author: Barbour, C.J.

text:
    WILLIAM T. HARRISON and Another, Plaintiffs, v. EDWARD H. SMITH, Defendant.

      [Decided December 31, 1870.]
    Where a defendant agreed in writing to accept all drafts drawn upon him, with billa of lading of first cost on oysters and other produce in season—held, that the promise was not an unconditional one, so as to make it an acceptance under the statute.
    If the promise to accept is conditional, the fact that the conditions were performed ia wholly unimportant.
    Before Barbour, C.J., McCunn and Jones, JJ.
    This case was tried before Mr. Justice Monell and a jury.
    The action was brought to charge the defendant as the acceptor of two drafts drawn by one E. Kingsland.
    The complaint alleged the making and delivery to the plaintiffs of two several bills of exchange, drawn by E. Kingsland upon the defendant, payable one day after sight, and accepted by the latter, but which he had failed to pay on presentation for that purpose. Upon the trial the plaintiffs proved that the drafts, which were dated, respectively, March 12 and 13, 1868, were delivered to them by the drawer for a full consideration; and, as evidence of the acceptance thereof by the defendant, read a letter, of which the following is a copy :
    “Norfolk, Ya., March 3,1868.
    “ Messrs. War. T. Harrison & Co.
    “ Gentleaien—This letter is to certify that I, E. H. Smith, and E. Kingsland do agree to do business on joint account; I, E. H. Smith, in New York, and E. Kingsland to remain in Norfolk, Ya.
    “ I, E. H. Smith, agree to accept all drafts with bills of lading of first cost on oysters and other produce, in season, drawn by E. Kingsland.
    “ Edwabd H. Smith,
    “ Hew York.”
    They also proved that the draft was given to them by Kings-land as and for the cost price of certain oysters purchased by the latter, and that such oysters were shipped by him to the defendant, who received the same, together with the bill of lading thereof.
    The court directed a verdict for the plaintiff, and ordered all further proceedings to be stayed until the decision at General Term upon the defendant’s exceptions. The principal exceptions are to the admission as evidence of the first clause of the above letter, to the refusal of the court to dismiss the complaint upon the closing of proofs, and to the directions given to the j™7-

      Mr. A. G. Rice for defendant.
    The agreement was conditional, and dependent upon the purchase at cost price, a/nd the shipment of oysters and produce.

    The conditions were, 1st. That the drafts be accompanied with bills of lading of oysters and produce. 2d. That the bills be at first cost of the articles sent.
    He would not have been bound to accept a draft drawn on a shipment of merchandise or articles other than “oysters and produce.”
    The agreement to accept must be unconditional, or it will not bind the party making it (1 R. S., 768, §§ 6 to 9; 5 Duer, 574; Reed v. Wilkinson, 2 Wash. C. C. Rep., 514; Ontario Bank v. Worthington, 12 Wend., 593; Ulster Co. Bank v. McFarland, 3 Denio, 553; Lowrey v. Stewart, 5 Bosw., 505).
    An acceptance, to be valid, must point out the particular bill, and identify and describe it in terms not to be mistaken.
    The acceptance in this case was made before any bills were drawn, and does not describe any particular bill.

      In Ulster Co. Bank v. McFarland (3 Den., 553), and cases cited on p. 557, “ a promise to accept a bill thereafter to be drawn, specifying the amount and time of payment, so as to lea/oe no reasonable doubt as to the identity of the bill i/rvtended to be accepted, is, if shown to a third person who, on the faith of such a promise, takes the bill for value, in point of law, an acceptance binding the person who makes the promise.”
    It is not shown that plaintiffs paid the money on the drafts on the faith of the defendant’s promise to accept, as required by sec. 8 of the statute.
    It appears that plaintiffs paid under the arrangement stated i/n the letter. The “ arrangement ” may refer to the business relations of the parties; it does not necessarily imply that plaintiffs paid the money on the faith of defendant’s promise to accept; the meaning is obscure, whereas it should clearly and affirmatively appear as one of the main facts of plaintiffs’ case that they paid the money, not under any “ arrangement,” but on the faith of defendant's promise.

    The law of Hew York governs, the case, as the contract was to be performed here (5 Duer, 574; 9 N. Y., 279; 19 N. Y., 436).
    The plaintiffs counted on an acceptance of the drafts by defendant, and did not attempt to set out any other fact, or recover on any other theory (25 N. Y., 266; 36 N. Y., 395; 38 N. Y., 161).

      Mr. George W. Cotterill for plaintiffs.
    The admitted facts show that the plaintiffs advanced money for the benefit of the defendant, whereby oysters were purchased and shipped to him, with bills of lading which he received, that he sold the oysters and put the avails in his pocket. He agreed to accept two drafts in consideration of the plaintiffs so doing: he refused to accept the drafts, and claims that the plaintiffs have no remedy.
    He is clearly liable on the common law doctrine that even a stranger to the consideration can sue on a contract for his benefit (Scott v. Pilkinton, 15 Abb. P. R., 284).
    All the facts are admitted to establish the common law liability, and no objection was taken on the trial in any way that they were irrelevant under the pleadings.
    The letter of the defendant does in its terms amount in law to an acceptance, after showing performance of the conditions.
    Whether it does so amount or not is entirely immaterial.
    The plaintiffs did prove the performance of the conditions, as are admitted in the case.
    The evidence is conclusive that the plaintiffs did pay the money on the defendant’s promise to accept.
    If the court should by any possibility hold that this is a suit as for the non-acceptance of two drafts, and that the defendant is at liberty to raise the objection that the promise was conditional, we answer:
    First.—The statute does not apply, because the contract to accept was made in Virginia.
    At common and commercial law, an agreement to accept is an acceptance, and is declared on as such (3 Denio, 553, § 8 of the statute; Edwards on Bills, § 414).
    The lex looi accordingly determines whether the contract is valid, it having been made in Virginia. The fact that payment might be made in New York has nothing to do with a contract already complete, made in Virginia.
    Second.—But the acceptance is good under the statute. The section which applies is the 8th. It reads: “ An unconditional promise in writing to accept a bill before it is drawn shall be deemed an actual acceptance in favor of every person who, upon the faith thereof, shall have received the bill for a valuable consideration.
    Now, this section contains nothing new; such was always the law.
    So it is conclusively shown in Edwards on Bills (p. 392, 2d ed., and authorities cited).
    Now, there is no conditional promise here, but a conditional acceptance, and there is just the distinction. The defendant absolutely agrees to accept, but that acceptance is conditional. One may absolutely promise to accept upon conditions, viz.:

      “ When goods conveyed to him are sold.”

      “ When a navy bill is paid,” etc., etc. (Story on Bills, p. 287; Edwards on Bills).
   By the Court:

Barbour, C.J.

Without expressing an opinion as to whether the facts proven upon the trial would or not have been sufficient to constitute a cause of action against the defendant, upon his promise in writing to the plaintiffs themselves to accept, and, therefore, to pay the bills in question, if all thbse facts had been set forth in the complaint (see 12 Wend. R., 598; 12 id., 513), it is enough to say that the plaintiffs have seen fit to set up, as a substantive cause of action, the ultimate fact, or conclusion of law, that the defendant accepted the bills; and, therefore, the main question for us to consider is, whether the letter written to the plaintiffs by the defendant constituted and was that act technically known in the law as an acceptance.

The letter, it will be observed, was written and delivered to the plaintiffs in Virginia, where, also, they received the bills of exchange. If the letter is to be considered as an acceptance of the bills to be drawn in accordance with its provisions, the acceptance of the bills in question was, therefore, completed in Virginia the moment they were delivered to the plaintiffs there.

The case does not show whether the bills were payable generally or in Kew York. Assuming, however, as perhaps we may, from the omission in the complaint to state where they were to be paid, that the bills were upon their face payable generally, and not at any particular place, the contract of acceptance must be governed by the law of Virginia, where such contract was made, unless it appears that it was the intention of the parties that the bills were to be presented and paid in Yew York (Story on Bills, §§ 146, 158 ; Story’s Conflict of laws, § 272; Sprowle v. Legge, 1 B. & Cressw., 16; Dow v. Lippman, 5 Cl. & Fin., 1).

But an acceptance is a contract to pay; and, where such contract is, either expressly or tacitly, to pay the bill which is accepted in any certain place, the general rule is that the contract, as to its validity, nature, and obligation, must be governed by the law of the place of performance (Story on Bills, § 147; Story on Conflict of Laws, § 280).

