author: Br the Court.

text:
    Taylor v. Nussbaum & another
    (Before Oakley, Ch. J., Campbell & Emmet, J.J.)
    June 9;
    June 11, 1853.
    When cattle, sold without a warranty, are found, when slaughtered, to have been bruised, and the seller for that reason makes a deduction from the original price, and accepts a less sum in satisfaction, he is bound by the settlement— the equity of the deduction makes it a good accord and satisfaction.
    When the claim of a creditor is disputed in good faith, and to settle the dispute he abates a part of his demand, the settlement, as a compromise, is valid and binding, although he was not legally bound to make the abatement.
    An agent, having a discretionary power to sell goods and collect the price, has an implied authority to make any deduction from the original price that could have been made by his principal.
    Judgment for defendants, with costs.
    Case on verdict, subject to the opinion of the court at general term.
    The action was tried before Mr. Justice Bosworth and a jury on the 8th of March, 1853. The pleadings are as follow.
    New York Superior Court.—City and County oe New York.—Eli O. Taylor v. Philip Nussbaum & Julius Strauss. —The complaint of Eli 0. Taylor, the above-named plaintiff, shows to this court, that, at the city of New York, on or about the 1st day of April, 1851, he sold and delivered to Philip Hussbaum and Julius Strauss, the above-named defendants, twenty head of cattle, for which said defendants promised and agreed to pay the sum of fifty dollars per head; that said defendants have since said sale paid on account of such cattle the sum of nine hundred and eleven dollars, and that said defendants are still indebted to Mm, the said plaintiff, for a balance of the moneys agreed to be paid for said cattle, in the sum of eighty-nine dollars, for which amount, with interest from the first day of April, 1851, the said plaintiff claims judgment against the said defendants.

      Eli O. Taylor v. Philip Nussbaum & Julius Strauss.—■ City and County of New York, ss. September 7, 1852.—Said defendants, by A. J. Perry, their attorney, answering the complaint in this action, say, that the said sum of nine hundred and eleven dollars so by them paid to plaintiff, by reason of such purchase, was paid by these defendants, and was received by said plaintiff as and for a full and complete accord and satisfaction of any and all claim and demand whatever, which the said plaintiff had against these defendants by reason of the sale and delivery of the cattle mentioned in the complaint.
    Defendants further answering, say, that in the course of their business they slaughtered the said cattle, and then first discovered that the said cattle had been much bruised, which bruising greatly injured the beef, causing these defendants much damage, and that it was in consideration thereof that the said plaintiff agreed to take, and did take, the said sum of nine hundred and eleven dollars in full satisfaction of his said original claim and demand of one thousand dollars for the said cattle.
    Upon the opening of the case, the counsel for the plaintiff moved for judgment on the pleadings.
    The court reserved its decision on such motion.
    The defendants’ counsel then called as a witness,

      Max Doctor, who, being sworn, testified as follows:—I know the plaintiff; I am in the employ of the defendant Nussbaum; the defendants bought from the plaintiff the cattle in" question; I saw the cattle after they were slaughtered; the beef was in bad condition; the cattle were slaughtered the same day they were purchased; I was present at a conversation between plaintiff and defendant Nussbaum; this conversation took place in the street after the cattle were slaughtered; we met the plaintiff, and Nussbaum told plaintiff the cattle were bruised; plaintiff said he had nothing to do with it, that Belden collected the bill; what he threw off the plaintiff would be satisfied with; one thousand dollars was the price to be paid for the cattle; I know Belden; I have a receipt for money •paid Belden for the cattle; I have seen Belden write; I know his handwriting; the receipt now shown me is in his writing.

      The receipt was here read in evidence, and is in the words and figures following, to wit:
    New Yorki, April 23d, 1851.
    Received of Philip Hussbaum and Julius Strauss, nine hundred and eleven dollars, in full settlement and satisfaction, for twenty head of cattle, sold by Eli O. Taylor to them on the 1st day of April, 1851, for the sum of $1,000 00.
    W. H. Beldeh.
    $911 00
    I don’t recollect that I was present when the money was paid.
    On being cross-examined, the witness further testified: I believe the plaintiff lives in Albany; I saw him before the sale; I don’t know who was present at the sale except the plaintiff and defendants; I don’t know as Belden was; I understand the sale was made by plaintiff; the conversation above referred to took place a week after the sale ; myself, plaintiff", and Hussbaum were the only persons present at the time of the conversation ; Taylor knew we were dissatisfied with the cattle; Taylor said I suppose Belden will do what is right; whatever Belden would do he was satisfied with; I did not see plaintiff afterwards; saw Belden and defendants together after conversation ; can’t recollect that I saw Belden sign the receipt; Belden called at slaughter-house once or twice; saw Belden at slaughter-house after conversation ; the first time I saw Belden at slaughter-house, he would only allow $50 for bruises; I was not present when Belden called the second time; Belden said he was authorized by plaintiff to do what was right; he said he would allow what was right; Belden and defendant did not agree at that time as to the amount to be deducted; I was not present at the time of the sale of the cattle to defendants; the sale was not made the day the plaintiff first called at the slaughter-house; the cattle were not in the city then; the sale was made the next day.
    On being again directly examined, said witness further testified: I heard Belden and defendants talk about amount of deduction to be made; Belden would not allow more than $50; this was after defendant had conversation with plaintiff in the street; defendants wanted $150 deducted for cattle being bruised; Belden on this occasion stated that he had seen plaintiff, and plaintiff had told him to make a deduction of every thing that was right; when defendant made remark about deduction of $150, Belden offered him $50; defendant said he could not stand it; it was not enough; this was a few days after the conversation with plaintiff in the street.
    The defendants here rested their case.
    The plaintiff then called as a witness,

