sellers, they must tender him the stock—payment and delivery would be simultaneous acts. (Green v. Reynolds, 2 J. R. 207; Jones v. Gardner, 10 J. R. 266; Porter v. Rose, 12 J. R. 209; Parker v. Parmele, 20 J. R. 135; Dunham v. Mason, 4 Seld. 513; Lester v. Jewett, 1 Kern. 453, and cases there cited. Nothing in the eircumstance that he employed the plaintiffs to purchase the stock for him, deliverable at a future day, implied an obligation on his part to entrust to them the money in reliance upon their fidelity in transferring to him the stock after they should receive it. They were, of course, at liberty to decline the employment, and to refuse to incur any hazard by making the purchase for him without the money in hand, or unless he expressly agreed to furnish the money to them, with which to pay for the stock when it should be tendered to them. But this obligation does not result from his employing them to make the purchase. The complaint itself does not allege any such agreement, nor at all proceed upon the ground that he was bound to furnish to them the money, or treat his neglect to do so as a breach of his obligation or duty. It was conceded by the counsel for the plaintiffs, on the argument, that down to, and on the very day of the maturity of the contracts, there was no obligation on his part to pay the price to any one without a cotemporaneous delivery to himself of the stocks purchased; and whether so conceded or not, such was his position.

The necessary result of these propositions is, that the plaintiffs should either place the defendant in a situation in which he could receive the stock from the sellers and pay to them the price, or else receive the stock themselves, and tender them to him. It does not appear by the complaint that the stocks have been offered to him by any one, nor that the defendant was furnished with, or even offered any vouchers, authority, or evidence, of his interest in the purchases, which would have enabled him (if so disposed) to demand or receive the stock from the sellers.. The plaintiffs preferred still to conceal their principal from the Sellers, and perform the contracts themselves for him. Having done so, it was their duty to offer him the stocks, or, at the least, to hold themselves in readiness to transfer the same to him upon payment of the price, with their commissions. The duties resulting from their acceptance of such employment embrace in such case this duty to transfer to him on receiving the money. They hold the legal title;—an affirmative act of transfer- is necessary before the defendant can derive any benefit from the agency of the plaintiffs, to which benefit he is entitled upon making payment on his part.

The plaintiffs, having performed the contracts and received transfers of the stock, may be regarded as in the same situation as if the defendant, on a given day, had directed them to go into the market and purchase shares of stock for him for cash, and they had done so, paying therefor and receiving the transfers to themselves. The defendant would be bound, and they might require him to repay the money and receive a transfer from them. But they could not require him to pay the money if themselves were not in readiness to confer on him the title to the stock they were employed to purchase.

In such a case, and equally so in the case shown by this complaint, the plaintiffs might have caused the stock to be transferred by the sellers to the defendant, and then their action for money paid to his use would have been,(laying all questions regarding the validity of the original contracts out of view,)simple and obvious. And if, for their own security, they preferred to cause the transfer to be made to themselves, they cannot thereby place the defendant in any worse situation in regard to his right to have the stock on payment of the money.

Instead of offering the stock to the defendant, and without even giving him notice that the stock had been delivered, as appears by the complaint, they sold the stock. They neither demanded from him the payment of the money they had advanced, nor gave him notice of the sale. They have disabled themselves to deliver the stock to him, and in effect converted the stock to their own use; thus placing the stock beyond his reach, without tender or notice to him. This is a complete defence to their claim upon him for the price of the stock.

It is argued that their sale and disposition of the stock; without notice or tender or demand, is at most only a ground of counterclaim on his part for damages for the appropriation of his stock, that he is bound to pay to them the money they have paid for him, whether he receives the stock or not; that his duty to pay is unconditional.

Such is not the true aspect of their relation to each other. Having taken the transfer of the legal title to themselves they could not call upon him to place himself in their power; their duty to transfer that title to him, and his to pay, were reciprocal and dependent.

But it is further argued that the defendant broke his agreement by not himself paying and receiving the stock on the day the contracts matured, and for that purpose seeking out the plaintiffs and attending with them. This suggestion has already been sufficiently answered. They have never placed him in a situation in which he could perform the contracts himself and receive the stock from the sellers; nor has the defendant been put in default by a tender of the stock, or even an offer to transfer the legal title thereto upon payment of the price.