The letter which is relied upon as the acceptance of the bills declared and informed the plaintiffs, not only that the writer resided in Hew York, but that he was to remain there in the prosecution of the joint business of Kingsland and himself, and that bills of lading were to be sent to him, with the drafts. Upon the face of the contract, therefore, enough appeared to show that the parties must have contemplated and intended that the bills were to be presented and paid in Hew York; and it follows that the law of that place must govern in regard to the validity and legal effect of the letter as an acceptance of the bills which are the subject of this action.

The statute of this State upon the subject declares that “ an unconditional promise, in' writing, to accept a bill before it is drawn, shall be deemed an actual acceptance in favor of every person who, upon the faith thereof, shall have received the bill for a valuable consideration” (1 R. S., 768, § 8); and such statute has been held, in several cases, to be restrictive in its effect (Ulster Co. Bank v. McFarland, 3 Denio, 553; S. C., 5 Hill, 432; Lowrey v. Stewart, 3 Bosw., 505; Ontario Bank v. Worthington, 12 Wend., 593; Parker v. Grele, 2 id., 548; S. C., 5 id., 414; Bk. of Michigan v. Ely, 17 id., 508).

The question, then, is whether the promise to accept which is contained in the letter is unconditional. For if it was conditional, the fact that the conditions were performed was wholly unimportant (N. Y. and Virg. St. Bk. v. Gibson, 5 Duer, 574). It certainly is not a mere naked promise to accept drafts for a ■definite .amount, nor of a certain description, nor even all drafts .drawn upon the writer by Kingsland. But it appears to me to be a promise on the part of the defendant to accept drafts drawn upon him by Kingsland, provided the same shall have been given by the latter as and for the purchase price of oysters and other produce in season, or to raise money for such purchase, and also upon the further condition that the contemplated drafts, when presented, shall be accompanied with bills of lading of the oysters or produce purchased by means of the drafts; and that it is not an undertaking to pay any draft unless the same is accompanied with a bill of lading of the property purchased, nor unless such draft has been given for the first cost of oysters or produce. Indeed, the intention of the defendant to accept such bills only as Kingsland should draw upon him for the purchases in which they were jointly engaged, is so plainly expressed in his letter to the plaintiffs, that they could hardly have supposed that a bill, known by them to have been drawn for purposes other than those so mentioned, was intended by the defendant to be covered by the promise. In the other respect, the case of The N. Y. and Virg. Stock Bk. v. Gibson (5 Duer, 574) is very similar to this. The action there was based upon a letter alleged to have been written by the defendants, in which they stated that they would accept the drafts of a party to the extent of $20,000, upon his remitting to them, in currency, or bills of lading for hogs, the amount for which he drew; and the plaintiff claimed that such promise was an acceptance. But this court, at General Term, held that the promise was not unconditional, but was subject to the condition precedent of a timely remittance of bills of lading or currency, and, therefore, that such promise was not an acceptance (see further, as to conditional promises to accept, Mason v. Hunt, Doug. R., 296; McKim v. Smith, 1 Hall’s L. J., 485; Payson v. Coolidge, 2 Gall., 233; S. C., 2 Wheat., 66 and n. 75; Schimmelpennick v. Bayard, 1 Peters, 283; Mayhew v. Prince, 11 Mass. R., 54; and cases above cited).

The promise contained in the defendant’s letter, therefore, was not an unconditional one, so as to make it an acceptance of the bills in question; and for that reason, and because the plaintiffs had wholly failed to prove the acceptance of such bills by the defendant, when he closed his proofs, the motion to dismiss the complaint ought to have been granted.

The verdict should be set aside, and a judgment entered for the defendant, dismissing the complaint, with the costs of the action.


source: Caselaw Access Project

author: Monell, J. Jones, J.

license: Public Domain

text:
    HENRY B. KIRKLAND and Others, Plaintiffs and Respondents, v. ARTHUR LEARY, Defendant and Appellant.

      [Decided December 31, 1871.]
    In an action for the breach of a contract to carry, from Charleston to New York, ninety-one bales of cotton on board a designated ship, of which only a portion came by such ship, and the remainder was delayed for several days—held, that the measure of damages for not delivering the whole is not the difference in the market price of cotton on the day when it ought to have arrived, and the day when it did arrive, but only any depreciation or injury to the commodity itself.
    Before Monell, Jones, and Spencer, JJ.
    Appeal from a judgment and an order denying a motion for a new trial. The case was tried before Judge McCunn and a jury.
    The action was against the defendant as owner of the steamship Granada, to recover for loss on part of a shipment of cotton from Charleston, S. C., to this city.
    On the 14th of September, 1867, the plaintiffs shipped ninety-one bales of cotton, as per the following bill of lading:
    Shipped in good order and condition, by E. N. Puller, R. & F., agent, S. C. R. R., onboard the steamship called the Granada, whereof is
    master, now lying in the port of Charleston, S. C., and bound for New York, to say, ninety-one bales of cotton, twenty-seven sacks of flour, being marked and numbered as in the margin, and are to be delivered in the like good order and condition at the port of New York (the dangers of the seas and fire only excepted), unto Kirkland, Wyly & Co., or to their assigns, he or they paying freight for said cotton and flour, and expenses, 91 B. 0. 27 S. F. — Bales. K. W. & Co. A. G. W. 27 S. F. 191 §657 01 5 55 88 46 . §696 02 $690.47 and $5.55, repairing 37 bales without primage and average accustomed.”
    In witness whereof the master or purser of the said vessel hath affirmed to four bills of lading, all of this tenor and date, one of which being accomplished, the . others to stand void.
    Dated, Charleston, S. C., the
    14th day of September, 1869.
    Ravehel & Co., Agents,
    Per E. P. Millie™.
    On the 19th September the ship arrived at this port, and the plaintiffs notified thereof.
    A bill for freight, as follows:
    Messrs Kirkland, Wyly & Co.,
    Dr. to Steamship Granada,
    Arthur Leary.
    Freight and charges as per bill lading from Charleston.
    Marks and numbers.
    J. B. F. S. 48 bags wheat, freight.................. $12 00
    K. W. & Co. 91 bales IT. Cotton..................... 68 25
    W. 4 sacks flour......................... 6 75
    Received payment charges....................... 621 02
    $708 02
    Arthur Leahy,
    pr. Bahclay.
    —was presented to and paid by the plaintiffs.
    Only forty-two bales came by the Granada. The remaining bales (forty-nine) came by the Alabama and reached this city on the 25th of September.
    The difference in the market prices of cotton in this city between the 19th and 25th September was about three cents a pound, being so much less on the arrival of the last bales.
    The evidence of the market value of the cotton was objected to, as not being the correct measure of damage. The objection was overruled.

      There was a motion for a nonsuit, on the ground that the defendant was not the owner of the steamship, and that no negligence had been shown. The motion was denied.
    The judge directed a verdict for the plaintiffs for the difference between the market price of the cotton.
    A motion was made for a new trial upon the judge’s minutes and denied.
    The defendant appealed from the judgment entered upon the verdict and from the order.

      Mr. Charles C. Egan for appellant.
    There was no proof of an agreement to deliver within a limited time, and the cotton having been actually delivered, and the complaint being for late delivery only, the question was simply one of reasonable diligence, which had been fully shown (Wibert v. N. Y. & E. R. R. Co., 12 N. Y., 251; Blackstock v. Same, 20 id., 48; Parsons v. Hardy, 14 Wend., 215).
    It has been repeatedly held that a carrier is not under the same absolute obligation to carry the goods in the usual time, as he is to deliver them ultimately at their destination (Blackstock v. N. Y. & E. R. R. Co., 20 N. Y., 50; citing Conger v. Hudson R. R. R. Co., 6 Duer, 375, and Wibert’s case, 12 N. Y., 245).
    The undertaking and duty of a common carrier are to carry and deliver safely within a reasonable time. The first duty is absolute, the second merely relati/oe. What is a reasonable time depends in each case upon its particular circumstances (Conger v. Hudson R. R. R. Co., 6 Duer, 375-378). There were questions of fact which it was proper for the jury to consider:
    The question of reasonable diligence in the delivery of the cotton, and
    Whether there was unreasonable delay in the delivery of the cotton.
    Even admitting the correctness of the principle that the plaintiffs were entitled to recover the difference in the market price of cotton as damages, the question of what that difference was should, upon the conflicting testimony of Kirkland, one of the plaintiffs, and of Coleman, a disinterested witness, have been submitted to the jury.
    Under the ruling of the court that the difference in the market price was the rule of damages, if the question had been submitted to the jury, and they should have found the difference to be as testified to by Coleman, it would have made a difference of $438.74 in the recovery.
    To admit a positive instruction to find for a particular party, is allowable only when the evidence leaves no reasonable doubt of the facts in issue (St. John v. The Mayor of N. Y., 6 Duer, 315).
    Where there is a conflict of evidence upon a question of fact, the question should be submitted to the jury, and if this is not done the judgment should be reversed and a new trial ordered (Butler v. Murray, 30 N. Y., 102).
    To warrant an unqualified direction to the jury in favor of one party or the other, the evidence must he undisputed, or the preponderance so decided that a verdict against it would be set aside and a new trial granted (Rich v. Rich, 16 Wend., 663; Crawford v. Wilson, 4 Barb., 573, and cases cited. See, also, 2 Bosw., 374; 5 Seld.,205; 12 Barb., 108; 32 Barb., 282; 9 Barb., 611; 23 How., 233; 3 Wend., 102; 5 Wend., 261).

