author: Jones, J.

text:
    George K. Chase, plaintiff and appellant, vs. Roswell D. Hatch and others, ex’rs, &c. of Robert Hogan, deceased, defendants and respondents.
    1. When a vendee of land has either failed to complete the erection of a house thereon, by a day designated in the contract of sale thereof to him, or suspended work thereon for over ten days, contrary to an agreement by him in such contract, a sale by the vendor to a third person of all the right, title and interest of the vendee in such contract and in such land, pursuant to an authority reserved to him to that effect in case of such failure or suspension, is valid and binding on such vendee; and passes all such right and interest to the purchaser.
    2. So Held, where the contract provided for the conveyance of such land by the vendor to the vendee upon the completion of such house, and also for the execution by the latter of a mortgage upon the premises for the purchase money, and any moneys advanced, by the former to the latter, to aid him in building such house, pursuant to an agreement in the contract, and where, by the terms of such contract, the proceeds of such sale by the vendor, after deducting expenses, were to be applied to his reimbursement for any moneys which he might have so advanced, pursuant to the agreement.

      3. Upon such a contract, the vendee who had commenced such building, but sus - pended his work thereon for over ten days, and for nearly three months before the time fixed therein for its completion, could not sue at common law for damages for non-delivery of the deed to him, or cm a quantum meruit for the value of the materials furnished or work done towards such building, or bring any action for the recovery .of possession of the premises, His remedy, if any where, was in equity.
    4. In order to obtain any relief in equity, a vendee so situated was bound to shew a sufficient excuse for not completing such building in time. His mere loss of materials, or work, did not constitute a sufficient equity for that purpose.
    5. A provision in such contract for the right of the vendor to insist upon the immediate payment of any advances made by Mm under it, and the authorization of Mm therein to sell the vendee’s interest in case of a suspension of work upon the house for ten days, or his failure to complete it within the time fixed, did not affect the right of such vendor to resist an action for specific performance, by reason of the failure of the vendee to perform the condition precedent of completing the house in question by the day fixed in the contract. Those causes did not affect the rights of either party arising out of such nonperformance,
    6. The non-essentiality of time to the right of enforcing a contract for the sale of land, does not involve such an entire disregard of the specification of a time therein for its performance as not to require some excuse for its neglect or attempt to palliate its evils. A party who has failed, at the day fixed, to demand performance or to perform what was necessary to entitle him to it, if he cannot excuse his neglect, or show the acquiescence of the other party in it, must show, at least, due diligence in repairing its consequences, and enforcing his rights.
    . (Before Moheul, Garvin and Jones, JJ.)
    Heard February 16, 1866;
    decided March —, 1866.
    m
    This action was brought upon a contract made between Chase, the plaintiff, and one Robert Hogan, dated September 18, 1856, by which Hogan agreed to sell, and the. plaintiff to purchase, a certain lot of land for $5000, and the plaintiff agreed to erect on said lot a house, which should be fully completed before May 1, 1857. Hogan agreed to loan tó Chase, to aid him in the erection of said house, $2500, in 12 installments, and upon the completion of the said house, to deliver to the plaintiff a warranty deed of the lot free from all taxes and assessments to the date of the agreement. The purchase money of the lot, and the sum to be advanced to aid in the erection of the building, was to be paid by the plaintiff to Hogan by his bond, secured by a mortgage on the premises,' bearing even date with the agreement, and to be executed and delivered simultaneously with the deed. The bond and mortgage were to bear interest on the amount of the purchase money from the date of the contract, and on the advances, from the ■ dates on which they should be made. The mortgage was to contain an insurance clause, by which the premises were to be kept insured in a sum of not less than $3000. After these provisions, the contract provided that: if Chase failed “ to complete said intended house, or if the diligent prosecution of the work thereon shall, at any time after the date of these presents, be suspended for ten days,” Hogan should “ have the right to insist on the immediate repayment of all the advances he might have made, together with the interest thereon.” He was also thereby “ authorized in such case, to sell at public or private sale all the estate, right, title and interest of said Chase in and to said premises, and apply the proceeds of such sale to the payment and satisfaction of the expenses of such sale and of all claims and demands due thereon, or after to become due,” which he might have against Chase, for and on account of “ such premises.” If any surplus remained, it was to be paid to Chase. Hogan, however, was to give Chase “ ten days notice in writing of his intention to make such sale.”
    The complaint sets forth this contract in detail, and alleges that, under it, the plaintiff went into possession of the premises, and during the fall of 1856 was proceeding to erect thereon the house called for by the contract, and had progressed to the fourth tier of beams, when the winter weather rendered it unfit to proceed further until the ensuing spring ; that he had expended in said erection $3000 ; that in April, 1857, Hogan, pretending that the ten days suspension of diligent prosecution had elapsed, claimed to exercise acts of ownership over the property, and expel the plaintiff from possession of the same, without in any lawful manner proceeding to change the relation of the parties in their existing rights ; that the plaintiff has never refused, or in any manner neglected, to proceed with the ,vork, except in consequence of such expulsion from the premises by the defendant; that no proceedings at law, or equity, have been taken by either party to foreclose the plaintiff’s interest, or divest him of his right in said property; but that the buildings have ever since remained in that unfinished and unprotected state by reason of the defendant’s conduct afore•said ; that the plaintiff was ready and willing to proceed, and, by his complaint, offered to comply in all things with the requirements of the said contract on his part, except that which he claimed to have been waived by the defendant.
    The relief demanded in the complaint was that the omission of the defendant to call 'on the plaintiff to execute an assignment of his interest in said contract might be declared a waiver of his right to do so in pursuance of any sale in consequence of such suspension of the work; and that said contract might be declared in full force and effect, and that the plaintiff might be permitted to proceed with the execution of the same, or that the plaintiff’s interest in said contract might be sold under the direction of the court, and the proceeds thereof appropriated as should seem just; and, also, specific or general relief.
    The answer denied that the plaintiff expended towards the erection of the house the sum mentioned in' the complaint. It alleged that the plaintiff continued to erect the building until about February 23, 1857, when he wholly ceased to work thereon, and never afterwards proceeded therewith, but wholly neglected and refused to proceed and complete the same, leaving the same partially unfinished. It then alleged that up to said February 23, 1857, the defendant had advanced to the plaintiff under the contract, $850. It then alleges that about April 15, 1857, the plaintiff having suspended work for more than ten days, he, the defendant, gave the plaintiff written notice that he would sell at public auction in the city of New York all the right, title and interest of the plaintiff in said contract, if said plaintiff did not before the expiration of ten days thereafter repay him, the defendant, all sums paid by him to said plaintiff upon said contract, together with interest thereon, and all other charges thereon. It further alleged that the plaintiff, still neglecting to go on with said building, he, the defendant, after having given public notice thereof in the newspapers published in the city of New York, sold at public auction at the Merchants’ Exchange in said city, on the 12th day of May, 1857, all the right, title and interest of the plaintiff in said premises, and the building partially erected thereon, and then and there became the purchaser thereof for §10. It then claims that, after the sale, all the right of the plaintiff was by reason of the matters aforesaid wholly extinguished, and that he, the defendant, was then the lawful owner thereof. It denies all the allegations of the complaint inconsistent with the answer. It sets up the making of a contract after said sale of the plaintiff’s interest, he, the defendant, being in possession of said premises, and said contract still remaining unperformed by the plaintiff, and before the commencement of this action, to wit, on or about June 1, 1858, between the defendant and one Mr. Mee, in reference to said premises, similar in its provisions to the one made with the plaintiff, and Mee proceeding under such contract to erect a dwelling house on said lot of the value of from §12,000 to §15,000, and that he had nearly completed the same. It then prays that upon any recovery by the plaintiff he be only entitled to any amount expended before such sale of his interest in such contract, after deducting therefrom any and all advances by the defendant, with interest thereon, and all other" claims against him, the plaintiff, by the defendant under such contract; and that said Mee remain in possession under the contract between him and the defendant. The cause was tried at special term, before a single judge without a jury.
    On the conclusion of the testimony on both sides, the defendant moved for a dismissal of the complaint on the grounds,
    1. No performance is shown by the plaintiff.
    2. No excuse for non-performance is shown.
    The judge reserved the decision of the motion.
    The counsel for the defendant then made several requests at the trial to the judge to find several facts, and state several principles of law, which he refused, and to such refusal the counsel for the plaintiff excepted.

