text:
    CHARLES F. WILLIS, Respondent, v. WILLIAM BELLAMY, et al., Appellants.

      Specific, performance—when not decreed.—Sealed contract—when evidence as to real party not admissible—Trial by jury—when demandadle as of right.

    Evidence to the effect that one not executing sealed contract as to real estate is the real party to the contract, is inadmissible in an action based on the contract.
    In an action brought on such a contract, against one who executed it as vendor in his own name, and in his own behalf, and against others (co-defendants), claimed to be the real parties to the contract as vendors, —Held, the complaint should bo dismissed as to the co-defendants.
    Specific performance of a contract to convey a good title will not be decreed at the suit of the vendee, in case the title at the time fixed for the performance of the contract is not sound, although it may be in the power of the vendor to make it good, where the contract is such that the vendor is not, either by its express terms or implication of law, bound to corroborate or validate the imperfect title.
    Under a contract which provides that the sum therein required to be deposited by the vendee should be forfeited unless the vendee complies with the contract, provided that the title to the premises sold shall be good, otherwise to be returned to the vendee, “ and this contract abandoned without claim of damage for or against either party,” the vendor is not bound to corroborate or validate a title imperfect at the time fixed for its performance.
    In an action brought by a vendee to compel the specific performance of a contract to sell and give a good title to real estate, or in lieu thereof, if that be not practicable, for the recovery of a sum deposited under the contract, and for damages, the court, on its appearing on the trial at special term without a jury, that plaintiff was neither then, nor at the time of the commencement of the action, entitled to specific performance, cannot (a jury trial not being waived), proceed to adjudicate on either the claim for the sum deposited, or the claim for damages. These are strictly legal claims, and the court must at least direct the issues arising thereon to be sent to a jury for trial.

      Before Sedgwick, Oh. J., Vas Vorst and Freedmak, JJ.

      Decided December 7, 1885.
    Appeal by defendants from judgment entered upon findings and conclusions of judge at special term.
    The plaintiff was assignee of Benjamin Willis, who had made with the defendant William Bellamy, a contract for purchase by the former, and sale by the latter, of certain real estate. The purchaser paid $500 on the delivery of the contract. The contract was under seal.
    Further facts appear in the opinion.

      Burnett & Whitney, attorneys, Henry L. Burnett and Edward B. Whitney, of counsel for appellants, on the questions considered by the court, argued:
    The Court erred in denying the motion to compel election, and in retaining the cause at special term, and in the form of the judgment awarded. It was error to deny defendants’ motions to compel plaintiff to elect between his inconsistent claims. It has always been held that a complaint plainly averring the title to be bad, is inconsistent with a prayer for specific performance (Sternberger v. McGovern, 56 N. Y. 12, 20 ; Kerr v. Purdy, 51 Ib. 629 ; Emrich v. White, 66 How. Pr. 154; Nicolson v. Wordsworth, 2 Swanst. 365). It was error to deny defendants’ motions to compel election, for the additional particular reasons, that if plaintiff had elected to regard the title as bad, defendant, William Bellamy, was entitled to jury trial, and the other two defendants to a dismissal of the complaint. Defendants could not ask jury trial before an election should be made, because the complaint was primarily for equitable relief. They gave, however, full notice that they did not waive their right. The only demand in the complaint, based on the theory that the title was bad, was “ that the defendant, William Bellamy, repay to this plaintiff the sum of $500,” &c. On this point the case must go to a jury (Sternberger v. McGovern, 56 N. Y. 12).

      William Settle, attorney, and Benjamin A. Willis, of counsel for respondent, on the questions considered by the court, argued:
    The defendants’ motion to dismiss the complaint as to the cause of action relating to damages, on the ground that the court had no jurisdiction to give damages, as that is a question to be tried by a jury, and defendants have demanded a jury trial, was properly overruled. It is needful only to refer to the following decisive cases : Sternberger v. McGovern, 56 N. Y. 12 ; Phillips v. Gorman, 17 Ib. 270 ; Lattin v. McCarty, 41 Ib. 107.
    Plaintiff’s recovery here is for simple advance on contract and costs of action.
   By the Court.—Sedgwick, Ch. J.

The appeal is from a judgment which declares that the plaintiff has a lien upon the defendant’s interest in the premises described in the complaint herein, for the money paid by his assignor on account of the purchase price, with the interest and costs, and which gave a personal judgment against all the defendants, for the amount of the money paid, &c.

The issues involved a construction of a contract for the purchase of land made by the plaintiff’s assignor as vendee, and one William Bellamy, as vendor. The latter affixed his seal to the contract. The finding of the court is “ that at the time of the making of said contract, the said William Bellamy was acting as the agent of his co-defendants herein, and according to the terms of the said contract, bound his co-defendants thereby.” The evidence showed that the co-defendants had title, such as it was, to the land in question, and that William Bellamy had no title to it;

I do not perceive that the contract on its face binds the co-defendants/ or shows that William Bellamy acted as their agent in making the contract. It is made by him solely for himself, excepting a clause that “the stipulations aforesaid are to apply to and bind the heirs, executors, administrators and assignees of the respective parties.” This does not, if that would avail anything, refer to principals for whom he was making the contract.

The testimony of William Bellamy that'in making the contract he acted as the authorized agent of his co-defendants, does not affect or change the legal quality of the act he performed in making the contract. The law is, when a contract is signed and sealed by a person .for himself, and not by a principal through an agent authorized to sign and seal, the person signing for himself is liable according to the terms of the contract, and, at least in a contract for the sale and purchaser of land, his so-called principals are not liable (Schaefer v. Henkel, 75 N. Y. 378 ; Briggs v. Partridge, 64 Ib. 357).

Prom this it follows, that there should have been no judgment against the co-defendants, either for the amount paid by plaintiff’s assignor upon the purchase, or declaring that for such an amount there was a lien upon the premises in question which were owned, as has been said,' by the co-defendants. In point of form, there should have been no declaration of a lien upon the interest of William Bellamy in the land, as he had no interest, and yet, for a like reason, he would not be injured by such a declaration.

Then, the issues concern only the nature of the plaintiff’s claim against William Bellamy. It is a fundamental consideration that the plaintiff had the right to enforce the contract according to its terms and limitations, and was not entitled to the specific performance of any other contract than the contract as it was.

Of the $500 paid down upon the delivery of the contract, and by the plaintiff’s assignor to Bellamy, the contract declares, “the $500 paid to be forfeited, unless the party of the second part (that is, the assignor of plaintiff), complies with the terms thereof, provided, however, that the title to said premises be good ; otherwise the said $500 to be returned by the party of the first part (that is, William Bellamy), to the party of the second part, and this contract abandoned without claim of damage for or against either party.”

It appears that before the action, the plaintiff took the position that the title was not good, and in his complaint that the title was not then good, and the court has held, at his instance, that the title was not good.

It is not necessary to doubt that under a contract to sell and buy land, the vendee, although the title be not in fact sound, yet may bring an action to compel the vendor to make it perfect, if that be in his power. Such an action lies, because, by the legal construction of the contract, the vendor has bound himself to make the title good. If, however, the contract does not provide for a corroboration or validation of the imperfect title, then the right of the parties will have regard only to the title in the original state.

The contract in this case provides that if the title be not good, the contract is to be abandoned. As against the vendor, the plaintiff’s assignor might have had the option of taking the title, but he exercised his option the other way by declaring the title defective, and from that time there remained no provision of the contract which would support an action for specific performance. The contract implies that whether or not the abandonment shall take place, is to be determined before action brought; for the vendee was certainly to take his position as to the state of the title before action could be brought, and then, if the title were not good, the contract went out of existence, excepting to give the vendee an action for the part payment he had made. This action was of a legal kind, in which the defendant Bellamy had a right to a jury trial. This right was not waived upon the trial, but was insisted upon. After such a demand, as soon as the court had found that the plaintiff had no action in equity, there should have beep no adjudication as to the legal rights of the plaintiff, but the issues that regarded such legal rights, should have been.sent to a jury for trial (Black v. White, 37 Super, Ct. 320 ; Sternberger v. McGovern, 56 N. Y. 12).

In truth, as the complaint took the ground that 'the title was bad, it appeared from the beginning that the plaintiff could, while he took such ground, claim only as in an action at law, and such an action only was in reality before the court, and the court at special term could not proceed to adjudicate as to the validity or invalidity of the title. It could only, upon objection, refuse any equitable relief, and direct that the issues be sent to a jury for trial. In that trial, there could be, for the first time, an adjudication as to the title. For that reason, it would be improper to decide as to the soundness of the objection, that the mortgage under which the title was made had never been completely assigned by the trustees who held it.

The judgment appealed from should be reversed, and a new trial ordered, with the costs of the appeal to abide the event, so far as William Bellamy is concerned.

As to the co-defendants, as the plaintiff appears to have no claim whatever against them in a mode of trial insisted upon by him, I think the judgment should be reversed, and the complaint dismissed, with costs.

Van Vorst and Freedman, JJ., concurred.


source: Caselaw Access Project

author: By the Court. —Sedgwick, Ch. J

license: Public Domain

text:
    CATHARINE R. ARCHER, Respondent, v. THE SIXTH AVENUE R. R. CO., Appellant.

      Physician, examination by, on trial, of an injury to the body— When not permitted.

    This action was brought to recover damages for an alleged injury to plaintifl’s arm, claimed to have been caused through defendant’s negligence ; at the close of plaintiff’s cross-examination, defendant’s counsel asked permission to have a physician, who was in attendance on defendant’s behalf, examine the plaintiff's arm; the permission was refused.

      Held, as the court must have understood that the examination asked for was intended to be an investigation independent of the then proceeding taking of testimony, and did not, in its form or substance, indicate otherwise than that the physician would go to the witness on the stand, and make such an examination as a physician would judge to be right and sufficient, involving probably questions to the witness, that there was no error in the refusal.
    Before Sedgwick, Oh. J., and Van Vorst, J.

      Decided December 7, 1885.
    Appeal by defendant from judgment entered upon verdict of jury and from an order denying motion for new trial made upon the minutes.
    The action was for damages to plaintiff, for injuries to her received in falling from a car of defendant, and caused, as alleged, by the negligence of defendant’s servant. Further facts appear in the opinion.