These views seem to us to fully sustain the order appealed from, so far as relates to the first four causes of action. It is by no means clear that the same result would not follow if it were conceded that immediately upon receiving the stock from the sellers and making payment therefor, the plaintiffs, without demand or tender on their part to the defendant, might have brought their action. Would it not have been a sufficient defence to such an action, that before suit was brought the defendant tendered the price paid, with interest and commissions, and demanded the stock, and the plaintiffs refused to transfer the title to him ? And if so, when it appears by the complaint that the plaintiffs have sold the stock, and so have rendered such a tender and demand unavailing, is not such tender and demand waived, and the defence established by the complaint itself?

It does not, however, follow from what has been said, that the demurrer to the fifth cause of action, is well taken. The sufficiency of the averments of the complaint in this respect, was not discussed at length, though the counsel for the, defendant very briefly stated the point orally in his discussion.

Laying out of view so much as relates to commissions upon the purchases of stock, mentioned in the other part of the complaint, this fifth cause of action reads, in connection with the introductory part of the complaint, thus:

That the plaintiffs, at the time hereinafter mentioned, and before and afterwards, were partners and stock-brokers at, etc., and that they reasonably deserve to have from the defendant for their services, as such stock-brokers, in making.....other purchases and sales of stock, which they were employed by the said defendant to make, and which they did make as his brokers, during the .....year 1854, a large sum of money, to wit, the sum of $115 or thereabouts, and that the defendant has not paid the said commissions, or any part thereof, to the plaintiffs.

Here is an averment that the plaintiffs were employed by the defendant to make purchases and sales of stock; that they made such purchases and sales as his brokers; and that they deserved to have for their services therein, a large sum of money, to wit, etc.; and that the defendant has not paid them. Since the decision of the Court of Appeals in Allen v. Patterson, (3 Selden, 476,) we cannot say that here are not facts enough stated to entitle the plaintiffs to recover. If the facts alleged were proved on the trial, they must have judgment. Ho doubt the complaint is greatly deficient in particulars, which, upon a proper motion, the plaintiffs would be required to supply, but the facts, which are necessary to a statement of a cause of action, are there, and this is the only ground of demurrer assigned.

The order appealed from, in so far as it sustains the demurrer, to the first, second, third, and fourth causes of action, must be affirmed, with $10, costs of the appeal, and with the same leave to amend, and upon the terms mentioned in the order appealed from.

And so far as it sustains the demurrer to the fifth cause of action, it must be reversed and judgment thereon be entered for the plaintiffs, with leave, however, to the defendant to withdraw the demurrer, and answer within twenty days, if so advised.


author: By the Court. Duer, J.

text:
    Joseph W. Davis v. Eli Hoppock.
    When, in an action to recover damages for the unlawful conversion of personal property, the issue made by the pleadings is, whether the plaintiff, at the time of the alleged conversion, was the owner of the property, and as such entitled to its immediate possession, it is competent to the defendant to show that the legal title was at that time vested in a third person, and that the plaintiff was not in the possession.
    (Before Duer and Woodruff, J.J.)
    January, 1857.
    Appeal by the defendant from a judgment in favor of the plaintiff, for $1542.76 and costs, founded on the verdict of a jury for that amount.
    The cause was before the court upon a case containing all the evidence given on the trial, and the exceptions then taken by the counsel for the defendant.
    The action was brought to recover damages for a wrongful conversion by the defendant of certain goods and chattels, particularly described in the complaint; and the complaint averred that, at the time of the alleged conversion, the plaintiff was the owner and entitled to the immediate possession of the goods and chattels so described.
    The answer (inter alia) denied that at the time of the alleged conversion, the plaintiff was the owner and entitled to the immediate possession of the goods and chattels mentioned and described in the complaint.
    Upon the trial, the plaintiff proved that the goods in question had been taken possession of, and sold by the defendant, and that he, the plaintiff, some years before, had purchased the. same at a sheriff’s sale, under an execution against persons who were then in possession as owners.
    Evidence was also given on the part of the defendant to show that the title so acquired by the plaintiff, by an arrangement between him and the former owner, had ceased before the seizure and sale of the goods by the defendant.
    When the testimony on the part of the plaintiff was closed, the defendant offered to show that, at the time of his alleged conversion, the title and right of possession to the property were vested in one Mrs. Frances Jackson; that her husband was in possession as her agent or tenant, and that he the defendant had sold the property with her knowledge and consent, under a mortgage which she had given to him to secure certain advances made by him to her husband.
    The counsel for the plaintiff objected to this proof, and the court excluded the same, and ruled substantially, that the only proof open to the defendant, under the pleadings, was to contest the taking of the property, or any part of it, and to show the value of that which had been taken.
    To this ruling the defendant’s counsel excepted.
    When the testimony on both sides was closed, the counsel for the defendant offered to argue to the jury the question of the plaintiff’s ownership of the property as against the defendant.
    To this the plaintiff’s counsel objected, and the court ruled that the question was not open to the jury.
    To this decision the defendant’s counsel excepted.
    When the counsel on both sides had summed up, the court charged the jury, “ That the only question for them to consider was, the value.of the property taken by Hoppock; that the defendant could not go into the question of ownership under the pleadings; that the question of value was for them to decide under the testimony, and that they must give the plaintiff a verdict for what they deemed the fair market value of the property.”
    To this charge the defendant’s counsel excepted.
    It was under this cliarge that the jury gave the verdict that has been stated.