      William H. Belden, who, being sworn, testified as follows r I know the plaintiff and defendants; I was the agent for the plaintiff for the sale of the cattle in question ; my brother, who is my partner, sold the cattle to defendants; I can’t say whether the plaintiff was in the city at the time of the sale; he was in the city a day or two before the sale; two weeks after the sale I called on the defendants to collect the bill; I saw Nussbaum; I can’t say whether or not the last witness was present when I called; I asked Nussbaum to pay the bill; he refused to do it; he wanted a deduction from the bill for the cattle being bruised; I do not know how much he wanted deducted; did not agree on the amount to be deducted at the first interview; I did not make an offer until I had seen Taylor; I can’t tell whether I mentioned Taylor’s name; I saw plaintiff afterwards, and before the defendants paid me; plaintiff never authorized me to make any deduction; I made the deduction myself on my own responsibility, as I wanted to get the money; defendants refused to pay the whole bill, and I deducted $90; I sold the cattle for plaintiff on commission; myself and brother were partners; I never at any time told Nussbaum, or any other person, that plaintiff had authorized me to make any deduction whatever.
    On being cross-examined, the witness further testified: I had made deduction on cattle sold before; I never made any deduction on cattle sold by us for plaintiff; I had done so on my own sales.
    The defendants’ counsel proposed to show that witness had frequently made deductions on bills for cattle, when the cattle had, after slaughtering, been found to be bruised, for the purpose of showing that it was the usage of persons collecting bills for cattle to make deductions.
    The jolaintiff objected to the testimony, and the court sustained the objection, to which the counsel for the defendants excepted.
    The testimony was here closed, and the cause submitted.
    The counsel for the plaintiff requested the court to charge the jury, that the evidence did not show a legal authority in the witness .Belden, as agent for the plaintiff, to accept a less sum than the contract price for the cattle, and that notwithstanding the payment of such sum, and the receipt of the same by said Belden, in full payment of the contract price, the plaintiff was entitled to a verdict.
    The court hereupon charged the jury that the evidence-produced was sufficient to show a legal authority from the plaintiff to Belden, to accept the sum paid in full of such contract price, and the jury found the following facts, subject to the opinion of the court at general term, upon the question of the plaintiff’s right to recover, notwithstanding such payment and receipt.
    The counsel for the plaintiff excepted to that portion of the charge of the court, wherein the court charged that the evidence produced was sufficient to show a legal authority from the plaintiff to Belden, to accept the sum paid in full of the contract price, and desired the court to note such exception.
    The jury thereupon found—.
    First, That after the sale and delivery of the cattle, defendants paid to "William H. Belden the sum of $911, which sum the said Belden agreed to accept in full payment of the said cattle, by reason of the same having been found bruised when slaughtered.
    Second, That said Belden was legally authorized by the plaintiff to accept such sum in full payment of the contract price of 'the cattle.
    The jury hereupon, by direction of the court, and with the consent of the parties, rendered a verdict in favor of the plaintiff, for the amount claimed by the complaint, with interest, $100.96, subject to the opinion of the court at general term, on the questions of law arising in the case, with liberty to the court to dismiss the complaint.

      J. B. Scoles, for plaintiff,
    moved for judgment on the verdict, and insisted on the following points.
    I. The question, whether the evidence produced was sufficient to show a legal authority from the plaintiff to Belden, to accept the sum paid in full of the contract price, was a question of fact, and ought to have been submitted to the jury.
    II. The plaintiff never gave. Belden authority to accept the sum paid, in full of the contract price. He himself says, “Plaintiff never authorized me to make any deduction. I made the deduction myself, on my own responsibility, as I wanted to get the money. Defendants refused to pay the whole bill, and I deducted $90.”
    III. There was no contract or agreement between plaintiff and the defendants, that Belden should make this deduction from the bill. Even if the testimony of Max Doctor be credible, the reasonable and legal interpretation of the conversation between plaintiff and defendants is, that he, the plaintiff, would be satisfied with whatever Belden should do in the shape of a deduction, provided the defendants had a legal right to any deduction from the contract price. The sale was made by Belden, who alone knew the terms and conditions of sale. The alleged conversation between the defendants and Belden upon this subject, contained in Doctor’s testimony, is in harmony with this view—if there was a contract or agreement between plaintiff and defendants, that Belden should make any deduction he pleased, whether the defendants had a legal right to it or not, it would be, without consideration, a nud/wm pactmm, and of no binding obligation.
    IV. Had Belden been legally authorized by the plaintiff to accept a smaller sum than the contract price, in full payment of the contract price of the 'cattle, his acceptance of such smaller sum does not deprive the plaintiff of a right of action for the balance. . The payment of part is no satisfaction of the whole. There was no legal consideration for the deduction. The defendants had no legal claim to any deduction from the contract price. The doctrine of ca/oeat em/pior applied to the bruised condition of the cattle. There was no warranty of soundness. There is no pretence of fraud. The payment made was not a good accord and satisfaction. (Johnson v. Brannan, 5 Johns. 269; Seymour v. Minturn, 17 Johns. 169.) That the doctrine of caveat emptor applies to the sale of the cattle, see Hilliard on the Law of Sales, 224; Fitzherbert’s N. B., 94 c.

      J. Cochrane, for defendants,
    claimed that judgment should be entered in their favor, and argued as follows.
    I. The answer alleges, that in consideration of the damage suffered by the defendants, on account of the cattle having been bruised, the plaintiff agreed to settle, and did settle his claim at a less sum than he originally demanded. The evidence proves the allegation. This is no answer of an accord and satisfaction, but of an agreement between the parties to settle, and a settlement.
    II. The insufficiency of a smaller sum to cancel a greater, pleaded in form, of an accord and satisfaction, proceeds on the ground of the palpable inadequacy of the less to the greater sum. (Walkman v. Ingleby & Stoke, 5 John. R. 386, 391, and cases cited.) If, in addition, however, to the less sum paid, any other consideration is shown from which the court can see that a benefit could be derived to the plaintiff’s satisfaction, that makes the payment of the smaller sum good as an accord and satisfaction. As, if the less sum be paid at a different place, or before the day agreed (Walkman, v. Ingleby, supra; Fitch v. Sutton, 5 East’s R. 230). »If the amount is disputed, the acceptance of a sum smaller than the demand, is a good accord and satisfaction (Palmerton v. Huxford, 4 Denio, 166). The answer and the evidence in this case both show that the amount was disputed, and that in consideration of the cattle having been bruised, $89 were thrown off in settlement.
   Br the Court.

We are all of opinion that upon the facts found by the jury, the defendants are entitled to judgment.

Admitting that the cattle were not sold under a warranty, express or implied, as to their soundness, and that the defendants had, therefore, no legal right to claim a deduction from the stipulated price; the deduction was, however, just and equitable in itself, and its equity is a sufficient consideration for its allowance. It is sufficient to exempt the case from the general rule, that the payment of a less sum than the amount of the debt is not a good accord and satisfaction.