      D. M. Porter, attorney and of counsel for appellant, argued:
    After the plaintiff had completed her testimony
    in chief, and at the end of her cross-examination, but before the defendant’s counsel had relinquished his right to further cross-examination, the following took place : Counsel for the defendant asked permission to have Dr. Banney, a physician in attendance on the part of the defendant, examine the plaintiff’s arm. The court refused the permission, and defendant’s counsel excepted. The refusal was error. The plaintiff had testified that she was still suffering ; that her wrist was inflamed ; her conduct in respect to her alleged injury had been very suspicious ; she had this evidence in her possession — that is, whether her wrist was then inflamed; and there would be no immodesty in its production (any more than if she claimed her face had been injured, and covered it with her vail), and the court was bound to require its production, as much as if she had had a paper containing competent evidence bearing upon the merits, and refused to produce it while it was in her possession on the witness stand. There was no other objection taken, except that it was too late, and this waived all others, if any other there can be which does not appear. The contest has not been whether a party can be compelled to exhibit an alleged injury at the trial, but whether it could be compelled before trial; nor is it necessary to decide whether an immodest exposure of the person could be ordered, because there is no such question presented on this appeal.
    The cases of Mulhado v. Brooklyn City R. Co., 30 N. Y. 370; Hiller v. Village of Sharon Springs, 28 Hun, 344; State v. Garrett, 71 N. C. 85 ; Commonwealth v. Twitchell, 1 Brews. Penn. 551, sustain the position that this ruling was error.

      Chauncey Shaffer, attorney, and of counsel for respondent, argued:
    The court properly refused the permission asked for by defendant to have Dr. Banney, a physician in attendance on the part of the defendant, examine the plaintiff’s arm. 1. The court had no just right to grant a physical examination (Williams v. Phillips, N. Y. Com. Pleas, Law Bull. June '79, p. 62). 2. To say the least, it was a matter resting in the discretion of the presiding judge ; and he wisely exercised that discretion (Reeves v. Prospect Park & Coney Island R. R. Co. [October, 1879], 1 Lato Bull. 91).
   By the Court. —Sedgwick, Ch. J

The. plaintiff was a witness on her own behalf. At the end of her cross-examination, the counsel for defendant- asked permission to have Dr. Banney, a physician in attendance on the part of defendant, examine the plaintiff’s arm. The plaintiff’s counsel objected, on the ground that the application was too late. The court refused the permission or denied the application, because, if the defendant had a right to such an examination, the defendant should have applied for it before that time.

The court, from the nature of its decision, must have understood that the examination, for which permission was asked, was intended to be an investigation by the physician, to-be made by him independently of the then proceeding talcing of testimony. This understanding agreed with the form of the request. The request did not in its form or substance indicate otherwise than that the physician would go to the witness when on the stand, and malee such an examination as a physician would judge to be right and sufficient, involving, probably, questions to the witness. It is unnecessary to give reasons for holding that such an examination is not a part of the trial of the issues before a jury, and that it is too late to apply for it after the trial has gone so far as it had in this instance— if, which is doubtful, the defendant would have a right to such an examination at any time.

The defendant might have asked the physician to take a position near the witness’ stand, and at which he could observe the arm of the witness if she should exhibit it in response to questions, and the counsel might have asked her to show her arm, and then put questions such as were proper, under the control of the court, for the information of a physician whose opinion was about to be obtained when called as a witness. This would have been more analogous to the case of Mulhado v. Brooklyn City R. Co. (30 N. Y. 370), than the present case. If such a proceeding were taken, the points would be whether the questions were admissible and whether the physician should be allowed to take or keep the position near the witness. Anything more than this would not be permissible before the jury. The physician would not be under oath, and if he should do or say anything that would bias the mind of the jury, the plaintiff’s rights would be infringed. It is not proper now to decide more than is necessary to determine the nature of the exception in this case. It does not call for a reversal of the judgment.

The other exceptions have been examined, as well as the claim that the damages are excessive: They must be held to be insufficient.

Judgment affirmed, with costs.

Van Vorst, J., concurred.


author: By the Court.—Sedgwick, Ch. J.

text:
    FRANKLIN L. NOWELL, Administrator, &c. v. THE MAYOR, &c., OF THE CITY OF NEW YORK.

      Res gestee—Evidence as to cause of injury sufficient to carry case to jury— Contributory negligence—acting with prudence—Corporate negligence— not giving warning.

    Declarations made by a party at the initiation of an act continuous in its nature, as to his intent with respect to the mode in which he purposes to do the act, are competent evidence to prove that ho did it according to his expressed intention, provided the continuity of the act has not been interrupted for a space of time during which things may have happened to cause a change in the original intention. But a declaration which, for aught that appears, refers to a past transaction, is inadmissible.
    Shortly before the injury, the deceased was in One Hundred and First street, and he was found in the center of that street at the foot of a wall twenty-five feet high, which abruptly changed 'the grade of the street, with a broken leg, and other great hurts.—Held, sufficient to carry the case to the jury on the question as to whether he received the injuries by falling over the wall.
    There is no contributory negligence when the injured party acts with ordinary prudence, on that apprehension of danger which he is bound to have under the circumstances, and those appearances of danger which the situation manifests. •
    Thus, when one walking along a street which has the usual conditions of streets with nothing about it to induce apprehension of danger, comes to a wall abruptly ending the street, and falls over the wall, there being no light, or anything else that might be a warning of danger,—Held, that the jury might find there was no contributory negligence. Further held, that the not placing at the abrupt ending of the street a warning as to danger, which would suffice to warn persons of ordinary prudence, was negligence on the part of the corporation.
    Before Sedgwick, Oh. J., Van Vorst and Freedman, JJ.

      Decided December 7, 1885.
    Plaintiff’s exceptions ordered to be heard at first instance at general term.
    The action was for negligence, in allowing West One Hundred and First street to be graded so that part of it went to the top of a wall that retained the bank there, the rest of the street going from the foot of that wall. The wall was about twenty-five feet high. The complaint alleged that the plaintiff’s intestate, while walking in the street, fell from the top of the wall and was greatly wounded. In the testimony it appeared that there were no lights at the top of the wall, or any fence upon it. There was no witness of the alleged falling. At the close-of plaintiff’s testimony, the court dismissed the complaint, on the ground that there was no proof that the deceased had not been guilty of contributory negligence.
    Further facts appear in the opinion.

      Frank F. Blackwell, attorney, and of counsel for plaintiff,
    after citing on the question of contributory negligence, Tolman v. Syracuse, Bing. & N. Y. R. R. Co., 98 N. Y. 198 ; Smedis v. Bklyn. & Rockaway Beach R. R. Co., 88 Ib. 13 ; Massoth v. Del. & H. Co., 64 Ib. 524 ; Weber v. N. Y. C. & H. R. R. Co., 58 Ib. 451; Morrison, Admr. v. N. Y. C. & H. R. R. Co., 63 Ib. 643; Dorland v. N. Y. C. & H. R. R. Co., 18 Week. Dig. 51 ; S. C., 19 Ib. 76 ; McGuire v. Spence, 91 N. Y. 303 ; Weed v. Village of Balston Spa, 76 Ib. 329 ; Rehberg v. Mayor, 91 Ib. 137; Clifford v. Dam, 81 Ib. 52 ; Todd v. City of Troy, 61 Ib. 506 ; Brusso v. City of Buffalo, 90 Ib. 679 ; Bullock v. Mayor, &c., 1 East. Rept’r. 170; and Hume v. Mayor, 74 N. Y. 264, argued I. It was the duty of the city, having itself created this obstruction some three years before, to properly guard it and to warn the traveler of his danger (Brusso v. City of Buffalo, 90 N. Y. 679).
    II. The remarks made by deceased to his son at the cars down town, and that to his- daughter in One Hundred and First street, were improperly excluded. It will be noticed that the words sought to be proved were contemporaneous with the act done, and explanatory of it. They were not the relation of a passed transaction. They were, therefore, not within some of the cases which hold this kind of evidence objectionable. Such a statement was permitted in Dorland. v. N. Y. C. &. H. R. R. Co., 19 Week. Dig. 51; 18 Ib. 76 ; Insurance Co. v. Mosely, 8 Wall. 397; Waldele v. N. Y. C., &c. R. R. Co., 95 N. Y. 274; Thompson v. Trevanion, Skinner, 402 ; Averson v. Kinnard, 6 East, 197; McKing v. Foster, 6 Carr. & Payne; Commonwealth v. Pike, 3 Cush. 181; Rawson v. Haigh, 2 Bingh. 99; Hanover R. Co. v. Coyle, 55 Penn. St. 402 ; Beaver v. Taylor, 1 Wall. 637). Immediately upon hearing a groan, Simpson, being but a few steps away from the foot of the wall, went to the deceased. It is fair to presume, from the evidence, that the groan was simultaneous with the fall. Simpson had reached a point near the wall long before the deceased fell. At that moment the deceased made a statement, explanatory of his condition, which was excluded. If the groan and the striking of the ground by deceased were simultaneous, then what passed between him and Simpson was within several seconds of the time of the fall, and what the former said at that time was competent evidence as part of the res gestee. (Commonwealth v. Hackett, 2 Allen, 137 ; Hanover R. R. Co. v. Coyle, 55 Penn. St. 396). Both the above cases are approved, and the whole question of res gestee is carefully considered in Waldele v. N. Y. C. & H. R. R. Co., 95 N. Y. 274.

      E. Henry Lacombe, counsel to the corporation, and David J. Dean, of counsel for defendant,
    on the question of contributory negligence, cited, Cordell v. Central R. R. Co., 75 N. Y. 330 ; Hale v. Smith, 78 Ib. 487; Reynolds v. N. Y. Cent. R. R. Co., 58 Ib. 248 ; Becht v. Corbin, 92 Ib. 658 ; Hart v. Hudson River Bridge Co., 84 Ib. 56 ; Riceman v. Havemeyer, 84 Ib. 647; Warner v. Central R. R., 44 Ib. 471; Dorlon v. Mayor, C. P. January, 1884 ; Gaynor v. Old Colony R. R., 100 Mass. 208 ; Murphy v. Doane, 101 Ib. 466 ; McGuire v. Spence, 91 N. Y. 303).
   By the Court.—Sedgwick, Ch. J.