      O. W. Sandford, for the defendant,
    Upon the exceptions that have been stated, and upon others stated in the case, insisted that the judgment ought to be reversed, and a new trial be granted.

      W. M. Evarts, for the plaintiff, contra.

   By the Court. Duer, J.

It is not necessary now to determine whether it was competent to the defendant to show under the pleadings that he was himself the owner of the property in question at the time of its alleged conversion, but we are clearly of opinion that it was competent to the defendant to show that the plaintiff was not the owner of the property, and as such entitled to its immediate possession at the time mentioned in the complaint. It was this issue that the pleadings raised, and which the complaint tendered by express words, and it was upon the truth of the allegation in the complaint that the plaintiff’s right to maintain the action was entirely rested; to maintain his action, he was bound to prove the truth of the allegation, and we see no reason to doubt that the defendant, under the denial in his answer, was legally entitled to contest its truth. The case is not analogous to those in which the averment in a complaint of the ownership of the plaintiff is a mere conclusion of law from facts previously stated, and therefore not the proper subject of an issue. The averment in this complaint is not a conclusion of law, for no facts are stated from which such a conclusion would follow. It is not a conclusion of law but the affirmation of a fact, the truth of which the defendant, by not denying, would have admitted, and thereby have released the plaintiff from the necessity which the complaint imposed upon him of proving it upon the trial.

We are also of opinion that, under the denial in the answer, it was competent to the defendant to disprove the allegation in the complaint by showing that, at the time of the alleged conversion of the property, the ownership and right of possession were not in the plaintiff, but in Mrs. Jackson. As it had been proved that the plaintiff was once the owner of the property, the proof that was offered that he was not the owner at the time of the alleged conversion, was exactly of the character by which the denial in the answer could alone be sustained. To reject the offer was to treat the denial in the answer as irrelevant and immaterial. We think the proof ought not to have been excluded, and that its exclusion was error.

We also think that the defendant’s counsel was entitled to go to the jury upon the question, whether the title which the plain-* tiff had acquired was not subsequently divested by an executed agreement between him and the former owners of the property? There was a real conflict in the evidence upon this question, and that on the part of the defendant had been received without ob* jection. We think that the question was material, and, as such, ought to have been submitted to the determination of the jury. The charge of the court was, therefore, erroneous in submitting to the jury, as the only questions in the cause, the taking and value of the property.

For these reasons, without adverting to other exceptions, the judgment for the plaintiff must be reversed, and there must be a new trial, with costs to abide the event.


author: By the Court. Slosson, J.

text:
    John Ward v. James Gaunt and James I. Derrickson.
    The plaintiff purchased of the defendants the one-sixth of 66 bales of cotton, for which he paid them in full. The purchase was made in Boston, under an agreement that the cotton should be delivered at New York, and be there sold on account of all the owners, and be divided between them. When the cotton arrived in New York, the defendants, instead of making a sale or division, by mistake, and without the consent or knowledge of the plaintiff, sent it out of the state to a manufactory belonging to themselves in New Jersey.

      Held, that the agreement did not constitute all who were interested in the cotton partners, so as to preclude the plaintiff from maintaining an action against the defendants alone for the eleven bales, or their value, to which he was entitled. The defendants, by not delivering the cotton in New York according to their agreement, rendered themselves separately liable.
    Some time after the defendants had discovered their mistake in sending the cotton oiit of the state, they offered to bring back and deliver to the plaintiff the bales to which he was entitled,