But it is not alone upon this ground that we place our decision. We apprehend that it is settled law, that when the claim of a creditor is disputed in good faith, and in order to settle the dispute he consents to abate a portion of his demand, the settlement, as a compromise, is valid and binding. Nor will the court inquire in such cases, whether he was legally bound to make the sacrifice. We deem it needless to refer to cases to show that such, is the rule.- It is sufficient to say that it was the ground of the decision of this court in Currie v. Steele, 2 Sand. S. C. R., p. 542. There is no reason here to question the good faith of the defendants. They doubtless believed that they were entitled to the deduction which they claimed.

The only question that remains is, whether the agent, Belden, had authority to make the deduction. It is said that this question ought to have been submitted to the jury. As we read the case, it was submitted to the jury, and their finding, if there was any evidence to support it, is conclusive. The testimony of the witness, Doctor, was sufficient to support it; and supposing him to have been contradicted by Belden, whether he or Belden was to be believed, it was for the jury to determine.

But, in truth, it was not necessary that the question of the agent’s authority should have been submitted to the jury at all. TTis authority resulted from the nature of his agency; he had a general authority to sell and collect the price. The amount to be paid rested, therefore, in his discretion, and he exercised this discretion in making the settlement which he did. The sum paid to him he consented to receive as the full price to which he was entitled.

As the facts in this case have been specially found by the jury, the Code makes it our duty to render such a judgment as the finding warrants (§ 262). The verdict for the plaintiff must, therefore, be set aside, and a verdict and judgment thereon with costs, be entered for the defendants. They ought not, by amere dismissal of the complaint, to be subjected to the risk of a second'action.


source: Caselaw Access Project

author: By the Court. Campbell, J.

license: Public Domain

text:
    Willis v. Forrest.
    (Before Oakley, Ch. J., Campbell and Emmet, J.J.)
    June 18;
    July 2.
    It rests wholly in the discretion of the judge who tries a cause whether he will per mit the pleadings to be read to the jury.
    • When the issues raised upon the pleadings are irrelevant or immaterial, the judge is not bound to submit them to the determination of the jury, and may therefore withhold from the jury the pleadings in which they are contained.
    In an action of assault and battery, causes of provocation cannot be admitted in evidence in mitigation of damages, unless they happened at the time of the assault, or immediately preceding it, so as to form part of one transaction.
    In such an action, proof of the general character of the plaintiff cannot be received in mitigation of damages.
    Exceptions overruled; judgment for plaintiff affirmed, with costs.
    Appeal by defendants from a judgment at, Special Term, in favor of plaintiff, for $2,852.29. A bill of exceptions was attached to the record.
    The action was for an assault and battery, committed by the defendant on the plaintiff, in the month of June, 1850.
    The defendant, in his answer, admitted that he had inflicted several blows upon the plaintiff, at the time and place mentioned in the complaint, but denied that he had done so without •provocation. The answer then proceeded to set up as a full justification and defence, and with details unnecessary to be stated, that the plaintiff’s conduct towards him, the defendant,had been uniformly treacherous, cowardly and false; that he had availed himself of the defendant’s hospitality as a means of destroying the defendant’s tranquillity of mind, and the dignity and purity of his wife; that he had pm-sued a system of stealthy and secret intercourse with defendant’s wife; had taken with her unworthy and criminal liberties, and had introduced habits of debauchery into the defendant’s household; that the plaintiff had also caused to be published in a newspaper edited by himself, called the “Home Journal,” and also in the “New York Daily Herald,” several false and atrocious libels upon the defendant’s character and conduct, and the answer concluded with averring that it was under a burning sense of the wrongs thus done to his honor, happiness and character, that he, the defendant, had inflicted upon the plaintiff the chastisement admitted, and insisted that the plaintiff was not entitled to any damages whatever; but that judgment should be given for him, the defendant, with costs. ' The reply of the plaintiff, after averring that the allegations in the answer were entirely irrelevant, and constituted no defence to the action, proceeded to controvert the same in detail, raising thereon several distinct and plainly immaterial issues.
    Upon these pleadings the cause came on to be tried before Mr. Justice Bosworth and a jury, on the 1st March, 1852.
    The proceedings on the trial are stated in the bill of exceptions, as follows:

      Anne Hen'riok was sworn as a witness for the plaintiff, and testified, that she was present at the collision referred to in the pleadings, and gave evidence in relation thereto; the counsel for the plaintiff examined various other witnesses to prove the issue on his part, and other proceedings took place as follows:

      Lewis F. Wa/mer was sworn as a witness for the plaintiff, and testified, that he was a physician, and had been the family physician of the plaintiff for three years, that he had heard of the occurrence of an, affray between.. Mr. Forrest and Mr. Willis,—testified to by the former witnesses.
    The counsel for the plaintiff then asked the witness this question.
    What was the general state of Mr. Willis’s health at that time ?
    The counsel for the defendant objected to the testimony as irrelevant and improper.
    His honor the judge overruled the objection, and the counsel for the defendant excepted to the decision.

      The witness testified,—Mr. Willis was in a delicate state of health from various causes ; he was debilitated from a severe attack of rheumatic fever; he was then in a convalescent state; I can’t say how long he had suffered; it was at least a year previous; I had prescribed for him only occasionally during the year.
    After further testimony from this witness, the plaintiff rested.
    The counsel for the defence then opened the case on the part of the defendant, and offered to read the pleadings to the jury.
    His honor, the judge, refused to allow the pleadings to be read, and overruled the offer.
    The counsel for the defendant excepted to the decision.
    The counsel for the defendant, to prove the issue on his part, then called

      Mrs. Christina TJnd&rwood, who testified; I lived with Mrs. Forrest; I did not live with her in 1844 and 1845; but I was in the habit of going there; I called there two days before she went to Europe in 1844.
    The counsel for the defendant then asked the witness this question.
    Do you recollect Mr. Willis calling there shortly before Mrs. Forrest went to Europe %

