author: Johnson, J.

text:
    Jewett against Miller.
    One standing as trustee in respect to property in liis possession is not, i t seems, permitted to purchase and hold it for his own benefit, although the sale is s judicial one under a title superior to that of the trustee or the cestuis que trust.

    The receiver of an insolvent bank holding in that character the equity of redemption in other mortgaged premises and purchasing them at a sale under the foreclosure of the mortgage, holds them for the benefit of the cestuis que trust, who may elect to adopt the purchase or demanda resale. The rule is entirely independent of the question whether in fact any fraud has intervened. Its policy is to avoid the necessity of such an inquiry in which justice might bo baffled.
    Where a receiver held a mortgage as part of the trust estate and became the purchaser of the mortgaged premises under the foreclosure of a prior mortgagqjfor his own account and benefit, but afterwards advertised the junior mortgage for sale as a part of the assets of the trust, and upon the sale informed the purchaser of all the facts: Held, that such purchaser could not avail himself of the equitable estoppel, which, as against a person who had actually been misled, would have prevented the receiver from setting up that he held the title under the foreclosure of the elder mortgage otherwise than as security for the advances made by him to obtain it.
    An equitable estoppel never takes place where one party did not intend to mislead and the other party is not actually misled.
    Appeal from the supreme court. Abram Cook and wife executed a mortgage dated February 1, 1840, to secure 810,000 of property, known as the Plainville Mills, of which mortgage the Wayne Comity Bank became the owner. The bank had previously held an elder mortgage of the same property as security for $10,000, which it bad assigned to the people of the State of New-York to secure a loan made from the canal fund. The Wayne County Bank becoming insolvent, the defendant Mil.ev was, in February, 1841, appointed receiver of its assets. He ascertained that the mortgagors in both the mortgages were insolvent, that the premises were an insufficient security and, with a view of getting into possession, took from Cook and wile a conveyance of the equity of redemption to himself as receiver, dated August 2S, 1841.
    The attorney-general filed a bill for the foreclosure of the elder mortgage, making the receiver, with others, parties, and obtained the usual decree; at the sale, under this decree, the defendant Miller became the purchaser, in his individual capacity, for $2850, and received the master’s deed, dated December 1, 1842. Miller leased the premises to one Holmes, who went into possession, and considerable repairs were made upon the property.. In May, 1845, Miller, as receiver, advertised for sale at public auction, to take place at Rochester, July 23, 1845, all the assets of the Wayne County Bank. The advertisement professed to describe “ the principal items ” of such assets, and among them enumerated as No. 83, “ 1840, February 1, bond and mortgage of this date for $10,000, made by Abram Cook to John Gr. Williams, and assigned by him to Wayne County Bank, on the Plain vil le Mills property, situate, &c., which mortgage is recorded,” &c. The advertisement concluded with the statement that the several items would be sold “ subject to any lien or incumbrance, charge or interest whatever, which may exist, due to any person other than said bank or said receiver.” At the sale which was conducted by an auctioneer, item No. S3 was struck off for $5 to some person who disavowed the bid, and it was put up again when Jewett, the plaintiff, became the purchaser for $6.50. During the biddings some one remarked that the property covered by the mortgage had been sold under a prior mortgage. The plaintiff inquired of the receiver if that was the fact, and was then informed by Miller that there had been a foreclosure and the property had been sold by the attorney-general. The plaintiff inquired the name of the attorney-general, and said, laughingly, “if it was-(naming a former attorney-general) I will bid, for he never did anything right.” He inquired, either immediately before or immediately after making the final bid, who was the purchaser under the foreclosure, and was informed by Miller that he (Miller) had purchased, and the price at which he bought. Jewett remarked that Miller, as a trustee, had no •right to purchase, and that he (Jewett) had a right to redeem from him. There was considerable merriment among the bystanders during the discussion and the bidding on this item. Immediately after the sale, Miller, as receiver, executed a paper assigning and relinquishing to Jewett all the interest of the Wayne County Bank in the bond and mortgage. '
    On the 2d August, 1845, Jewett proposed to Miller to sell his interest in the bond and mortgage for $3000 ; and in case he should decline to purchase, offered to refund to Miller the amount he had paid upon the foreclosure of the prior mortgage, deducting the rents and profits which had been received. Miller refused to purchase Jewett’s interest aft any price; denied his right to redeem or call him to account, but offered to sell the property for $5000. Jewett therefore commenced this action for an accounting, and that he should be permitted to redeem. The cause was heard on pleadings and proof before Whittlesey, vice-chancellor of the eighth circuit, who made a decree dismissing the bill without costs to the defendant. Both parties appealed, and the appeal was heard by the supreme court at general term, in the -seventh district, when judgment was rendered, affirming the decree of the vice-chancellor. The complainant appealed to this court.

      Nicholas Hill for the appellant.

      B. Davis Noxon for the respondent.
   Johnson, J.

When Miller purchased the premises in question at the master’s sale, December 1, 1842, he was receiver of the Wayne County Bank. The sale was made ion the foreclosure of a mortgage made by one Williams, then the owner of the premises, to Minot C. Morgan and others, dated October 15, 1838, which mortgage was assigned first to the Wayne County Bank by Morgan and others, and afterwards by the bank to the people of the State of New-York as collateral security for moneys borrowed by the bank from the canal fund. After this last assignment Williams sold the premises to the defendant Cook, who gave his mortgage for the purchase money, and this mortgage was assigned by Williams to the bank as security for a debt due by him to the bank. On the 28th August, 1841, as receiver of the Wayne County Bank, Miller procured a quit-claim deed of the premises from Cook and wife. Miller then, as receiver, had the right to redeem the mortgage assigned as security to the state, and also the general equity of redemption by the quit-claim from Cook and wife. Thus situated upon the foreclosure by the state, he became the purchaser of the premises. It is contended on the part of the defendant Miller, that his case is out of the general rule which forbids a trustee to purchase on his own account the trust property, upon the ground that the sale in this case was a judicial sale, made under a decree against the trustee, and based upon a title paramount to the title of the trustee, and to the interest of the cestuis que trust. That this is not the rule was adjudged in the case of Van Epps v. Van Epps (9 Paige, 237); Iddings v. Bruen (4 Sandf. Ch. R., 263). It is hardly possible to state the rule of equity too broadly or too strongly. It will not permit a trustee to subject himself to the temptation which arises out of the conflict between the interest of a purchaser and the duty of a trustee. It was Miller’s duty, as receiver, to make the property bring the largest possible price; but as purchaser this was not his interest. The rule is entirely independent of the question whether in point of fact any fraud has intervened. It is to avoid the necessity of any such inquiry, in which justice might be baulked, that the rule takes so general a form. After the purchase by Miller, it follows that his cestuis que trust had the right either to demand a resale of the property or to adopt his purchase as made for their benefit, subject of course, in the latter case, to his lien for advances. (Slade v. Van Vechten, 11 Paige, 21.)

The next question which arises is, whether the plaintiff is in such a position as to have acquired the rights which belonged to Miller’s cestuis que trust, the Wayne County Bank and its creditors.

It is quite plain that by Miller’s assent arid the assent of the cestuis que trust, this purchase, however originally intended by him, might become a purchase on account of the cestuis que trust. I think there can be no better evidence of such an assent, in favor of a purchaser who has been led to rely upon his acts, than is to be found in the fact that Miller himself, acting on behalf of the other parties whose assent was necessary, offered for sale at public auction on formal notice, a bond and mortgage which had no efficient existence and was not a lien upon the property which it professed to bind, unless such assent had been given. To suppose any other intent in Miller as to a purchaser so situated, is to assume that he intended to be guilty of a fraud; and this the law will never suppose when the conduct of a party can be explained consistently with innocent intentions.