      Mr. Luther R. Marsh for respondents.
    In an action against a common carrier for not conveying goods delivered to him for transportation, either within a specified or a reasonable time, the measure of damages—the goods being uninjured in quality but depreciated in value through the delay ■—-is the difference between the market value of the goods at the place of destination at the time when they should have been delivered, and the market value at the same place at the time when they actually were delivered.
    Whatever confusion may exist on this subject is due to the contrary decisions of the Supreme Court on the question (Wibert v. N. Y. & Erie R. R., 19 Barb., 36, and Jones v. N. Y. & Erie R. R., 29 Barb., 633), to some extent holding the contrary of the above proposition; while the case of Kent v. Hudson River R. R. (22 Barb., 278) sustains the same to its full measure.
    At most, therefore, the question would be an open one in this court, to be decided on principle; but, in addition, it can be shown that the case of Kent v. Hudson Biver E. E. is most in accordance with principle and authority, and that the case at bar has elements which distinguish it from both of the first above cases, and which, those very cases hold, would render the rule as above stated entirely applicable.
    It is settled by authority that a carrier, for an entire faibwre to deliver, is liable for the value of the goods at the place of destination at the time when they should have been delivered (Watkinson v. Laughton, 8 Johns., 164; Amory v. McGregor, 15 Johns., 24; Van Winkle v. U. S. Mail S. Co., 37 Barb., 122; Marshall v. N. Y. Central R. R., 45 Barb., 502). Hence, in such a ease, the carrier is liable for any depreciation in the value of the goods at the place of destination.
    There is no difference in principle between the two cases. The analogy is clear, and there can be no reason why the increased value allowed as an element of damage in the one case should not be allowed in the other. It is as much an element of loss in the one case as in the other, and the possible fluctuations of the market are as good an objection in the one case as in the other.
    The proposition, as we have stated it, is the most supported by authority.
    The case of Wibert v. the N. Y. and Erie R. R. was expressly and in terms overruled by the case of Kent v. Hudson River R. R.; and although the latter case is claimed to be overruled by that of Jones v. N. Y. & Erie R. R., still the opinion in the last case was delivered by the same judge (Marvin) who delivered the opinion in the Wibert case, and may be considered but as a reiteration of his views.

      “When a carrier has received property for transportation, if he is liable for any loss or injury resulting from delay in its transportation, or otherwise, while in his possession, such damages are to be appraised or fixed at the place of destination of such property. * Thg question, then, is, assuming that the damages should have been assessed at the value or depreciation of the apples at Albany, whether proof of such value or depreciation in the New York market was inadmissible, and error, etc.” (Marshall v. N. Y. Central R. R., 45 Barb., 502-508).
    Even under the rule sought to be established by the cases of Wibert v. N. Y. & Erie R. R., and Jones v. N. Y. & Erie R. R., the defendant in this case is liable for the depreciation in the value of' the cotton.
   By the Court:

Monell, J.

There was sufficient evidence to establish the defendant’s liability. A bill for the freight of the cotton was made out in his name and paid at his office. This prima facie proof of ownership was not shaken by the evidence furnished by the defendant that he was the agent of this line. He could be agent and owner or part owner at the same time.

As the paper excluded by the court is not printed in the case, or otherwise furnished to us, we cannot say whether it was or was not properly rejected.

The action was for the breach of a contract to carry from Charleston to New York ninety-one bales of cotton on board the steamship Granada. Only forty-two bales came by that ship, the remainder being delayed five or six days.

It was the usual contract of a common carrier, rendering them liable for all damage sustained by reason of the delay.

The rule of damages adopted at the trial was the difference between the market value of cotton on the day when the whole number of bales ought to have arrived, and the price on the day when the remainder did arrive.

This is probably not a sufficiently open question to allow us to depart from the decisions which have already been made on the ‘subject.

The case of Conger v. The Hudson R. R. R. Co., in this court (6 Duer, 375), was an action against the defendants, as carriers, to recover damages for delay in the transportation of cattle. The plaintiff claimed for shrinkage and also for loss of the marTcet, and the jury was allowed to ascertain such damage. The court, upon exceptions, set aside the verdict, on the ground that the delay being without the defendants’ fault, they were not liable. Such decision rendered it unnecessary to consider the rule of damages adopted at the trial. Nevertheless, the court, approving of the case of Wibert v. N. Y. and Erie R. R. Co. (19 Barb., 36), gave an emphatic opinion that no recovery could be had of damages for loss of market, from whatever cause the delay might arise.

After the decision in this court, the Supreme Court in the seventh district, in Kent v. Hudson R. R. R. Co. (22 Barb., 278), in effect overruled Wibert v. N. Y. and E. R. R. Co. But the latter case was subsequently fully sustained in Jones v. N. Y. & E. R. R. Co. (29 Barb., 633).

The question is not settled by any authority binding on us, but we think that the clearly annunciated opinion in Conger v. Hudson R. R. R. Co. (supra) should induce us to follow the latest decision of the Supreme Court and set this verdict aside.

The judgment and order should be reversed, and a new trial ordered.

Jones, J.

(concurring). Whatever may be the rule of damages when the contract is to carry and deliver at a specified time, that rule does not apply here. The contract to carry by the ship Granada is not equivalent to one to carry and deliver at a specified time.


author: Monell, J.

text:
    THOMAS D. SHERWOOD, Plaintiff and Respondent, v. THOMAS B. WILSON, Defendant and Appellant.

      [Decided December 31, 1870.]
    Where a conveyance, absolute on its face, was intended as a mortgage, the court, upon payment of the mortgage debt, will require a reconveyance of the property to the original owner.
    Before Barbour, C.J., Monell and Freedman, JJ.
    Appeal from a judgment.
    , The action was to compel a conveyance by the defendant to the plaintiff of certain lands in the State of Georgia.
    The action was tried by Judge Spencer, without a jury, who found the following facts: That on the 31st of August, 1867, by deed of that date, Porteus B. Roberts and Mary A., Ms wife, sold and conveyed to Henry 0. Gardiner and Thomas D. Sherwood (the plaintiff) a certain tract of land in the complaint particularly described.
    That on the 31st of October, 1868, said Gardiner sold, and by a deed dated October 31, 1868, executed by himself and wife, conveyed all his and their interests in said lands to Sherwood, the plaintiff.
    That the two aforesaid deeds were recorded in the office of the clerk of the Superior Court of the County of Muscogee, at Columbus, in the State of Georgia (in which said county said lands were situated), on the 22d day of December, 1868.
    That on or about April 17,1867, Roberts executed and delivT ered to the defendant a conveyance of the tract of land by way and as a mortgage to secure, with other property, the sum of $15,000, or thereabouts, moneys due or to become due, from Roberts to Wilson.

      That previous to the execution of the conveyance by Roberts and wife to Gardiner and Sherwood, $13,000 or thereabouts of said $15,000 had been paid.
    That on the 21st day of June, 1869, Roberts paid to said Wilson the sum of $1,000 in cash, and gave to him a certain order for stock, which money and order for stock Wilson received in full satisfaction of his mortgage, or conveyance by way of mortgage, and of any and all lien or liens upon the lands, and that in consideration thereof the defendant, on said day, executed and delivered an agreement, in writing, in the words and figures following :
    “Hew York, June 21, 1869.
    “For value received, I hereby agree to make a quitclaim deed to a farm in Georgia (deeded by P. B. Roberts to me), to T. D. Sherwood on demand.
    “Thomas B. Whlsoh.”
    Which agreement was on the same day delivered to the plaintiff.
    That subsequently thereto the defendant was requested to make a quitclaim deed of the land to the plaintiff, but refused so to do.
    That the land referred to in the agreement was and is the land described in the complaint in the action.
    The justice found as conclusions of law—
    That any lien which the defendant had upon the lands in the complaint described, as security for any moneys due, or to become due, to him or otherwise, ceased and was terminated on the 21st day of June, 1869, and that the plaintiff was entitled to a conveyance of the lands from the defendant by a quitclaim deed of the date of June 21, 1869. And he ordered judgment accordingly, with costs.
    The defendant appealed from the judgment after having excepted to the findings of fact and conclusions of law.