      Thereupon the court found afterwards by its decision, as matters of fact,
    1st. That the agreement above set forth was entered into between the plaintiff and Eobert Hogan about the 18th of September, 1856.
    2d. That thereupon the plaintiff entered into possession of the premises and commenced the erection of a dwelling house in conformity with said agreement, and continued his work until the latter part of February, 1857, when he suspended the work and did not resume the same.
    3d. That on the 17th of April, 1857, Hogan served on Chase a notice dated April 15, 1857, that after ten days from the date thereof he should sell at public auction all the estate, right, title and interest of him, the said Chase, in the contract, unless he the said Chase should, before the expiration of said ten days, repay and reimburse him, the said Hogan, for all the money he had paid out on the contract, together with interest and other charges incurred.
    4th. That after service of notice on Chase, said Hogan caused a notice that he would sell at the Merchants’ Exchange, at 12 o’clock on Tuesday, May 12,1857, all the estate, &c. of said Chase in said premises to be published in the Evening Post on the 5th, 6th, 7th, 8th, 9th, 10th and 11th days of May, 1857, and in the Morning Courier and Hew York Enquirer on the 6th to the 12th days of May, 1857, both inclusive.
    5th. That no notice of the time and place of. sale was given to the plaintiff, and he had no knowledge thereof.
    6th. That on the 12th of May, 1857, at the time and place specified in said notice mentioned in above 4th finding, all of the estate, &c. of said Chase in said premises was put up at auction for sale by E. H. Ludlow, auctioneer, and was struck down to Hogan for $ 10, he being the highest bidder, and that being the highest sum bidden for the same.
    7th. That the plaintiff violated his contract with the defendant by the total suspension of all work on said house and by the non-completion of said house on the 1st of May, 1857.
    8th. That on the 1st of June, 1858, prior to the commencement of this action, Hogan made with one John B. Mee a contract in reference to said premises similar in its provisions with that made by him with the plaintiff, under which agreement said Mee entered into possession of said premises and proceeded to fulfill the contract on his part, and since the commencement of the action, had received a deed of said premises.
    9 th. That the value of said premises with the building thereon, in the condition it was when the sale was made to said Mee, was $7900.
    10th. That the price agreed to be paid by the plaintiff under his contract with Hogan, with interest thereon to June 1, 1858, is $5595.97; and the amount of advances made to the plaintiff by Hogan, with interest thereon from the time they were made, up to said June 1, 1858, is $936.26, the two sums together making $6532.23, and leaving a balance when deducted from the value of the premises at the time of the sale to said Mee of $1367.77.
    The court found, as matters of law, upon the above found facts,
    1. That the plaintiff is not entitled to judgment for specific performance.
    2. By the public auction sale, Hogan acquired no right and the plaintiff was not divested of his right, title or interest or estate in said premises.
    3. By the private sale to said Mee the plaintiff was not divested of his estate, &c. in said premises.
    4. Substantially that the plaintiff is entitled to be credited with the sum of $7900, and is chargeable with the sum of $6532.23, and that he is entitled to recover of the defendants the sum of $1367.77, with interest thereon from December 28, 1864, the date of the report of the referée to whom it was referred to take and state the accounts, &c. amounting in the aggregate to $1456.33 ; for which amount, with costs to be adjusted, the court directed judgment in favor of the plaintiff, against the defendants.
    Judgment was entered accordingly ; from which judgment this appeal is taken.

      It was not found expressly by the court in its decision that there was any excuse or justification for the non-performance. The plaintiff, however, gave evidence of two matters on which he relied as affording an answer and justification, to wit, the state of the weather, and his illness.

      E. P. Howies, for the appellants, defendants.

      G. A. Eavison, for the respondent, plaintiff.
   By the Court,

Jones, J.

It will be perceived that one of the findings by the court below is, That about the 18th September, 1856, the plaintiff entered upon the possession of the premises mentioned in the complaint, and commenced the erection of a dwelling house thereon, in conformity with said agreement, and continued the work thereon, until about the latter part of February, 1857, when he suspended said work and did not resume the same.” And another finding is, that the plaintiff violated his contract with the defendant’s testator by the total suspension of all work, and by the non-completion of said house on the 1st of May, 1857, the'day limited by the contract for its completion.

The question then arises, what is the effect of this breach of contract by the plaintiff ?

At common law, under the cases of Champlin v. Rowley, (18 Wend. 193,) Harmony v. Bingham, (12 N. Y. Rep. 99,) Smith v. Brady, (17 id. 173,) Tompkins v. Dudley, (25 id. 272,) and Catlin v. Tobias, (26 id. 217,) the plaintiff was guilty of a breach of his contract, and having failed to fully perform the condition precedent to his right to receive the deed, by omitting to erect the building by the day limited, he could neither bring an action for damages based on the defendants’ refusal to deliver the deed, nor an action on the quantum meruit, for the work actually performed, and materials actually .furnished; but the defendant, under the authority of Jackson v. Moncrief, (5 Wend. 26;) Wright v. Moore, (21 id. 230,) could at law bring an action of ejectment, to recover possession of the property.

The defendants having peaceably obtained possession, there is no necessity for them to bring the possessory action of ejectment.

The remedy of the plaintiff, if he has any, is in equity. (Wright v. Moore, 21 Wend. 230.) The plaintiff has in fact brought an action in equity, to obtain possession and protect such rights and interests as he claims to have. He claims that in equity there is a principle, to the effect that time is not an essential part of a contract; that in this case time would not in equity be regarded as of the essence.of the contract, and consequently, although he has not performed by the time limited, he is yet entitled to relief in equity.

It is true it is stated in many English and American cases that in a contract for the sale and purchase of land, the time limited for the completion of the sale and purchase is not in general regarded in equity as an essential part of the contract.

I do not, however, understand this doctrine to extend so far as to enable a party to obtain relief against non-performance by the day, in cases where he shows neither any good reason for such non-performance, nor any peculiar equity.

Chancellor Kent, in Benedict v. Lynch, (1 John. Ch. 370, cited from pages 375, 376, 379,) observes: “It may then be laid down as an acknowledged rule in courts of equity, that when the party who applies for a specific performance has omitted to execute his part of the contract, by the time appointed, without being able to assign any sufficient justification or excuse for his delay, and when there is nothing in the acts or conduct of the other party that amounts to an acquiesence in that delay, the court will not compel a specific performance. The notion that a party may be utterly regardless of his stipulated payments, and that a Court of Chancery will almost at any time relieve him from the penalty of his gross negligence, is very injurious to good morals, to a lively sense of obligation, to the sanctity of contracts, and to the character of the court.. It would be against all my impressions of equity to help those who show no equitable title to relief.”

He 'then, after remarking that it was formerly supposed that the time fixed on for the completion of the contract was quite immaterial, proceeds to review the cases, and after such review observes: From the review which I have taken of the

cases, the general principle appears to be perfectly established, that time is a circumstance of decisive importance in these contracts, but it may be waived by the conduct of the party; that it is incumbent on the plaintiff calling for a specific performance, to show that he has used due diligence, or if not, that his negligence arose from some just cause, or has been acquiesced in.”

There is no case, (not even those where it is asserted that time is not of the essence of the contract,) which does not require the plaintiff to show at least thus much, to entitle himself to relief.

In the case at bar, the plaintiff does not bring himself within these principles.

The court below has not found as a fact, nor does the testimony satisfactorily show, that there was any excuse for the delay ; nor does there appear to be any special equity.

It is true, the defendant swears he was sick, from 5th or 6th April, till after May 1st. This, however, could not excuse the suspension of the work, .from the latter part of February to the 5th of April, a period of six or seven weeks. Non constat but that if he had prosecuted the work diligently during that period, he would have finished the work before he was taken sick. Nor does it appear how sick he was ; he may not have been so sick as to prevent him from finishing the house through the agency of others; He does not swear he was, and he does not testify that this sickness prevented him from completing. All this is to be inferred from the. bare fact that he was sick. I think the fact does not justify the inference,

It is also true, that the defendant testifies that he proceeded as fast as the weather would permit, and with as many men as could work then to advantage, considering the weather up to the time he was taken sick. At fol. Ill he testifies that he was going on with the work all the time, except when the weather prevented, from the 29th of March to April 6. As I understand this testimony, he says, that he went on with the work up to the 29th of March, .and that it was only from the 29 th of March to April 6 th, that the weather prevented its prosecution.

The court below found that he absolutely ceased work in the latter part of February,- a month prior to March 29. This finding is in direct conflict with the plaintiff’s testimony at fol. Ill and 130. With the discredit cast by this finding on the plaintiff’s testimony on this material point, the court, on appeal, should attach but slight importance to the evidence of sickness.