The plaintiff attempted to prove that the intestate had fallen from the top of a retaining wall of the bed of New avenue. Shortly before the accident the intestate was visiting his daughter in her house. That house was in One Hundred and First street, between Ninth and Tenth avenues. That street went easterly to the top of the wall, and the wall was between Ninth and Eighth, avenues. The daughter, as witness for plaintiff, testified that the intestate, as he left her house, said where he was going. She was then asked on the part of plaintiff, “What did he say?” The defendant objected to the question, and it was excluded. It had been proved that the intestate’s dwelling was in One Hundred and Thirty-ninth street. The particular place was not proved.

It seems to me that it was competent for the plaintiff' to prove that the deceased when he left the house intended to go along One Hundred and First street easterly in a direction which would bring him to the wall. His. mind being, by presumption, in a condition usual with the generality of men, his intention at the time was the-thing that would precede and induce his subsequent movements and their direction. And his declaration of his. intention was primary evidence of what that intention, was. “ Declarations made at the time of the transaction, and expressive of its character, motive or object, are-regarded as verbal acts indicating a present purpose and. intention, and are therefore admitted in proof like any facts. So upon an inquiry as to the state of mind, sentiments or disposition of a person, at any particular period,, his declarations and conversations are admissible. They are part of the res gestae.”

He had gone to his daughter’s house, from the house-of a son. On the trial, that son was asked what his father said, when he was leaving the house, as to where he was going. This question was properly excluded, because it was immaterial as to anything the father did thereafter, unless the declaration referred to his intended course from the daughter’s house. But, before he left the daughter’s house, too much time had passed and too many things had happened, to make his declaration when leaving the son’s house, any evidence of what he did after leaving the daughter’s house.

The deceased had been found at the foot of the wall, by. a whin ess for plaintiff. The witness’ attention was attracted, probably, by the moaning of the wounded man. He found the latter on the ground, at the foot of the wall and in the center of One Hundred and First street, which continued easterly from the foot of the wall. The plaintiff’s counsel, asked the witness, “ What, if anything, immediately upon reaching the man, did he say to you ? ” Without further explanation of the character of the answer intended to be elicited by the question, tire testimony sought was hearsay. Ho event or act appears in testimony of which a declaration of the witness would be part. The probabilities are that the declaration, if disclosed by the answer, would show that it referred to a past event, and would be of the nature of testimony to the occurrence of that event, rather than explaining or giving character to it.

At the close of the testimony for plaintiff, the counsel for defendant moved to dismiss the complaint on three grounds : 1st. That there was no evidence of corporate negligence ; 2d. That there was no evidence that fading from the wall was the cause of death ; and, 3d. That there was no evidence that the plaintiff was free from contributory negligence.

The following is a sufficient statement of facts, which the plaintiff could justly claim that a jury might have found: A short time before the deceased was hurt, he was in One Hundred and First street, and he was found in the center of that street, at the foot of a wall twenty-five feet high, which abruptly changed the grade of the street. He moved from one point to the other, either by what the jury might say, was a direct, usual and more convenient way, or by one that they might find was indirect, unusual and the less convenient—the former, as they might find, calling for less exertion of mind and body. If he did take the direct way, then the jury could find, coupling inferenees from the broken leg and other great hurts of the man, that'he fell over the wall. It is not proper to say that the jury would be forced to this result. It was a question for them. They might consider that if the intestate received his wounds otherwise than by falling from the wall, it must have been at a point easterly, and from an unusual combination of circumstances, and that it did not appear that such circumstances had happened with no presumption of law or fact that they did happen.

On the point of contributory negligence, the argument is that*as there is no proof of what occurred when the deceased reached the top of the wall and fell, if it be assumed that he fell, it cannot be said that he proved or gave testimony that the accident did not result in part from his own negligence. Of course, if there be no proof of attending circumstances, then the plaintiff fails. There may be proof, however, of these things without any direct testimony as to them. The case of Tolman v. Syracuse, &c. R. R. Co., 98 N. Y. 198, is a sufficient guide here.

Contributory negligence is omitting to act with ordinary prudence either upon that apprehension of danger which by law the injured person is bound under the case to have, or upon those appearances of danger which the situation manifests. If it be true that there is no reason to apprehend danger, or if the situation manifests no appearance of danger, there can be no neglect of a duty which is based upon these things.

In the present case it appears from the testimony of the witnesses that the street on which the intestate walked had the usual conditions of a street, and there was nothing about it which would induce apprehension of danger in a passenger, especially of danger from the ending of that part of the street at the top of a wall. Then the testimony showed that there was such an absence of light upon the place of the wall in .the street, or of anything that might be a warning, that the jury could have found that there was no appearance of danger, and hence no negligence in omitting to do otherwise than walking along the street, in a manner usual to those who go upon an unlighted street. This appeal does not make it necessary to decide whether, when the accident is the result of such a defect in the street, it is or is not necessary for the plaintiff to show a freedom from contributory negligence. It is only necessary to hold that in the facts, there was a scope which would permit the jury to find that the plaintiff was not negligent.

I cannot doubt that there was a corporate duty to give at the place of such danger on a highway, a warning as to there being a danger, which would suffice to inform persons of ordinary prudence that they should not go farther.

The plaintiff’s exception are sustained, the costs of the hearing to abide the event of the new trial, which is ordered.

Van Vobst and Freedman, JJ., concurred.


text:
    THE COMMERCIAL BANK OF PENNSYLVANIA, Respondent, v. ISAAC HEILBRONNER, Appellant.

      Factor—Right of to sell claim against vendee of his principal's goods, for purchase price thereof-—National hank—Right of to purchase such claim— Another action pending—when not defense.

    A factor who has sold goods of his principal, guaranteed the sale, and made advances thereon, has a cause of action against the vendee, which he may sell and assign.
    A national bank may purchase such a claim, if the purchase is for hanking purposes; the presumption being that the bank, in making the purchase used its power for a lawful purpose, which presumption is not overcome by merely showing that the former owner of the claim transferred it.
    An action pending between the principal as plaintiff and his factor, the vendee of the factor, and the parties to whom the factor had assigned his claim against his vendee, as defendants, the complaint in which alleged a sale by the defendant factor to the defendant vendee of divers goods of the plaintiff, at low prices; that said prices had not been paid ; that the parties defendant, to whom the factor had assigned his claim against the defendant vendee, took the transfer, with full notice of plaintiff’s rights as alleged in the complaint, and prayed that plaintiff be adjudged entitled to receive the sum of money due from the defendant vendee, for the goods alleged in the complaint to have been sold to him; that the transferee of the factor’s claim against the defendant vendee be restrained from collecting or receiving, and defendant vendee be restrained from paying over or delivering any part of the proceeds of such goods,—is no defense to an action brought by the transferee of the factor against such vendee for the price of the goods.
    Before Sedgwick, Ch. J., Van Vorst and Freedman, JJ.

      Decided December 7, 1885.
    Appeal by defendant from judgment entered on verdict of jury, directed by the court in favor of plaintiff.
    The action was brought for the purchase price of goods sold and delivered to defendant by a firm of Vanuxem, Wharton & Co., on a credit of sixty days. Before the sixty days had expired, Vanuxem, Wharton & Co., sold their right of action to the plaintiff, which was a national bank. The goods were sold by the firm named, as factor of one Taft and one Hubbell, guaranteeing that “alisales should be good.” The firm had advanced to their principals about sixty per cent, of the value of their consignments, which included the goods in question.
    It was proved that Taft had brought ^an action against the plaintiff herein, the defendant herein, the members of the firm of Vanuxem, Wharton & Co., and the Peconic Manufacturing Co., the complaint in which alleged that Vanuxem, Wharton & Co., sold and delivered to Heilbronner divers goods of the plaintiff at divers prices, which prices had not been paid by Heilbronner to Vanuxem, Wharton & Co., the plaintiff or otherwise ; that Vanuxem, Wharton & Co. executed an assignment of the claims against Heilbronner for the prices of said goods; that plaintiff herein took said assignment with full notice “of the plaintiff’s rights in and to all of the said goods, and in and to the said moneys due, or to become due, from the said Heilbronner, for the sale and deliveries to him as aforesaid, and not for full value or in good faith, and with notice of the fact that said Vanuxem, Wharton & Co. were the plaintiff’s factors with respect to the goods so sold to said Heilbronner, and had been fully paid for all their advances and charges by plaintiff, upon his goods consigned to them, and well knowing that the said Vanuxem, Wharton & Co. were insolvent, and indebted, as aforesaid, to the plaintiff and prayed that the plaintiff be adjudged entitled to receive the sum of money due from Heilbronner for the goods alleged to have been sold to them ; that the plaintiff in this action be restrained from collecting or receiving, and that said Heilbronner be restrained from paying over or delivering any part of the proceeds of said goods. It did not appear either that an injunction had been issued or judgment entered in that action. .

      Jacob Fromme, attorney, and of counsel for appellant, argued:
    I. The motion to dismiss the complaint after the plaintiff rested should have been granted. The plaintiff did not prove that its assignors were the owners of the indebtedness, as alleged in the complaint. On the contrary, it showed that its assignors were merely the agents to sell on commission. The fact that, as such agents, they matle advances .to the owner, did not alter their relations, unless it was shown that by agreement after the advances were made they then became the owners, which was not the fact in this case, nor was it attempted to be proven. After the credit expired, although not the owners, but merely the agents, if not prohibited by the owners, Vanuxem, Wharton & Co. might have maintained an action in their own name (§ 449, Code), but that did not authorize them to sell the claim before the credit expired (Warner v. Martin, 11 How. [U. S.] 209 ; §§ 112, 113, Story on Agency, [8th ed.] 130, 131).