      Mr. Francis Byrne for appellant.
    The promise to convey to the respondent was a conditional one, and dependent on the performance of the agreement of Roberts to pay the cash, and deliver the Marion (or Giles Wales & Co.’s) watch stock; it was not fulfilled, consequently the appellant was not obliged to execute the deed to respondent.
    There was no consideration as between the appellant and respondent for the promise to execute said deed to respondent. He had already a conveyance of the land. The appellant was mortgagee (by deed), and his lien was not discharged. The respondent did not part with anything on the faith of the appellant’s promise, and has not been prejudiced by a breach thereof (Headley et al. v. Electa Foundry, 41 Barb., 279).

      Mr. Thomas D. Sherwood for respondent.
    Independent of the fact that the mortgage was satisfied and defendant’s lien discharged, as found by the j ustice, the agreement of June 21 to convey the land to the plaintiff is a good and valid contract, founded upon a good and valuable consideration, to wit: $1,000 in cash that day received by the maker, and should be enforced.
    The defendant then well knew that the plaintiff claimed the land, and that Roberts was bound to plaintiff to free it from defendant’s lien. Roberts paid defendant $1,000, and defendant entered into a new contract with the plaintiff respecting it; and in consideration of the $1,000 received by him made the contract with plaintiff.
    Had the defendant not have made that contract he would not have received the $1,000. He gets the $1,000 and still keeps the order fontiie stock, and henoe is so much the better off, to wit: $1,000, and that is a good consideration for the contract.
   By the Court:

Monell, J.

It was not disputed that the conveyance from Roberts to the defendant of the Georgia lands was by way of mortgage, to secure the payment of a sum of money. "Upon the payment of such sum of money the owner of the property, incumbered by the mortgage, was entitled to have the incumbrance removed.

There was some contradiction in the evidence in reference to the sum loaned by "Wilson, and there may have been some doubt whether "Wilson had received all that was due to him.

But there was a settlement between Roberts and Wilson, when it was agreed that Roberts should return to Wilson twenty-five hundred dollars of watch company stock, which, with the payments previously made by Roberts, both parties understood, and, I think, fully agreed, should be in full satisfaction of the mortgage.

In pursuance of such settlement, Roberts gave to Wilson an order for the stock, and thereupon Roberts executed and delivered to Wilson the instrument containing an agreement by Roberts to convey the lands to Sherwood, the plaintiff; and which instrument was afterwards delivered to the plaintiff.

The court has found as a fact, that the money paid and order for stock delivered by Roberts to Wilson were received by the latter in full satisfaction of his mortgage, and I think the evidence was sufficient to sustain such finding. Indeed, both Wilson and Roberts agree, that with the twenty-five hundred dollars of stock the mortgage debt was paid, but Wilson claimed that although he took the order he did not get the stock. lie says he took the order down to the persons on whom it. was drawn, and they said it was all right and would give the stock in a few days. In the mean time Roberts had pledged it to another person.

At the time of the settlement and the receipt of the order for stock in satisfaction of the mortgage, Sherwood, the plaintiff, was the owner of the property, and his rights cannot be prejudiced by any subsequent act of Roberts; and a pledge by him of the stock he had agreed to transfer to Wilson, after the settlement, would not, as respects the plaintiff, restore the mortgage.

If the mortgage was in fact paid, and that depended upon the intention of the parties, nothing that might or could transpire afterwards, would defeat such payment.

The only benefit which can be derived, as I think, from the agreement of the 21st of June, 1869, is to use it as a very strong piece of evidence against the defendant. It is not necessary to determine whether it contains any valid obligation upon which an action could be maintained, for there is enough beside it in the case to sustain the judgment.

But as an admission in writing signed by the defendant, it should, as between him and the plaintiff, be regarded as conclusive evidence of payment.

I am, therefore, of the opinion, that as the conveyance to Wilson was absolute in terms, the plaintiff had the right to demand a quitclaim from him; and as the evidence sustains the finding that the debt was paid, the judgment was. correct.■

Judgment affirmed with costs.


text:
    HENRY L. FARIS and Another, Plaintiffs and Appellants, v. WILLIAM H. PECK and RODERICK F. CLOW, Defendants and Respondents.

      [Decided December 31, 1870.]
    Where the action is one of a class in which the cause of action and the facts which authorize the arrest are the same, the court will not, ordinarily, try the merits upon a motion to vacate the arrest. The true rule is, that if the original affidavits make out a prima facie case against the defendant, of a cause of action authorizing an arrest, the court will not set aside the order, except where the proof adduced by the defendant is so clearly preponderating as to leave no reasonable doubt of his success upon the trial.
    Where, in an action charging upon the defendants a conspiracy to defraud, and the evidence against one of them is altogether too slight to hold him to bail, and a verdict against him upon such evidence the court would be bound to set aside, he will be discharged.
    But where as to the other defendant there can be no doubt from the evidence that he committed a great fraud, he will be held to bail
    There being two persons of the same name, and one having received, through a mistake, a certificate of stock intended for and belonging to the other, and having transferred and sold the same as his own—held, he was liable for the fraud to any person injured thereby, although not the immediate party to whom the stock was transferred.
    Before Barbour, C.J., Monell and Freedman, JJ.
    The action was against the defendants to recover damages for a conspiracy to defraud the plaintiffs.
    An order to arrest the defendants was granted, which upon motion was discharged at Special Term.
    The plaintiffs appealed.
    The facts disclosed by the affidavits upon which the order of arrest was granted and others read on the motion were as follows:
    On the formation of the American Merchants’ Union Express Company, one William H. Peck, whose residence was unknown . to the company, but who resided at Laurens, Otsego county, in this State, became entitled to ninety shares of the capital stock of such company.
    The scrip or certificate for such stock was made out and kept by the company in readiness for delivery to said Peck upon his calling for it.
    Peck did not call, and a clerk of the company, who had charge of the matter, after waiting a long time, examined the New York City Directory, and finding therein the name of “ William H. Peck, 222 Washington street,” in said city, inclosed to such address the scrip for said ninety shares of stock, on the evening of the 1st of February, 1869, and sent the same by mail.
    The defendant Peck received the letter and inclosure, and on the next day signed the usual power of attorney in blank, and sold and transferred the ninety shares to the defendant Clow. -
    Clow afterwards negotiated the stock, through McIntyre, a broker, to the plaintiffs for a loan of two thousand dollars, delivering to them the same power of attorney in blank. -
    In the mean time the true owner of the stock had called at the express company’s office for it, and the mistake was then discovered.
    All efforts of the plaintiffs to get their money back failed, and the defendants were arrested on allegations of a conspiracy to defraud.

      Mr. Moses Ely for appellants.
    The order of arrest was erroneously set aside as matter of law, inasmuch as the facts constituting the cause of action and the facts authorizing the arrest are identical, and their truth will have to be passed upon by the jury on the trial of the cause; .therefore the court ought not, according to the well-settled practice and an unbroken series of authorities, to try the issues involved on a motion to vacate the order of arrest (Levis v. Noble, 15 Abb., 475; Barret v. Gracie, 34 Barb., 20; Frost v. McCarger, 14 How. Pr., 131; Ely v. Mumford, 47 Barb., 629; Merrill v. Heckscher, 50 Barb., 452; Nelson v. Blanchfield, 54 Barb., 630).

      The right to arrest the defendants in this action is derived from its very nature, to wit: conspiracy to defraud and cheat the plaintiffs; and the whole tendency of the defendants’ affidavits is to show that no cause of action exists; and the judge at Special Term, by vacating the order of arrest, virtually tried the cause upon affidavits, which is not allowable (Solomon v. Waas, 2 Hilt., 179, and cases above cited).
    There is no pretence on the part of the defendants, or either of them, that plaintiffs’ allegation that the stock was not intended for the defendant William H. Peck is not true; neither are the facts alleged in the original affidavits—in respect of the demand upon defendant Peck for a return of the scrip on the 3d of February, and his assertion then that it was at home and he would return it the next day, and that he failed to do so and purposely absented himself under pretence of a sudden call to Boston—controverted or denied. If the affidavits of defendants are true in this particular, Peck had already transferred the stock to Clow. His promise to McIntyre to cheat and defraud the plaintiffs, procured a loan of §2,000 dollars from them upon the security of said certificate, the par value of which was §100 a share, and the then actual value over $30 a share: that said certificate bore an indorsement of an assignment of said stock in due form, dated February 2d, 1869, executed by the defendant Peck to the defendant Glow, with power of attorney to him to convey the same to whomsoever he might please, and to substitute another for that purpose, and accompanying the same was an instrument of substitution, dated February 27th, 1870, duly executed by defendant Glow in blank as to the name of the substitute, authorizing the substitute to make any assignment of the same he might please. That said loan was made upon the faith of said stock.
    The deposition and affidavits on which defendants rely simply allege, besides a general denial of fraud or conspiracy, that the defendant Peck, on the same day on which he received said certificate, for a good and valuable consideration, sold the same to defendant Glow, who, on the 27th day of February, hypothecated the same to William H. McIntyre for §1,800, which he received from said McIntyre, at the same time giving him a note for $2,000, for the payment of which said stock was intended as collateral security; and that on the same day said McIntyre hypothecated the same to the plaintiffs for $2,000, less his commissions.