The testimony at folio 111, seems to me, to dispose of the excuse arising from the weather. That testimony shows that the only delay caused by the weather was eight days, from March 29 to April 6. Thus there is over a month of total suspension left unaccounted for. This unexcused delay of one month; leads to the conclusion that the assigned cause, of weather and sickness, did not prevent the performance, but that some motive which was not disclosed led to the nonperformance, and that the weather and sickness were first thought of as excuses when this action was commenced.

Upon the evidence, if the case were tried before me, I should feel very unwilling to find that non-performance by the day was prevented either by the weather, or sickness, or both combined. Feeling thus, I cannot on this appeal find such to be the fact, for the purpose of sustaining the judgment below, when the judge below has not chosen to base his decision on the assximption of the existence of such facts.

It is also true, that if the plaintiff is not relieved, he will suffer a loss of time and materials. That bare fact, however, constitutes no special equity ; it is common to all cases. As the case at present stands, this loss appears to be the result of the plaintiff’s own culpable negligence ;' and he cannot call on equity to relieve him from it. Besides, it does not appear that the value of 'the time and materials is more than sufficient to reimburse the defendant for his advances, interest thereon, and interest on the purchase money. .

For these reasons, it would be improper for the court to compel a specific performance. The same reasons would also debar the plaintiff from recovering damages in a court of equity. If by reason of his default the court declines to decree specific performance, it will also decline to award damages.

Thus, neither under the principles of the common law, nor those of equity, is the plaintiff, as the case now stands, entitled to any damages ; unless the clauses in the contract relative to the sale of the plaintiff’s interest have the effect of depriving the defendant of this right, which he would otherwise acquire, by reason of non-performance by the day.

I think these clauses have not such an effect. The tenor of them seems to be to enable the defendant to press forward the work in case of delay during the running of the contract; so, also, in case of an abandonment, or refusal to proceed during the running of the contract, to provide a means by which the defendant, without waiting for the contract to expire by limitation, may obtain repayment of his advances, with interest, and terminate the contract.

■ These clauses give to the defendant rights which he otherwise would not possess. They were inserted for the benefit and protection of Hogan, not of Chase. They give Hogan the right, if he saw fit to exercise it, to terminate the contract in a certain manner prior to its expiration. There is nothing, however, compelling him to exercise that right. It was entirely optional with him. He might wait until the time limited for performance expired, and then, in case of non-performance, put the contract at an end and resume possession of the property, saying, I do not desire to exercise the right given me by these clauses for my benefit and protection. A review of all of the provisions of the contract shows this to be the proper construction of these clauses. The defendant was to sell the land and make advances, to give a deed on the completion of the house, and to take back a mortgage for the purchase money, the advances and interest thereon. . The contract provides that the house should be completed prior to the first of May, and that the deed and mortgage should be delivered on the completion of the house.

It is evident that the defendant had a great interest in having the house completed as soon as possible, for it was on the mortgage that he relied for his security for the purchase money of the land and for his advances ; and also that he might devise some means whereby he might readily avoid making further advances, and recover back that already made, in case the house did not progress satisfactorily.

Under the circumstances, the defendant may well have said to-Chase,. “ I wish some provisions inserted whereby I may, if you are dilatory, spur you up so as to get this house completed as much before the 1st of May as possible, and so that if you at any time before May 1st abandon or refuse to go on with the contract, I may readily get back my advances, and get rid of you ;” and Chase may well have replied to this, Y ery well, I see no harm in this ; I have contracted to finish the house before the 1st of May, and expect to do so, therefore, said provisions cannot, as I see, hurt me.”

Therefore, the provisions were agreed on, and inserted. But to proceed a little further. Chase contracted to finish the building by May 1st. It is fair to presume that he intended and anticipated to be certainly able to comply with the contract. There is nothing in the contract which suggests that Chase had in his mind the possibility of .being prevented from complying, by any casualty ; therefore, the provisions in question could not have been inserted for his benefit or protection, in this respect.

Again, the provisions could not have been inserted with the view of benefiting or protecting the plaintiff in the event of his non-performance by the day, either negligently or willfully. It cannot be conceived that the defendant would consent to such a premium on negligence or willfulness;. besides, it is contrary ' to the spirit of the provisions.

Thus, the whole context of the contract, as well as the peculiar wording of the provisions, lead irresistibly to the conclusion, that the sole effect of the clauses is to invest the defendant, for his sole benefit and protection, with certain rights, which he might, or might not, at his option, exercise during the running of the contract; that this is their only object, and that it was so understood and intended by both parties when the contract was made.

It follows, as a necessary consequence, that these clauses have (if they have not been effectively exercised before the 1st of May) no effect whatever on the legal rights and remedies of either party arising from non-performance by the day.

The following questions, viz. 1st. Whether a court of equity will require stronger grounds to induce, its interference to relieve from the consequences of non-performance by the day in cases where it considers time to be of. the essence of the contract than in cases where it considers time not to be of the essence; 2d. As to whether in the contract in question, time is of the essence or not •; 3d. As to whether a delay of one year in bringing suit would not be regarded as such an acquiescence as that the court would grant no relief even in cases where time was not of the essence; 4th. As to whether under a proper construction of all the decisions, time is not always of the essence; 5th. As to whether a court of equity can, in any case, decree damages except in lieu of a specific performance which it decrees the plaintiff entitled to, but which cannot be enforced in consequence of the defendant’s inability to perform ; 6th. And as to whether when defendant’s inability to perform arises before the commencement of the action, the court can, in any case, decree damages in lieu of a specific performance, which it seems the plaintiff would have been entitled to, had it not been for such inability of the defendant, have not been considered or determined.

It is unnecessary to consider the 1st, 2d and 4th queries, since the conclusion has been arrived at that -even under the equity principles applicable to contracts, when time is not of the essence, the judgment cannot be sustained on the facts found, nor on those facts with other uncontroverted facts in the case. It is also unnecessary to determine the 5th and 6 th queries, since the case as presented is not one in which damages can he awarded. On a new trial, a case may possibly be made which will raise these questions; it will be more proper to determine them then than now.

The third query is more properly a matter of evidence. Answering it in the negative, would not entitle the plaintiff to hold his judgment, since it is reversed on considerations entirely disconnected with this one. An affirmative answer, on the other hand, would not only call for a reversal of this judgment but a rendition of judgment absolute for the defendant.

It is a matter which undoubtedly would have a great bearing on the question, whether any relief should be granted. Its force, however, may be strengthened or weakened by other matters ; thus, if at the time of the suspension of the work, the market was such that the plaintiff anticipated a loss on the contract, that would account for the suspension; and if at the time of commencing the suit, the market had so improved as to render a profit certain to arise from completion, that would account for the suit. Under these circumstances, the year's delay would probably be an absolute bar, under the cases of Rogers v. Saunders, (16 Maine Rep. 92, 99,100,) and Alley v. Deschamps, (13 Vesey, 228.) On the other hand, its effect may, by circumstances to be proved, be either greatly weakened or wholly destroyed. I do not, therefore, think it advisable to determine its effect, on this appeal.

A few words respecting the decision made by a former general term of this court, in this case.

That decision was rendered on an appeal taken from a judgment entered on a decision made upon a former trial. The judge, before whom that former trial was had, held that the parties by the special provisions before alluded to had prescribed the mode in which the plaintiff's interest was to be foreclosed in case of default, and that the defendant had not properly pursued that mode, in that he had become the purchaser at the sale made under those provisions. He therefore held that such purchaser could not be allowed to foreclose the plaintiff from a right to an account, and consequently directed an account. His findings of facts upon which he rendered this decision were substantially the same as those before us on this appeal. There does not, however, appear to have been any evidence tending-to show any reason for non-performance, and there was a finding that Chase had furnished materials and performed labor to the amount of $3040.88. These constituted the only differences between the case as then and as now presented to the appellate court.

The appeal taken from the judgment entered upon such former special term decision was heard before two judges only. One of the judges held that as the plaintiff had shown no excuse for the non-performance, he could not recover damages at law, nor could he obtain either a specific performance or damages in equity. He also held the special provisions and the acts done thereunder could have no bearing whatever in the determination of the rights of the parties. He also held that while the plaintiff was not entitled to recover any thing, the defendant was entitled to recover damages against the plaintiff for non-performance. He also held that if the action could be maintained, in any shape, the defendant should be allowed, in diminution of the plaintiff’s claim, for the damage to the building by the weather. He therefore decided that the judgment should be reversed and a new trial had.