Unless, therefore, the complainant became a purchaser of the bond and mortgage .under such circumstances of notice as to be unable to invoke the aid of the principle of equitable estoppel, I see nothing in the other facts of the ease which can hinder its application. (Heard v. Hall, 16 Pick., 457.) It is Miller alone who sets up the former purchase as having enured to his private benefit, and against him the complainant’s case is complete, provided he was actually defrauded. It is hardly necessary to say that equitable estoppel never takes place, unless the party seeking to avail himself of the estoppel has been actually misled. It is not sufficient that lie might have been misled, if in point of fact he has not relied upon the acts or representations of the other party. The doctrine is highly equitable in its nature, and is never available to enable a party to gain an advantage upon the unfounded ground that he has been defrauded. It is upon this ground.of equitable estoppel that the plaintiff must succeed if he succeeds at all; for clearly the legal right is with the defendant, apart from the effect of the estoppel. Now it may be conceded that if the transaction at this sale had come in question in an action at law, for not completing the contract of "sale, the printed particular or terms of sale could not have been varied by any declaration of the auctioneer after the biddings were begun, according to Shelton v. Livius (2 Cromp. and Jer., 411), though the case of Gimáis v. Erhart (1 H. Bl., 289) does not go quite so far, the couri there holding such evidence to be inadmissible where the offer did not extend so far as to bring home to the party any particular personal information. The case of Livingston v. Byrne (11 J. R., 555) decides nothing upon the point, for neither was the fact of notice in issue in the cause, nor did the evidence bring home any notice to the party; but, on the contrary, had the question been material, the court must have determined upon the evidence that no notice was given. The question in this case seems to me more nearly to resemble that which would arise on a bill for a specific performance where the bidder had been misled by parol declarations of the auctioneer variant from the printed particulars, and a performance was sought against him according to the printed particulars. In such a case, parol evidence, though confessedly inadmissible at law, would be admissible in equity as a defence against the performance asked for. (Townshend v. Stangroom, 6 Vesey, 328; Gillespie v. Moon, 2 Johns. Ch., 585.) Now the written assignment under which the plaintiff makes title is not of itself sufficient to maintain the right which he seeks to enforce, because it does not of itself serve to countervail the title of the defendant. The plaintiff needs the aid of the principle of estoppel in pais to enable him to succeed. What then is his position in point of fact as to the question whether he was in any way misled by what took place upon the sale? In my judgment, he was as well aware of the facts in the case at the time when his bids were made, as he was when he wrote the letter to Miller which was given in evidence. It is not entirely easy to say what Miller’s precise purpose was in describing the security in question, as he did in the notice of sale. That it was not fraudulent in fact appears plainly in every part of the case. The general mirth which prevailed at the sale when this item came to be offered, the fact that after being struck off at less than $5, and being refused by the bidder it was again put up ; the entire frankness of Miller’s declarations, when interrogated at the sale, as to the facts connected with his purchase, irresistibly compel my mind to the conclusion not only that Miller intended no fraud, but that the company present at the sale universally understood that whatever Miller’s purpose was in making the sale it was not to give to the purchaser a mortgage of $10,000 on the property. He probably meant merely to close his account as receiver with this security, by the sale, giving to the purchaser the title to the bond of Cook; and this, I think, was understood to be his purpose. That the plaintiff was aware of the facts and did not suppose that Miller intended to abandon his own purchase in favor of the purchaser of the bond and mortgage is, I think, satisfactorily' shown by his own conversation at the sale. Before the property was struck off, in the banter of the auction room, while the company were seemingly highly amused at his being a bidder, his language conveyed the idea that he was bidding upon the probability of some technical error, in the process of foreclosure, committed by the attorney-general. When the property was struck off he at once took the ground that Miller could not at the time be the purchaser. It is plain from the evidence that the complainant became the purchaser on this very ground, and for the express purpose of acquiring the right to overhaul Miller’s purchase. This, he might lawfully do. He had a right, if he chose, to buy for that purpose. He was right as to Miller’s purchase being impeachable, but he was wrong in supposing that he could, by buying the bond and mortgage at the sale, acquire the right to impeach Miller’s purchase. That he could only acquire by being misled, so as to be able to avail himself of an estoppel in pais against Miller. That he was not misled and has no case for such an estoppel against Miller, is apparent from the fact that he became the purchaser with the purpose of availing himself of such an estoppel. In conclusion, I think it apparent that Miller intended to deceive no one, and did not intend either to hold his own title for the benefit of the purchaser of the bond and mortgage at the sale, or to have any one suppose that he so intended, and that the plaintiff bought with full knowledge of the facts and was in no particular misled, except in the idea that so purchasing he could acquire the right to overhaul Miller’s purchase.

The judgment below should be affirmed with costs.

Ruggles, Ch. J., Wells, Watson and Morse, Js., concurred ; Jewett, J., did not sit in the case and Gridley, J., was absent.

Judgment affirmed.


source: Caselaw Access Project

license: Public Domain

text:
    Gardner against Board of Health of the City of New York.
    The Boai'd of Health of the City of New-York, as consiituted under R. S., Part 1, Ch. XIV, Titles 1-5, is not a corporation capable of suing or being sued in a collective name.
    Appeal from the superior court of the city of New-York. Action against the Board of Health of the city of New-York co nomine for services rendered by the plaintiff as a physician during the prevalence of the cholera in the summer of 1849. The trial was before a referee, who found that the Board of Health of the city of New-York was composed [by virtue of an ordinance passed by common council ] of the persons holding the offices of mayor, aldermen and assistant aldermen of the said city, and was a distinct and separate body from the mayor, aldermen and commonalty of the said city and from the common council thereof, having a different organization, holding separate meetings, exercising different powers, having a clerk of their own and keeping separate minutes of their proceedings. He found the other facts necessary to charge the defendant, and upon his report judgment was entered for the plaintiff for $462. On appeal the judgment was reversed, and the complaint dismissed at general term, and the plaintiff appealed to this court.

      J. M. Martin for the appellant.

      Henry E. Davies for the respondents.
   The judgment was affirmed upon the ground stated in the court below by the late Chief Justice Oakley, as follows:

By the court, Oakley, Ch. J. This action is brought against the Board of Health eo nomine, treating them as a corporate body. The first question which arises is, is this board such a corporation. A very extended argument was gone into on both sides, as to the character, power and duties of the board. It is an old institution, but it received a separate and distinct organization by the Revised Statutes of 1830. Under this the common council had the power of appointing the members of the board, and by an ordinance for that purpose it was declared that it should be composed of the aldermen and assistant aldermen of the city. We cannot find that this board is anywhere created a corporation by express terms of law, nor can we perceive that it has any of the features of a corporate body. It has no succession — no seal and no funds. It is organized by the city corpora-

tion under the laws of the state, and may be changed as to its number at the pleasure of the common council.

The counsel for the plaintiff has pressed upon our notice a class of cases, under which, it is contended, this board may be considered as a quasi corporation ; and it has been likened to the cases in which suits have been brought by and against overseers of the poor. But in all such cases the actions are instituted against the individuals themselves, describing them by their name of office, and not against them as a corporate body. We also are referred to a section of the statute, the purport of which is that no action brought by the Board of Health, and by overseers of the poor, shall abate by reason of the death of any one of its members; and it is said that if the board can sue, it is to be inferred that the legislature clearly contemplated they could also be sued. We think this clause of the statute is misunderstood. If it were intended to authorize the board to sue as a corporation, in its corporate name, the provision that a suit should not abate by the death of any one of its members is entirely senseless and unmeaning. That can only apply to actions brought in the names of the individuals composing the board, and in this respect the board is like the overseer's of the poor who must always sue in their individual names. Our conclusion is, therefore, that no action can lie against the board as a corporate body.

The judgment must be reversed and the complaint dismissed.

All the judges concurring.

Judgment affirmed.


author: Edmonds, J.

text:
    O’Donnell and Clark against Kelsey.
    Where a grant is made by the state to riparian owners upon an irregular waterfront, of the land under water to a certain distance'from the shore, and an apportionment of the land so granted is afterwards made upon a basis not strictly correct, and one of such proprietors has made improvements, laid out streets and lots and executed conveyances according to such apportionment during a less period than twenty years, he will be held to have acquiesced in such apportionment so far that he cannot claim a new partition upon technically correct principles.
    As such acquiescence does not act merely as an estoppel, it is not necessary that the party seeking to take advantage of it should have been induced, by the conduct of the party acquiescing, to make improvements according to such apportionment.
    [The rule of partition for lands formed by alluvion laid down by Edmonds, J.]
    In November, 1833, the defendant Kelsey and Anson Blake purchased a tract of land in the city of Brooklyn, lying directly on the shore of the East river and principally valuable for its water-front. They thus became purchasers for themselves and others who were interested with them, in whose behalf they executed a declaration of trust.
    In 1836 the legislature passed a law authorizing Kelsey & Blake and other riparian owners, on the same shore on both sides of them, to dock out a certain distance into the river.
    In 1851 another statute was enacted, altering the outer line in front of Kelsey & Blake, and others who owned south of them, and permitting them to dock out still further.
    The shore at the upland had many variations and sinuosities where it came down to the water, but the outer or water line, as granted by the legislature, was straight in front of the lands conveyed to Kelsey & Blake, and indeed the whole of the distance granted, except a change in its direction at a point directly in line with the northern boundary of their premises. That boundary in their deed was the centre line of Butler-street (afterwards Harrison-street) and that variation in the water line was at a point made by the prolongation of that centre line into the river.
    Under an act of the legislature commissioners were appointed to lay out Brooklyn into streets, squares and avenues, and those commissioners laid out streets, &c., over these premises of Kelsey & Blake, and over the lands of the owners on both sides of them.
    Kelsey & Blake laid out their premises into lots and streets, according to the general plan of the commissioners, and in doing so, included the lands under water in front of their premises taking the centre line of Harrison-street as it was prolonged into the river as their northern boundary, and adopting as their southern line one parallel to it.
    The other riparian owners divided the lands under water among themselves upon the same principle, taking the line of the public streets as their basis and appropriating to themselves the lands that came in front on this basis.
    Kelsey & Blake conveyed to their cesluis que trust the shares belonging to them, and released to each other each one’s share, as agreed on partition among themselves. On such partition the deeds all assumed the same basis as to the land under water.
    The various riparian owners went on and made improvements on the lands under water agreeable to this settlement of their respective interests, and among others Kelsey filled up some of the lots in front of his upland upon the same basis.
    Afterwards Kelsey claimed that he was entitled to have his share of the land under water set off to him on the basis of a line running at right angles with the outer or water line as granted by the statute, or the basis of a line running at right angles with the shore, either of which would have carried his line under water to the north of the centre line of Harrison-street and in front of a lot belonging to the plaintiffs, who owned adjoining him on the north, and thus cut them off entirely from a water-front, or compelled them in the same manner to run their line angularly in front of the land next above them.
    The plaintiffs filed their bill in the late court of chancery, in the year 1846, to have their rights settled, and to compel the defendant to acquiesce in the general settlement thus made or acquiesced in by all the riparian owners interested in the whole grant from the state. The superior court of the city of New-York, to which the cause was afterwards transferred, granted the prayer of the complaint (4 Sanaf. S. C. R., 202), and from this judgment the defendant appealed.