      Buying el aims was not within the power of the plaintiff. The bank, therefore, exceeded its power, and hence cannot recover (Seneca County Bank v. Lamb, 26 Barb. 598; North River Ins. Co. v. Lawrence, 3 Wend. 482 ; Life & Fire Ins. Co. v. Merchants’ Fire Ins. Co., 7 Ib. 31; Bank of California v. Collins, 7 Hun, 336 ; U. S. R. S. § 5136, subd. 7, 999).' The case of Gold Mining Co. v. Rocky Mountain Bank, 96 U. S. 640, is not analogous.
    II. The defense of another action pending is a good one. The defendant set up in that action, together with the allegation in the complaint, all- such necessary facts against this plaintiff as would sustain an action for an interpleader.—1. That two persons make claim against him (Heilbronner) for the same thing. 2. That he has no beneficial interest in the thing (debt) claimed. 3. That he cannot determine, without hazard to himself, to which of the parties the debt belongs. 4. That it appears that the action at bar was brought after the supreme court action, where all interests of the parties can be adjusted without damage to any one (Dorn v. Fox, 61 N. Y. 264), and asks for affirmative relief against the plaintiff in this action, which would make this defendant the plaintiff against the plaintiff here, in the same manner as if he had brought an independent action (§ 521, Code). The defendant could not in this action come in o:i motion and ask to be allowed to pay the amount into court, and to substitute Taft in his place under § 820 of the Code, because he (defendant) disputed a portion of it, to wit: his offset of $81.99. (New England Ins. Co. v. Keller, 20 Week. Dig. 482).
    III. In no aspect of the case could the court direct a verdict for the plaintiff. By the testimony of Taft, it appeared that he claimed the goods and account before the credit expired ; also that he revoked the agency of Vanuxem, Wharton & Co., and brought suit against them before the credit expired ; how, then, could the direction be made in favor of the plaintiff? The plaintiff’s assignors could not even maintain the action, because their authority was revoked—were even sued before the credit expired (Sargent v. Morris, 3 Barn. & Ald. 277). In no aspect of the case could Vanuxem, Wharton & Co., plaintiff’s assignors, be regarded as the owners of the claim (Beach v. Forsyth, 14 Barb. [469], 503 ; Fahnestock v. Bailey, 3 Metcalf [Ky.] 480).

      Boot & Strong, attorneys, and Theron G. Strong, of counsel for respondent, argued:
    I. The motion to dismiss the complaint, on the ground that the bank had no authority to buy the claim in question from Vanuxem, Wharton & Co., was properly denied (Subd. 7, § 5136, U. S. R. S.; Gold Mining Co. v. Rocky Mt. Bank, 96 U. S. 640).
    II. Vanuxem, Wharton & Co., having made advances on the goods of from 60 to 75 per cent, of their value," and being factors under a del credere commission, had a lien to the extent of their advances, and were the proper parties to sue. a. Whatever rights Vanuxem, Wharton & Co. had, passed to the bank by the transfer, and-the bank could therefore maintain an action if Vanuxem, Wharton & Co. could ; and that they could there can be no question (Ladd v. Arkell, 37 Sup. Ct. 35). b. The utmost that could be claimed would be that the bank would be obliged to account to Taft for all beyond Vanuxem, Wharton & Co.’s advances. •
    III. The pendency of the action by Taft constitutes no defense, a. The mere fact that a prior suit is brought by another person against the defendant for the same thing is no defense. If the defendant admits that the amount claimed is due, he can protect himself by interpleader and payment into court, b. But the facts in no respect make applicable the plea of another action pending (Dawley v. Brown, 79 N. Y. 398).
   By the Court.—Sedgwick, Ch. J.

The first objection to plaintiff’s recovery is that Vanuxem, Wharton & Co. were not the owners of the goods sold to the defendant. It is apparent that as factors of Taft & Hubbell, they had a cause of action against the defendant, which in its nature was capable of transfer to plaintiff. As the firm had advanced and also guaranteed that purchasers from them would pay, it was no infringement of the principal’s right to turn the claim into money, as was done. Taft & Hubbell, being indebted for advances, could not have successfully brought an action against the defendant.

Another objection was, that plaintiff was not the owner of the claim, because, being a national bank, it had no right or authority to buy claims of this kind. By sub-division 1, of section 5136, U. S. R. S., it had “all such incidental power as shah be necessary to carry on the business of banking, by discounting and negotiating promissory notes, drafts, bills of exchange, and other evidences of debt.” It had all the faculties necessary to the purchase of any kind of property. Its bank was in Pennsylvania. It had authority to buy this claim if the purchase was for any banking purpose ; for instance, to place money in New York, or elsewhere, where the defendant lived. Under such a defense as the present, the presumptions are that the bank used its power for a lawful purpose (Farmers’ Loan & Trust Co. v. Curtis, 1 N. Y. 466). The unauthorized purpose is not proved by merely showing that the former owner of the claim transferred it. That shows nothing as to the purpose of the plaintiff in buying, and does not overcome the presumption referred to. This objection should not be sustained.

The action, the pendency of which was set up as a defense, was not between the same parties or for the same cause. The present claim was merely incidental to the issues of that action.

Judgment affirmed, with costs.

Van Vorst and Freedman, JJ., concurred.


text:
    JOHN L. COLBY, Appellant, v. AUGUSTUS S. PEABODY, et al., Respondents.

      Creditor's bill—transfer of seat in stock exchange, defendant having no other property excepting stock margin.

    In an action brought by a judgment creditor to set aside a transfer of a seat in the Stock Exchange, made hy the debtor to his son without valuable consideration, shortly after the beginning of the action in which the judgment was recovered, it appeared that at the time of the transfer, beside such seat, the debtor possessed an interest in stocks, viz,: a margin of the cash value of §26,612; that the action in which'the judgment was recovered was brought for §73,000, but that by reason of a counterclaim of §50,000 on contract, the recovery was only §18,000. It also appeared that subsequently said margin was absorbed in the stock trans-* action referred to, leaving defendant without property.

      Held, that the defendant could not be held insolvent at the time of the transfer; that the question whether he was guilty of fraud in parting with the property with intent to deprive plaintiff of its benefit, was a question of fact for the court below; also, that defendant had the right to show that the transfer was not induced hy plaintiff’s action, by proving that it was the result of determination made theretofore.
    Before Sedgwick, Oh. J., Van Vorst and Freedman, JJ.

      Decided December 7, 1885.
    Appeal from judgment dismissing complaint, entered upon findings of the court at special term.
    The action was to obtain judgment setting aside a transfer of a seat in the Stock Exchange, made by the defendant to his son, in fraud, as was averred, of the creditors of the former. The court below found, among other things, that said transfer was without valuable consideration.
    Further facts appear in the opinion.
    The judge directed that the complaint should be dismissed.

      Stephen B. Brague, for appellant.
    I. The pecuniary condition of the defendant was such that a bare stateinent of the facts leads the irresistible conclusion that he transferred his seat to avoid the liability to the plaintiff, The intent and motive are inferred from all the facts and circumstances of each case, the pecuniary condition of the party; the character of his business, whether precarious or not; the amount of his liabilities as compared with property. The voluntary conveyance is prima facie evidence of fraud, not conclusive. But the presumption of fraud can only be met by the fact that the debtor retained sufficient to pay his existing debts. There is a uniformity of decision, that a transfer under the circumstances of this case is fraudulent (Carpenter v. Roe, 10 N. Y. 227; 2 R. S. 127, § 4 ; Seward v. Jackson, 8 Cow. 422 ; Hinde’s Lessee v. Longworth, 11 Wheat. 199 ; Reade v. Livingston, 3 Johns. Ch. 481; Stat. 13 Eliz. Ch. 5 ; Twyne’s Case, 3 Coke, 80; 1 Smith L. C. 34; Place v. Sedgwick, 5 Otto, 3 ; Coleman v. Burr, 93 N. Y. 17). Hinde v. Longworth could have been used as a brief in this case. It was reversed on the sole ground that evidence to rebut the presumption of fraud was excluded. (Bump Fraudulent Con. 3d Ed. 23, 270 et. seq.).

    The court is also in error in giving any weight to sustain the conveyance by proof of a previously expressed determination or promise; no court has ever given any weight to evidence of a previous promise to sustain a fraudulent conveyance where the promise was without consideration. It is a- constant practice to resort to the previous promise ; as a promise to convey a farm for services to be rendered (Robinson v. Stewart, 10 N. Y. 189 ; Seward v. Jackson, 8 Cow. 406).

      Martin & Smith, A. P. Whitehead, and M. W. Devine, for Peabodys, respondents.
    The burden of proof is upon plaintiff to show fraudulent intent (Wait Fraudulent Con. § 271; Starin v. Kelly, 88 N. Y. 418). It was decided before the statute that a voluntary conveyance by a person in debt at the time was not necessarily fraudulent (Seward v. Jackson, 8 Cow. 406 ; approved 63 N. Y. 76). Absence of consideration is held not to be enough alone to authorize judgment for plaintiff. There must be facts showing actual fraud (Holden v. Burnham, 63 N. Y. 74; Babcock v. Eckler, 24 Ib. 633; Dygert v. Remerschneider, 32 Ib. 636 ; Genesee Nat. Bank v. Mead, 92 Ib. 637 ; Young v. Heermans, 66 N. Y. 374; rev’g 5 Hun, 124 ; Carr v. Breese, 81 N. Y. 584; rev’g 18 Hun, 134; Savage v. Murphy, 34 N. Y. 508; Case v. Phelps, 39 Ib. 164; Carpenter v. Roe, 10 Ib. 227; Shand v. Hanley, 71 Ib. 319 ; Mullen v. Wilson, 44 Penn. 413, distinguished ; Lormore v. Campbell, 60 Barb. 68 ; Spicer v. Waters, 65 Barb. 233 ; 19 Wend. 134, 445 ; 5 Wend. 661).
   By the Court.—Sedgwick, Ch. J.

The counsel for appellant in this case seems to me, to make in, his able argument, an error of calculation, which perhaps may" be deemed to be of decisive importance. It occurs in the statement of the property owned by the debtor at the time of the assignment by him, and which is claimed to have been fraudulent. The judge below had found on competent testimony that the debtor had an interest in stocks in the shape of a margin of the cash value of $26,612. A few days before he assigned the property in controversy to his son, the present plaintiff had begun against the debtor an action to recover about $73,000, principal and interest. This is assumed to have been due by him at the time of transfer. The proof shows that the action made the claim. In it, besides a denial by defendant of any indebtedness to plaintiff, he interposed a counter-claim upon contract for $50,000. The plaintiff recovered only $18,000. Therefore, in estimating his, defendant’s, means at the time of the transfer, it would not be correct to charge him more than the latter amount, instead of $73,000. On the proof then he was not insolvent, and so the judge found.