The other judge, without considering the case in the aspects in which his associate had considered it, proceeded to discuss the point whether the defendant could rightfully purchase at the sale made by him, and then, without coming to any conclusion on this point, states that the principle on which the account was taken below, was erroneous, for the reason that no allowance was made for the damages sustained by the building by exposure to the elements, intermediate the time when the plaintiff abandoned the work and the subsequent sale of the premises. He then lays down what he regards as the true principle, and decides (but his opinion furnishes no clue to the ground on which he bases the decision,) that if on an account taken on such principle, a balance should be in favor of the plaintiff, Hogan should pay that balance, but if the balance should be in favor of Hogan, he should have judgment for it. On the ground, then, that the principle of the account as taken in the court below was erroneous, that the plaintiff was entitled to an account to be taken on certain other principles, and that the party in whose favor the balance should be found to be, on such new accounting, was entitled to judgment against the other, he concurred in reversing the judgment below and granting a new trial.

It is apparent that on that appeal nothing was decided except that, assuming this action could be maintained in any shape, the defendant should be allowed for the damages to the building by the weather. It may then be regarded as the law of this case that the defendant is entitled to such allowance if the plaintiff can maintain this action in any shape. Rut the decision settles no other point, particularly not the question as to whether the plaintiff had any right of action either legal or equitable, as the judges did not agree on this point, one of them holding that the plaintiff had no right of action whatever, and the other holding he had a right of action in equity for an account and for the payment of the balance found due him on such account.

The result from the above views is, that the judgment must be reversed, and a new trial ordered, for the reason that the plaintiff, to entitle himself to any recovery, must show at least a sufficient excuse or reason for his non-performance.

It is not, however, intended to be decided that if he succeeds in showing a sufficient excuse he will be entitled to a recovery.

Whether showing a sufficient excuse will give him a prima facie cause of action or not, and whether if it does, it may not be overcome by other facts and circumstances, are questions which had better be reserved until they come before us in a case the judgment wherein is founded on such excuse or such other facts and circumstances.

Judgment reversed and a new trial ordered, with costs .of appeal to the appellant, to abide the event.


source: Caselaw Access Project

license: Public Domain

text:
    David C. Berry, plaintiff and respondent, vs. John Kelly, sheriff, &c. Morris Ketchum et al. defendants and appellants. The same, plaintiff and appellant, vs. The same, defendants and respondents.
    1. Upon an execution issued on a judgment against one of several partners, in form for his individual debt, the sheriff can only levy upon and sell the judgment debtor’s interest in the partnership goods.
    2. Under such an execution the sheriff has the right to take the goods levied on into his own possession, and upon a sale of only the interest of the judgment debtor therein, to deliver them to the purchaser. But if he undertakes to sell the entire property in the goods, he becomes a trespasser ab initio, and is liable as such in an action by the other partners against whom no execution is issued. In such an action, the damages which may he recovered cqnsist of the value of the plaintiff’s undivided share in the goods sold, irrespective of the question of the solvency of the partnership, and without regard to the state of the partnership accounts.
    3. Where an attachment, issued against three persons, on the ground of their being non-residents, who were sued as partners, under which the sheriff levied upon and attached certain goods of the firm which they constituted, was subsequently vacated as to one of the partners, on the ground that at the time it was issued he was a resident of this state; Sold, that the mere levy of the attachment did not operate, per so,'as an appropriation of the entire property in the goods to the payment of the plaintiff’s debt; and that the sheriff, under an execution issued in such suit, could not sell the interest of the resident debtor, hut only the right, title and interest of the non-resident defendants.
    á. Meld, also, that as the process under which the sheriff acted only authorized him to sell the interest of the parties upon whose property alone, with their right of appropriation of the goods attached, the attachment was binding, he exceeded his authority by a sale of the entire property, and became a trespasser ab initio, as much as he would he by selling the entire property in goods belonging to a firm, on an execution issued upon a Judgment against one partner for his individual debt.