    The counsel for the plaintiff asked the object of this inquiry, whereupon,
    The counsel for the defendant offered to prove by this witness and others, in mitigation of damages, criminal intercourse between the plaintiff and the defendant’s wife, commencing in 1844 and continued until May, 1850, which had come to defendant’s knowledge shortly before the collision aforesaid, and that the alleged assault and battery oc-
    curred at the first meeting of the parties after such knowledge had come to the defendant.
    His honor, the judge, overruled the offer, and excluded the testimony, and the counsel for the defendant excepted to the decision.
    The counsel for the defendant then offered to prove, in mitigation of damages, the several causes of provocation set forth in the answer of the defendant, and on which issue had been joined by the reply of the plaintiff.
    But his honor the judge overruled the offer and excluded the testimony, to which ruling and decision the counsel for the defendant duly excepted.
    The counsel for the defendant then called

      Henry Dougherty, who testified as to the collision mentioned in the pleadings, and then deposed as follows: Hr. Willis walked to the police office after the affair; the office was in a market in the Sixth avenue.
    The counsel for the defendant then asked the witness this question.
    , Did Hr. Willis make a complaint there?
    The question was objected to, whereupon the defendant’s counsel said, “ I offer to show that the magistrate asked Hr. Willis if he had any complaint to make, and he said he had not, and they all walked off.” This evidence was excluded as immaterial, and the question was overruled by his honor the judge, and the counsel for the defendant excepted to the decision.
    The counsel for the defendant then offered to prove, in mitigation of damages, the publications annexed to the answer in the cause, and to give the same in evidence to the jury; and to prove further, in mitigation of damages, that at the time of each of the said publications, defendant was in the State of Pennsylvania, which was his place of residence ; that he was in that State continxially, with the exception of two days, until the time of the encounter, and had never seen the plaintiff from the time of the publication until that of the collision.
    The counsel for the plaintiff objected to the testimony; the objection was allowed by his honor, the judge, and the testimony excluded.
    The counsel for the defendant excepted to the decision.
    After further testimony on the part of the defence, the counsel for the defendant called

      Gideon 0. Chase, who testified as follows: I reside in Owego; I have lived there since 1832; Hr. Willis, the plaintiff in this suit, resided there some four or five years; I was acquainted with him.
    The counsel for the defendant then asked the witness this question.
    Do you know his general' character for integrity and morality ?
    The counsel for the plaintiff objected to the question.
    The objection was allowed, and the testimony excluded. The counsel for the defendant exbepted to the decision.
    The counsel for the defendant further offered to show, in mitigation of damages, the general standing in society of said plaintiff, which was objected to by the counsel for the plaintiff and excluded by the court, to which decision the plaintiff excepted.
    Further testimony was then given on the part of the defendant.
    The case was then closed on both sides.
    The counsel for the defendant and plaintiff respectively summed up the cause to the jury.
    The jury retired under the charge of his honor, the judge, and on their return found a verdict for the plaintiff for $2,500 damages, and costs.

      J. Van Buren, for defendant,
    now insisted that the judgment upon the verdict ought to be reversed, and a new trial be granted upon the following grounds.
    I. The judge erred in refusing to allow the defendant’s counsel to read the pleadings, in opening his case to the jury.
    II. The plaintiff having joined issue upon the allegations of the answer, should have been compelled to try the issues thus framed. The court, by excluding the defence, in effect allowed the demurrer taken in the reply. This was erroneous, and in contravention of the established rule, that a party shall not both reply and demur to the same plea (Slocum v. Wheeler, 4 How. Pr. R. 373; Spellman v. Weider, 5 How. Pr. R. 5; Rickert v. Snyder, 5 Wend. 104; Wheeler v. Curtis, 11 Wend. 662; Russell v. Rogers, 15 Wend. 359).
    III. The testimony offered should have been admitted. 1. It is competent to show provocation, in mitigation of damages, in an action of assault and battery (Lee v. Woolsey, 19 J. R. 319; Ellsworth v. Thompson, 13 Wend. 663). 2. The qualifications of this rulfe that would limit the provocation to the time of the assault, are not sustained by principle or authority (Frazer v. Grantly Berkeley, 7 Car. & P. 621; Rhodes v. Bunch, 3 McCord, 66; Dean v. Horton, 2 McMullen, 147, 2 Gr. Ev. § 267). 3. Whether a sufficient interval had elapsed between the provocation and the punishment in this case, was a proper subject of inquiry for the-jury.
    IY. The testimony offered at fol. 123 and fol. 125, should have been received, [see reasons stated under point III.] There was also error in the refusal to allow the defendant’s counsel to read and prove to jury the challenge or invitation suggested in the plaintiff’s libel against the defendant (Logan v. Austin, 1 Stew. 476).
    Y. The testimony offered at fol. 124, should have been admitted. It served to show the extent of injury done to plaintiff, and to disprove his statement as to the manner in which he was assailed. And proof of Mr. Willis’ admission, that he had no complaint to make, was competent (Yost v. Ditch, 5 Black, f. 184).
    YI. This being a speculative suit, in which an enhanced rate of damages was claimed on the score of the personal position of the parties, and for injuries to the sensibilities, as well as to the body of the plaintiff, the offer to prove the standing of plaintiff in society should have been admitted. It was competent upon the question of damages (2 Gr. Ev. § 267; 2 Car. & P. 292; Paddock v. Salisbury, 2 Cow. 811).

      E. Sandford,

    in resisting the motion, argued as follows.
    I. The question put to Dr. Warner, as to the state of the plaintiff’s health, at the time of the assault, was relevant, and was properly admitted.
    II. The court properly refused to permit the counsel for the defendant to read the ' pleadings to the jury. All questions arising upon the pléadings are for the determination of the court. It was for the court to determine what issues joined in them were properly for the consideration of the jury; and what evidence was competent when offered in support of such issues (Mitchell v. Borden, 8 Wend. 570).
    III. The evidence offered to be given by the witness Underwood, was properly excluded. It did not constitute any justification for the assault, or mitigate, or excuse it (fol. 121). (Lee v. Wolsey, 19 J. R. 319; Ellsworth v. Thompson, 13 Wend. 658; Beardsley v. Maynard, 4 Wend. 336, 55; Maynard v. Beardsley, 7 Wend. 560, 64).
    TV". The offer to prove the several causes of provocation set forth in the answer of the defendant, and on which issue had been joined by the reply of the plaintiff, was properly overruled (fol. 122). [See cases cited under point III.]
    V. The question put to Mr. Dougherty, whether Mr. Willis said at the police office that he had no complaint to make, was irrelevant, and was properly excluded (fol. 124).
    VI. The offer to prove the publications annexed to the answer, and to prove the absence of the defendant from the State at the time of their publication, and that he had not seen the plaintiff from the time of publication until that of the assault, was properly overruled (fol. 125).
    VII. The question put to the witness Chase, whether he knew the general character of the plaintiff for integrity and morality, was properly overruled (fol. 126).
    VIII. The evidence offered, to show the general standing of the plaintiff in society, was properly excluded. Ho issue on this subject was raised by the pleadings; nor was the evidence offered relevant to any issue raised thereby (fol. 127).
    IX. The judgment appealed from, should be affirmed, with costs.
   By the Court. Campbell, J.