      John C. Spencer for the appellant.

      Murray Hoffman for the respondents.
   The opinion of the court was given by

Edmonds, J.

The several grants from the state in 1836 and 1851 were of land under water in front of uplands belonging to several different riparian owners. The grants were to certain persons specifically named in the acts, and not to them as riparian owners, and gave them authority to erect bulkheads and wharves out to certain lines therein described. It does not appear from the case whether the persons named in the statute were the riparian owners, nor whether they were to take as such the land granted. The case, however, throughout treats the question as one between riparian owners and settling riparian rights, and probably ought so to be regarded by us; though we have no certain means of knowing that it is so. At all events, as at present advised, it seems to me proper to look at it in that point of view only.

The true mode of dividing the land under water thus granted was to assume the water line established by these acts of the legislature as the base; and as it had in it one indentation, namely, that at the extension of the central line of Harrison-street, the true base should be ascertained by drawing a line between the two extreme points of the grant, in the general direction there given, and so as to equalize the quantity of granted land on both sides of that line. Adopting this as a base, each riparian owner is to have his proportion of the outer or water line according to the length of his shore line. Thus, as the whole shore line is to the whole water line, so is each one’s share of the shore line to each one’s share of the water line.

It may be necessary for practical purposes that slight indentations in the shore line should be disregarded, and a general line of the shore adopted. But it is unnecessary to consider that here, because that would affect quantity more than it would the exterior lines of each proprietor, and would not be material or necessary in determining the questions involved in this suit.

The doctrine as to lands formed by alluvion is well applicable in principle to the case in hand. That is laid down in Angelí on Tide Waters, 258, thus: “ Measure the whole extent of the line on the river and ascertain how many feet each proprietor owned on this line ; divide the newly formed line into equal parts and appropriate to each proprietor as many of these parts as he owned feet on the old line, and then draw lines from the points at which the proprietors respectively bounded upon the old to the points thus determined as the points of division on the newly formed line.” This rule is to be modified under particular circumstances; for instance, if the ancient margin has deep indentations or sharp projections, the general available line on the river ought to he taken, and not the actual length of the margin as thus elongated by the indentations or projections ; and he cites a work of the civil law entitled “ Collection of New Decisions, by Deesart;" Deerfield v. Arms (17 Pick., 41); Sparhawk v. Bullard (1 Metc., 95).

Now whether that base be taken, or the general line of the shore be adopted ■ as the base, it is evident that the defendant’s lines would run in the direction he claims and not in the direction claimed by the plaintiffs. Not in precisely the same direction in both instances, but sufficiently so to defeat the plaintiff’s claim. Then the question recurs, for what reason should we depart from these principles, or one of them ?

One reason given is, because all the riparian owners are not parties to the suit, .and neither principle can be carried out without them. That may be a good reason for dismissing the bill for want of parties, or staying the hearing until the necessary parties can be brought in, but is not a good reason for deciding the case upon wrong principles.

Another reason is, that if the defendant and his associates have their full quantity of front, they cannot be allowed to disturb the settlement made by the other proprietors for the sake of establishing a boundary based on an abstract rule. I cannot acknowledge the force of this objection. For the defendant may have a right to the application of the abstract rule of which he cannot be deprived by settlements of others to which- he was no party, and that abstract rule may give him a particular location of great value which cannot be satisfied by giving him his quantity of less value elsewhere.

Another reason is, that he has acquiesced in those settlements by others, and therefore ought not now to disturb them. This, it seems to me, is the important question in the case; and upon this point alone, if any, is he to be precluded.

The settlement thus referred to, took the line of the streets as the basis and gave to each one the front under water marked out according to those lines. Thus the defendant, instead of running diagonally across Harrison-street and taking in the lands under water claimed by these plaintiffs, and perhaps also those claimed by Johnson and by Wood and Havermeyer, as he now claims, would run out parallel with the centre line of Harrison-street, being the location which the plaintiffs insist ought to be adopted.

This would undoubtedly, as was suggested, be more convenient to many of the parties and not give rise to the disturbance and litigation which might flow from the opposite course ; but still the dread of those consequences must not control our decision, unless we can find in the evidence that it has influenced the defendant in bringing about his alleged acquiescence which we are now to inquire into.

It is a conceded fact that the defendant has laid out his land, as well under water as his upland, according to the line of the streets, and thus has taken to himself, as his front, the land under water in front of him according to those streets, and not according as he now claims; and he has conveyed and improved accordingly. In the complaint it is alleged that he did this in execution of the division of the land under water, to which all the proprietors had agreed. In the answer he denies that it was done for any such purpose, but merely for the purpose of dividing his lands into streets, squares and avenues, agreeable to the laying out of streets, &c., made by the commissioners appointed for that purpose.

But there are two important considerations which tend to show that the allegation of the complaint in this respect must be true. One, that he has included in his map, in his improvements and in his conveyances, land under water, to which he would have no title, if his present claim is allowed, and to which he has title only by reason of his acquiescing in the settlement to which it is now sought to confine him. The other is, that he has allowed other parties claiming according to that settlement to occupy, improve and build on the land which he now claims and to which those other parties would have had no right, if his claim is allowed, and their right to which is founded on that settlement alone.

It is true he may not be estopped as regards these plaintiffs from setting up bis claim against them, because they have not been induced by his silence to make any improvements ; but though these acts of his may not work an estoppel against him, they may be properly referred to as pretty strong evidence of acquiescence.

There is another consideration connected with this which is entitled to some weight, and that is, that all the other riparian owners have taken their respective shares according to this settlement and without any objection on his part; So that there is just enough of the land under water left to answer the call of both the parties to this suit, provided it is to be taken according to the principles of that settlement; and now, by allowing the defendant his present claim, he cuts off the plaintiffs entirely from any water-front on one of his boundaries, and on the other takes to himself land which the proprietors on that side have abandoned to him in execution of that settlement, and to which otherwise he would have no right.

' Now it may be, for aught that we can see in this case, that all the other proprietors are fixed and settled in their respective rights, as to each other and as to the defendant, and to allow his present claim would enable him to claim the advantage of the settlement by reason of his agreement to it as a party to it, and on the other hand to repudiate it, and thus enjoy the advantage of both sides of that question. It may be that he has a right to such consequences, but I refer to them to show the probability of his acquiescence, which I am now seeking for.

It would be difficult to conceive that the defendant did not know of and acquiesce in the settlement. He was a large owner of the adjoining shore in his own interest and in trust for others; he is named in the statute with others as the grantee of the water rights. He saw those others proceeding to partition among themselves; he made partition with his co-owners upon the same principle. He laid out his lands into streets and lots upon the same principle, and gave and received deeds, that fully carried it out, and thus. publicly to all the world proclaimed his assent to it, and he appropriated to himself lands to which he had no right, except what he derived from that settlement. The case therefore seems to me that of two adjoining proprietors who settle by agreement among themselves the dividing line of their respective lands, and for sometime act accordingly; and in such case neither party is at liberty to depart from the arrangement.

It is upon the doctrine of acquiescence in the dividing line between adjoining estates, and not upon that of estoppel or adverse possession, that I think the defendant is barred of his present claim, and it seems to me that his acquiescence may well be presumed from his various acts as detailed in this case.

The doctrine of acquiescence is well recognized in the law as an admission- by the party. But to have that effect, it must exhibit some act of the mind and amount to voluntary demeanor or conduct of the party, and whether it is acquiescence in the conduct or language of others, it must plainly appear that such conduct was fully known or the language fully understood by the party, before any inference can be drawn from his passiveness or silence. But where those ingredients are found the acquiescence becomes as binding as any other admission of a party. (1 Green. Ev., 6, 197.) Thus the entry on an account-book against a particular person, or making out a bill of parcels in his name, is an admission that the goods were furnished on Ms credit. (Storr v. Scott, 6 Carr. and Payne, 241.) So where A pointed out one-fifth of certain property as belonging to the defendant in an execution, A owning the other four-fifths, he is to be regarded as admitting the ownership of the one-fifth. (Stephens v. Baird, 9 Cow., 274.) So where a man declared to be a bankrupt introduced his assignee to an auctioneer, he is concluded from denying his bankruptcy. (Clarke v. Clarke, 6 Esp., 61.) To the same effect are Morgans v. Bridges (1 Barn. and Ald., 650); Williams v. Lownders (1 Hall, 579); Davenport v. Wheeler (7 Cow., 231); Jackson v. Vedder (2 Caines, 211); Welland Canal Company v. Hathaway (8 Wend., 483); Phillips v. Hall (8 Wend., 610).