      Mr. A. K. Hadley for respondent Peck.

      Mr. James Henderson for respondent Clow.
    The justice who made the order appealed from had authority to do so.
    It is not necessary that the order of arrest should be reviewed by the judge who granted it. Any other judge sitting at Special Term may review it (Knickerbocker Life Ins. Co. v. Ecclesine, 6 Abb. Pr., N. S., 9).
    On such review a partial trial may be had for the purpose of ascertaining whether plaintiffs have made out a case (Corwin v. Freeland, 2 Seld., 565).
    The plaintiffs have failed to make out a cause of arrest. The order of arrest herein was granted upon the affidavit of plaintiff, Faris, that the defendants, conspiring with one McIntyre, to cheat and defraud the plaintiffs, procured a loan from the plaintiffs.
    The loan Was made to McIntyre personally, and, as he then alleged, for his own use.
    Defendants liad nothing to do with the transaction. There is no pretence that either of defendants were present at the time of loan to McIntyre.
    Plaintiffs did not know defendants until after they discovered that stock was not good. There is no evidence that McIntyre, at the time of obtaining the loan, professed to be acting for any 'one other than himself.
    Defendant Clow’s promise (if any), to pay plaintiffs, was subsequent to the time of loan to McIntyre.
    It was, in effect, a promise to pay the debt of another, and ■ should be in writing (Statute of Frauds).

      McIntyre, subsequent to the time of the loan, took from the defendant Clow his note, and gave him $1,800 therefor.
    The only testimony tending to show that defendant Clow knew at the time of assigning the certificate, that Peck received the same through mistake, is the testimony of plaintiffs’ witness Clark, and this is only negative.
    Clow purchased the certificate from Peck for a valuable consideration.
    The allegations of collusion and fraud are wholly unsupported by the evidence; the only testimony on that point in the case positively denies the same.
    The loan to McIntyre was usurious.
    The plaintiffs loaned their own money, and gave McIntyre the sum of $2,000 less commissions on such loan.
    Peck never, directly or indirectly, received or applied for any loan of anybody,- or knew of or authorized any such application.
    Plaintiffs have failed to make out a case, and defendants were properly discharged (Hernandez v. Carnobelli, 10 How., 449; Mulry v. Collet, 3 Rob., 716).
   By the Court:

Monell, J.

The action in this case is one of the class in which the cause of action and the facts which authorize the arrest are the same. In such actions the court will not, ordinarily, try the merits upon a motion to vacate the arrest.

The true rule is, or should be, that if the original affidavits make out a prima facie case against the defendant, of a cause of action authorizing an arrest, the court will not set aside the order, except where the proof adduced by the defendant is so clearly preponderating as to leave no reasonable doubt of his success upon the trial.

And another rule, I think, should be that when the court at Special Term shall have determined that there was or was not a clear weight of evidence in favor of the defendant, the court at General Term ought not to disturb such determination, applying .tb such decision the rule which governs the General Term upon findings of fact on the trial of an action.

Applying, then, these rules to the case before us, we should not disturb the decision below so far as it discharges- the defendant Glow from the arrest.

The evidence charging upon him any conspiracy to defraud is altogether too slight to hold him, and a verdict against him, upon such evidence, I think the court would be bound to set aside.

A very different case, however, is presented against the defendant Peck.

There cannot be a doubt that he committed a great fraud. He received the shares of stock through the mail,- and on the, same day' (for it was posted to him on the evening of the 1st, and transferred by him on the 2d) signed a power of attorney in blank, and sold the stock to Clow.

It would be in vain for him to assert his innocence in the transaction. Ho one would believe him; and his feeble attempt at justification, by swearing that he sold the stock to Glow, “ without any knowledge or intimation from any source whatever that the said certificate was not honafide his legitimate and lawful property,” adds to, rather than diminishes, the strength of the charge.

He Imew the stock was not his property, and instead of, like an honest man, endeavoring to ascertain and correct the mistake, he dishonestly forged the name of the true owner, and, with intent to deceive and defraud some one, sold and transferred the stock.

- Such a signing of the name of the true owner was a forgery (2 Pars. on Prom. Notes, 584; Graves v. Am. Ex. Bk., 17 N.Y.R., 205; People v. Krummer, 4 Park. Cr., 217.)

By means of which forgery, the defendant Peck has made himself liable, and the question is whether these plaintiffs can maintain the action.

There can be no doubt that Clow, who transferred the stock to the plaintiffs, is liable to them, upon his implied warranty of the genuineness of the transferrer’s signature to the power of attorney. This is upon the principle of implied guarantees in negotiating bills and notes. Nor can there be a doubt that Clow could recover from Peck for the fraud.

Why not, then, the plaintiffs? Peck intended to injure some one, and he did injure the plaintiffs; and having done a wrong, he should be held responsible for such wrong to any one who by means of it has been injured.

The principle which holds Peck is analogous to that which governs notes and bills, where a person paying value for a forged bill may recover from any party warranting the bill either expressly or by implication of law (2 Pars. on Prom. Notes, 601; Coggill v. Am. Ex. Bk., 1 N. Y. R., 113); or where the maker of a note puts it in circulation with a forged indorsement of the payee’s name, a bona fide holder may recover against the maker as upon a note payable to bearer (Foot v. Meacker, 3 Hill, So. Car., 227; and Riley’s Law Cases, 248).

There is another analogy in principle between Peck’s liability and the class of cases where consequential damages are recoverable for injuries arising, not immediately from the act, but in consequence of it, as where an obstruction is wilfully or wrongfully placed upon the highway, and a wayfarer falls upon it. There the injury being the consequence of the unlawful act, although not immediately arising from it, an action will lie against the wrong-doer.

So in this case the injury to the plaintiffs was in consequence of the unlawful act of Peck; and he who did the wrong must be held responsible for all injuries arising from it, whoever may be the injured person.

The complaint in the action is not before us, and we do not know what cause of action is stated, but I cannot see any difficulty, upon the facts, of sustaining an action against Peck for firaud and deceit, under the last paragraph in the fourth subdivision of section 179 of the Code, and in such an action he can be held to bail.

I am in favor, therefore, of affirming the order as to the defendant Clow and reversing it as to the defendant Peck.


author: Jones, J.

text:
    CHARLES H. PHELPS, Plaintiff and Respondent, v. SAMUEL SWAN et al., Defendants and Appellants.

      [Decided December 31, 1870.]
    The General Term alone has power to dismiss an appeal taken to it, but this power can be exercised for but two causes.
    1. The non-appealability of the decision below.

      2. The non-service of printed copies of the appeal papers, pursuant to rule 43.
    In this latter case the more proper practice is to move to strike the cause from the calendar and for judgment in favor of the respondent.
    By the practice of the Superior Court the motion to dismiss for the first cause must, in those cases where the law gives a right to make a case on bill of exceptions, be founded either on the judgment-roll, with a case or bill of exceptions annexed; or, on the judgment-roll (without a case or bill of exceptions annexed) and an order of the Special Term declaring the right to make a case waived, or if made, then declaring it abandoned.
    The motion to dismiss (or for judgment) for the second cause must be founded on either a certificate of the clerk that a case or bill of exceptions has been filed; and an affidavit that since such filing a reasonable time has elapsed to procure the printing of the appeal papers, and that no printed copies have been served; or upon an order of the Special Term declaring the right to make a case waived, or the case, if made, abandoned, and an affidavit showing that a reasonable time has elapsed since the making of such order to procure the printing of the appeal papers, and that no printed copies thereof have been served.
    Heard before all the Judges.
    This was a motion to dismiss an appeal for a neglect and failure to prosecute.
    The papers used on the motion show that the appellant made a case on appeal; that such ease was settled by consent of the attorneys for the respective parties; that thereafter the appeal was, noticed for argument at the January General Term, 1870, and placed on the calendar for that term by the respondent. On the call of the calendar the court ordered the cause to be stricken off the calendar, because it had not been settled and ordered to be filed by the judge who tried the cause, as required by the rules of this court; that at the time of noticing this motion the case had not yet been settled and ordered to be filed by the judge who tried the cause, nor had the case as settled by consent, nor any case, been filed. It does not distinctly appear whether printed copies of the case as settled by consent of parties had been served on the respondent or not.
    In the opposing affidavits it was set up, among other things, that there are certain exhibits in the possession of respondent’s attorney which are necessary to be embodied in the case, and the respondent’s attorney refuses to furnish them to the appellants’ attorney.