This was an action for assault and battery, tried before one of the justices of this court and a jury in the spring of 1852, and a verdict rendered in favor of the plaintiff for $2500. A motion is now made on the part of the defendant, to set aside the judgment entered on the ground that the judge had erred in refusing the defendant permission to read the pleadings to the jury, and had excluded the evidence offered in mitigation of damages.

It was purely a matter of discretion with the judge whether he would allow the pleadings to be read. He might call upon the counsel to read them, or to state their substance, if it was necessary to enable the court to understand the issues which were raised and were to be tried. The pleadings, which are presumed to be statements in legal form of those facts, which constitute the charge or defence of the parties, are for the consideration of the court. When evidence for the consideration of the jury is offered, or given, to sustain or establish those facts, it becomes necessary for the court to understand what issues are raised, and which are properly triable m the case. The facts stated in the pleadings, except so far as admitted, could not be considered by the jury until proved by competent testimony. In this case there was a long answer, admitting the assault, but setting up various causes of provocation which had arisen at different periods previous. The reply took issue and denied these causes of provocation. Thus upon the face of the pleading as they stood when the cause was brought on for trial, issues were joined in a simple action of assault and battery, the disposition of which would call for inquiries into the history, conduct, standing in society, and grievances of these parties, and extending through a series of years. It is very manifest that the judge ought not to allow those issues to be tried in such an action. The correct practice, says Justice Bafculo in a similar case (Fox v. Hunt, 8th Howard, Pr. R. 12), is at the circuit to lay out of the case all the irrelevant allegations, as well as the immaterial issues contained in the pleadings, and hold the parties to trial upon the material issues or points in the case. As most of the issues raised by the pleadings in this case could not be placed before the jury for their consideration, the judge, we think, very properly refused permission to the counsel to read the pleadings to the jury.

The evidence, which the defendant offered in mitigation of damages, and which was excluded by the judge, was not admissible. Whatever were the real or fancied causes of provocation, and which were offered to be proved, if they existed, they were known to the defendant a long time prior to the assault. They were not of recent occurrence, had not just come to the knowledge of the defendant, and especially did not happen at the time of the assault. In one of the oldest reported cases in this country, decided now nearly half a century ago (Avery v. Ray et al., 1 Mass. Rep. 11), it was ruled that in an action for assault and battery the defendant may give in evidence in mitigation of damages, immediate provocation, such as happened at the time of the assault, but not such as happened previously. Mr. Justice Ledyard said in that case that he should be in favor of admitting evidence of provocation given in mitigation of damages upon a liberal scale, but to admit such evidence where the blood has had time to cool would be extending the rule so as to render it impossible to say where the court should stop.

In the leading case in this state, that of Lee v. Woolsey, 19 John. 319, Chief Justice Spencer remarked, “It appears to me neither,to comport with sound policy nor law to allow an inquiry into antecedent facts in such a case as this, unless they are fairly to be considered as parts of one and the same transaction. A contrary course would greatly encourage breaches of the peace, personal rencounters, and every species of brutal force, and would tend to uncivilize the community.” The rule as first laid down in tMs country, so far as we find in Avery v. Bay, prevails, with scarcely an exception, if indeed there is any, in all the states of this Union, and its justness and policy have been dwelt upon, and favorably considered, in a large number of cases. It is the established rule in this state, and has been followed and recognised in several cases decided since that of Lee v. Woolsey. We see no reason in this case to depart from it. There were some other minor questions raised, but which were not pressed at the argument, and which were of little moment. We think them correctly determined at the trial.

The judgment appealed from must be affirmed.


author: By the Court.

text:
    Heine v. Anderson.
    In an action to recover damages for the wrongful detention of personal property it is not necessary to set forth the plaintiff’s title in the complaint. A general averment of ownership is sufficient.
    Under such a complaint a hill of sale from the former owner may he given in evidence.