It is upon this principle that I am of opinion that the judgment ought to be affirmed.

Rüggles, Oh. J., and Gardiner, Johnson, Welles and Watson, Js., concurred. Jewett, J., did not hear the argument.

Judgment affirmed.


text:
    Pugsley against Kisselburgh.
    Where the defendant, in an action brought before a justice of the peace for trespass upon lands interposes a plea of title, and an action for the same matter is thereupon commenced in the supreme court, it seems that no reference need be made in the pleadings to the proceedings before the justice.
    An appeal does not lie to the court of appeals from the judgment of the supreme court in such action.
    Where the record does not show that the action was originally commenced in a justices’ court, that fact, on a motion to dismiss the appeal, may be shown by affidavit.
    The plaintiff commenced a suit in October, 1848, against the defendants before a justice of the peace of Columbia county, and complained against them for breaking and destroying his fences and entering upon and injuring his lands, and crops growing thereon. The defendants in their answer justified the entry, alleging that they were commissioners of highways of the town where the premises entered upon were situated, that the premises were of right a public highway, but had been enclosed and the highway obstructed by the plaintiff, and that the acts complained of were done by them in removing such obstructions, and repairing the highway. The plaintiff replied, denying the facts alleged in the answer. The defendants delivered to the justice, with their answer, an undertaking, such as is required by the statute where the title to lands is put in issue before a justice of the peace, which was approved by the justice; and thereupon a suit was commenced by the plaintiff against the defendants in the supreme court for the same cause of action, and issue was joined upon pleadings similar to those which were filed with the justice. The issues were tried in June, 1849, at the Columbia circuit, where the plaintiff obtained a verdict for $25, upon which judgment was subsequently entered. A motion for a new trial was denied by the supreme court, and the defendants appealed to this court. The record set forth in the return, and in the printed case before this court contained no reference to the proceedings before the justice.

      K. Miller, for the respondent,
    on affidavit showing the foregoing facts, moved to dismiss the appeal.

      J. H. Reynolds, for the appellants,
    opposed the motion.
   Johnson, J.

From the cases of Brotherton v. Wright (15 Wend., 237), and The People v. the Albany Common Pleas (19 Wend., 123), it appears not to be necessary that the record should show the identity of the suit in the common pleas with that begun in the justices’ court; for although it did not in those cases appear from the record the suits were regarded as continuations of those commenced in the justices’ courts. If this be so, then unless we are prepared to reject the authority of Brown v. Brown (6 How. Pr. Rep., 320,) in this court, we must look into the motion papers to see whether the suits are thereby shown to have been commenced in justices’ courts. If they appear to be so situated that in the supreme court the plaintiff on recovering less than $50 would be entitled to full costs against the defendants, even if title did not there come in question, then, I think, under the case of Brown v. Brown, we must hold them to have originated in a justices’ court In this case it plainly appears from the affidavits that the cause did, in the sense of the rule, originate in a justices’ court, and therefore the appeal must be dismissed.

Motion granted, with $10 costs.


author: Gardiner, J.

text:
    Van Winkle against Constantine.
    The decision in Constantine v. Van Winkle ( 6 Sill, 177,) that the deed of a married woman in conjunction with her husband, executed in 1760 to a purchaser who was in possession when the act of February 16,1771, “ to confirm certain ancient conveyances,” was passed, is valid and operative against those claiming under the wife, though she had never acknowledged it in any form, re-affirmed as well upon the authority of that case as upon an examination of tlie subsequently discovered evidence in respect to the colonial laws and usages.
    This court will not reverse a decision of the court of last resort adopting an opinion long prevalent, sanctioned by the courts, acquiesced in by the profession and which had become to some extent a rule of property, although it should be satisfied that the assumption of a repeal of a colonial statute, upon which the decision proceeded, has been disproved as a matter of fact.
    Appeal from the superior court of the city of New-York. Ejectment for a lot on Ful ton-street. It was admitted that Jane Van Winkle, from whom both parties claimed to deduce their title, was seised in fee of the premises, on and before May 5,1760. She was the wife of John Van Winkle, and on the day last mentioned joined with him in the execution of a deed of the lot to Jacob Van Winkle, under whom the defendant claimed. This deed is set out in full in the report of this case under the name of Constantine v. Van Winkle (6 Hill)
      178), (where a new trial was ordered) except that the covenant for quiet possession in the deed, as proved upon the trial now brought up for review, was in these words: “ and the said John Van Winkle and Jane, his said wife, for themselves, &c., do covenant and grant,” &c., while in the report in 2 Hill the words are stated to be “grant and grant.” The deed was not acknowledged, but was proved on the trial by evidence of the death of the two subscribing witnesses, and of the genuineness of their signatures. The only questions of interest were whether the deed was in form sufficient to convey the estate of the wife, and whether it was valid and operative to bind her without an acknowledgment. These were raised by exceptions to the judge’s charge affirming both propositions, in accordance with the decision of the court of errors.
    The defendant had a verdict and judgment which being carried by writ of error to the supreme court, was there affirmed, and the plaintiff appealed to this court.

      Davi Dudley Field, for the appellant,
    argued that the decision of the court of errors in 6 Hill, 178, was based upon errors in law and in fact, and that it was therefore the duty of this court to examine the questions de novo. One error was in the assumption that the word covenant was not contained in the covenant for peaceable possession. A typographical error occurred in substituting “ grant and grant,” in the printed error book for “ covenant and grant” which appear in the original paper on file in the clerk’s office. Another was that the court of errors acted upon the belief that the three statutes of the province, concerning the acknowledgment of deeds, which, as he contended, were in force on the 5th of May, 1760, viz., the Duke's Laws, published March 1, 1665; the act of November 2, 1683, and that of October, 22, 1684, were abrogated by the first colonial assembly held after the revolution of 1688 (6 Hill, 181, where the provisions of the several statutes are stated). Since that decision the researches of Mr. Brodhead, the agent of the state for that purpose, among the colonial documents in the British state paper offices, have brought to light what the plaintiff contends is evidence of the ratification of these statutes, and takes them out the operation of the rescinding resolution of 1691, that “ all the laws consented to by the general assembly under James, Duke of York, and the liberties and privileges therein contained, granted to the people and declared to be their rights, not being observed and not ratified by his royal highness nor the lute king, are null and void,” &c. One of the evidences of such ratification is in the instructions of the Duke of York to Governor Dongan, accompanying his commission in 1692, that the laws then in force (to wit, the Duke’s Laws), “ be continued until abrogated or changed in such manner as is above directed.” (Documents relating to the Colonial History of the State of New York, vol. 8, j>. 334.) Another is the instructions sent by James, after his accession to the throne in 16S5, to Governor Dongan, with his new commission, by which, after repealing and disallowing the charter of liberties of 1683, which declared that no estate of a feme covert should be sold or conveyed but by deed acknowledged by her in some court of record upon secret examination as to her voluntary execution, the king proceeds:
    “ § 13. And our further will and pleasure is, that all other laws, statutes and ordinances already made within our said province of New York shall continue and be in full force and vigour so far forth as they do not in any wise contradict, impeach or derogate from this commission or the orders and instructions herewith given you, till you shall, with the advice of our council, pass other laws in our name for the good government of our said provinces, which you are to do with all convenient speed.” (Documents relating to Colonial History, vol. S, p. 370.) On the 14th November, 1689, William and Mary commissioned Colonel Henry Sloughter as governor of the province of New-York, with instructions to govern the colony “ according to such reasonable laws and statutes as now are in force or hereafter shall be made, and agreed upon by you with the advice and consent of the council and assembly of our said province.” ( Doc. rel. to Col. His., vol. 3, p. 623.)
    The decision of the court of errors being thus found to be in direct conflict with a statute of the state, must be regarded as inadvertently made and should be • overruled or vacated.

      Edward Sandford for the respondent.
   Gardiner, J.

When this cause under the title of Constantine v. Van Winkle was before the court for the correction of errors, two questions were adjudicated, first that the deed of John Van Winkle and Jane, his wife, to Jacob Van Winkle of the 5th of May, 1760, was in form sufficient to convey all the right, title and interest of the grantors; and second, that it was valid and operative, without the acknowledgment of the wife ,to bind her and of course those subsequently claiming under her. It has been said that the copy of the deed submitted to the court of errors was different from the one produced before us in this, that the former contained in the covenant for quiet enjoyment, the words “ grant and grant,” instead of the phrase “ covenant and grant,” found in the latter. There are two answers to this suggestion: First, if there was a mistake in the copy before the court of errors, in any matter material, it must have been known to the plaintiff or his counsel, and should have been then corrected or noticed; and that in the absence of all evidence upon the subject, we must presume that plaintiff adopted all requisite measures to protect his own interest. Or, second, if the mistake was wholly immaterial, and of this I have no doubt, no correction was necessary; and as the plaintiff could not have been prejudiced in that court, he should not derive a benefit from the error in this.