      Mr. F. A. Wilcox for respondent, for the motion.

      Mr. P. J. Gage for appellants, opposed.
   By the Court:

Jones, J.

The question in this case is not as to where a motion to dismiss an appeal should be made. There never was, and is not now, any doubt on that point. It must necessarily be made to the appellate court, for that court alone has power over appeals taken to it.

The question is, for what causes can the General Term dismiss an appeal %

I think there are but two—the non-appealability of the decision below, and the non-service of printed copies of the appeal papers pursuant to rule 43. In the latter case the practice under the rule is, however, more properly to strike the cause from the calendar and render judgment in favor of the respondent.

The judgment record may of itself (without any case or bill of exceptions being annexed) present a question proper to be argued and decided at General Term (Rankin v. Pine, 4 Abbt., 309; Brown v. Heacock, 9 How., 345; Robinson v. H. R. R. Co., 3 Abbt., 117). The question whether it does or not may be raised by a motion to the General Term to dismiss the appeal because it appears from the record that nothing which can be the subject of appeal is presented thereby. Although on such a motion the court may determine that the record presents no question which is the subject of appeal, yet it cannot tell but that when a case or bill of exceptions is annexed thereto (in cases where the law authorizes such annexation) questions proper for review may be presented thereby. In all such cases the General Term, in order to grant a dismissal, would have to determine both that the record as it stands presents nothing that is the subject of appeal, and, second, that the appellant has lost his right to annex a ease or bill of exceptions.

The point presented on this motion is whether the General Term has the power to determine this latter question, and if it has, whether it will, as matter of practice, exercise it.

The making a case, etc., the extending of time for making it, the proposing of amendments, the extending of time for proposing, for noticing for settlement, the settlement itself, the extending of time for filing after settlement, are all matters of detail of practice for getting the cause in proper shape to present to the General Term the questions to be reviewed.

The business of the General Term is with the papers as previously prepared for its action. If these papers are not in proper shape, or if an error has crept in them, the General Term cannot put them in shape or correct the error. The only relief it can give is to send the record back to the Special Term for correction, and order the argument to stand over in the mean time.

So also it is not within the province of the General Term to hear applications for the extension of the time within which to perform the several acts required to be done in the preparation of the papers to be submitted to it, nor to hear applications for relief from a default in doing such acts within the times specified for their performance. When a question arises as to whether a party has lost his right to annex a case, etc., these applications are necessarily involved therein.

There is no question of the power of the Special Term to extend the time for the performance of the several acts to be done in the preparation of the papers to be submitted to the General Term, nor of its power to relieve from a default in the performance of any of those acts within the specified time.

The question, therefore, whether a party has lost his right to attach a case to the judgment-roll is one eminently proper to he determined by the Special Term. This can readily be done by a motion at Special Term for an order declaring the right to make a case or propose amendments (as the case may be) waived, or declaring the case abandoned. Such an order standing unreversed and unvacated would be conclusive on the question. The respondent then could upon that order move the General Term to dismiss the appeal on the ground that the judgment record showed nothing on its face which was the subject of appeal, and if the court were of that opinion it would dismiss the appeal, the Special Term order having disposed of the question as to the right to make or annex a case or bill of exceptions.

It is true that rule 37 of the general rules of court authorize the entry of an ex parte order declaring a case or exceptions abandoned, and permitting a party to proceed thereafter as if no case or exceptions had been made; but notice of the entry of such an order must be given to the adverse party, who may thereupon apply to the Special Term for relief, and the question whether he shall have it or not will be there disposed of on a hearing of the parties.

With respect to the dismissal of an appeal for non-service of printed copies of the appeal papers, or more properly the striking the same from the calendar and rendering judgment for that cause, it is evident that the party can be under no obligation to serve them until after it is determined what the papers on appeal are to be. A motion to dismiss an appeal for the first of the two specified causes must, therefore, in cases where the law gives r a right to make a case or bill of exceptions, be founded either on the judgment-roll with a case or bill of exceptions annexed, or on the judgment-roll (without a case or bill of exceptions annexed) and an order of the Special Term declaring the right to make a case waived, or if made then declaring it abandoned; while the motion to dismiss for the second cause, or more properly to strike the case from the calendar and for judgment, must be made on a certificate of the clerk that a case or bill of exceptions has' been filed, and an affidavit that since such filing a reasonable time has elapsed to procure the printing of the appeal papers and that no printed copies thereof have been served; or upon an order of the Special Term declaring the right to make a case waived, or the case, if made, abandoned, and an affidavit showing that a reasonable time has elapsed since the making of such order to procure the printing of the appeal papers, and that no printed copies thereof have been served.

In the present case there has been no order of the Special Term declaring the case abandoned. The motion, therefore, must be denied, with ten dollars costs.


author: Freedman, J.

text:
    WILLIAM WARD, Plaintiff and Appellant, v. THE CENTRAL PARK, NORTH AND EAST RIVER R. R. COMPANY, Defendants and Respondents.

      [Decided December 31, 1870.]
    Under the operation of the special rules of this court, an order made by the judge who tried the cause, directing the case or exceptions to be filed, amounts in effect to a special order of the court directing the annexation of the same to the judgment-roll It may be made after as well as before entry of judgment.
    Upon an appeal from the judgment after trial by jury, the appellant is entitled to be heard upon the questions of law arising upon the judgment-roll, including the case containing his exceptions. No previous motion for a new trial at Special Term is necessary.
    Heard before all the Judges.
    The action was brought to recover damages for personal injuries sustained by plaintiff while a passenger on one of defendants’ cars, and was brought on for trial before the court and a jury in January, 1868.
    After the plaintiff had rested, defendants’ counsel moved for a dismissal of the complaint, which motion was granted.
    Several exceptions were taken by the plaintiff to rulings of the justice presiding at the trial, and also to the decision of the motion dismissing the complaint.
    Judgment was entered in favor of the defendants and against plaintiff for $379.30 costs on the 27th day of January, 1868.
    Plaintiff subsequently made a case, containing his exceptions, and the same was duly settled and ordered on file by the judge who had tried the cause, and filed accordingly.
    Plaintiff having perfected his appeal, it was regularly noticed by both parties for argument at the General Term.
    Upon the appeal being called on for argument in its regular order upon the calendar, counsel for defendants and respondents insisted that the appeal should be heard on the judgment-roll alone without the case and exceptions, upon the ground that no special order had been made by the court directing the annexation of the case and exceptions to the judgment-roll, and that no motion for a new trial had been made at Special Term.
    The General Term reserved this question for consideration by the full bench.

      Mr. Henry L. Clinton for appellant.

      Mr. A. J. Vanderpoel for respondents.
   By the Court:

Freedman, J.

In the recent case of Phelps v. Swan, we have held that the making of a case or bill of exceptions, the extending of time for making it, the proposing of amendments, the extending of time for proposing, for noticing for settlement, the settlement itself, the extending of time for filing after settlement, are all matters of detail of practice for getting the cause in proper shape to present to the General Term the questions to be reviewed and to be disposed of at Special Term. The business of the General Term is with the papers as previously prepared for its action.

General rule 37 provides, that where a party makes a case or exceptions, he shall procure the same to be filed within ten days after the same shall be settled, or it shall be deemed abandoned. According to section 281 of the Code, a case or exceptions are to constitute part of the judgment-roll. It is further provided by the rules of this court that no case or exceptions to be annexed to the judgment-roll shall be filed by the clerk, unless the same is so ordered by the judge or referee who tried the cause; that no case or bill of exceptions will be ordered to be filed until it shall have been engrossed or printed after settlement, with all the papers and exhibits required to be inserted therein, and that if no case or bill of exceptions is on file, or if one is on file without the order of the judge or referee who tried the cause, directing the same to be filed, then, the cause shall not be put on the General Term calendar.

In compliance with these various requirements, the appellant had the case containing his exceptions settled and ordered on file by the judge who tried the cause. The latter’s direction to the clerk to file the case amounted, in effect, to a special order of the court directing the annexation of the same to the judgment-roll, as contemplated in Anderson v. Dickie (17 Abb., 85).