As to whether he was to be charged with fraud in fact, for parting with the property, with the intent to deprive the plaintiff of its benefit, when he knew he was about to engage in a speculative, hazardous business, ■which, in fact, did absorb the property he owned after the assignment, it was a question of fact to be submitted to the court below, in the light of all the circumstances of the case. The defendant had a right to show to the court that the transfer was not induced by the action brought by the plaintiff a few days before, by proving that the transfer had been meditated before the action was brought, and was the result of a determination made before. If the court was satisfied that the latter condition existed, it might consider it with other facts that the plaintiff could claim were proved, like the following : The plaintiff’s claims were of long standing, none being later than June, 1877. The defendant rightfully _ denied that the amount claimed was due, either because that amount had never been due, or because of his counterclaim for services. There was nothing to require the court to find that the defendant believed the plaintiff would recover against him, and for such a reason, or for any other reason, disclosed by the evidence, intended that the property assigned should be in the hands of his son, at a time when the speculations might leave him without property to satisfy such claim as it might turn out the plaintiff had.

The case would not justify a reversal of the judge’s findings of fact.

Judgment affirmed, with costs.

Van Vorst and Freedman, JJ., concurred.


author: By the Court. —Sedgwick, Ch. J.

text:
    JOHN DEMAREST, Respondent, v. WILLIAM HAIDE, Appellant.

      Building contract—Extra worlc—■Specification not signed or attached — oral proof to vary—Architect's certificate—when not necessary— Evidence.

    In an action on a building contract to recover the reasonable value of certain extra work orally ordered by defendant, it appeared that under a provision of the specifications which were not annexed to the written contract, or signed by the parties, only the cost value (in the absence of a special agreement) of extra work, ordered in writing, could be demanded; but it further appeared, that the contract signed by the parties made no reference to the specification for the agreement as to the extra work, and itself contained a provision, that “ should the owner request any alteration, deviation, additions or omissions from the said contract, he shall be at liberty to do so, and the same will be added or deducted from the amount of the contract, as the case may be, by a fair and reasonable valuation.’’

      Held, that a recovery for such extra work on proof of reasonable value, should be upheld, under said clause in the contract.
    Where it appears that the builder has substantially fulfilled his contract, though he has unintentionally been guilty of certain slight defects in performance, and that he has acted in good faith, and to the best of his ability in carrying out the contract, the refusal of the architect to give a certificate of performance is unreasonable, and the builder may recover his compensation without it.
    Where the contract makes the following reference: Agreeably to the
    specifications made by G. W. 0., architect, and signed by the said parties and hereto annexed,” and no specifications were signed or annexed, what the parties intended should be the specifications, is a subject of oral proof. Hence, the question : “ State what oral alterations were made in the specification Exhibit No. 2 before the signing of the contract,” is not objectionable on the ground that the specifications in contract are in writing, and all prior oral agreements are merged therein.
    Where it appears that the extra work,—e. g., laying a concrete floor,—was done as requested by the defendant, it is not error to refuse to permit him to show that he protested against the work as insufficient during its progress.
    Before Sedgwick, Oh. J., Freedman and Truax, JJ.

      Decided December 7, 1885.

      Appeal by defendant from judgment entered upon the report of referee.
    The action was on a building contract for the value of . materials and labor furnished by plaintiff while building, for defendant,' a house.
    The referee found that the printed specifications referred to in the opinion, and admitted in evidence, were submitted by the defendant to the plaintiff for estimates, and that it was then agreed between the parties, by parol, that they should be, and they then were modified in certain particulars. The contract contained the usual provision requiring an architect’s certificate to be obtained by the builder prior to demanding payment, etc. Further facts appear in the opinion.

      William J. Amend and Lewis Sanders, for appellant.
    —I. Under the contract, without special agreement, plaintiff could only recover cost price. There "was no special agreement proved, nor cost price. How can plaintiff sustain his judgment for the concrete and sixth story ?
    II. Where the plans and specifications are mentioned in the contract as annexed, it is sufficient to identify them though not in fact annexed (N. E. Iron Co. v. Gilbert El. R. R., 91 N. Y. 164). Here the plaintiff proved the plans and specifications.
    III. It is only where the refusal of the architect is unreasonable that the court can step in and certify the fact in his stead. Where the contractor omitted to put a sink at a cost of $100, the whole contract price being a little less than $3,000, no architect’s certificate was obtained as required. Held, the contractor could not recover. Occupation not an acceptance or waiver (Reed v. Board of Education, 4 Abb. Dec. 24). Certificate of architect conclusive on the owner in absence of fraud or mistake (Wyckoff v. Meyers, 44 N. Y. 143). By a parity of reasoning its refusal is conclusive on the builder. Although builder substantially completes the work so as to earn the fifth payment, yet if he then willfully abandons the work, leaving only some slight particulars undone, he cannot" recover (Crane v. Knubel, 61 N. Y. 646). Here plaintiff abandoned performance as to bolting coping, fine axing sills and lintels, pier plates in cellar, circular sky-lights, and seven inches of concrete in cellar, putting in but three. He should not recover in the absence of an architect’s certificate (Wangler v. Swift, 90 N. Y. 44). Where a party contracts to do work to the satisfaction of a third person, in an action to recover the stipulated price, he must aver and prove that the work was done to the satisfaction of such person (Butler v. Tucker, 24 Wend. 447; Barton v. Hennann, 11 Abb. Pr. N. S. 387; Tyler v. Ames, 6 Pans. 280; McCanen v. McNulty, 7 Gray, 139 ; Gibson v. Cranage, 33 Am. Pep. 353. See also Bowery Natl. Bank v. Mayor, 63 N. Y. 339 ; Glacius v. Black, 67 N. Y. 567; Flood v. Mitchell, 68 N. Y. 513).
    IV. Plaintiff as a witness was allowed to detail six alterations which, he alleged, were agreed to orally before the signing of the contract, but which were retained in the specifications which were made a part of the written contract .under seal. Ho application was made to reform the agreement, but the referee found that the prior alleged oral agreement superseded the subsequent written contract. This was error.

      William H. Sage, for respondent.
    I. Where a building is subtantially completed under a contract, the refusal of the architect to give a certificate is unreasonable, and the plaintiff can recover without it (Nolan v. Whitney, 88 N. Y. 648 ; Thomas v. Fleury, 26 Ib. 36 ; Doyle v. Halpin, 33 Super. Ct. 352; Smith v. Wright, 6 Ib. 694 ; Whitman v. Mayor, 21 Hun, 121; Bowery Nat. Bank v. Mayor, 63 N. Y. 336).
    II. If there were any defects in the work, a deduction can be allowed therefor, and the plaintiff recover the full amount, less such damages (Woodward v. Fuller, 80 N. Y. 312; Glacius v. Black, 50 Ib. 153 ; Johnson v. De Peyster, 50 Ib. 666 ; Heckman v. Pinkney, 81 Ib. 213; O’Sullivan v. Connor, 8 Week. Dig. 61).
    ■ III. The good 4aith of the contractor in trying to do good work is co/Asidered as an element entitling him to recover Ward v. Kilpatrick, 9 Week. Dig. 342; aff’d, 12 Ib. 401; Woodward v. Fuller, 80 N. Y. 312 ; Glacius v. Black, 50 N. Y. 153).
    TV". Where extra work is, by the terms of the contract, to be 'on’dered in writing, such work ordered orally must be paid. for. The sixth story and second cellar floor were ordered orally by defendant (Am. Corrugated Iron Co. v. Eisner, 39 Super. Ct. 200 ; Smith v. Gugerty, 4 Barb. 614 ; Moody v. Smith, 70 N. Y. 598 ; Pierrepont v. Barnyard, 6 N. Y. 219).
    V. The printed parts of the specifications were no part of the contract; they were not signed, nor were they annexed to it; they are inconsistent with the contract, and were only intended to contain the particulars of the heights of the different stories, so that the plaintiff could make his estimate upon the cost of the building. In other respects the drawings guided him.
   By the Court. —Sedgwick, Ch. J.

The testimony supports the findings of the referee, that the new concreting of the cellar floor was not in performance of the written contract, and was extra work, and that the plaintiff raised the walls seven feet above the height fixed by the written contract considered in connection with the drawings.

It is claimed, however, that as the extra work was not ordered in writing by the defendant, and the plaintiff did not prove the actual cost of it, but recovered its reasonable value, there could be no recovery for it, under a provision of specifications that “ no bills for alterations or additions will be allowed unless the same were ordered in writing, and in default of any special agreement, extra payment is to be made only for actual cost of such alterations or additions.” This provision was a part of specifications not signed by the parties, or annexed to the written contract which they did sign, and this written contract did not refer to specifications- for the agreement as to extra work, but itself contained! the clause that “should the owner request any alteration, deviations, additions or omissions from the said contract, he shall be at liberty to do so, and the same will be added tsxr deducted from the amount of the contract, as the case miay be, by a fair and reasonable valuation.” This clause Justified the action of the referee as regards the extra work. \

The referee overruled a question asked to show ghat the defendant notified the person in charge of putting'in the new concrete floor, that the defendant objected to lit as insufficient. The exception taken to this is not material, for the referee has found on the testimony that the work was done as requested by the defendant. He could not avoid the responsibility based upon this by objecting to the work in its progress.

The referee found, upon sufficient testimony, that the plaintiff had substantially fulfilled the contract, although he had unintentionally omitted to provide and lay two cast-iron frames around the floor-lights, and he allowed the defendant the value of the frames, and the' cost of laying them. The referee further found that plaintiff carried out his part of the contract in good faith, and to the best of his ability. Under these circumstances, it was unreasonable on the part of the architect to refuse to give a certificate of performance, and the plaintiff was entitled to recover without obtaining the certificate.

The plaintiff, when a witness on his own behalf on the trial, was asked, “ State what oral alterations were made in the specifications, Exhibit No. 2, before the signing of the contract ?” This was objected to by defendant’s counsel, on the ground that the specifications in contract are in writing, and all prior oral agreements are merged therein.

This ground is not in accord with the facts of the case. The specifications referred in the written contract had no existence. That is, the contract made the following reference: Agreeably to the drawings and specifications made by G-. W. C. architect, and signed by the said parties and hereto annexedbut no specifications had been signed by the parties or annexed to the contract. It was necessarily the subject of oral proof to show what the parties intended should be the specifications. On the plaintiffs proof, if the parties had been confined to the printed specifications, a contract would have been forced upon them which they had not made, and to which they had not committed themselves by any writing.

Other exceptions were taken which have been examined, and do not call for a reversal of the judgment.