      (Before Oakley, Ch. J., Campbell and Emmet, J.J.)
    June 15 ;
    July 2, 1853.
    Where the goods are in the possession of a bailee of the vendor, the bill of sale gives an immediate and valid title to the purchaser, without a formal delivery of the possession. The possession of the bailee becomes that of the purchaser.
    Such a bill of sale is not merely a transfer of a right of action, but of the goods themselves, and gives an immediate right to the purchaser as owner to demand their restoration.
    Where the bailee claims a lien, the claim must be positively made, and its nature, if not its amount, be stated.
    When the claim is not so made, his refusal to deliver the goods is sufficient proof . of a conversion.
    Judgment for plaintiff.
    This was an action to recover damages for the wrongful detention by the defendant, of certain articles of clothing, and stuff for clothing, alleged to be the property of the plaintiff.
    The answer took issue on all the averments in the complaint.
    The cause was tried before Mr. Justice Bosworth at the trial term for March, 1853. On the trial, Justus Uhlendorf, a witness on the part of the plaintiff, testified that he was a tailor, and that in December, 1851, he was in partnership with Mr. John Bracks, and that he and his partner kept a clothing store at No. 614 Water street, in the city of New York; that said store was burnt down in December, 1851, and part of the goods from the store was saved from the fire; that the goods saved were 24 coats; 36 pair of pants; 36 vests; a lot of silk and woollen stuffs for vests and pantaloons, and other materials for clothing: and that the value of the goods saved was about two hundred and fifty dollars; that the said goods were taken to the house of defendant, and that the house of defendant was about 200 yards from the place where the fire was.
    Upon cross-examination he testified that after the fire he went to the defendant’s house and saw the goods there; they were the same goods that had been in his store, and he examined and counted them.
    J ames McG-ay, sworn on behalf of the plaintiff, testified that he was subscribing witness to a bill of sale (now produced) by Uhlendorf & Bracks to the plaintiff in this suit, and saw them execute the same; which said hill of sale, he then and there produced, and offered to read the same in evidence; and thereupon the defendant’s counsel, W. Allen, Esq., objected to the , admission of the same, in evidence, because— /
    1st. The assignment, or bill of sale, was irrelevant, as its effect was to make the plaintiff an assignee of a thing in action, ^ which fact was not averred in the complaint. And ¡!
    2d. Because he averred that this suit having been brought : for a wrongful detention of said goods, that the same was a !l , tort, and was not assignable. His honor the judge overruled ¡1 ■ the several objections, and the defendant excepted. The bill - of sale was then read in evidence, and was in the words and ¡i figures following:
    “ Know all men by these presents, that We, Justus Uhlendorf, and John Bracks, of the city of Hew Y ork, of the first part, for and in consideration of the sum of fifty dollars, lawful money of the United States, to us in hand paid, at or before the ensealing and delivery of these presents, by Henry A. Heine, of the same city, of the second part, the receipt whereof is hereby acknowledged, „ have bargained and sold, and by these presents do grant and convey, unto the said party of the second part, his executors, administrators and assigns, about 36 pair pants—buckskin, doeskin, kerseymere and light goods; about 36 vests—silk and summer vests; about 24 coats—summer coats, pilot cloth coats and fine cloth coats; lot of silk stuffs for vests and woolen stuffs for vests; lot of pantaloon stuffs; lot of lining for coats ; lot of alapaca, and some buttons—the same being the goods ■ saved from the fire that took place in our store, in December last, and this conveyance being intended to cover all the- property so saved, whether enumerated here or not. To have and to hold the same unto the said party of the second part, his executors, administrators and assigns for ever. And we do for ourselves, our heirs, executors and administrators, covenant and agree, to and with the said party of the second part, to warrant and defend the sale of the said goods hereby sold unto the said party of the second part, his executors, administrators and assigns, against all and every person and persons whatsoever.
    Tn witness whereof, we have hereunto set our hands and seals, the eighteenth day of June, in the year one thousand eight hundred and fifty-two,
    61 Justus Uhlenpobf. [l. s.]
    " John Feaoks, [l. s.]

      " Signed, sealed, and detmered) m the presenee of j
    " The words £ and now at’ erased before signing.
    “Witness as to John Feaoks,—James MoGay, As to J. Uhpendobf,—James MoGay.”
    The same witness then testified that a day or two before the commencement of this suit he went, in company with the plaintiff, to the house of the defendant, and took with him the bill of sale (above-mentioned), that he demanded the goods in question from the defendant for the plaintiff, and read the different goods off from the bill of sale to him, and that the defendant refused to give up the goods until he was paid for keeping them.
    Upon cross-examination he testified that he showed and read the bill of sale to the defendant; told him I wanted the goods, Do not recollect the exact words used by the defendant, but that substantially- it was he would not give up the goods until he was paid for saving them, or keeping them, or something to "that effect.
    This witness also testified that he did not offer to pay the defendant anything, and he did not know of any offer having been made by the plaintiff to pay him, Anderson made no other claim, and said the goods were not his.
    The plaintiff here rested his case, and the defendant’s counsel then moved for a nonsuit or for the complaint to be dismissed, upon the ground that the plaintiff’s evidence showed that the case was an assignment of a tort; and also because the defendant had a lien on the goods for his trouble in storing them, and also on the ground that no demand and refusal to deliver up said goods had been shown. The judge denied the motion upon the ground (among others) that there was no lien set up in the answer, and the defendant excepted.
    The defendant’s counsel then called, as a witness on his behalf, Mr. Oly Anderson, the defendant in the suit, to the admission of whose testimony the plaintiff’s counsel objected, upon the ground of his being the defendant. His honor the judge overruled the objection, on the ground that plaintiff had introduced Mr. Uhlendorf, the person through whom the right to the property was claimed to come to plaintiff after it was found in defendant’s possession, and the plaintiff excepted.
    Mr. Oly Anderson, the defendant, was then sworn as a witness on his own behalf, and testified that he was a police officer of the city of New York; that the fire referred to by the witness Uhlendorf, took place in December, 1851; that the goods saved from the fire were in the first instance placed in the yard of his house; that he afterward took them up stairs, in his house—that they were partly wet and damaged, and he had them spread out and dried; that Mr. Uhlendorf came to his house the next day after the fire, and saw the goods, and requested that the goods might remain where they were until he could get a place, and that he agreed that they might remain; that afterward the insurance office people came and saw the goods, and told him not to deliver the goods to anybody till he heard from them. Afterward a Mr. Ahrens came and said the goods ought to be delivered to him because Uhlendorf & Bracks had bought them from him, and they had not yet been all paid for. He also testified that he had caused an advertisement to be inserted in the newspaper, in reference to these goods, which cost him four dollars. The New York Sun newspaper of the date of the 15th day of June, 1852, was then produced in court, and the witness pointed out the advertisement referred to; and the same was in the following words:
    “ The proper owners of the goods of the merchant tailor store, saved from the fire at Ho. 614 Water street, H. Y., on the 9th of December last, please call at 303 Front st.,. corner of Governeur slip, and pay charges and take the goods, or they will be sold at public auction in consequence of the same. J. K 15, 3,165,”
    The witness further testified that he told the different parties that he wanted to find the true owner of the goods, and he thought he ought to be paid for the trouble he had had; but he did not insist as a matter of right that anything should be paid. The witness further' testified that when Mr. McGay called upon him about the goods, Mr. McGay asked him if he thought he had a lien on the goods; and that he replied to Mr. McGay that he thought he ought to be paid for his trouble in keeping and drying the goods.
    He further testified that the goods remained at his house till June, 1852; and that the storage of the goods during that time was worth one dollar.
    Upon cross-examination he testified that he had never before named any sum as being an estimate of what he thought himself entitled to; and in reply to a question put by a juror, as to what had become of the goods, he replied that they had been sold.
    The defendant’s counsel here rested his case. Whereupon the defendant’s counsel requested the judge to charge the jury that no demand and refusal had been shown, and to direct a verdict for the defendant, but his honor the judge refused so to charge and direct; and the defendant’s counsel then and there excepted, and his honor the judge charged the jury that if they believed the goods in question were the goods of Uhlendorf & Tracks at the time the fire occurred, and had been disposed of by them to the plaintiff, and if they believed that the plaintiff had subsequently thereto, and before the commencement of this action, demanded the goods from the defendant, and that he had refused to give them up, that the plaintiff was entitled to a verdict for the value of the goods, subject to the opinion of the court upon the questions of law that had arisen during the trial, and which would be disposed of by the court at the general term.
    Neither plaintiff nor defendant excepted to the charge of the judge, nor any part thereof, and the jury, without leaving their seats, rendered a verdict for the plaintiff for §150, subject to the opinion of the court, as aforesaid. The case was submitted by the counsel of the respective parties upon printed points,