Such annexation was the very object to be attained by the filing. Under the operation of the special rules above referred to, the judge who settled the case and directed it to be filed with the evident intention that it should be annexed to the judgment-roll, possessed, in making tins order, all the powers which the court at Special Term could have exercised in the matter. The fact that judgment had already been entered absolutely,. can make no difference. A case or exceptions when settled may, by an order, be annexed to the judgment-roll at any time after the entry of judgment, in the same manner as bills of exceptions were frequently annexed under the former practice (Renouil v. Harris, 2 Sandf., 646; Lynde v. Cowenhoven, 4 How., 327). And in the absence of any special rule upon the subject, it would be the duty of the clerk, under section 281 of the Code, to make the annexation without any previous order.

The only remaining question is whether a motion for a new trial was necessary. The action was triable by jury, and the only questions presented for review arise upon exceptions to the rulings of the judge on the trial.. A motion for a new trial at Special Term, and an appeal to the General Term from the judgment, are two distinct and entirely different remedies. Section 348 of the Code allows an appeal upon the law to the General Term from a judgment entered upon the report of referees, or the direction of a single judge of the same court, in all cases, which includes trial by jury, for the entry of judgment upon a verdict is deemed to be made by direction of the judge presiding at the trial. Under this section it has repeatedly and uniformly been held that where a case presents only questions of law upon exceptions, and they are not reserved for argument or further consideration, or ordered to' be heard at General Term in the first instance, it is not necessary that they should be heard before judgment at the Special Term by way of a motion for a new trial, but that the defeated party may prepare his exceptions and have them settled, await the entry of judgment, have the exceptions attached to and form a part of the judgment-roll, and appeal to the General Term from the judgment (Morrison v. N. Y. and New Haven R. R. Co., 32 Barb., 568; Morange v. Morris, 12 Abb., 164, 32 Barb., 650; Watson v. Scriven, 7 How. Pr., 9; Ryle v. Harrington, 14 How. Pr., 59).

The appellant, therefore, is regular, and entitled to be heard upon the questions of law arising upon the judgment-roll, including the case containing his exceptions.

The preliminary objection raised by the respondent must be overruled.


text:
    PETER CLASSEN, Plaintiff and Appellant, v. JACOB LEOPOLD et al., Defendants and Respondents.

      [Decided December 31, 1870.]
    An innkeeper (where no question of statutory law is involved) will he discharged from liability for the loss of a guest’s goods when it is attributable to the negligence, fault, or fraud of the guest, or to the act of God or the public enemy.
    Non-compliance by the guest with a reasonable requirement of the innkeeper is such negligence on his part as to exonerate the innkeeper from a loss caused thereby.
    This is the point ruled in Purvis v. Coleman (31 N. Y., p. 111). But the mere giving to, and acceptance by, the guest of the key of his chamber does not impose on him any duty or obligation to keep the door thereof locked.
    If, under such circumstances, the guest, on retiring for the night, omits to lock the door of his room and permits it to remain unlocked during the night, such omission and permission does not constitute such negligence as to relieve the innkeeper from liability for a theft of the guest’s goods from his room during the night.
    In an action ex delicto brought by a guest against an innkeeper to recover damages for the loss of his goods while such guest, the innkeeper cannot set off a claim for board due him by the guest; he may, however, recoup such, claim against any damages the guest may recover against him, but he cannot have a balance certified in his favor.
    If the guest recovers no damages, the innkeeper can have judgment for the costs of the action only.
    Before Monell, McCunn, and Jones, JJ.
    Appeal from a judgment.
    The case was tried before Judge Ebeedman and a jury. The action was brought to recover for a watch and chain and two dollars in money, claimed to have been stolen while the plaintiff was stopping at defendants’ hotel.
    The plaintiff arrived at the Hotel Jegel on the 9th of December and stayed there until the 18th. During this time, to wit, on the 13th, the proprietorship of the hotel was changed, the defendants then becoming the proprietors. He intended to remain some time and engaged a room, but made no bargain as to the length of time he should occupy the room, or the price to be paid. On the night of the 17th he retired to bed, putting his vest, having his watch in the watch-pocket and the guard chain attached to one of the vest button-holes, on a small table in front of the bed. In the vest-pockets were two dollars.,'
    On the morning of the 18th he arose, dressed, and went down stairs to the hotel dining room to take his breakfast. Either during his breakfast or just after finishing it he desired to ascertain the time, but on attempting to take out his watch he found it was gone.
    This was the first intimation he had that it was missing.
    There was a lock on the door of this room which the plaintiff occupied, and he had the key. At first he locked the door at night, but finding that he got the chills by getting up in the morning to unlock the door so as admit the fireman to make, the fire, he adopted the practice of leaving the door unlocked at night. This practice was not communicated to the proprietors.
    In the course of the trial it appeared that plaintiff wasindebted to the proprietors for a board bill and refreshment.
    The court dismissed the plaintiff’s complaint, and gave defend.ants judgment for the amount of the board bill.
    Upon this decision judgment was entered for defendants for -the amount of the board bill and costs.
    A motion was made for a new trial, which was denied.
    The present appeal is from the judgment and from the order ■denying the motion for a new trial.

      Mr. Charles Wehle for appellant.
    'The judge erred in taking the case from the jury, as there was sufficient evidence to go to the jury.
    The evidence proved conclusively that the defendants were hotel and inn keepers.
    . An inn has been judicially defined as “ a house where the traveller is furnished with everything which he has occasion for whilst on his way ” (Thomson v. Lacy, 3 B. & Adol., 283, 286; vol. 2, Parsons on Contracts, 5th ed.).
    A sign is evidence of an inn (Parker v. Flint, 12 Mod., 254).

      A public house of entertainment for all who choose to visit it is the true definition of an inn (2d vol. Parsons on Contracts, 5th ed., page 145, note K; Taylor v. Mounot, 4 Duer, 116; 1 Abb., 325; Wintermule v. Clark, 5 Sandford; Willard v. Rhinhorat, 2d ed., Smith, 148), and an arrangement as to price does not change this rule.
    The goods of the plaintiff having been lost or stolen while he was a guest of defendants at their inn, they are liable.
    The innkeeper is an insurer of the property committed to his custody by a guest.
    Unless the loss is due to the culpable negligence or fraud of the guest, or the act of God, or the public enemy (Hulett v. Swift, 33 N. Y., 571).
    An action lies against an innkeeper for goods lost or stolen from his inn without proof of negligence (Clute v. Wiggins, 14 Johnson, 175; McDonald v. Edgerton, 5 Barb., 560).
    Loss implies negligence.
    In an action against an innkeeper to recover the value of property lost by a guest, proof of the loss or larceny of the goods from the room in which he lodges is sufficient proof of carelessness on the part of the defendants (Gill v. Libby, 36 Barb., 70).
    He is answerable to a guest for the dishonesty of a fellow guest.
    The watch, chain, and a reasonable sum of money for travel-ling expenses are not such articles as a guest is bound to deposit in a safe provided under the act of 1855, and the landlord will be liable for the loss of such things from the guest’s room, notwithstanding his notice that a safe has been provided (Gill v. Libby, 36 Barb., 70).
    In this case no notice was posted in the room.
    The leaving the door unlocked was not such negligence on the part of the plaintiff as to excuse the defendants or absolve them from their liability.
    While it is a good defense that the loss was caused by the cidpable negligence or fraud of the owner, it is not enough that he (the guest) exercised some choice as to the room where they should be placed or that the key of the room was delivered ■ to him. ' The owner may still recover, even if he does not use the key, but leaves the door unlocked (vol. 2. Parsons on Contracts, 5th ed., pages 148, 149; Martin v. New Jersey Steamboat Co., 7 Abb., N. S., 237; Hulett v. Swift, 33 N. Y., 571).
    It is submitted from the foregoing facts and the uncontra dieted evidence and the law applicable to the case, that the jndge committed an error in taking the case from the jury, and that the judgment ought to be reversed and the cause sent back for a new trial.
    The judge erred in directing a verdict for the defendant, and on the so-called counter-claim, because the action is for- the tort, and the so-called counter-claim did not arise out of the transactions set forth in the complaint as the foundation of the plaintiff’s claim, nor is it connected with the subject of the action (Ashens v. Hams, 3 Abb., 187; Pattison v. Richards. 22 Barb., 146; Gotler v. Babcock, 7 Abb., 392, n. 1; Donohue v. Henry, 4th ed., Smith, 162; Kensie v. Farrell, 4 Bosw., 193).

      Mr. Martin L. Townsend for respondents.
    It is the duty of a guest stopping at a hotel to use the ordinary means furnished by his landlord to protect his property from theft.
    This is a rule of common sense, and is founded upon the rule which exonerates an innkeeper from liability where the loss is occasioned by the fault or negligence of the guest, or where the negligence of the guest contributes to the loss:
    It was an act of negligence on the part of the plaintiff to leave the door of his sleeping-room unlocked when he retired to bed for the night, which act contributed to the loss.
    There was a lock upon the door, and the plaintiff had previously been in the habit of locking it when he retired for the night.