Judgment affirmed, with costs.

Freedman and Truax, JJ., concurred.


text:
    CHRISTINO S. FONDAVILA, Appellant, v. CHRISTIAN JOURGENSEN, Respondent.

      Direction of verdict, evidence justifying.—Landlord and tenant—not yielding possession—measure of damages for—Parol agreement to put in order, alleged to have been made at time of execution of lease, but not embodied therein, no recovery on. •
    Plaintiff (the tenant), sued defendant (the landlord), in action for damages for not delivering possession, and for breach of an agreement to put the premises in good order, alleged to have been made at the time of the execution of the written lease, but not embodied therein. The defense was a settlement of the claim. Defendant testified that negotiations were had as to the matters in difference; and that the terms of sefc- ■ tlement were agreed on. On the day after, plaintiff sent defendant a receipt which had been prepared for him by a friend, for a certain sum of money in full for the rent for a certain period; the sum mentioned in the receipt was less than that reserved by the lease, and was the amount found by a calculation made on the basis of the terms of settlement testified to by defendant. The defendant added to the receipt the words,

      “ In settlement of difference, the above amount is received,” signed it and sent it to plaintiff. It did not appear that there was any difference between the parties, other than those thus existing, and which were the subject of the action. Payment was made according to the receipt. Plaintiff did not deny that negotiations were had, nor did he deny that an agreement for an allowance to him had been carried out, so far as it could then be done. Plaintiff denied that he knew of the addition to the receipt when he took it back, and in substance testified in general terms that he did not agree to settle his claim for damages. There was no evidence of the difference between the value of the premises, and the rent.
    Held, a direction of a verdict for defendant on the ground that the cause of action had been settled before suit brought was correct.

      Held further, there being no evidence of any difference between the value of the premises and the rent, no damages issuing out of a breach of the implied agreement to yield possession had been shown.

      Held further, that the written lease was the only competent evidence of an agreement to put in order, and as the lease contained no such agreement, no damages could be recovered on such an alleged agreement.
    Before Sedgwick, Oh. J., and Freedman, J.

      Decided December 7, 1885.
    The defendant, by an instrument in writing, leased certain premises to the plaintiff, at a yearly rent of $2,500, payable monthly in advance, for a term of three years from May 1, 1884. Plaintiff sublet the upper part, at the monthly rent of $91.66, to one Boera, who entered thereon May 1, 1884. Plaintiff paid the May rent in advance ; he did not pay the June or July rent, claiming that he should have an allowance for not being put in possession of the lower part, and for a breach of agreement alleged to have been made at the execution of the lease (but not introduced therein), to put the premises in good order, painted and ready for occupation as a first-class restaurant. Negotiations were entered into, which resulted in a settlement, as defendant testified, on the following basis :— Defendant was for the month of June to allow the plaintiff the difference between the rent for that month, and the rent received by him from Boera for that month, and for the month of July one-half of such difference, and at the end of the terra to allow for the previous May rent the difference between the two rents for that month, and to put in a new closet. On the next day, the receipt referred to in the opinion was given, and payment made according to its terms—the sum mentioned in the receipt being plaintiff’s full rent for June and July, after making the above allowances for those months. Plaintiff did not deny that there were negotiations for a settlement of the difference, nor did he deny that an agreement for allowances to him was made, and that such agreement had been carried out; but near the close of his testimony he in substance testified in general terms that he did not agree to settle this claim for damages. It did not appear that there were any differences between the parties other than those thus existing, and which were the subject of the action. Other facts appear in the opinion.
    The court directed a verdict for the defendant, from the judgment entered on which plaintiff appealed.

      Lorenzo TJllo, for appellant.

      Josiáli T. Marean, for respondent. •
   By the Court.—Sedgwick, Ch. J.

On April 2, 1884, the plaintiff and defendant entered into written lease, by which the defendant let, and the plaintiff hired a store at the yearly rent of $2,500, payable monthly in advance, for three years beginning May 1, 1884. The plaintiff went into possession of the upper floor of the premises on May 1, but claimed that the defendant did not deliver possession to him of the lower part of the premises until July 15.

On the argument of the appeal, the learned counsel for appellant took the position that the action was brought to recover damages sustained by the plaintiff by reason of the failure of the defendant to deliver possession before July 15.

One of the defenses to this claim was that by mutual compromise this claim had been settled and discharged, by the defendant deducting from rent due and unpaid a certain amount which the plaintiff agreed should be in satisfaction of the claim he made in this action.

On the trial, the judge held that the evidence showed that such a settlement had been made, and directed a verdict for the defendant. The plaintiff asked to go to the jury on the question whether or not the agreement between the parties comprehended the claim made in this action, and did not ask that any other question be sent to the jury.

The most important piece of evidence to show that the claim had been settled was a receipt given by defendant, as follows : “Received this July 17, 1884, from Ohristino S. Fondevila the sum of $241.66, being in full balance of rent of premises at 100 Maiden Lane, leased by me to him, for months of June and July, 1884. In settlement of difference, the above amount is received. 0. Jourgensen.” The plaintiff denied that at the time he took back the receipt after it was signed, he knew that the last sentence had been added to it, by the defendant. The proof showed that the defendant did add it. But the rest of the receipt was understood by the plaintiff. It had been prepared for him by a friend, and he, the plaintiff, had handed it to the defendant for signature. The intrinsic nature of the transaction, as described by the receipt, in light of other facts proven by undoubted testimony, shows that the settlement was made. The only reason the plaintiff had for urging a deduction from the rent was that he had not been put in possession of all the premises. If he had not made such, a claim, the whole rent would have been undoubtedly due. His right would have been to recover his damages, and his obligation to pay the rent (Knox v. Hexter, 71 N. Y. 461). The receipt as prepared and retained by him showed that he had accepted an acquittance for part of the rent, and the only consideration for this, that the circumstances permit, was his acquittance of the defendant from the damages claimed in this action. The ruling below should be sustained.

In fact, however, it appears in the testimony that the plaintiff did not show himself entitled to any damages in his avowed cause of action. The measure of damages upon an implied agreement of a lessor to yield to the lessee possession of the premises, is the difference between the yearly value of the premises and the rent (Trull v. Granger, 8 N. Y. 115). No such difference was attempted to be proved.

There was involved in the transaction between the parties, a promise, testified to by plaintiff and denied by the defendant, that the latter would before the commencement ' of the term put the premises in good order, &c. The complaint avers that this promise was made when the parties made the written agreement. This agreement does not show any such promise, and the promise, if made, must have been verbal. The only competent evidence of the agreement of the parties, was the written instrument (Cleeves v. Willoughby, 7 Hill, 83).

Judgment affirmed, with costs.

Freedman, J., concurred.


author: By the Court.—Van Vorst, J.

text:
    ALFRED LISTER, et al., Respondents, v. LOUIS WINDMULLER, et al., Appellants.

      Contract—meeting of minds on subject of—Unilateral mistalce, effect of —: Warranty by exhibition of sample—Measure of damages, vendor no title—Breach of contract to deliver in presentí, time of—Error on trial, curing of.

    Where the subject of the contract is plainly described in the agreement signed by the parties, the agreement is of itself the best evidence of meeting of minds and assent, and, in the absence of fraud or mutual mistake, is conclusive.
    Where the mistake is that of one party alone, the rule of law is that whatever his real intention may be, if he manifests an intention to another party so as so induce that other party to act on it in making a contract, he will be estopped from denying that the intention as manifested was his real intention, and cannot avoid the contract on the ground of mistake.
    Where a sale is made by sample, the possession of the sample by the seller is constructively sufficient possession of the bulk of goods from which the samples are represented to be drawn,to authorize the purchase]-, in the absence of any evidence to the contrary, to beliqve and act on this belief, that the vendee was actually in possession of the bulk; and is sufficient to raise by implication a warranty of title to the bulk in the vendor. Want of actual possession of the bulk is in such case, as between the vendor and vendee, immaterial.
    The measure of damages against the vendor for breach of contract of sale of personal property, the vendor in fact having no title to the property sold, but making the sale innocently, is the difference between the contract price and the value at the time of breach.
    The time of breach of contract of sale and delivery in presentí, is, as against the vendor, when there is either an absolute refusal to deliver, or a distinct announcement of an inability to deliver.
    Error in exclusion of evidence is cured by the subsequent admission of evidence on the same point offered by the party against whom the error was committed.
    Before Sedgwick, Oh. J., and Van Voest, J.

      Decided December 7, 1885.
    Appeal from judgment entered on the verdict of a jury in favor of plaintiff against defendants, and from an order denying a motion for a new trial.
    The facts appear in the opinion.