      J. McGay, for plaintiff.
    I. The bill of sale of the goods in question to the plaintiff, given in evidence by the plaintiff, was not irrelevant, and was admissible to prove the ownership of the goods in the plaintiff; the defendant having, in his answer, denied the wrongful detention of the plaintiff’s goods.
    II. Ro tort was committed by the defendant until after the goods were sold to the plaintiff. Because the goods were lawfully in the possession of the defendant while they remained the property of Uhlendorf & Bracks, they never having demanded them. But, having been sold by them to the plaintiff, and he having demanded them, and they not having been surrendered to him—-hence the tort. There was no tort to assign—because no tort had been committed when the bill of sale was executed; and the question, whether or not a tort is assignable, does not arise in this suit,
    III. The motion to dismiss the complaint was properly denied; because, as a matter of fact, the evidence did not show this case to be the assignment of a tort, and because there had been a demand of the goods, and a refusal to deliver them, inasmuch as the defendant had refused, and, besides, the nondelivery was a refusal,
    IV. The motion to dismiss was properly denied, also, because the defendant had not a lien on the goods, for saving them or drying them; because, 1, There is no evidence that the defendant saved the goods at all. “ The goods were taken to the house of the defendant.” The fact being that the goods were saved by the owners, and taken by them to the defendant’s yard, and, 2. He was not requested to dry them, and “ non constat,” but the owners would rather have had them remain wet, and, 3. The law does not give a lien in such cases. The lien claimed by the defendant’s counsel exists only in the case of goods saved from a ship on fire at sea, and goods thrown on shore from a wreck; and, besides, 4. The defendant himself not only did not claim a lien when he was asked for the goods, but, in his testimony, actually disavowed having one. “ He did not insist, as a matter of right, tbat anything should be paid,” and “he had never (before he gave his testimony) named any sum, as being an estimate of what he thought himself entitled to.” 5. Of course, defendant had no lien for “ keeping” or storing the goods, without an agreement to that effect; no agreement is claimed.

      V. The motion to dismiss was properly denied by the judge, Upon the ground that even if the defendant had a lien, it should have been claimed in the answer.
    VI. The judge properly refused to charge the jury, that no demand and refusal had been shown, and to direct a verdict for the defendant, because the evidence was the contrary.

      W. Allen, for defendant.
    I. The judge erred in refusing to nonsuit the plaintiff. 1. The action is trover (Spalding v. Spalding, 3 How. 297; Dows v. Green, 377 do., 1 Code Rep. 64), 2. The ground of such refusal as assigned, was matter of evidence and not of averment. The answer is a denial, which formerly would have been “ not guilty,” under which all matters were admissible in defence except “ release” and " Statute of limitations.” [See Ohitty’s PI. title "Trover.”] 3. No demand and refusal was shown. Charges for" lien should have been tendered (20 Wend, 268; 2 Mason, 77, 80, 81).
    II. The bill of sale was improperly admitted. Its effect was to show a case different from the complaint, The action claims damages, and is therefore for conversion of plaintiff’s property. The bill of sale merely showed plaintiff to have a right of possession in property which had never been reduced either actually or constructively. The refusal to deliver up could only be an injury to such right of possession. The evidence was therefore irrelevant, It was also inadmissible, because it sustained no allegation of the complaint, Its highest effect Was to show right of possession in plaintiff to property which came to defendant’s possession as owned by Uhlendorf & Fracks. Defendant Was their bailee. Any alleged change in ownership might be controverted by defendant. For these reasons an averment of the assignment was material. Not being so averred, evidence thereof was irrelevant, and a surprise upon defendant.
    III. Such assignment furnished no link in the plaintiff’s case. Being the assignee of a mere right to possession, his remedy was by “claim and delivery” in the detinet. His ¿hts could not be the basis of such an action as this. The „ remedy he chose could be enforced only by the assignors. He is, therefore, before the court as the assignee of a tort. That he is such assignee is apparent from the fact that it is through the bill of sale alone that he has acquired rights.
    IV. The judge should have charged that no demand and refusal had been shown. The verdict should be set aside with costs.
   By the Court.

None of the objections to" the plaintiff" recovery are tenable.

The answer denied property in the plaintiff, and as he had never been in the actual possession of the goods, he could only establish Ms title by proving a transfer from the former owner. The bill of sale was therefore properly admitted in evidence, although not set forth in the complaint. In an action of this nature, a general averment of ownership in the complaint is sufficient.

The goods, at the time of the sale, were, in judgment of law, in the possession of the defendant, as the agent or bailee of the former owners. Uhlendorf, one of the owners, had requested Mm to retain them for a time, and he had agreed to do so ; the sale, therefore, to the plaintiff, being made by an instru- ( ment in writing, gave Mm an immediate and valid title, with-, out a formal delivery of the possession. From the time of its - execution, the possession of the defendant became that of the; plaintiff.

As it does not appear that before the sale there had been any conversion of the goods by the defendant, or any denial by Mm of the title of the former owners, the sale was not a transfer of a meie right of action but of the goods themselves, and from that time the plaintiff was entitled, as owner, to demand their restoration.

, A demand and refusal were sufficiently proved by the testimony of Mr, HcG-ay, and as the question was submitted to the jury, Were found by them in the verdict which they rendered for the plaintiff. Had not the proof been given, the admission of the defendant, that he had sold the goods, was sufficient to render him liable. As there was iio proof that this sale was made after notice to the plaintiff of whose rights as owner he had full notice, it was plainly wrongful. "Whether the defen« dant had a lien upon the goods for the price of their safe-keeping, it is unnecessary to consider, for, as we understand his testimony, he never demanded a compensation as a matter of right, and if he really meant to insist upon a lien, he was bound to make a positive claim, if not to "state its nature and amount.