      This lock was made for use, and it is the ordinary appliance to a door to prevent ingress to á room by thieves.
    No prudent man would leave the door of his sleeping-room unlocked during the night at a hotel (especially in a large city like New York). The common experience of every one who has travelled teaches better.
    This act of negligence on the part of the plaintiff exonerated the defendants from liability.
    It is not essential, in order to relieve the landlord, that there should be gross negligence on the part of the guest. It is enough that the plaintiff’s negligence caused or contributed to the loss (Story on Bailments, § 472; Fowler v. Dorlon, 24 Barb., 388; Purvis v. Coleman, 21 N. Y. R., 111; Ashill v. Wright, 6 El. & Bl., 890).
    The dictum in Cayle’s case (8 Co. R., 32), “ that it is no excuse for the innkeeper to say that he delivered the key of the chamber in which the guest is lodged to him, and that the guest left the chamber door open,” is not the rule of law in the light of modern cases and the customs and habits of the people.
    The modern doctrine is that a guest is bound to use the means provided for him by the landlord for his own protection; and that his omission to use such means is negligence; and that such negligence exonerates the landlord from liability.
    In Story on Bailments (Bennett’s ed., p. 404, note 2, § 472) it is said, citing Ashill v. Wright (supra): “ The rule of law resulting from all the authorities is that the goods remain under the charge of the innkeeper, and the protection of his inn, so as to make the innkeeper liable as for a breach of duty, unless the negligence of the guest occasion .the loss in such a way as that the loss would not have happened if the guest had used the ordinary care which a prudent man may be reasonably expected to have taken under the circumstances.”
    In Fowler v. Dorlon (supra), Harris, J., says: “ It is enough to exonerate an innkeeper if the guest has by his own neglect or imprudence exposed his goods to peril.”
    In Purvis v. Coleman (supra), the Court of Appeals hold, that the negligence of the plaintiffs exonerated the defendants from liability, and say (per Davies, J.), “that the ground of the defendant’s liability has always been likened to that of a common carrier,” * * * and that “ it is the well-settled law of this State, that if the plaintiff’s negligence has caused or contributed to the loss or injury, an action cannot be maintained.”
    There was no error in the court directing a verdict for the amount of defendant’s counter-claim. This was admitted by the proof on the trial, and was not put in issue by the pleadings.
   By the Court:

Jones, J.

It was not contested at the argument (as indeed it could not well have been), but that defendants were innkeepers, and the plaintiff was their guest.

But on behalf of the defendants it was urged that the not locking the door was an act of negligence on the part of the plaintiff, and that the loss is attributable to that negligence, and therefore the defendants were not liable.

On the part of the plaintiff it was claimed that the not locking the door was not an act of negligence, or if it was, it was not such negligence as relieved the defendants from liability.

It was also claimed that in no aspect could a judgment for the board bill be had in this action.

These respective claims present the only matters that were argued and submitted for the decision of the court.

It may now be considered the law of this State (where no question arising out of statutory law is involved), that an innkeeper will be discharged from liability for a loss when it is attributable to the negligence, fault, or fraud of the guest, or to the act of God, or the public enemy, and perhaps to superior force; and that it is only in these exceptional cases that he can be discharged (Hulett v. Swift, 33 N. Y., 574; Purvis v. Coleman, 21 N. Y., 111).

This I understand to be also the common law of England (Moore, 78, read in connection with Saunders v. Spencer, Dyer, 266 B., Cayle’s case, Coke, 8th part, p. 63, 4th vol.).

The question, however, is, what constitutes such negligence in the guest as will discharge the innkeeper ?

It was long ago held in England that a plea to the effect that the innkeeper required the guest to lay his goods in a certain room within the inn under a lock and key provided for that purpose, and warned the guest that if he would do so he would warrant them safe, otherwise not, but that notwithstanding the guest laid them at loose in an open court where they were stolen by his own default, was good on demurrer to the plea.

On a former occasion defendant’s counsel endeavored to raise the point by demurrer to the evidence, but the court put him to nis plea that the loss was occasioned by the fault or negligence of the plaintiff (Moore, 78).

He did so plead with the result as shown in Dyer, where it was held that the non-compliance by the guest with a reasonable requirement of the innkeeper was such negligence on his part as to exonerate the innkeeper from a loss caused thereby.

This is the point ruled in Purvis v. Coleman, supra.

The precise point presented in the case at bar is whether the bare fact that the guest receives a key of his bedchamber and omits to make use of it, constitutes such fault or negligence on his part as to relieve the innkeeper from liability for goods stolen from the room while the door was unlocked.

In Gayle’s case (cited supra) it was distinctly held that it did not.

In Maule v. Selwyn (4th vol., p. 306), although the innkeeper was relieved upon considerations not here appearing, yet the rule in Gayle’s case was fully approved.

Gayle’s case has not, thus far, been overruled or questioned in this State.

Hor do I perceive any reason why it should be.

The doctrine of the case was, that the sole object of the giving to, and acceptance by the guest of the key of his chamber (there being no attendant circumstances to show a different one), was to enable him to secure privacy at his pleasure; that the entrance of thieves or suspicious characters into the inn without the knowledge or consent of the innkeeper, was to be provided against by the outer door, which was under the care and control of the innkeeper, and which it was his duty so to keep, so as to prevent such entrance; while as to those guests who obtained admission with the knowledge and consent of the innkeeper, as well as to the servants, it was his duty to see that they were not thieves or suspicious characters, and if he entertained doubts as to their character to take proper precautionary measures to preserve his other guests from loss; and that guests had a right to rely on the faithful performance of these duties by the innkeeper, and to believe that they might repose in security in their chambers with unlocked doors, and that no necessity existed for locking the doors except for the purpose of securing privacy when they might desire it.

There is no reason to be derived from the present state of society, civilization, travel, and commerce, why the doctrine should not still hold good.

The only reason why a guest should be held guilty of negligence in not locking his door is because it is easier to rob a room the door whereof is unlocked, than one the door of which is locked. This reason existed at the time of Gayle’s case, and it is no more apparent to courts and guests at this present day than it was then.

I fully concur in the opinion of Judge Porter (Hulett v. Swift, 33 N. Y., p. 573), that the considerations of public policy in which the rules fixing the liabilities of innkeepers for the loss of a guest’s goods had their origin, forbid any relaxation of this rigor.

Upon the facts of this case I think the plaintiff is entitled to recover; and that the complaint was erroneously dismissed.

The remaining question is, whether the defendants can in any way use in this action the board bill due from plaintiff.

The complaint is as follows :

“ The plaintiff, for a cause of action against the defendants, in and by this his complaint alleges and avers:
First.—That at the times hereinafter mentioned the defendants were copartners in the business of hotel and inn-keeping in the city of Hew York, and were the keepers of a common inn in the said city of Hew York, known as the Hotel Jegel, situated at Ho. 47 Barclay street in said city.
“Second.—That on or about the 13th day of December, 1868, this plaintiff was received by the said defendants into their said inn as a traveller and guest, with baggage containing his clothing,
Third.—That the defendants and their servants, so negligently and carelessly conducted' themselves in regard to the same that while he so remained at said inn as a guest as aforesaid, and on or about the night of the 17th of December, 1868, the said room of the plaintiff was entered by some person or persons to this plaintiff unknown, and a valuable gold watch, the property of this plaintiff, together with a gold chain and two dollars in United States currency was taken away from the said room, and thereby the same became wholly lost to the plaintiff, to his damage of $212, and the interest on the same from the 17th day of December, 1868.
“ Wherefore the said plaintiff demands judgment for the sum of two hundred and twelve dollars, with the interest on the same from the 17th day of December, 1868, besides costs of suit.”

The defendants by their answer allege:

“Fifth—The said plaintiff is justly indebted to them for board and lodging during the time he continued at their house in the sum of $22.76, which sum they claim to recoup or set off against any claim the said plaintiff may establish against them on the trial of this action.”

The complaint is in form an action ex delicto on the case (1 Chitt. Pl., pp. 132-134; 2 Chitt. Pl., p. 668).

The defendants, therefore, cannot set off the board bill. They have not pleaded it as a counter-claim. But they can recoup it. They occupy the position of bailees of the goods; and the principle of Hoy v. Reed, decided by the General Term of this court (Stearns v. Marsh, 4 Denio, p. 227, and Edwards on Bailment, p. 213), is applicable.

But as a recoupment they can only have it go in reduction of such damages as plaintiff obtains; they cannot have a balance certified in their favor.

The judgment in favor of defendants for the board bill was erroneous.

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