      6. Held, further, that the plaintiffs in the attachment suit, by indemnifying the sheriff, and directing him to take, remove and sell all the goods, were co-trespassers with the sheriff.
    6. The right of a purchaser of the property of a firm, subject to an attachment on the shares of two of the partners, is subordinate to that of the sheriff under an execution issued in the attachment suit. He has, therefore, no right to control such officer in the exercise of his superior rights.
    7. As to the attached shares, he has no greater rights than the partners against whom the attachment issued would have had. The rights of such partners would be, in case the proceeds of the sale were mbre than enough to satisfy the execution, to have the excess paid to them, and, in case of abuse of process, to hold the sheriff liable in damages for such abuse. Selling goods in many parcels is not necessarily an abuse of process.
    8. Whatever the state of the partnership accounts may be, or the condition of a firm as to its solvency, each partner has a property and interest in the partnership assets coequal with his interest in the firm, and retains such property and interest until divested by due process of law executed adversely to him, 'or by some voluntary act of his copartners within the scope of the partnership duties and powers.
    (Before Monbm, Garvin and Jones, JJ.)
    Heard February 16, 1866;
    decided-, 1866.
    This was an action to recover damages for the sale of certain goods, the property of the plaintiff under an execution. The defendants were the sheriff, (Kelly,) who sold the goods under an execution, and the plaintiffs in the execution, (Ketch-um and others.)
    The action was tried in December, 1863, before Justice Bobertson, without a jury, who found the following facts, viz:
    That, on the 5th day of February, 1861, and at the several times hereinafter mentioned, George Carroll, Edwin B. Carroll, and Benjamin F. Mead, were partners, doing business at the city of New York, and also at Louisville, in the state of Kentucky, under the firm name of Carroll & Mead. At that time, and at the time of the proceedings hereinafter mentioned, the said George Carroll and Benjamin F. Mead were nonresidents of this state, and the said Edwin B. Carroll was a resident of this state. The said firm owned a stock of merchandise, of the.value of $73,903.94, a part of which stock was contained in premises No. 392 Broadway, in the city of New York, occupied by the firm for the transaction of business. On the said 5th day of February, 1861, the said Edwin E. Carroll and Benjamin F. Mead were absent from this state; and so much of the said merchandise as was in the city of New York was in the custody and charge of the said George Carroll. On the day last mentioned, the said firm was indebted to the firm of Ketchum, Son & Co., (consisting of Morris Ketchnm, Thomas Belknap, Jr., and Franklin M. Ketchum, three of the defendants in this cause,) in the sum of $1,640.16, which indebtedness arose upon a promissory note of said firm of Carroll & Mead for the sum last mentioned, bearing date the first day of May, eighteen hundred and sixty, and payable nine months after the date thereof. On the said 5th day of February, 1861, the said Ketchum,' Son & Co., by the due personal service on said George Carroll, within the city of New York, of a summons and complaint, wherein all the members of the firm of Carroll & Mead were included as defendants, commenced an action in this court to recover the amount of said note. That the said Edwin E. Carroll appeared and answered in .said action before the recovery of judgment therein, but the said Benjamin F. Mead did not appear in said action, nor was the process therein served upon him. At the several times herein mentioned, the said firm of Carroll & Mead was insolvent and unable to pay its debts. After- the aforesaid service of process in the said action, on the said George Carroll, and on the 6th day of February, 1861, the members of the said firm of Ketchum, Son & Co. procured to be issued out of this court in their said action a warrant of attachment to the defendant John Kelly, sheriff, against the property of the said George Carroll, Edwin E. Carroll, and Benjamin F. Mead, which warrant was issued and procured upon the ground that the said Carrolls and the said Mead were non-residents of this state.
    Said warrant of attachment recited that the same was issued in an action in which process had been served within the city of New York on the said George Carroll, and that-the said action was brought and was pending against the said George Carroll, Edwin R. Carroll, and Benjamin E. Mead, as joint debtors, to recover the amount of the indebtedness mentioned in the said warrant.
    On March 16, 1861, the said attachment was duly vacated and set aside as against the defendant Edwin R. Carroll, on his motion for that purpose, solely on the ground that at the time of the issuing of the said attachment, he, the said Edwin R. Carroll, was a resident of this state. Afterwards, and on the same 16th day of March, 1861, judgment was rendered in said actions in which said attachment was issued, in favor of the plaintiffs therein, against all the defendants therein, as joint debtors, for the sum of $1,652.75, and thereupon execution was issued upon the said judgment to the said sheriff. On the 6th day of February, 1861, before the said attachment was vacated as against said Edwin R. Carroll, and before the recovery of said judgment, the sheriff had levied upon and attached, under and by virtue of said attachment, certain goods of the said firm of Carroll & Mead, being a part of the stock of merchandise mentioned in the third finding, and a schedule of which goods is annexed to the complaint, of which the value on the day last mentioned was the sum of $3,088.44. After such levy, the said George Carroll, on February 7th, 1861, executed in the name of the firm of Carroll & Mead, and delivered to the plaintiff in this cause, a written instrument, bearing date on that day, purporting that the said. Carroll & Mead sold to the plaintiff in this cause, the goods ■and stock in trade of said Carroll and Mead, for the price of $73,903.94, which was the value thereof on that day, and had received in payment therefor promissory notes of the plaintiff, amounting in all to the sum last mentioned, (dated February 7th, 1861,) twelve of which, for two thousand dollars each, were made payable twelve months after date ; ten others, each for the like sum, were payable fifteen months after date; thirteen others, each for the like sum, were payable eighteen months after date ; one for $975.46, and another for $2,928.48, were payable fifteen months after date. The notes last herein above described, were in fact made and delivered by the plaintiff, and received by said George Carroll, as one of the firm of Carroll & Mead, and by him transferred on behalf of such firm to various creditors of Carroll & Mead (other than the said firm of Ketchum, Son & Co.,) on account of the demands of such creditors respectively against said Carroll & Mead. The said bill of sale or transfer to the plaintiff, was made with knowledge by the plaintiff of the existence of said warrant of attachment, and the said George Carroll, in the name of the said firm of Carroll &. Mead, agreed with said plaintiff to contest said attachment, and to deduct from the said notes received by him, such amount, (if any,) as the New York stock might be liable for under said attachment. The said George Carroll informed the said Edwin R. Carroll and Benjamin F. Mead of the said bill of sale and agreement by letter, and the said Edwin R. Carroll, by a. communication in writing, dated March 18, 1861, and the said Benjamin F. Mead, by a similar communication, dated March 13, 1861, severally addressed to and received by the said George Carroll, approved of and ratified the said bill of sale and agreement, which information was given within a reasonable time after the making of such bill of sale, and such communications were sent and received in a reasonable time after such communication was given. The said bill of sale was made with the intent and for the purpose of enabling the said George Carroll to obtain the notes which were the proceeds thereof, and appropriate the same among the creditors of said firm, according to his discretion. Upon the recovery of judgment as aforesaid, in the said action, the.plaintiffs therein, Ketchum, Son & Co., issued an execution on.such judgment to the defendant Kelly, as sheriff as aforesaid, against the joint property of the defendants therein, and the several property of the defendants, Edwin R. Carroll and George Carroll. Under said execution, the said sheriff proceeded to sell- the whole of the said goods so attached by him as aforesaid, the value whereof, .at the time of such attachment and of such sale, was the sum of $3088.44, the said Ketchum, Son & Co. indemnifying him for making such sale, and without regard to any claim of the' plaintiff, next hereinafter mentioned, to an interest in the said goods, and that such sale was of the goods absolutely, without specifying the same to be of the right, title and interest of George Carroll and Benjamin F. Mead therein. Before such sale was actually made, the plaintiff notified the said sheriff that he, the plaintiff, claimed to be the .owner of the said goods so attached. Notwithstanding the said notice, the said sheriff proceeded to make such sale, and sold said goods so attached absolutely, in different parcels, to many different persons, and delivered the said goods to the respective purchasers thereof, and that it was impossible for the plaintiffs to follow the said goods. The gross proceeds of the sale were $1767.42. No evidence was given of the presence of any of the firm of Ketchum, Son & Co. at such sale, or any direction by them to the said sheriff to sell the goods in parcels.
    The said justice’s conclusions of law, were :
    1. That the defendants,' Morris Ketchum, Franklin M. Ketchum and Thomas Belknap, jr., were entitled to judgment, dismissing the complaint as against them, with costs.
    2. That by the making and delivery of the said bill of sale to the plaintiff, and the making and delivery by him of his said notes, and the subsequent assent of said Edwin E. Carroll and Benjamin F. Mead, the plaintiff in this cause acquired a title as against the defendants “ to an undivided third of the goods attached as aforesaid theretofore belonging to said Edwin E. Carroll, subject, however, to a lien thereon under or by virtue of the said warrant of attachment, if any, to the extent of the amount, if any, which the said George Carroll or Benjamin F. Mead had, either personally or by agent, prior to issuing of the said warrant, individually paid beyond two thirds, (being their proportionate part,) of the debts of their said firm, which had been paid before that time.”
    3. That the plaintiff was entitled to recover of the defendant, John Kelly, a sum equal to one third of what the said attached goods were worth on February 7, 1861, being the sum of $1029.48 ; and in addition to the said last mentioned sum, a further sum equal to two thirds of the excess (if any) above the value of said goods when sold to the plaintiff, being $73,903.94 of any sums paid by said Edwin E. Carroll before February '6, 4861, individually, on account of debts of his said firm to the extent of $2058.97, being two thirds of the value of such attached goods, subject, however, to the deduction of an amount equal to the excess, if any, above two thirds (being the share of the said George Carroll and Benjamin F. Mead) of any sums paid before February 6, 1861, by the said George Carroll and Benjamin F. Mead, individually, on account of the debts of their said firm.
    4. That in order to fix the amount, if any, which the plaintiff was entitled to recover, and in order to ascertain and inform the court of the amount of the respective interests, liens, or shares of the said George Carroll, Edwin B.‘ Carroll, and Benjamin F. Mead, of, upon, and in said attached goods on February 6, 1861, it was necessary that an account should be taken of all sums paid by said George Carroll, Edwin E. Carroll, and Benjamin F. Mead, respectively, prior to February 6, 1861, out of their respective individual estates on account of any debts' of their said firm, and that a reference be had for the purpose of taking such an account.
    5. That if upon taking such an account, it should appear that prior to February 6,1861, the said Edwin E. Carroll paid individually, on account of any debts of his said firm, any sum exceeding $73,903.94, being the value of said goods at the time of the sale thereof to the plaintiff, so much of such excess as should exceed one third of all debts of said firm paid by the partners therein indidvidually prior to February 6,1861, should be added to the said sum of $1029.48, so as to determine the amount of such recovery of the plaintiff in this cause ; but if on such accounting it should appear that said Mead and George Carroll had, together, individually, prior to said February 6, 1861, paid more than two thirds of all the debts of said firm which had been paid by the said general partners therein out of their separate estates prior to that day, then such excess above such two thirds should be deducted from the said sum of $1029.48, and only the residue of such sum should be and constitute the plaintiff’s recovery herein.
    6. That neither the said plaintiff.nor the said Kelly was entitled to recover any costs in this cause up to the time of such reference, and that the costs of such reference should abide the event thereof, that is to say, if it should appear on such reference that the amount which the plaintiff was entitled to recover exceeded the said sum of $1029.48, the plaintiff would’ be entitled to recover the costs of such reference; otherwise, the defendant, Kelly, would be entitled to recover the costs of such reference. The justice accordingly adjudged as follows :

      First. That the complaint herein .be dismissed- against the defendants, Morris Ketchum, Franklin M. Ketchum, and Thomas Belknap, jr. and that they recover against the plaintiff their costs, to be adjusted.

      Second. That in case it should appear upon the report of the referee hereinafter mentioned, that any sum of money is due, or ought to be paid by the defendant Kelly to the plaintiff, upon taking the account hereinafter mentioned, then that the plaintiff recover against said defendant such amount.

      Third. That if it should appear, by such report, that the amount so found due to said plaintiff exceeds the sum of $1029.48, then that the plaintiff recover his costs on said reference to be adjusted.