Again, it is argued that the decision in the court of errors is not conclusive upon the question of acknowledgment, because it was made upon the erroneous supposition, that the laws known as the Duke’s Laws, established as early as 1665, and the acts of 1683 and 1684 were repealed, while in fact they were all in force in 1760, the date of the deed in question. It may be answered to this view, first, that if the supposition is well founded, the court for the correction of errors were mistaken as to the law, and this reason might be assigned in every case where the unsuccessful party sought to review an adjudication pronounced upon deliberation and after a full argument.

We do not mean to be understood there can be no case in which an error in the judgment of the court of last resort, arising from a misapprehension upon the part of the court and counsel as to the existence of a statute, would not be corrected in the same cause, by the same court or those who had succeeded to its authority.

But the error must be manifest; not the mere adoption of an opinion long prevalent, which had been sanctioned by the courts and acquiesced in by the profession, and which had to some extent become a rule of property.

It is only necessary to refer to the facts, that the laws now relied upon as having been overlooked, are not found in any edition of the Colonial Laws, ^and that in Jackson v. Gilchrist (15 J. R., 89, decided in 1818), it was held that, so late as 1711, there was no charter or statute regulation on the subject of acknowledgments by femes covert, to demonstrate that this case does not fulfill the conditions above suggested.

Again, the documentary evidence said to have been discovered since this cause was before the court for the correction of errors, has led me to the conclusion that the court was fully justified in adopting the prevalent opinion that those laws were not in existence when this deed was executed. In the first place, these laws are utterly inconsistent with each other, if with the appellant, we suppose that they all were intended to include conveyances by deed executed by married women.

The Dulce's Laws of 1665 require the grant to be acknowledged before a justice of the peace and recorded, to render it effectual in the cases there specified. The act of 1683 provides that no estate of a feme covert should be conveyed but by deed acknowledged in a court of record, the woman being secretly examined. At the same session the legislative assembly enacted that no grants should be of any validity, unless acknowledged or proved before a justice and recorded. The act of 1684 required delivery of possession of a part or the whole of the premises, and a deed acknowledged and recorded as directed by the act of 1683, within one year, to give validity to the conveyance. Married women, it will be perceived, are not alluded to in terms, except in the act of 1683. The several ordinances, it will be perceived, are restrictive, not enabling in their character. The laws of 1665 and 1684, cannot be applied to married women, except upon the hypothesis that they could previously alienate their real estate in the same manner as other grantors; and the phraseology of the charter of liberties, restricting future conveyances, implies the same thing. That this custom would sanction this conveyance, especially since the act of 1771, was held in this case in the court of error's. The appellant is bound to show the usage modified or abrogated by the existence and provisions of-some one of the laws first above mentioned. Now in 1685, after the Duke of York became King of England, the charter of liberties was disallowed; and in the instruction to Governor Dongan, it was provided that “ the other statutes and ordinances, already made within our province of New-York, shall be in full.force, so far as they do not in any wise contradict, impeach or derogate from the commission, or the instructions accompanying it, until you shall, with the advice of our council, pass other laws in our name, which you are to do with all convenient speed.” No ordinances were to be continued, except such as did not in any wise contradict at or derogate from the instructions, &c. Now by these instructions, a provision in the charter of liberties upon the subject of acknowledgments in courts of record, by married women, was disallowed. It was the only act in which femes covert were expressly mentioned, and one which, in its provisions, approached much nearer to the common law of England, than the ordinances of 1665 or 1684. Would not the continuance of these ordinances “ impeach, or in some way contradict ” instructions which expressly disallowed an act upon the same subject and were in consonance with the laws of the mother country ? Accordingly we find that in 1689, after the accession of William and Mary, the first act of the assembly convened by the new governor was to declare that all laws consented to by the general assembly under James, Duke of York, and. the liberties and franchises therein contained, not being observed and ratified by his royal highness and the late king, are null and void and of none effect.” This was not, as the counsel for the plaintiff seems to suppose, intended as a repeal of existing laws, but as a statement of the fact that they had been disallowed or discontinued by the late duke and king, and were not therefore binding upon the people of the colony. This unanimous declaration by the representative of the people, in harmony, as we have seen, with the instructions of 1685, is quite as likely to be correct as the hypothesis now brought forward, founded upon documents recently discovered. Nor was this all. In May, 1691, the same legislature passed an act, known as the bill of rights, containing a provision that no estate of a feme covert should be conveyed but by deed acknowledged in a court of record, on secret examination.

According to the views of the counsel of the plaintiff, there were two acts in force at this time on this same subject, to which a third was added, without the slightest allusion to the former. It is obvious, therefore, that the legislature of 1691 not only declared by resolution, but legislated upon the assumption, that the laws of 1665, 1683 and 1684, were not in force. This disposes of the criticism, that the resolution was the act of a single branch of the legislature. The enactment of 1691 cannot be accounted for, except upon the supposition that the council and governor concurred with the assembly in opinion. It was said that the act of 1710 was a recognition of the laws above mentioned. If so, which of them? The act of 1684, required the acknowledgment to be made before a judge of the oyer and terminer : that of 1683 before a justice of the peace; that of 1665 before a justice or superior officer. And the statute of 1710 merely prescribes that the deed being “ duly acknowledged and recorded, shall be evidence.” Nothing is said of the authority to take the acknowledgment, whether it was derived from an existing usage, or an existing statute. The strong probability is, that it depended on custom; because thirteen years afterwards the legislature undertook to regulate the mode in which acknowledgments should be taken, in order to make the deeds or the record of them evidence. But neither of the acts last mentioned, make an acknowledgment necessary to the validity of a grant. The implication from the language is strong, if not necessary, that it was not essential. The last act refers in terms to all deeds, whether acknowledged or not. The evidence derived from the mode in which deeds were acknowledged, is of little weight. For example, the records from 1694 to 1698 show three hundred and ninety-nine deeds recorded, and not one of these acknowledged in the manner prescribed by the colonial act of 1691, which, in substance, re-enacted the charter of liberties. During the interval above mentioned, this act was in force, according to the views of the plaintiff, until repealed by the king, in council, 1697.

The next is the act to confirm certain ancient conveyances, passed in 1771. This act recites the practice to record deeds upon acknowledgment by the grantors before certain officers enumerated, and that lands were held under deeds of femes covert, not acknowledged in manner aforesaid. The act then proceeds to confirm such conveyances, and directs as to the mode of conveyance by married women thereafter. This law received a construction in this case when before the court of errors, and was held, in all the reported opinions, to include the case of deeds executed but not acknowledged in any manner by a feme covert. I have thus glanced at the evidence of the law referred to by the plaintiffs, and so far from establishing a clear mistake by the court, in Constantine v. Van Winkle, as to the existence of certain laws, it proves by the production of the restrictions under which the governor and council acted, that the supposition of the court of grrors was well founded : that there was no law in 1760, making the acknowledgment of Jane Van .Winkle essential to the validity of the deed then executed by her: that the usage recognized by the act of 1771, and which was said in the case of Jackson v. Gilchrist (15 J. R., 112) to be the only authority for the acknowledgment so late as 1711, prevailed when this deed was executed and authorized a conveyance by the wife and the husband, without any acknowledgment whatever.

The other questions raised were satisfactorily disposed of by the court, and I concur in the reasoning and the conclusions of the learned judge who pronounced the opinion.

All the judges concurred except Morse, J., who gave no opinion.

Judgment affirmed.


author: Willard, J. Jewett, J.