      Francis Lawton, attorney and of counsel for appellants, argued:
    I. It was error to rule out the testimony offered to show that the subject-matter contemplated by the parties did not exist, and that therefore the minds did not meet (Cutts v. Guild, 57 N. Y. 234; Dana v. Munro, 38 Barb. 528; Baldwin v. Middleberger, 2 Hall, 176; Saltus v. Pruyn, 18 How. Pr. 512; Scrantova v. Booth, 29 Barb. 171 ; Booth v. Bierce, 38 N. Y. 463 ; Fullerton v. Dalton, 58 Barb. 236 ; Crowe v. Lewin, 95 N. Y. 423; Benjamin Sales, 4 Am. Ed. § 50 ; Thornton v. Kempster, 5 Taunt. 786 ; and Story Sales, §§ 147-150). Even if the minds had met upon the thing described and intended to be sold, it was not acted upon. This action could not be upheld in such case unless there was fraud or a covenant of warranty of title (Day v. Nason, 1 East. Rep. 772; Scranton v. Clarke, 39 Barb. 275 ; Hopkins v. Grinnell, 28 Id. 537 ; Robinson v. Anderton, Peake, 94; Early v. Garrett, 9 B. & C. 932). No fraud is alleged or shown. No express warranty of title is alleged or shown, and defendants had no title nor possession of the goods in question personally, or by agent. No warranty is therefore implied (Benj. Sales, 4 Am. Ed. § 641, and note; Scranton v. Clarke, 39 N. Y. 222 ; Hopkins v. Grinnell, 28 Barb. 532 ; Burt v. Dewey, 40 N. Y. 483 ; Story Sales, 3d Ed. p. 459 ; Bechet v. Smithers, 50 Super. Ct. 381; McCoy v. Archer, 3 Barb. 323 ; Edick v. Crim, 10 Id. 445 ; Mills v. Porter, 5 T. & C. 65 ; Bishop Contr. 96 ; Scranton v. Clarke, 39 Barb. 275 ; Sweetman v. Prince, 26 N. Y. 230 ; 2 Kent Comm. 478 ; 1 Parsons Contr. 5 Ed. 575 ; Reynolds v. Roberts, East, 749).
    II. The court erred in instructing the jury, that the measure of damages was the difference between the contract price and the market price of the goods mentioned in the contract during the month of May, after the breach of the contract had occurred. Damages, if any, should have been nominal. On sales of specific ascertained pieces of property damages divide into three classes : 1. Where buyer acquires the ownership of the thing sold. In such cases its increase belongs to him, and his damage on seller’s failure to deliver, is its value at the time of failure. 2. Where buyer acquires no ownership by reason of seller’s deceit. In such cases profits and increase which buyer would have received if the contract had been lived up to as made, are charged as punitive damages. 3. Where buyer acquires no ownership by reason of innocent failure of title in the seller. In such cases buyer’s loss is complete when the ineffectual contract is made, and the price then paid is the measure of his damages (Day v. Nason, 1 East. Rep. 772; Pumpelly v. Phelps, 40 N. Y. 74; Scranton v. Clarke, 39 Id. 224 ; Conger v. Weaver, 20 Id. 144). The foregoing rules apply to sales of the class named, whether with or without warranty; whether of realty or personalty ; whether executed or executory. 1. Sales with and without warranty: In case of warranties for quiet enjoyment and failure of title : The price agreed upon by the parties is taken as conclusive evidence of the value of the land (Kelly v. Dutch Church, 2 Hill, 116; Kinney v. Watts, 14 Wend. 38). If nothing is paid, he recovers nominal damages for the breach. Where there is no warranty but a mere naked agreement to convey, the amount paid is also recovered back, but upon the theory of money had and received, or placing the parties as they were. If nothing is paid, there is then not even nominal damages (Baldwin v. Munro, 2 Wend. 407; Mack v. Patchin, 42 N. Y. 175 ; 3 Caines, 118 ; Scranton v. Clarke, 39 N. Y. 224). 2. Executed and executory sales : The foregoing rules are applied to contracts to sell in futuro by analogy to covenants of title in executed sales (Peters v. McKeon, 4 Den. 546 : Conger v. Weaver, 20 N. Y. 144, and cases below). 3. Sales of realty and personalty : Kent, Ch. J., lays down the rule in a case of warranty, as follows : “In warranties upon a sale of chattels the law is the same as upon the sale of lands, and the buyer recovers back only the original price ” (Staats v. Exrs. of Ten Eyck, 3 Caines, 113). This rule is usually applied in the books in general terms to all cases of failure of title without fraud, irrespective of warranty. And it seems to have been uniformly followed in cases of personal property (Armstrong v. Percy, 5 Wend. 535 ; Case v. Hill, 24 Id. 102 : Hopkins v. Grinnell, supra; Burt v. Dewey, supra; Atkins v. Hosley, 3 T. & G. 327 ; Converse v. Miner, 21 Hun, 367; Rawle on Gov. 4 Ed. 242), and of real estate (Cockroft v. N. Y. & N. H. R. R., 69 N. Y. 201, and many cases cited). The case of Shepherd v. Hampton, 3 Wheat. 200 ; Douglas v. McAllister, 3 Cranch, 298 ; and Clark v. Pinney, 7 Cow. 686 ; are cases of contracts for the sale and delivery at a future time of unascertained and unidentified merchandise of given quantity and character —like stock sales on margin, and cotton futures, without any intention to pass title m. presentí ; and have no application to the case at bar. See also Hopkins v. Grazebrook, 9 B. & C. 31. It is the rules applied to covenants for quiet enjoyment that govern in actions upon failure of title in sales of chattels (O’Brien v. Jones, 91 N. Y. 423, and cases cited). The transaction in the case at bar was an innocent mistake, and the third general rule of damages above given applies. The breach of contract was in the failure to pass title as agreed, and the damage and right of action were complete when the ineffectual contract was signed (Bingham v. Weiderwax, 1 Coms. 509 ; Dusenbery v. Callahan, 8 Hun, 543). And further, the goods were demanded and not delivered and the reason given several times before May 21. Marshall, Oh. J., says in such a case : “I can find no principle which in a case of plain mistake with respect to title will permit the damages to grow after the contract has been broken ” (Letcher v. Woodson, 1 Brock.). In the case at bar the contract was signed May 9. Damages could not increase after that tirqe. They are measured by the price paid. Nothing having been paid, plaintiff’s damages, even in case of warranty, are nominal.
    HI. The court erred in ruling that defendants’ evidence of market value must be confined to time of breach. Plaintiffs were allowed to show market value up to the end of May. Defendants were entitled to same ruling.
    IV. The cases cited to the contrary by plaintiff, Dana v. Fiedler, Cahen v. Platt, McKnight v. Dunlap, are cases of valid contracts to sell and deliver unidentified and unspecified quantities of merchandise at a future time ; Havemeyer v. Cunningham is a case where plaintiffs acquired the ownership of the goods and defendant failed to deliver. The case of Mack v. Patchin, 42 N. Y. 167, was decided on the ground of defendant’s bad faith, and in that and all the cases there cited, which might seem contrary to the foregoing; the seller had either knowingly sold what he had not, or refused to deliver wha,t he had conveyed by valid sale.. None of these cases have any application to a case of innocent failure of title upon the sale in presentí of a specific ascertained chattel like the one at bar.

      Edward H. Hobbs, attorney, and of counsel, and Benjamin S. Harmon, of counsel for respondents, argued :
    I. The alleged mistake upon the part of defendants is not one which will be relieved against in equity (1 Story’s Eq. Jur. § 151, 12 ed.). The mistake here antedates the making of the contract; it consisted, not in naming one thing when another was intendéd, but in naming a thing under a mistaken supposition as to its ownership, and mere mistaken calculation is never ground for equitable relief (1 Story’s Eq. Jur. §§ 138, h and i; Segur v. Pingley, 11 Conn. 134). When a party by reason of his own want of care has lost his remedy at law, equity does not interfere (Marvin v. Bennett, 26 Wend. 169 ; Penny v. Martin, 4 Johns. Ch. 566 ; Taylor v. Fleet, 4 Barb. 95 ; Butman v. Hussy, 30 Me. 263). The mistake claimed by defendants is one which they, by reasonable diligence, could have guarded against. A contract will be rescinded upon the ground of mistake only when the parties can be, and are, put back into their original position (Cobb v. Hatfield, 46 N. Y. 533 ; Hammond v. Pennock, 61 Ib. 145 ; Smith v. Mackin, 4 Lans. 41). The whole gist of this action is that defendants put plaintiffs back into their original position.
    II. There was an implied warranty of title on the part of defendants to the goods in question. 1. The sale being a sale by sample, of specific bags of merchandise, on store in a specified place, possession of the sample at the time and place of sale, was possession of the whole. It is the unquestioned law in both this country and England, that upon the sale of goods in the possession of the vendor, and as his own, there is an implied warranty of title Benj. on Sales [4th Am. ed.] §§ 961, 962 ; Eichholz v. Banister, 17 C. B. N. S. 708 ; Burt v. Dewey, 40 N. Y. 283 ; Bennett v. Bartlett, 6 Cush. 225). 2. Even if it be held defendants had not possession of the goods, there was a sufficient affirmation of title to constitute a warranty (2 Benj. on Sales, §§ 952, 958 ; Hoe v. Sanborn, 26 N. Y. 552). The principle sometimes found laid down in American text-books, to the effect that there is no warranty of title when the goods are not in possession of the vendor, must be taken with certain broad restrictions. Reference is there had to sales of the mere naked interest of those having no possession, actual or constructive (McCoy v. Artcher, 3 Barb. 323 ; Whitney v. Heywood, 6 Cush. 82, 86 ; Huntington v. Hall, 36 Me. 501). Sales by sheriffs and auctioneers are common examples (Sheppard v. Earles, 13 Hun, 651; Hopkins v. Grinnell, 28 Barb. 533). The Hew York decisions which are claimed to establish the general principle above laid down, are confessedly based upon special facts, showing the purchases to have been those in the nature of speculations, either with knowledge on the part of the vendees that the articles were in the possession of others (Edick v. Crim, 10 Barb. 445), or for a price, or under circumstances, showing that purchasers were buying at their own hazard, with no affirmations of ownership on part of the vendors (McCoy v. Artcher, 3 Barb. 323 ; Scranton v. Clark, 39 N. Y. 220). The case of Cutts v. Guild, 57 N. Y. 229, cited by appellant to support the proposition that the minds of the parties did not meet, was a case where both parties meant to deal with a certain kind of judgment, but in fact, a different judgment was disposed of. Crowe v. Lewin, 95 N. Y., so far as it is applicable, supports the respondents’ position.
    III. There was a breach of the contract on the part of defendants by reason of non-delivery. 1. Ho time of performance being specified, the law implies that it shall be within a reasonable time (Terwilliger v. Knapp, 2 E. D. S. 86 ; Jones v. Folwer, 37 How. Pr. 104). 2. Even if a reasonable time had not elapsed, plaintiffs were at liberty to treat the contract as broken; since if one is bound to perform a future contract, but, before the time for its performance, declares his inability or disinclination to perform, a breach arises, eo instanti (Anderson v. Sherwood, 56 Barb. 66 ; Burtis v. Thompson, 42 N. Y. 426). Between May 9, the date of the contract, and May 21, the assumed date of breach, plaintiffs several times demanded the goods, but were as often informed by defendants that they had been mistaken as to the ownership of the goods, and would be unable to deliver.
    IV. There was no error in the estimate of damages. The measure of damages was correctly taken to be the difference between the contract price and the value of the goods at the time the contract was broken (Dana v. Fiedler, 12 N. Y. 40 ; Cahen v. Platt, 69 Ib. 348 ; Havemeyer v. Cunningham, 35 Barb. 315; McKnight v. Dunlop, 5 N. Y. 537).
    V. Appellant cites many cases as to the rules appliable to realty. The distinction between those rules and those to be applied upon default of title in sales of personalty, is recognized in all the books (Pumpelly v. Phelps, 40 N. Y. 59 ; Mack v. Patchin, 42 Ib. 167 ; Clark v. Pinney, 7 Cow. 681; Shannon v. Comstock, 21 Wend. 457 ; Gregory v. McDowell, 8 Wend. 435 ; Hopkins v. Lee, 6 Wheat. 109 ; Peters v. McKeon, 4 Den. 546 ; Baldwin v. Munn, 2 Wend. 396).
   By the Court.—Van Vorst, J.