      Fourth. That if it should appear, by such report, that nó sum of money was due by the defendant Kelly to the plaintiff, the said defendant recover against the plaintiff his costs of said reference to be adjusted.
    Fifth.' That it be referred to the Hon. Murray Hoffman, to ascertain and report the amount paid prior, to the 6th of February, 1861, by George Carroll, Edwin B. Carroll, and Benjamin F. Mead, members of the firm of Carroll & Mead, and each of them jointly and . separately, on account of debts due by said firm to any person or persons; and in case he should find that the amount so paid by the said George Carroll and Benjamin F. Mead exceeds two thirds of the whole of the amount so paid, then to ascertain and report the amopnt of such excess ; and also the difference between such amount and the sum of one thousand and twenty-nine dollars and forty-eight cents ; and in case he should report that the amount so paid by the said George Carroll and Benjamin F. Mead does not exceed such two thirds, then to report that there is due to the plaintiff from the defendant Kelly, such last mentioned sum of $1029.48 : or, if he finds that it does, then to report that there is due to the plaintiff from the defendant only the difference so found by him between such last mentioned and such excess ; and in case he should find that the sums so paid before the 6 th of February, 1861, by the said Edwin R. Carroll, exceed one third of the whole amount so paid on account of such liabilities, then to ascertain and report the amount of such excess ; and if such excess exceeds the sum of $70,000, then to ascertain and report the amount of such last excess ; and in case it equal or fall short of the sum of $2058.97, then to report that such sum is also due from the defendant Kelly to the plaintiff, and to ascertain and report the aggregate of such sum, and of the sum of $1029.48, and to report that the same is due to the plaintiff; but in case he should find that there was no excess of payment by Edwin R. Carroll beyond one third of the debts so paid by all the members of said firm, or that the same does not exceed the sum of $70,000, and that the amount paid by the said George Carroll and Benjamin F. Mead, beyond two thirds of all the debts so paid, equalled or exceeded the sum of $1029.48, then to report that there is nothing due from the defendant Kelly to the plaintiff.
    It was stipulated, agreed and admitted, as matter of fact, that on or prior to the 6th day of February, 1861, neither Edwin R. Carroll had, nor had George Carroll and Benjamin F. Mead, together or, severally, paid any sums whatever on account of partnership debts of the firm of Carroll & Mead, and that all of such debts which had been paid before that time had been paid out of the partnership property of Carroll & Mead, and that neither of said partners, jointly or severally, had paid more than his .several or their joint share of any partnership debt or debts; and that such stipulation should stand as a substitue for apd have the same force and effect as a report of a referee upon the matters directed to be referred by the above order and decision of the court.
    The decision of the said justice, and the stipulation above mentioned, having been filed, judgment was entered thereon, by which it was ordered and adjudged that as against the defendants, Morris Ketchum, Franklin M. Ketchum and Thomas Belknap, jun. the complaint of the plaintiff be, and it was thereby, dismissed, and that the said Morris Ketchum, Franklin M. Ketchum and Thomas Belknap, jun. do recover against the plaintiff the sum of $110.69 for their costs in this action. And it was further ordered and adjudged that there was due to the plaintiff, by reason of the matters stated in said findings and stipulation, from the defendant, John Kelly, the sum of $1029.48, with interest thereon from the 7th day of February, 1861, making in all the sum of $1185.61, and that the plaintiff do recover from the said defendant, John Kelly, the last mentioned sum, without costs.
    The defendant, John Kelly, appealed to the general term, from so much of said judgment as adjudged that there was due to the plaintiff the sum of $1029.48, with interest thereon, and from so much of said judgment as adjudged that the plaintiff recover of the said defendant the sum in said judgment mentioned. . The plaintiff appealed from the judgment, and from every part thereof, “ and particularly from the part of said judgment which adjudged that there was due to the plaintiff from the defendant, John Kelly, only the sum of $1029.44, and interest, instead of the sum of $3088.32, and interest, as claimed in the complaint; and from that part of said judgment which dismissed the complaint of the plaintiff as against the defendants, Morris Ketchum, Franklin M." Ketchum and Thomas Belknap, jun. and adjudged to them the sum of $110.69 costs, and from the judgment which does not, but should, give costs to the plaintiff against the defendants.”

      Aug. F. Smith, for the plaintiff.
    I. After the setting aside of the attachment against E. R. Carroll, the sheriff held, under the attachment, only the right, title and interest of Mead and Greorge Carroll. An attachment is allowed against individuals, and binds only their individual interests, or the joint interests of those against whom it is issued. A statute was necessary to enable a plaintiff to take 'joint property, by execution under a judgment against several, when all were not served. (2 R. S. 377, § 1. R. L. 521, § 13.)
    II. The firm, at the time of the sale, had an unquestionable right to sell the partnership property, subject to the attachment.
    1. The fact of the attachment worked no disability in the partnership to dispose of their property, beyond that'right and interest which the attachment could reach. If the attachmen t had any such power, it has all the virtues of a bankrupt law without its inconveniences. If it had any such power, it must be derived from some positive provision of law. Let that provision be produced, or.let us see an authority for such extraordinary virtue in this process. 2. The conclusion is logical, and not to be resisted, that the plaintiff, by purchase, became the legal owner of-the goods in question. This legal title was incumbered by nothing but a lien upon such interests as the non-resident partners had in the surplus (if any) that should remain after the payment of the partnership debts. As the. firm was insolvent, this lien was of no value. 3. The sheriff may have a right to the joint possession of the property with the plaintiff, as a tenant in common, to the end that he should sell the right, title and interest of the non-residents, and on the sale he might give possession to'the purchaser, in order that he, by a bill in' equity, might ascertain the value of his interest, and so realize it. But this fact by no means affects the rights of the partnership to sell, nor of the plaintiff to buy the property ; nor does it take from the' plaintiff the right to have the' property and its proceeds, subject only to the lien before named, and that lien of no value.
    III. Upon authority there is np doubt that either trespass or trover would lie against the sheriff, under the circumstances of this case. (Walsh v. Adams, 3 Denio, 125. Waddell v. Cook, 2 Hill, 47. Phillips v. Cook, 24 Wend. 389. Hull v. Carnley, 1 Kern. 508.) These cases are cited and approved by the Court of Appeals, in Hull v. Carnley, (1 Kern. 508.) (See Melville v. Brown, 15 Mass, 82.)
    IY. This action is not one of trespass or trover, neither of which would afford an adequate remedy, (3 Denio, 125,) but . is a special action to recover the damages which the plaintiff has suffered. In it the plaintiff is entitled to his actual loss, being the value of the goods sold since the separate interests of the partners were valueless, as the firm was insolvent. (Manning v. Monaghan, 23 N. Y. Rep. 539, 545, 547, 548, 549, 551, op. of Comstock, J. Goulet v. Asseler, 22 id. 225, 241, op. of Comstock, J.)

    These were both cases of a sale under execution of mortgaged chattels in the possession of the mortgagor, and when the sale was made in parcels.
    Y. The judgment against Kelly, the sheriff, for only one- ■ third of the value of the goods, was founded upon an idea that an equal undivided interest in partnership chattels or property is liable to be taken for the private debt of the partner—an idea that never had any foundation in justice or propriety, and' that is now obsolete. (1 Pars, on Cont. 176,177. Abels v. Westervelt, 15 Ab. 230. Mersereau v. Norton, 15 John. 179. Story on Part. § 262. Stoutenburgh v. Vandenburgh, 7 How. Pr. 229.)
    YI. The fact that the attachment was" issued upon a partnership debt does not make the position of the defendants any better. They had no lien upon the partnership property, to prevent its sale, and their attachment covered only the interest of the absent partners. No equity exists in favor of a creditor to interfere in the administration of partnership property until he has acquired a lien upon the whole of such property, not merely the undivided interest of one of the partners.
    1. A creditor of a. ’ partnership cannot take the partnership property upon an attachment issued upon the partnership debt against one partner. (Matter of Smith, 16 John. 102. Abels
      v. Westervelt, 15 Abb. 230. Stoutenburgh v. Vandenburgh, 7 How. Pr. 229. Sears v. Gearn, Id. 383.)
    2. The same thing was true (before the statute) of an execution, founded upon a partnership debt. (Crane v. French, 1 Wend. 311.) The case of Morley v. Strombom, (3 Bos. & Pul. 254,) merely decides that, in England, partnership property may be seized upon a distringas against one, which is precisely what may be done here upon an execution, but only the right, title and interest can be sold.
    VII. As the plaintiff recovered $50 and upwards against Kelly, he was entitled to costs, of course. The court, however, gave judgment without costs. (Code, § 304, subd. 4.)
    VIII. The plaintiff was entitled to judgment not only against Kelly, but also against the other defendants. The sheriff became a trespasser by selling the whole of the' goods, and not the right, title and interest only of the non-residents. (Waddell v. Cook, 2 Hill, 47.) For this act the other defendants indemnified him. Beyond a doubt the indemnity against the illegal act made the other defendants responsible for eyery step of the defendant Kelly in the execution of his unlawful mission. ( Wall v. Osborn, 12 Wend. 39. Davis v. Newkirk, 5 Denio, 92, 94.)
    The illegal act was the selling the whole property; only the damages were increased' by the sale in parcels, so that the property could not be followed.