      Held, that, under the circumstances of the case, the plaintiff was not bound to accept the offer.
    Judgment for plaintiff.
    (Before Oakley, Ch. J., Duer and Slosson, J.J.)
    January Term, 1857.
    This was an action to recover the value of eleven bales of cotton, which the plaintiff alleged that he had purchased from the defendants, and they had neglected to deliver according to the terms of their contract.
    The cause was tried before Woodruff, J., and a jury, in May, 1856, and the jury found a verdict for the plaintiff for $294.92. The verdict was, however, taken subject to the opinion of the court at General Term, upon the validity of the exceptions of the defendants to the ruling and charge of the Judge. Judgment in" the mean time to be suspended.
    All the material facts established by the evidence, and by the verdict of the jury, are fully stated in the opinion of the court.
    There was a conflict in the evidence upon the trial, as to the terms of the contract under which the plaintiff claimed, and as to the persons interested therein, and when the testimony was closed the counsel for the defendants requested the court to charge the j^y—
    1. That the plaintiff could only recover upon proof .of a specific sale of eleven bales of cotton, or one-sixth of sixty-six bales of cotton. 2. That if any purchase was made by the plaintiff of eleven bales, or one-sixth of sixty-six bales, it was made by him in partnership with others, and this action could not be maintained. 3. That the plaintiff never having paid or offered to pay any portion of the expenses of the transportation, &c., to Hew York, he cannot recover. 4. That the defendants had a lien upon and a right to retain the whole of the sixty-six bales, until their charges and expenses on those bales were satisfied. 5. That there was no evidence of a demand for a division of the sixty-six bales, nor for eleven bales, and that such a demand was essential to the plaintiff’s right to recover. 6. That upon the evidence, the bidding off by Gaunt was the act of all the parties, through the one to whom that duty was delegated. 7. That by the agreement of the parties, the defendants had a right to retain the sixty-six bales, for the purpose of a sale, rintil all the parties agreed to divide it and not sell. 8. That there was not evidence in the Case sufficient to justify the jury in awarding damages beyond the mere price of the eleven bales. 9. That the plaintiff was bound to pay his one-sixth of all the expenses upon the whole three lots of cotton bought by the parties.
    His honor, the Judge, refused so to charge in relation to the several propositions aforesaid, otherwise than is hereinafter charged, to which refusal the defendants’ counsel duly excepted, and insisted upon each of the said propositions severally and respectively.
    His honor, the Judge, then charged the jury as follows:
    I. If the plaintiff, after the defendants had bought the cotton, purchased in Boston from the defendants one-sixth of the lot of sixty-six bales to be brought to Hew York, and here either delivered to the plaintiff, or one-sixth of the proceeds thereof paid to him. if sold, and the plaintiff paid the defendants for it on that understanding, and the cotton arrived in New York and came to the possession of the defendants here, and was by the defendants sent out of the state, the defendants are liable for a violation of the right of the plaintiff to have such a division or sale. If the plaintiff has made out that case, the defendants are liable for one-sixth of the value of that cotton, less one-sixth of the expenses of bringing the cotton to New York. I do not recollect that there is evidence that damaged cotton rose in price. It is argued that you may infer a rise in damaged cotton from a rise in sound cotton. I do not so understand it. It does not appear that damaged cotton has any market or market price, and many circumstances might well happen to glut the market with damaged cotton and reduce its price, while sound cotton would be rising, I will not, however, withdraw that question from you.
    II. If, on the other hand, before the cotton .was purchased by the plaintiff, the six parties agreed to unite in a joint adventure, for the common benefit, in which each was to contribute his proportion and each to share in the result, this forms that description of joint undertaking or adventure which we cannot settle in this action. It becomes a sort of partnership, and that cannot be settled without the other parties, and this action is not maintainable.

      G. Stevenson, for the plaintiff, now moved for judgment on the verdict.

      N. B. Soxie, for the defendants,
    insisted that the exceptions taken on the trial ought to be sustained, and that there should be a new trial, or the complaint be dismissed.-
   By the Court. Slosson, J.

It seems to me that the right of this case, with some slight modification in the amount of the verdict, has been attained by the result of this trial.

The agreement between the parties was, that the cotton, on its arrival in New York, should either be sold orbe divided in equal shares. At this time there were only four parties in interest, the plaintiff represents one-sixth, the defendants one-sixth, and Wood four-sixths. The cotton consisted of three parcels: one of sixty-six "bales, which was the poorest of the lot, being damaged, and the other two consisting together of two hundred and fifty-two bales.