In this case the defendants seek to avoid liability for a failure to deliver personal property, in pursuance of an alleged sale thereof to the plaintiffs, upon the ground that they were not the owners thereof, and had no authority to sell it, and that the sale was made through a mistake on their part, as to the identity of the article.

The sale was made through a broker who represented the defendants, and who delivered to the parties respectively a bought and sold note. But the defendants distinctly ratified the transaction by writing their approval thereof on the note. The contracts of sale described the subject thereof as follows: “Fourteen hundred and six (1406) bags (more or less) soft red blood, in usual good order and condition, like sample, to be delivered from Lawrence & Co.’s stores, foot of Water street.” The agreement for the sale was made on the 9th day of Hay, 1883. At that time, the defendant, in fact, had no such merchandise for sale as is described in the contract. They neither owned themselves, nor had they any authority from others, to sell such merchandise.

‘1 Soft red blood ” is an ammoniacal preparation well known in commerce. It is used as a fertilizer. At the time of this sale, the defendants had 1406 bags of an ammoniacal preparation called “burnt leather,” for sale, on account of the Park Bank. It was stored in Lawrence & Co.’s worehouse. In the same warehouse in which the “burnt leather”- was stored, there were 1900 bags of “soft red blood,” belonging to the Manhattan Bank. With this latter article the defendants had nothing to do.

The Park Bank instructed the defendants to sell the 1406 bags of ammoniacal material belonging to them, and they placed the matter in the hands of their broker, who, through some mistake, drew samples from the merchandise of the Manhattan Bank, instead of that belonging to the Park Bank. The samples were drawn from the bags of “ soft red blood.” The broker exhibited these samples to the plaintiff, who purchased the quantity mentioned in the contract, at $2.50 per ton. The purchase was made by the plaintiffs in good faith. They needed the article which the sample exhibited to them represented.

The plaintiffs, shortly after the delivery of the bought and sold notes, demanded the merchandise, and failing to secure it, towards the close of the month, purchased in the market a quantity of it, at an advance over and above the price named in the contract.

There was evidence offered, and received, upon the trial, that the market value of this description of merchandise advanced, during the month of May, after the contract of sale was made.

It is argued by the learned' counsel for the appellants that no valid contract of sale was made, that the subject-matter of the sale, 1406 bags, etc., “like the sample shown,” did not exist—that the minds of the party.did meet.

It is not necessary to question the proposition that assent is indispensable to the validity of a contract. There is no sale, unless the minds of the parties agree as to the subject-matter thereof. There is no evidence that the minds of these parties were not in accord as to,the subject-matter of this sale. The defendants’ brokers offered to the plaintiffs samples of a particular kind and character of merchandise, distinct and peculiar. The plaintiffs needed in their business such merchandise, and they accepted the proposition to purchase it. The terms were agreed upon. The subject-matter of the sale was exactly described in the written contract, which the defendants themselves, having read, approved. Can it be claimed that they did not mean to sell 1406 bags “ soft red blood ” when they signed the contract ? The papers distinctly advised them not only as to what the plaintiffs had agreed to buy, but also what they proposed to sell. Their minds, therefore, agreed as to the identity of the sub j ect-matter.

In the absence of fraud, or of a mutual mistake, an agreement, signed by the parties, where the subject of the sale is plainly described, is of itself the best evidence of assent. Where the words are ambiguous, or may be taken in a different sense, by the parties, parol evidence might be allowed, as to the sense in which they were understood by the parties. But none of these elements exist in this case. Between the parties the transaction was honest, and each understood the contract as it expressed itself. We are not to overlook that fact.

Had the subject-matter been described differently in the two notes, then there would have been no assent.

In the case of Thornton v. Kempton (5 Taunt. 786), cited among others by the appellants’ counsel, the broker, who represented both parties, negotiated a sale, but by mistake described the subject of the sale differently in the bought and sold note. There was no assent. The case of Cutts v. Guild (57 N. Y. 229), also cited by appellants’ counsel, illustrates a case of fraud, or mutual mistake as. to the subject-matter.

In this case, the defendants, relying upon the representations and action of their broker, believed that the description contained in the contract, which they distinctly approved, covered the merchandise belonging to-the Park Bank, which they had been authorized to sell.. But of the defendants’ belief or intentions in this regard, other than is expressed in the written contract, the plaintiffs were entirely ignorant. They contracted upon the faith of the samples, and the description - of the subject matter, as prepared by their broker. Upon these facts, they were justified in relying. The law regards only expressions of intention which are communicated, in, determining the validity of contracts. When the mistake-is that of one party alone, the rule of law is, that whatever a man’s real intention may be, if he manifests an intention to another party so as to induce that other party to act upon it, in making a contract, he will be estopped from denying that the intention, as manifested, was his; real intention (Benj. Sales, § 55, and cases cited in note).

It is also argued by the counsel for the appellants,, that the defendants had neither title nor possession of the-goods in question, that there was no warranty of title,, express or implied, and that having no title, and not being-authorized to sell the property in question, they could not give a title. The subject of an implied warranty, in the absence of one that is express, upon the sale of personal property, has been much discussed in the courts. The question has, however, chiefly arisen between the purchaser from a person without title, where the former has been sued by the true owner for its conversion. Such was the case of Burt v. Dewey (40 N. Y. 283), where a stolen horse had been sold. In that case, the rule was stated, that when a vendor at the time of sale was in possession, a warranty of title is implied. The legal question in that case was, however, one of damages. In O’Brien v. Jones (91 N. Y. 193), there was evidence of express warranty. In the early case, McCoy v. Quackenbon (3 Barb. 323), it is stated, Judge Amasa J. Parker writing the opinion of the court, “that upon this point, there has been some conflict of opinion, and the question not being judicially settled in this state, it is necessary to give it a careful examination.” From such examination the result reached by the court was, “ the possession of a chattel by a vendor is equivalent to an affirmation of title, and in such case the vendor is to be held to an implied warranty of title, but if the property sold be, at the time of the salé, in the possession of a third person, no warranty of title will be implied. ” In another part of the opinion, the judge says, “the intent and understanding of the parties must be sought from all the circumstances of the transaction. ” In the case last cited, the action was to recover for a breach of a warranty of title on the sale of a promissory note, which was not at the time of sale in the possession of the vendors. The plaintiff failed in the end to recover, for it distinctly appeared that there were circumstances showing that the plaintiff had been advised before he purchased, of the vendor’s doubts about his property in the note, and that he purchased the “ note at his own risk.” Under such circumstances there could have been no implied warranty.

In the case under consideration, the defendants’ broker had in his possession the samples represented to be drawn from the bulk of the merchandise described in the contract of sale. These samples stood in the place of the bulk. Constructively, that was a sufficient possession of the bulk, to authorize the plaintiffs to believe, and to act upon the belief, that the defendants were actually in possession of the bulk. That would be a sufficient possession to give rise to the implication of title in the defendants.

It may be, as is argued by the appellate court, that the plaintiffs could not have had a decree for a specific performance of this contract; but an inability to get such relief affords no reason for not awarding damages in an action at law, where a cause of action at law in fact exists.

It may also be true, that the defendants, upon allegations of the mistake of their broker and themselves, could have had a rescission of the contract, but such judgment could only have been had upon indemnifying the purchasers from actual loss. For he that would have equity must do equity.

The consequences of the defendants’ mistake should not be borne exclusively by the vendees. If the plaintiffs have in fact sustained loss, through the defendants’ mistake, the loss should fall upon the defendants.

The appellants’ counsel urge that the damages should have been nominal, only. In Burt v. Dewey (40 N. Y. 283), it was held in substance, that where no damages had been actually sustained, the recovery of damages should be nominal.

The learned judge, upon the trial of this action, limited the damages to the difference between the market value of the merchandise during the month after the breach, and the price fixed by the contract. Under the evidence, that direction truly measured the plaintiffs’ loss, and nothing more. Several demands were made by the plaintiffs upon the defendants for the merchandise. A written demand was finally made on May 2Í. Then, at least, it was distinctly announced to the plaintiffs, that a mistake had occurred, and that the merchandise could not be delivered. After that, as already stated, the plaintiffs purchased from others, at the market value, which was in excess of the price fixed by the contract. In June following, the defendants tendered the merchandise described in the contract, but such tender came too late, and was properly refused.

We have looked with care over all the exceptions taken by the appellants’ counsel during the trial, and do not find that either of them can be sustained.

The case appears to have been well and. considerately tried by the learned judge. We do not think that the defendants, upon the whole case, can well complain of the rulings.

There was, however, one ruling, which at first blush appeared to be erroneous, growing out of the disposition made of the defendants’ offer to prove that “ the value of the particular bags of soft blood,” mentioned in the contract, the market value during the whole month of May, was not greater than $2.50 per ton. The judge denied the offer and request, upon the ground.that the “contract fixes the price.” It is true that it was not proper to prove the market value as it existed on the day the contract was made, but it was material to show what such value was after the breach, during the rest of the month. But whatever injury the defendants sustained by this ruling, was completely repaired afterwards, for evidence was allowed to be given upon the precise point by the defendants.

In the end, there was a conflict as to the market value of the merchandise, after the breach.

There seemed to be two grades of this merchandise, one of which was “prime quality.” The defendants claimed that the article described in the contract, according to the samples, was of an inferior grade.

One of the defendants testified that he was familiar with the prices of these goods, in May, 1883. He said: “ there was a difference of about ten per cent, in the market value of the goods of this sample, compared with the market value of goóds of prime quality. The goods of this sample were worth about ten per cent, less than prime goods.” There was other evidence of the same kind. The learned judge distinctly charged, that if the jury “believe that the goods like the sample shown to the plaintiffs,” were only worth $2.50 per ton, during the month of May, then the defendants are entitled to a verdict.

The judgment and order appealed from are affirmed, with costs.

Sedgwick, Oh. J., concurred.