      A. J. Vanderpoel and F. N. Bangs, for the defendant Kelly.
    I. The court below, in awarding damages, adopted the same rule as in an action by a solvent partner against the sheriff for selling partnership property under process for an insolvent partner’s separate debt. There is certainly no reason, in this case, for applying any more stringent rule against the sheriff; and under that rule, the recovery is as large as it ought to be, and cannot lawfully exceed one third of the value of the goods. (Eddie v. Davidson, Doug. 650. Walsh v. Adams, 3 Denio,
      125.) But even that is affected by Hull v. Carnley, (11 N. Y. Rep. 501,) and Goulet v. Asseler, (22 id. 225.)
    II. In support of our own appeal, however, we object to the application of this rule, even to the extent of giving nominal damages. It is derived entirely from cases between the separate creditors or vendees of an insolvent partner and the remaining solvent partners, and, so far as we can discover, is the precise opposite of the rule which has been adopted in all cases analogous to the present, viz. where the process, though several in form, is for a joint debt. (Morley v. Strombom, 3 B. & P., 254. Taylor v. Henderson, 17 S. & R., 453, 456. Harper v. Fox, 7 Watts & Serg. 143. Inbusch v. Farwell, 1 Black, 566.)
    III. The question in this case is as to the legal effect and force of an attachment issued under the Code, against two or three joint debtors, as a provisional remedy in an action in which all three are made defendants, where the pendency of the suit and its nature appear on the face of the attachment, and where the debt is admitted or established to exist. The rule which has been applied in this case to these circumstances, when generalized from the innumerable cases which prove its existence, is this : That in an action against a person who. is in partnership with others, to recover that person’s separate debt, nothing in the partnership assets can be levied on except the debtor’s interest, which, for the purpose of such an action, is, his share of the surplus remaining after payment of the partnership debts, and after satisfaction of his partner’s claims and liens arising out of the partnership.
    IY. As this certainly does not, - in its words, embrace the circumstances of the present case, so we submit that it does not, in its reason or spirit. 1. Partnership property is dedicated, in the first instance, by express agreement or necessary implication, to the joint benefit, including the exemption of separate property from joint liabilities. The appropriation by a separate creditor of joint property to a separate demand, under legal process, would be a violation of the agreement, and the assertion of a right which the 'debtor himself could not exercise. But if the agreement gave each partner the right to take enough of the joint stock, irrespective of the joint debts, to pay his private liabilities, would not a separate creditor have the same right" which the partner had ? Joint creditors would have no equity to prevent it, because their equities depend on those of the partners. (Ex parte Williams, 11 Ves. 3. Nicoll v. Mumford, 4 John. Ch. 522. Greenwood v. Brodhead, 8 Barb. 596. Allen v. Center Valley Co., 21 Conn. Rep. 130. Sage v. Chollar, 21 Barb. 596.) 2. The right of the separate creditor is limited, because the right of his debtor is so. But in respect to the subject matter of the action brought by Ketchum, Son & Co., there being no superior equity in other creditors, and none by agreement or necessary implication in the remaining partners, no right of other creditors would be violated, and no right of property in the non-resident partners would be abused, by a voluntary application by them of the whole property to that debt. It was theirs, for that purpose ; it would not have been theirs, for the purpose of paying their own debts.
    Y. The rule applied in this case being inapplicable, what is the legal force and effect of an attachment issued in the form and under the circumstances stated, irrespective of that rule? (See Morley v. Strombom, ubi sup.) McKay v. Harrower, 27 Barb. 463.)
    According to the Code (§ 227) an attachment is a security to the creditor for such judgment as he may obtain in the action. In this case, it required the sheriff to take from the non-resident partners property enough to secure the payment of any judgment which might be rendered .in an action for a specified amount, against the three persons jointly indebted. The instant effect of this, on the rights of Edwin E. Carroll, was that it increased his partners’ claims and lien upon, and dominion over, the partnership property, for their individual purposes, and diminished his interest correspondingly. Edwin E. Carroll had no equity to have the burden of this debt thrown on the separate property of the non-residentsthe right was on the other side ; the whole partnership property stood pledged as an indemnity to his co-partners against their individual estate being first resorted to.
    VI. The right of the non-resident partners (one of whom was. in actual possession of the goods) to .appropriate the whole stock to the payment of the debt in question, in their own exoneration, coupled with the possession of the goods, and their own obligation to pay the debt, constituted a paramount property right, and subordinated all other rights and interests. This property right was the subject of attachment, the whole goods to which it belonged were affected by it, and being capable of manual delivery, nothing was required to execute the process, beyond taking possession. (Code, § 232. Saul v. Kruger, 9 How. Pr. 569.) The rights and equities of the non-resident partners as against Edwin R. Carroll, were a part of the remedy and resort of creditors, to be administered for the satisfaction of creditors.
    VII. The case of Smith, (16 John. 102,) quoted in the opinion delivered below, arose under an entirely different system of remedies from that now in question. It was discussed and reprobated in Robbins v. Cooper, (6 John. Ch. 186.)
    VIII. The attachment was executed before any sale to the plaintiff took place, and the sale was with express notice of the attachment. Of course, if Edwin R. Carroll could not thrust the whole burden of the attachment upon his partners, the plaintiff could not. And if the property right of those partners in the goods had been lawfully seized, Edwin R. Carroll could not, nor could they for him, convey the goods to the plaintiff, free from that right which by the attachment had passed to the sheriff.
    IX. Treating this as an action for an accounting, in equity, it is sufficiently answered by the third point of the opinion of the chief justice. The sheriff held the goods and their proceeds by at least as good a title as the non-resident partner, from whose actual possession the goods were taken. The plaintiff, in respect to those goods, could not have taken them from the non-resident partners, nor required the application of them to some other debt in preference to that which was due to Ketchum, Son & Co. It was sufficient for the sheriff to show that he intended to execute the trusts upon which the non-resident partner held them, to wit, the payment of a partnership debt.
    X. The plaintiff’s idea, that the sheriff is'bound to respond for the whole value of the goods, arid not for Edwin Carroll's alleged share alone, seems to depend upon the view that it is universally true that a partner’s interest in'the joint property is only his proportion of what remains after payment of joint debts. That idea is derived from cases between" insolvent partners and their separate creditors, and is limited to such cases. The elements of a man’s interest in any thing are, his control over it, and the extent of benefit he may derive from such control. The control of a partner, as such, as far as he has any, extends to the whole of every item of the joint stock, and he derives a personal advantage, in the way of profits gained, or losses averted, by exercising this control. As between himself and partnership creditors and dealers, he has entire dominion. If it were not so, who would own the property of an insolvent house ? As neither partner would have any interest, all together would have none. The fact is overlooked, that the attachment dissolved the partnership as to the goods attached. (Walsh v. Adams, 3 Denio, 125.)
    XI. If the attachment did not bind the goods, the execution did, because the sale of Edwin Carroll’s share was fraudulent and void as to creditors, and the court erred in deciding otherwise.
    For the respondents in the plaintiff’s appeal, viz. Morris Ketchum, F. M. Ketchum and Thomas Belknap, Jun., it is claimed and submitted that they are entitled to the benefit of the points urged on behalf of the defendant Kelly.
    The sole ground upon which the defendant Kelly was held liable being the wrongful method of making the sale, and there being no evidence that these respondents directed, advised or participated in, that method, the judgment, as to them, was right, and should be affirmed.
   By the Court,

Jones, J.

It is well settled that upon an execution, issued upon a judgment, recovered against one partner, for his individual debt, the sheriff can only levy on and sell the judgment debtor’s interest in the partnership goods.

It is also well settled that, under such execution, the sheriff has the right and power to take the goods levied on into his own possession, and upon a sale thereof, provided he sells only the interest of the judgment debtor, to deliver them to the purchaser ; but it is decided that, if he undertakes to sell the entire property in the goods, he becomes a trespasser ab initio, and is liable in an action of trespass at the suit of the partner against whom the execution is not issued; and that in such action the damages recoverable are the value of the plaintiff’s undivided share in the goods sold, irrespective of the question whether the partnership was solvent or not solvent, and without regard to the state of the partnership accounts. (Waddell v. Cook, 2 Hill, 47. Walsh v. Adams, 3 Denio, 125.)

These being decisions of the Supreme Court, as it was constituted prior to the judiciary act of 1847, we are bound to follow them, unless they have been reversed by some court of a higher authority than the court that pronounced them.

It is suggested that these cases have been overruled, or, at least, their doctrine doubted, by the cases of Hull v. Carnley, (11 N. Y. Rep. 501,) and Goulet v. Assell, (22 id. 225.)

In my opinion, there is nothing in the Court of Appeals cases that impairs the force of the Supreme Court cases. They are two different classes of cases, and the distinction between them is so well pointed out in Hull v. Carnley (11 N. Y. Rep. 508, 509,) that it is needless here to enlarge on it.

Under the authority of these Supreme Court cases the judgment, so far as it is attacked by the defendant Kelly, is correct, unless the attachment bound the partnership to a greater extent than the levy of an execution, issued upon a judgment against two of'the partners for their individual debt, would bind it.