text:
    Miller against Steam Navigation Company.
    A common carrier on the Hudson river of goods consigned to an agent at Albany for transportation to their ultimate destination upon the Erie canal, was engaged in transferring them from his barge to a stationary floating craft owned and used by himself for convenience in transhipping freight to canal boats and as a place of temporary deposit until the canal boats should haul alongside and receive them. After the deposit of a portion of the goods upon such float, and before the expiration of a reasonable time for the consignee to remove them, they were destroyed by fire: Held, that irrespective of the question whether the float, if owned by other persons, might have been a proper warehouse for storing the goods on the default of the consignee, the transfer thereto of the goods did not terminate the employment and responsibility of the defendant as carrier, and that he was responsible for a loss by fire, without any neglect on his part.
    Destruction by an accidental fire, not caused by lightning, is not the act of God, so as to excuse a carrier, although the proximate cause of the burning of the goods in his charge was a sudden gust of wind diverting the course of a distant fire so as to drive the flames in the direction of and upon them.
    Appeal from the supreme court. Action to recover the value of goods burnt in the great fire at Albany, August 18, 1848. Upon the trial at the Albany circuit, before Mr. Justice Parker, these facts appeared. The defendant was a common carrier between New-York and Albany, on the Hudson river. In that character it received the plaintiff’s goods upon the barge Superior, at New-York, marked for A. W. Miller, Rochester, care P. M. Adams, Albany. Adams was the known general agent at Albany for the Rochester City Line of Canal Boats; common carriers on the Erie canal. The barge, with the plaintiff’s goods on board, arrived at Albany and hauled alongside a stationary float or floating warehouse, as it was called indifferently by the witnesses, between five and six in the morning of August eighteenth. The float was a vessel one hundred and twenty feet long and forty-five feet wide, covered with a roof and having several doors, each of which was appropriate to the use of some one of the several transportation lines upon the canals. It belonged to and was in the exclusive use of the defendant for the purpose of discharging freight in this manner: if the canal boats were ready to receive the freight consigned to their line, it was run off from the barge on trucks across the float to the proper door, and there delivered; if the boats were not ready, it was piled at the door and remained till the boats arrived to take it away, in some instances as long as a week or ten days. The barge commenced discharging her freight immediately after mooring alongside the float. Adams visited it between eight and nine o’clock in the morning. He had a boat, then lying within a quarter of a mile of the barge, ready to receive the goods consigned to him. Most of the barge’s freight consigned to other lines than Adams’, had been taken away by them before noon. The fire broke out a quarter of a mile from the barge, about noon. About one o’clock a gale of wind came up suddenly and blew the fire in the direction of the pier where the barge was lying. It reached the pier in a few minutes and consumed all the buildings upon it, with the float, and the barge. About three-fourths of the plaintiff’s goods had been piled upon the float, at the door destined for Adams’ boat to receive them; the remainder were still upon the barge. All were consumed. The crew of the barge made all practicable efforts to save the property.
    The defendant’s counsel insisted that as to that portion of the goods which remained upon and were consumed with the barge, they were destroyed by a sudden gust or tempest of wind, blowing the fire thereon, and that it should be submitted to the jury, whether the destruction was not the act of Grod, within the meaning of the rule on the subject, with instructions that if they so found, the defendant was not liable. As to the goods which had been removed to the float, he insisted that the defendant had ceased to be responsible as carrier, for the reason that the consignee not being ready to receive them, after actual notice of their arrival, they had been stored according to the custom and known course of business of the defendant in what was a proper warehouse, and the defendant thereafter held them as warehouseman, and was responsible only for ordinary diligence in preserving them.
    The judge ruled against both propositions, under exceptions by the defendant, and directed a verdict for the plaintiff for the whole value of the goods on the barge and on the float. It was rendered accordingly, and the judgment thereon having been affirmed at general term in the seventh district, the defendant appealed to this court.

      C. Van Santvoord for the appellant.
    I. The proposition that the defendants continued under the liability of common carriers, until the actual delivery of the goods to the next line, is unreasonable, and cannot be maintained. It is sometimes stated in the books and in decided cases, that a carrier remains liable until the goods are delivered. But this is inaccurate; the rule is more accurately stated (2 Kent Com., 604) as follows: “When the responsibility of a carrier has begun, it continues until there has been a due delivery by him, or he has discharged himself of the custody of the goods in his character as a common carrier.”
    II. The liability of the defendants as common carriers ceased, and their liability as storers or warehousemen began, at least as soon after the arrival of the goods at Albany, as the defendants were ready to deliver them, and would have delivered them if a boat of the Rochester City Line, to whose agent they were directed, had been ready to receive them. (Angelí on Carriers, % 302, and cases cited; id., 75.) When the carrier arrives at the end of his route, and is ready to deliver the goods, he has fulfilled his contract as carrier, in'respect to goods whose destination is further on by a distinct and independent line. (Angelí on Carriers, %% 304, 295; Garside v. Trent and Mersey Navigation Company (4 T. R., 581); Thomas v. The Boston and Providence Railroad Company (10 Metc., 472), also Whaley v. Ray (3 Espin., 74). As to the bulk of the plaintiff’s goods, which were deposited in the warehouse, it is settled by the case of Garside v. The Trent and Mersey Navigation Company (4 T. R., 581), that the liability of the defendants was that of a storer or warehouseman, and not that of a common carrier. As to the lot of nails which happened to be left on the barge, these are within the principle stated by Buller, Justice, in Garside v. Trent and Mersey Navigation Company; the same principle which is recognized in other cases, as Platt v. Hibbard (7 Cow. R., 797); Thomas v. Boston and Providence Railroad Company. (10 Metc., 472), et al.

    III. The obligations, duties and rights of a common carrier, at the end of his route, which is also the place of the ultimate destination, in respect to the delivery of the goods in his charge, are in many respects different from those of a carrier at the terminus of his route, which is the intermediate port between the port where the goods are received and that of their ultimate destination, in respect to goods whose ultimate destination is further on ; and the rules and cases which determine the liability of the carrier in one case, are inapplicable to the other, in which there are different material circumstances. In the case of the carrier at the port of the ultimate destination of the goods, after noticp of the arrival of the goods, and the lapse of a reasonable time for the consignee to take them away, or where the consignee is dead or absent, or refuses to "receive the goods, the carrier is bound to secure them on board his barge or other place, for the owner or consignee—in which case he holds them under the responsibility of a warehouseman—or he may store them with a responsible third party, and then he ceases to be liable, either as carrier or warehouseman. (Ostrander v. Brown (15 John. R., 42); Fisk v. Newton (1 Denio, 45). And in this case of the carrier at the port of the ultimate destination of the goods, a reasonable time after notice, means time reasonably sufficient to come and take the goods. But in the case of the carrier at the terminus of his route, at the intermediate port, he cannot discharge himself of all responsibility respecting the goods, by insisting that the agent of the next line in succession, who may have no boat ready to receive the goods, shall take the goods within a time reasonably sufficient to take them; and hence, and by reason of the difference in respect to his obligations and duties in other respects, the difference in the rule as to- his liability, as held in Garside v. The Trent and Mersey Navigation Company, and other cases.
    IV. Assuming that the fire by which the goods were destroyed, was communicated from a distance by a high wind, and that their destruction by fire was occasioned by a sudden gust or tempest, the destruction of the goods is attributable to the act of God, within- the common law meaning of the words. 1. The distinction is between losses resulting from an act of God, as by storm, tempest or lightning (which in the common law have always been held to be acts of God, as technically used), for which the carrier is not liable, and destruction or damage from negligence, mischance or accident, although inevitable, not occasioned by storm, lightning, tempest, or the like causes. Amies v. Stevens (1 Str., 128); Colt v. Meacham (6 J. R., 160); Story on Bailments, (527, § 516.) 2. The cases of Forward v. Pittard (1 T. R., 2.7); Hyde v. Trent and Mersey Navigation Company ( 5 T. R., 389), are cases of mere mischance, not attributable to acts of God, as occasioned by storm, lightning or tempest. 3. The immediate and proximate cause of the destruction of the goods, being the sudden gust or tempest, is alone to be regarded. (Story on Bail., 525, § 515); Waters v. The Merchants’ Louisville Insurance Company (11 Peters, 213, 223).

      B. Davis Noxon for the respondent.
   Willard, J.

The defendants were common carriers from New-York to Albany. On the 14th or 15th of August, 1848, they received on board their boat, at New-York, the goods in question, marked “for A. W. Miller, Rochester, care F. M. Adams, Albany.” Adams was the general agent at Albany for the Rochester city line of canal boats in 1848, to whom the goods should, in the regular- course of business, have been delivered to be forwarded to their destination.

The goods arrived at Albany in the defendants’ tow-boat, in the morning of the 18th of August, in the same year, and before they were delivered to Adams, and while a part were still on board the tow-boat, and the residue on board a floating warehouse, 'belonging to the defendants and used by them to aid in distributing their cargoes to the various lines on the canal, they were destroyed by the great fire in that city, which commenced about noon of that day.

The important question is, whether this loss shall be borne by the defendants or by the plaintiff.

There was no dispute about the facts. Adams, the consignee, had a boat near by, ready to receive the goods when the defendants were prepared to deliver them. There was no evidence that the goods remained with the defendants in consequence of any negligence in Adams to receive them. Had there been, the question of negligence should have been submitted to the jury.

The liability of the defendants, as common carriers, had not terminated when the fire occurred. They still had the custody of the goods, and had a further duty to perform in respect to them. They were not keeping them because there was no one ready to receive them; for the consignee was in Albany, had been on board the boat and was ready to receive them. (Story on Bailments, % 542.)

Common carriers are regarded as insurers of the property intrusted to them, and are responsible for all injuries, except such as are occasioned by the act of Grod and the public enemies. (Angell on Carriers, %% 46, 67; Story on Bailments, % 489; 2 Kent's Com., 597; Goold v. Chapin, 10 Barb., 612; Foote v. Storrs, 2 Id., 326.) A destruction by fire, unless occasioned by lightning, does not fall within the exception. (Story on Bailment, ^ 507, 511, 528; Hyde v. The Navigation Company from Trent to the Mersey, 5 T. R., 389; Gatliffe v. Bourne, 4 Bing. N. C., 314.)

The judgment of the Supreme Court should be affirmed.

Jewett, J.

From the facts in this case, it may be assumed that the several articles of property in question were delivered to and received by the defendant as a common carrier, to carry from New-York to the city of Albany, and there to deliver the same to F. M. Adams, and that there was no special contract between the parties, limiting the responsibility of the defendant as such common carrier. The rule is not disputed, that common carriers are responsible for every injury done to goods intrusted to them to carry, unless it proceeds from the act of God or the enemies of the land.