The plaintiff had paid defendants for his full share of the cost of the whole three hundred and eighteen bales. After the arrival of the two hundred and fifty-two bales in Hew York, the plaintiff and Wood proceeded to divide it, without, so far as the evidence shows, the knowledge of the defendants. Wood took five-sixths of this lot, though entitled to but four-sixths, as his full share of the whole three hundred and eighteen bales, though he says he is entitled to two bales out of the sixty-six to make up his full quota, and so he would be if the bales were all of equal value, as, numerically,five-sixths of two hundred and fifty-two bales falls short by two bales of four-sixths of three hundred and eighteen bales.

In this division, the plaintiff got his one-sixth of the 252 bales only.

On the arrival of the sixty-six bales in Hew York, they were all received by the defendants, and sent by them to their mills at Trenton in Hew Jersey.

Had the defendants intended to insist on a sale of the whole three hundred and eighteen bales, or an exact division of the whole according to value, they should never have assumed exclusive ownership over the sixty-six bales, and sent them away. In any aspect, it was numerically 13 bales more than their full share of the three hundred and eighteen bales. Gaunt said they were sent by mistake, and he was willing to bring them back, and he claimed that he was entitled to a share of the two lots which Wood and plaintiff had divided. It may be that he was, but as plaintiff had got no more than his fair share of those two lots, the defendants should look to Wood, who saw fit to appropriate the best cotton, to make good his entire proportion of the whole. The plaintiff, meantime, is entitled to his one-sixth of the remaining sixty-six bales in order to complete his quota, having paid the defendants for his share of the whole three hundred and eighteen bales.

The defendants, in fact, have both his money and his cotton. The idea of a sale of the cotton, after its arrival in Hew York, appears to have been abandoned by all parties; by Wood and the plaintiff, for they proceeded to divide the two hundred and fifty-two bales; and by defendants, for they sent away the whole sixty-six bales to their manufactory in New Jersey. If this was by mistake, as Gaunt says it was, the mistake should have been rectified by bringing back the cotton before suit; but that the defendants had no idea of a sale is further manifest from Gaunt’s telling the plaintiff that he would send for the sixty-six bales, and he might have his eleven bales if he wished them. I do not thinkthe plaintiff was bound to do this and take the risk of any deterioration in the cotton by its trans-shipment, etc.

If a division and not a sale of the entire lot was the result to which the parties came after- the arrival of the cotton in New York, as I think is manifest from the acts and declarations of the parties, then the defendants, on making good to the plaintiff the cost price of the eleven bales, will have remainingin their hands the value of fifty-five bales, being in the number of bales two more than their share of the three hundred and eighteen. If Wood claims these two bales, it will be a question to be settled between them, whether this is or not a fair offset for the greater value of the bales which Wood took for his share; at all events¡ even if an account should become proper between those parties the plaintiff has no interest in the dispute, since he gets only his one-sixth of the good and the bad cotton in any event.

I think the defence savors somewhat of technicality in insisting that unless the transaction amounts to a literal purchase by plaintiff of defendants of eleven bales, the action must fail. I think the plaintiff was injudicious in declaring in that form, but the gist of the action is a conversion of the property by defendants, and the plaintiff has clearly, I think, established his right to the possession of it.

In one aspect it was a sale and purchase, for the cotton appears to have been originally bid off without any definite understanding as to the future disposition of it; the agreement for a division was made after the purchase of the cotton. Gaunt bid off the sixty-six bales and Wood the residue. Until the agreement for a division, therefore, each lot was the property of the one who bought it, and the sixty-six bales belonged to Gaunt (the defendant). The agreement to pay and divide in equal shares, was, therefore, in legal effect, an agreement by each to purchase and pay for an aliquot share.

The Judge, in putting the case to the jury in the aspect of a sale and purchase, presented the case as favorably for the defendants as it could be done, especially when so presented in connection with the alternative aspect of it as a mere partnership transaction requiring an account. The jury, in weighing the evidence, seem to have taken this view of the matter, and I do not think they were essentially mistaken.

The verdict is too large; there is no evidence of any rise in damaged cotton. It was admitted that there were twenty-nine thousand three hundred and seventy pounds in the sixty-six bales; this, at five cents a pound, is equal to $1,468.50, of which one-sixth is $244.75. This sum should be the basis of the verdict. Interest should be allowed on this sum from the time of the payment, and an adjustment of the expenses paid by each party as admitted by the case.

Unless the parties' can agree on this, there must be a reference to the clerk to make the adjustment, and judgment then entered for plaintiff.

As no point was made of any of the exceptions taken in the progress of the trial, except on the motion to dismiss the complaint, I have not adverted to them, and in respect to the latter motion, it is covered by the foregoing opinion.