I do not understand the defendant’s counsel to claim that the sheriff, under the attachment, was authorized to attach the entire property in the goods in question. There is no warrant in the law for such a claim. He claims that" the partners, against whose property the attachment issued, had, as such partners, a right to appropriate the goods attached to the payment of the partnership debt, for the collection of which the attachment issued, and that this right was subject to the attachment in question, and was attached. Conceding this to be so, for a moment, still the sheriff, on a sale, could only sell what he attached, (the execution not covering any thing more,) that is, the right and interest of the partners against whom the execution issued, in the goods, together with their right of appropriation. If he undertook to sell any thing more he became a trespasser as to the partners against "whose property there was no attachment—a trespasser ab initio.

It cannot be contended that the mere levy of the attachment operates as an appropriation of the entire property in the goods to the payment of the debt, for that would be to take on a legal process issued against the property of two, the property of a third person.

If the firm was perfectly solvent, there can be no question but that the doctrine that the levy of an attachment, for a partnership debt, against the property of two members of a firm, upon sundry of the partnership goods, operated as the appropriation of the entire property to the payment of the debt, would be taking the property of the other members upon process not running against them.

If it be alleged that, by reason of the insolvency of the firm, the partners against whom the attachment was not issued had no property or interest in the goods, then, for the same reason, the partners against whom the attachment issued had no property or interest in the goods. If there was no property ox-interest in any of the partners, then the only pereons in whom such property or interest could be, would be the creditors at lax-ge. The result of this would be that no attachment or execution could be levied on property which an insolvent firm owned at the time of the insolvency, nor could such insolvent firm make an assignment for benefit of creditors. A proposition leading to this result cannot be seriously urged.

It may be said that if the two partners, against whose property the attachment issued, had paid, out of their individual funds, enough partnership debts to entitle them, on an accounting,- to have the goods adjudged to belong to them exclusively, then the attachment bound the entire property. The answer is that, on the same principle, an execution issued on a judgment against one partner, for his individual debt, would; in a like case, (there being no outstanding partnership debts,) cover the entire property, and a sale thereof would be authorized; yet the court, in the above cited Supreme Court cases, in holding that the plaintiff was entitled to recover the value of his undivided share, without regard to the state of the partnership account, necessarily held that, even in such case, the execution would not cover the entire property, and that, consequently, a sale thereof was unjustified. .

I think. it may be safely laid down, that whatever the state of the partnership accounts may be, whatever may be the state of the firm as to solvency, each partner, has a property and interest in the partnership assets, co-equal to his share in the firm, and retains such property- and interest until it is divested, by due process of law, running against him, or by some, voluntarily act of his copartners, done within the scope of the partnership.

For these reasons I have come to the conclusion that the levy of the attachment in question did not per se operate as an appropriation of the entire property in the goods, to the payment of the debt for which it was issued.

Not so operating, their assuming such right of appropriation to be attachable, and to .have been attached, the sheriff was bound to keep the right, and to sell it under the execution.

The process under which the sheriff acted only authorized him to sell the interest of the parties, against whose property the attachment was issued, in the goods attached, with their right of appropriation. Having sold the entire property, he exceeded his authority, and, by reason of such excess, became liable, as a trespasser ab initio, to the same extent, and in the same manner, as he becomes liable by an excess of authority in selling the entire property in goods belonging to a firm, on an execution issued on a judgment against one partner for his individual debt.

I have proceeded thus far, on the assumption that such right of appropriation was attachable. But I deny that it is attachable. It is not property, in any sense of the word. It is a mere right incident upon the relation of partnership, and grows out of the principle that each partner is the agent of the other in transacting the business of the firm. How, without the aid of statutory provisions, a sheriff can, by a levy under an attachment against the property of two partners, constitute himself or a purchaser- at a sale, made by him, of the attached property, an agent of those against whom-no attachment has been issued, to dispose of their interest in the property, I am unable to conceive.

In no view of the case is it withdrawn from the operation of the principles established by the above cited cases in the Supreme Court.

The counsel for the defendant Kelly, however, makes the point that, irrespective of the attachment, he is protected by the execution, because the sale to Berry was void, as being made with intent to hinder, delay and defraud creditors. The learned judge, before whom the case was tried, says the bona fides of this sale was not seriously controverted on the trial; it certainly was not seriously controverted on the argument. In fact, the evidence shows that it was bona fide.

The judgment against the defendant Kelly must be affirmed.

But the plaintiff ^has also appealed from the judgment, claiming:

1. That he is entitled to judgment against Ketchum and others.

-. 2. That he should not be limited to one third of the value of the goods, but should be allowed to recover the whole value.

3. That he is entitled to costs as against the defendant Kelly.

The first ground of appeal is based on the fact that the defendants, Ketuhum. and others, gave to the sheriff a bond of indemnity. The bond is not in evidence, and we know nothing of its contents, except as they are alleged in the complaint. The complaint alleges that the defendants, Ketchums & Belknap, indemnified and directed the sheriff to take, remove and sell all the goods, and that the sheriff, in consequence of such indemnity, did sell, absolutely, all of said goods, and not the right, title and interest therein of said Greorge Carroll and Benjamin F. Mead only. The answers of the defendants, Ketchums & Belknap do not controvert these allegations. They consequently admit that this sale of the entire property was made by their direction. They are, consequently, trespassers, as "well as the sheriff. Judgment should have been given against them.

In regard to the second ground of the plaintiff’s appeal, his counsel relies on the two cases in the Court of Appeals of, Hull v. Carnly, (11 N. Y. Rep. 501;) Manning v. Monaghan, (23 id. 539.)

In those cases the action was brought by a mortgagee, holding a chattel mortgage, the goods covered by the mortgage having been sold by the sheriff in separate parcels on an execution issued on a judgment against the mortgagor before the mortgage became due, and before the mortgagee was entitled to possession ; and the court intimates that if the payment of the mortgage debt depended in whole or in part on the efficacy of the mortgage, and if the efficacy of the mortgage was destroyed by the .manner in which the mortgaged property was sold under the execution, the sheriff, if notified of the mortgage, would be liable for the damages sustained. It will be observed that the mortgagee had a reversionary interest in the whole of the goods, and that such reversionary interest was superior to the sheriff’s right under the' execution ; it might, therefore, .well be held that the sheriff was bound to exercise his subordinate right in such manner as not to damage the superior right.

In the case before us the plaintiff bought the goods subject to the attachment on the shares of two of the partners ; his right, therefore, was subordinate to that of the sheriff. Being thus subordinate he is not at liberty to control the sheriff in the exercising of his superior right in such manner as shall be more, beneficial. Again, for the share unattached, the plaintiff has received full damages. As to the attached shares, he has no greater rights than the partners against whom the attachment issued would have had. The rights of such partners would be, in case the proceeds of sale were more than enough to satisfy the execution, to have the excess paid to them, and in case of abuse of process, to hold the sheriff liable in damages for such abuse. The complaint in this action sets forth no abuse of process further than can ,be gathered from the allegation ¥ that the goods were, sold in many parcels to many parties unknown to the plaintiff, and that it is next to impossible to follow said goods into the hands of such purchasers.”

How under section 23, article 2, title 5, chapter 6, part 3 of the Bevised Statutes, which provides, that on a sale under execution, personal property shall be offered for sale in such lots and parcels as shall be calculated to bring the highest price, the bare fact that the sheriff sold in many parcels can be an abuse of process, I am at a loss to perceive.

It may be that if the plaintiff had a right superior to the attachment and by such right was, after the sale, entitled to the possession of the goods, or to an action against the purchasers arising out of the goods, the above cited section should be made to yield, so that no unnecessary impediment should be placed in the way of pursuing the goods or bringing the action.

I am unable to see that the plaintiff has any such right of pursuit or of action. He made an absolute purchase of all the goods of the firm except those attached. As to those attached he purchased the share of the partners against whom no attachment was issued, and such interest as the other partners had in their shares after satisfying the attachment. The purchase vested .in him such shares and interest free from all claims thereon for partnership or individual debts. He stands in no position to say to the purchasers at the sheriff’s'sale, as this partnership was insolvent, you are bound either to restore the goods to be applied to the payment of parsnership debts,, pro rata, or to account for their value for the same object.

As to the third ground of the plaintiff’s appeal, although I think it somewhat doubtful whether the plaintiff is not entitled to costs, as matter of course ; yet, as my associates are are of a different opinion, and think that the costs were in the discretion of the court below, I am willing to yield my doubts to their united conviction.

Judgment affirmed as to Kelly, without costs to either party. Judgment as to the defendants Ketchum and others must be reversed and a new trial had, with costs to the plaintiff, to abide the event.