There is no evidence in this case to show how the fire, by which the property in question was destroyed, originated. The presumption, therefore, is that it arose from some act of man. (Angelí on Carriers, % 156.) A loss arising from an accidental fire, or conflagration of a city, without any default whatever on the part of the carrier, it is well settled, furnishes no excuse for the carrier, for it does not fall within the exception. (2 Kent's Com., 602; Story on Bailments, 507, 511, 528; Hyde v. Trent Nav. Co., 5 T. R., 389; Gatliffe v. Bourne, 4 Bing. N. C., 314; Hollister v. Nowlen, 19 Wend., 234.) There is no error, therefore, in the decision of the circuit judge, that the loss was not caused by the act of God within the rule referred to.

The defendant carried the goods up the river on board his barge Superior, to Albany, where they arrived early in the morning of the 18th of August, on which day they were destroyed by fire. Previous to such destruction a portion of them were unloaded from the barge and put into a float in the Albany basin owned by the defendant; being a stationary floating craft, kept for the purpose of receiving goods brought up the river, with various apartments for the different transportation lines going west. It had been there several years, and it was the custom to discharge goods brought up the river into it, from which the goods were reshipped into canal boats to be taken to their destination on the canals; the canal boats coming alongside of the float, and receiving the goods immediately from the float. As to that portion, it was contended by the counsel for the defendant that the defendant was not liable as carrier; because, it was insisted, that it had ceased to be a carrier in respect to them, and had assumed the character of a storer or warehouseman before the loss; and that happening without any fault or neglect of the defendant, the defendant was not liable in that new capacity. This new relation is assumed to have taken place, on the ground that this portion of the goods w7as placed in store in a proper warehouse, consequent upon the neglect or refusal of Adams, the consignee, to receive them, after sufficient notice to him of the arrival of the goods, and their being ready for delivery to him. The general rule is, that a common carrier is bound, not only safely to carry, but safely to deliver, a parcel which he has undertaken to carry, at the place to which it is directed to the consignee personally. (Gibson v. Culver, 17 Wend., 305; Ostrander v. Brown, 15 John., 42; Fisk v. Newton, 1 Denio, 46.) Personal delivery, however, is sometimes dispensed with, in the case of carriers by ships or boats. Notice given to the consignee of the arrival and place of deposit, comes in lieu of personal delivery. (2 Kent's Com., 605.) So when goods are safely conveyed to the place of destination, and the consignee is dead, absent or refuses to receive, or is not known, and cannot, after due efforts are •made, be found, the carrier may discharge himself from further responsibility by placing the goods in store with some responsible third person in that business, at the place of delivery, for and on account of the owner. When so delivered, the storehouse keeper becomes the bailee and agent of the owner in respect to such goods.

In this case the goods were carried to Albany, but they were not delivered to Adams; he was neither dead nor absent; nor did he refuse to -receive the goods; nor did the defendant place the goods in store with a responsible third person engaged in that business at the place of delivery, for and on account of the owner. In truth, the facts negative any such assumption. The most that the facts warrant us in saying, in respect to a delivery or storing, is that the defendant was engaged in transferring the goods from the barge to the float, preparatory to making a delivery from that craft to Adams, who had a boat ready to take the goods lying at the dock near the Boston ferry at the time. Indeed, there does not appear to have been any intention on the part of the defendant to change its relation to the goods, merely by the transfer to the float. In my opinion there is no good ground to say that it had changed its character of a common carrier to that of a warehouseman by that act. There was nothing to show an intention to do that, if such had been the intention. The facts and circumstances show conclusively that the defendant, instead of being engaged in storing the goods, was placing them in a situation to deliver them according to its contract. The goods had not been placed entirely in a condition to deliver when the accident happened. The defendant was at no time discharged of the responsibility which it had assumed as a common carrier.

The counsel on this argument has made a point, that the defendant had a right to go to the jury upon the question, whether a reasonable time for the consignee to take away the goods had not elapsed, if he had a boat ready. A short answer to that is, that no request or suggestion of that kind was made on the trial, and it cannot be heard here for the first time.

The judgment should be affirmed.

All the judges concurring,

Judgment affirmed.


author: Jewett, J.

text:
    Conkling and others against King.
    A creditor received from his debtor the business note of a third person, upon the agreement that it should be full satisfaction of a larger debt, if paid at maturity, but not otherwise : Held, that the creditor, by receiving payment of the note when past due, waived the condition and discharged his original debtor.
    ' Appeal from the supreme court. The action was brought in the mayor’s court of the city of Albany. The complaint was in indebitatus assumpsit for goods, wares and merchandise. Plea general issue, with notice of set-off. Upon the trial before a referee these facts were found:
    On the 17th day of May, 1845, the defendant was indebted to the plaintiff, for goods sold and delivered, in the sum of $371.57. On that day the parties made an agreement by which the defendant was to pay the plaintiffs the sum of $85.69 in money, and procure for them a satisfactory note payable on the seventeenth day of November, then next, for $100 with interest, which the plaintiffs were to accept and receive in full satisfaction .and discharge of the said indebtedness, provided the note should be paid at its maturity, and not otherwise. The defendant, pursuant to the agreement at the time, paid the plaintiffs the $85.69 in money. On the 13th day of June, 1845, the defendant procured and soon after delivered to the plaintiffs a promissory note, made by F. Holden for the sum of $100, payable to the plaintiffs’ order on the seventeenth day of November, then next, with interest from the 17th day of May, 1845. The plaintiffs received and accepted the money and note made by Holden, pursuant to the terms of the agreement made between the parties. Holden did not pay the note or any part thereof, oh or before the 17th day of November, 1845. He paid to the plaintiffs, to apply on the note, the sum of $63, in February, 1846, and the remainder thereof in full, in May, then next, when the plaintiffs delivered the note as paid, to him. There was a valuable consideration for the note given by King to Holden, when the note was made.
    The referee reported in favor of the plaintiffs for the amount of the original debt, after crediting the payment made by the defendant, $85.69, and the $100 received upon the promissory note of Holden. Upon appeal this judgment was reversed and a new trial granted by the supreme court, at general term, in the third district, where the following opinion was delivered:
    Parker, J. The law is well established, that the acceptance, by a creditor, of the note of a third person in full satisfaction of an existing debt, is an extinguishment of the original indebtedness, though the note so taken is for a less sum than the whole debt. (20 Johns. Rep., 76; 1 Wend., 172; 14 id., 116; 21 id., 450; 22 id., 341; 5 T. R., 516.) The law is otherwise where the note of the debtor himself is taken. (8 Cowen, 79 ; 3 Wend., 68.)
    In this case the agreement was, that the note of. Holden should be taken in full satisfaction of the defendant’s indebtedness if paid at maturity, and not otherwise. It is claimed, that the note not being paid at maturity, the plaintiffs may recover for the whole original indebtedness. There is no doubt the plaintiffs had a right to avail themselves of this condition. The note not having been paid at maturity, the plaintiffs might have insisted that the contract was broken, and might have claimed the whole. But had they a right to retain the note against Holden, to urge payment upon it, and after receiving the full ^amount of it, to proceed then for the balance of the original demand against the defendant ? I think they had not. The note against Holden was not left with the plaintiffs as collateral security. It was designed to be in satisfaction ; and I think it was evidently the object of the parties, in making the condition, to protect the plaintiffs against the possibility of the note not being good. It could never have been intended that the delay of Holden for a few days, or longer, in paying the note, should authorize the plaintiffs to receive not only the money due on the note, but also to collect the balance of the debt compromised.
    By the agreement, non-payment at maturity would operate as a forfeiture. They had also the right to waive it; and I think their receiving a payment on the note after it was due, and subsequently asking and receiving payment of the balance due on the note, was a waiver of all claim of forfeiture on the score of time of payment. The cases are abundant to show that a forfeiture for non-payment at an appointed day, is waived by subsequent payment in full, whether it be on a lease, chattel mortgage, or other contract. (5 Cowen, 270; 1 Denio, 516; 3 id., 33; 1 Barb. Sup. C. Rep., 114; 2 id., 341; 5 id., 339; 2 Peters' Rep., 96; 2 Watts & Serg., 88; 2 Call's R., 553; 5 T. R., 553.) So a condition precedent is waived by proceeding to fulfill the contract. (14 Wend., 219; 1 Venn. Rep., 44; 1 Leigh's Nisi Prius, 632; 1 Conn. Rep., 79.)
    I think the principle recognized in these cases is applicable here ; and that the judgment of the Albany mayor’s court should be reversed, and a new trial awarded.
    The plaintiffs appealed to this court.

      Francis Bloodgood, for the appellants.
    The plaintiffs had the right to prescribe the terms of their' own contract. They knew when they needed the $100 on the Holden note. They contracted to release the debt of the defendant if the Holden note wás paid at maturity, but “not otherwise .” If new terms of compromise are claimed than those agreed on, they can be created only by the consent and agreement of the plaintiffs, and this is matter of fact to be proved. Suppose the Holden note was not paid at maturity, were the plaintiffs in that case by the contract to deliver it up to the defendant? If the defendant claims this, we say again it is matter of fact, and requires proof, which is matter for the referee or court below to find or consider, and not for this court. The Holden note, in case it was not paid at maturity, was no more to be returned to the defendant than the $85.69 in cash.
    Who was authorized to receive payment of the Holden note if not paid at maturity? No one? That would be absurd. Who then was authorized ? King ? He did not have the note, and there was no agreement that he should have it back, and he had transferred it unconditionally to the Conklings. What, then, is the position of the parties? King pays $85.69 in cash, and Holden’s note for $100, to the plaintiffs, and if the note is paid at maturity, it operates as an accord and satisfaction of the whole indebtedness of the defendant to the plaintiffs; but if not paid at maturity, was King to get back the $85.69 and the $100 note? Of course not. The $85.69 was paid and credited on the indebtedness of King immediately, and if the $100 was not paid at maturity, the plaintiffs held it as collateral to their debt, and were bound to credit payments on the note when made, on the defendant’s indebtedness, in the same manner as the $85.69 was credited.
    The authorities cited, in the opinion of the learned judge in the court below, are not applicable to this case. In those cases the waiver was implied by the receipt and payment of money between the parties to the contract claimed to be forfeited. Here the payment of the note was not the act of the defendant but of the maker. There was no contract between us and Holden for the compromise of the debt of the defendant. Holden paid us as the holders of the note, and as such (it being collateral security in our hands) we had a right to receive the money; or if by considering the contract with the defendant as forfeited we had ceased to be the owners of the note, we merely incurred a liability to him for the money had and received thereon, which he could offset to our claim on his original indebtedness. The decisions establish that the note of a third person for a portion of a debt, if received in satisfaction of the whole debt, is a valid agreement, not as a release or discharge of the balance of the indebtedness, but by way of accord and satisfaction. Yet no case has broached the doctrine that without the unequivocal consent and agreement of the party, as matter of fact, the remainder of the debt becomes extinguished. In this case not only is the accord and satisfaction of the plaintiffs wanting, but by the express terms of the compromise agreement, the balance of the debt is not to be discharged, if the Holden note is paid when past due. The agreement was only a conditional executory accord and satisfaction, the terms of which were not fulfilled by the defendant, and he is therefore not entitled to its benefits; the only effect of which is, the defendant is compelled to pay the whole instead of a, part of an admittedly honest and business debt; the whole consideration of which, the plaintiffs had lost and the defendant had received. The defendant loses nothing by his failure to fulfill the compromise agreement, only the plaintiffs are not bound to give him the balance of his indebtedness. The plaintiffs gain nothing by his failure, they merely receive their honest due, and not one farthing more. The law only compels us to be just, not to be generous.

      William D. White, for the respondent.
   Jewett, J.

It is not denied that if the plaintiffs had agreed to accept the money and the note against a third person absolutely in satisfaction of the debt, although the sum was less than the debt, the acceptance would have had the same effect as the acceptance of a horse or other chattel by the plaintiffs from the defendant would have had upon an agreement that the same should be taken as a satisfaction of the debt; and there can be no doubt that the acceptance of such a thing, in pursuance of such an agreement, would operate as a satisfaction of the whole debt, although it was of a less value than the amount of the debt. The ground for the recovery assumed by the plaintiffs, is, that the acceptance of the money and note did not operate as a satisfaction of their debt, at the time of the payment of the money and delivery of the note, but was to depend upon the performance of the condition upon which the note was received, namely: to pay it at maturity—that the note not being paid at maturity, the contract was broken, and the plaintiffs’ debt became unaffected, otherwise than by a reduction in amount by the sums received, which could only be applied by way of a set-off.

Conceding that the plaintiffs had, at the time the note became payable, a right to avail themselves of the non payment of it, and recover the whole sum due to them, after applying the moneys received as a set-off, I think it is a sufficient answer to say that they did not insist upon that right, but afterwards received the payment of the note and thereby dispensed with the strict performance of the condition. The plaintiffs had no right or interest in the note, or right to receive the money upon it except what they acquired by its receipt to operate in the event of payment as a satisfaction of the plaintiffs’ debt. By non-payment at maturity the plaintiffs debt remained unaffected by the agreement to compromise it, if they elected so to consider it; but they had right to dispense with payment at the time fixed upon and to receive it afterwards; and if they did, payment subsequently made with their consent would hav.e the same effect as though made at the precise time agreed upon that it should be made.

It is a sound maxim that any one may, at his pleasure, renounce the benefit of a stipulation or other right introduced entirely in his own favor. (Broom’s Maxims, 310.) A familiar instance of the application of this maxim occurs in connection with the law of bills of exchange. The general rule is, when a bill has been indorsed and the holder intends to sue any of the indorsers, it is incumbent on him first to demand payment from the acceptor on the day when the bill becomes due, and, in case of refusal, to give due notice thereof within a reasonable time to the indorser. The reason is that his undertaking to pay the -bill is not an absolute but a conditional undertaking, that is, in the event of a demand made on the acceptor (who is primarily liable) at the time when the bill becomes due, and notice given of refusal on his part or neglect to pay. As, however, the rule requiring demand and notice is introduced for the benefit of the party to whom such notice must be given, it may, in accordance with this maxim, be waived or dispensed with by that party. (1 Selwin, N. P., 10 ed., 358; Burgh v. Legge, 5 Meeson & Welsby, 418; Coddington v. Davis, 3 Denio, 16, affirmed on appeal 1 Comst., 186.)

And so a party may renounce a constitutional provision made for his own benefit. (Baker v. Braman, 6 Hill, 47; Embury v. Conner, 3 Comst., 511.)

The judgment of the supreme court should be affirmed.

Ruggles, Ch. J., and Johnson, J., expressed no opinion; all the other judges concurring,

Judgment awarding a new trial affirmed.


author: Johnson, J.,

text:
    Bogert against Vermilya.
    The addition of the words “ survivor,” &c., to the name of a deféndant sued upon a joint and several obligation is mere surplusage; the promise being laid as an individual one the action is to be deemed one on the several contract. A defendant thus sued cannot avail himself of the statute of limitations by reason of the continuance of his co-promisor within the state during his own absence.
    Appeal from the supreme court. The case is fully stated in the following opinion.

      S. G. Raymond, for the appellant.

      William H. Elting, for the respondent.
   Johnson, J.,

delivered the opinion of the court.

The plaintiff declared in assumpsit against the defendant (whom in the commencement of the declaration he styles “ the survivor of William Bruce ”) upon the money counts ; the indebtedness and promises being stated as of “the defendant,” without any addition of special character. To the declaration was annexed a copy of a joint and several promissory note, dated January 21,1837, at three months, for $200 with interest, and made by Wm. Bruce and the defendant. The defendant pleaded the general issue and that the action did not accrue to the plaintiff at any time within six years next before the commencement of the suit. To the special plea there were two replications : 1st. Taking issue upon the special plea; and 2d. That within six years from the accruing of the action Vermilya departed and resided out of this state, and that suit was commenced within six years after the cause of action accrued, exclusive of the time of Vermilya’s absence from the state. To the second replication there were two rejoinders: 1st. That the cause of action accrued to the plaintiff, against Vermilya jointly • with Bruce, and that at the time when the causes of action accrued, and thenceforth until his death, a period of more than six years, Bruce resided in New York. 2d. Taking issue upon the averment of the second replication.

The plaintiff, to the first rejoinder, surrejoined that six years did not elapse between the accruing of the causes of action and the death of Bruce.

The defendant’s rebutter averred that six years did elapse, and concluded to the country.

The cause was tried before Justice Mitcbbill without a jury. Upon the trial the defendant admitted that he left New York in the latter part of 1837, and remained absent till the summer of 1843. The plaintiff admitted that Bruce resided in New York, continually, from the making of the note till his death on the 15th day of January, 1845.

The defendant claimed that the action could only be sustained as upon a joint contract, and that it was barred by the statute of limitations, and that he was entitled to judgment on the issue whether the causes of action accrued within six years next before the commencement of the suit, and also upon the issue whether six years intervened between the accruing of the cause of action and the death of Bruce. The judge decided against the defendant on each of the issues and the defendant excepted. All the issues were then, by direction of the judge, found for the plaintiff and the defendant excepted. It is very obvious that the finding of the judge, that six years did not elapse between the accruing of the causes of action and the death of Bruce, was not true in point of fact, since they accrued in April, 1837, and Bruce died in January, 1845. The only point in the case that requires to be considered is, whether this action is brought on a joint contract of Vermilya and Bruce, or on a separate contract of Vermilya. The addition in the commencement of the declaration of the words “ survivor of William Bruce,” is mere harmless surplusage, and is of no more legal consequence than if he had been named with the addition of “esquire,” or “gentleman.” (Christopher v. Stockholm, 5 Wend., 36; Hunt v.Van Alstyne, 25 Wend., 605.) Rejecting the addition, the suit is against the defendant on his several liability, and then the principle of Brown v. Delafield (1 Denio, 445) applies. Upon the general question the plantiff was not barred by the statute of limitations, and all the issues were rightly determined in his favor, except that which related to the period of Bruce’s life. This was utterly immaterial, and as if it had been found in the defendant’s favor he could not have had any advantage from it, the first replication having been rightly found in the plaintiff’s favor, the judgment will not be disturbed. (People v Haddock, 12 Wend., 475.)

The judgment must be affirmed.

Judgment affirmed.