The plaintiff is entitled to judgment, with costs.


text:
    Beach v. Berdell.
    (Before Oakley, Ch. J., Campbell and Emmet, J.J.)
    June 23;
    July 2, 1853.
    In determining tipon a demurrer, whether matters separatély pleaded constitute a defence, the court will take into consideration all those parts of the answer which precede that which is covered by the demurrer.
    The sufficiency of the defence may, in many cases, depend upon the fact, whether the allegations in the complaint hatre been admitted or denied.
    As a general rule, it is a good defence to an action to recover the value of personal property as unjustly detained, that it had been delivered to the true owner before the commencement of the suit.
    "Whether, when the defendant is a bailee, he can set up this defence against his bailor^-Quere ?
    Demurrer overruled with costs.
    Appeal from an order at Special Term, overruling a demurrer to a part of the defendant’s answer. The following are the pleadings.

      City and County of New York, ss.
    Homer P. Beach, of said City, the plaintiff in the above entitled action, by John G. Vose, his attorney, complains of Robert H. Berdell, the said defendant, and shows to this honorable court, upon information and belief, that in or about the month of August, in the year 1851, at the city and county aforesaid, one Abner W. Spooner being the owner of a certain Texas Bond, (a time copy whereof is hereunto annexed, marked Schedule A, and which said plaintiff prays may be deemed part of this complaint,) by his agent or broker, at the special instance and request of tho said defendant, deposited with him the said Texas bond for the purpose of enabling the said defendant to ascertain the value thereof, and that the said defendant then and there, in consideration that the said Abner W. Spooner would so deposit with Mm the said Texas bond as aforesaid, promised and agreed to and with the said Spooner, that upon the ascertaining the value thereof, he would either purchase the same from the said Spooner and pay him the value thereof, or would return the same to him upon demand.
    And the said plaintiff, upon information and belief, further says, that the said Abner W. Spooner afterwards and in or about the same month of August, A. D. 1851, duly demanded from the said defendant the said bond or the value thereof ; but the said defendant, though admitting that the said Texas bond was in his custody or under his control, utterly neglected and refused either to return the said bond or to pay the value thereof to the said Spooner,
    And the said plaintiff further says, that by reason of the premises the said Abner W. Spooner has suffered damages to the amount of four thousand six hundred and forty-five T°/v dollars.
    And the said, plaintiff further says, that afterwards and on or about the thirteenth day of May, in the year 1852, the said Abner W. Spooner for a good consideration paid to him therefor by the said plaintiff, by an instrument in Writing under his hand and seal, duly executed and delivered, did sell, assign, transfer, and set over unto the said plaintiff the said Texas bond, together with all the right and rights of action of the said Spooner against the said defendant, or against any other person whomsoever, to recover the value of said bond or the possession thereof, with Ml power to sue for, collect and discharge, or sell and assign the same, as by reference to the said instrument of assignment when produced will more fully appear.
    And the said plaintiff further says, that afterwards, and on or about the eighteenth day of May, 1852, he gave to the said defendant due notice of the aforesaid assignment, and demanded from the said defendant the said bond or the value thereof. But the said defendant, though admitting that the said bond was in his possession or under his control, utterly neglected and refused to deliver the same, or to pay the value thereof, to the plaintiff.
    And the said plaintiff further says, that the value of the said bond, at the date of the commencement of this action, was the just and full sum of four thousand nine hundred and eighty dollars, to which amount the plaintiff has suffered damages by reason of the neglect and refusal of the said defendant to perform his said promise hereinbefore set forth. Wherefore the said plaintiff asks that his damages may be assessed at four thousand nine hundred and eighty dollars, for which amount, with lawful interest from the sixth day of July, in the year 1852, he demands judgment against the said defendant.
    Schedule A.
    No. 144.
    Public Debt of the late Republic of Texas.
    2nd Class.
    This is to certify that E. W. Moore, administrator of J. K» Lothrop (dec’d), has, under the provisions of an act of the Legislature of the State of Texas, entitled an act to provide for ascertaining the debt of the late Republic of Texas, approved 20th March, 1848, filed with the Auditor and Comptroller a claim for services as an officer in the Texan navy, amounting to three thousand seven hundred and sixty-six T7A dollars, which is sufficiently authenticated to authorize the auditing of the same under the laws of the late Republic of Texas.
    The said claim, according to the data before us, is Worth three thousand seven hundred and sixty-six dollars, in par funds, as having been at that rate so available to the Government.
    In testimony whereof, we have hereunto set our hands and affixed our seals of office, at Austin, this 11th day of April, 1849.
    [l. bJ [l. s.]
    Signed,
    J. B. Shaw, Comptroller. J. M. Swishes, Auditor.

      Homer P. Beach v. Robert H. Berdell.—Answer. 1. The defendant, Eobert H. Berdell, by Woodbury & Churchill his attorneys, answers the complaint in this action, and says that the said Texas bond in said complaint mentioned was deposited with him, the month of August, 1851, by one Montagnie, for certain purposes then agreed upon by and between the defendant and said Montagnie, and this defendant denies that the said bond was then the property of or owned by said Spooner, in said complaint .mentioned, and that the same was deposited With the defendant by an agent or broker of said Spooner, and that any such promise or agreement was made by the defendant to and with said Spooner, as is stated and alleged in said complaint.
    2. The defendant denies that said Spooner has sustained damages, by reason of the premises, to the amount stated in said complaint, or to any amount.
    3. The defendant says that he has not sufficient knowledge or information to form a belief whether the said Spotiher, on or about the 13th day of May, 1852, or at any time, executed to the plaintiff, as stated in the complaint, the instrument in writing or assignment therein mentioned, or any instrument in writing or assignment, and he denies that the said plaintiff, in the said month of May, or at any time, had any right, title or interest in or to the said Texas bond or the value thereof, and he denies that the value of the said bond, at the time of the commencement of this action, or at any time, Was the sum of $4,980.94, as stated in the complaint, and that said plaintiff has sustained damages to that amount, as alleged in the complaint, or to any amount.
    4. The defendant denies that the plaintiff gave him due notice of said alleged assignment on or about the eighteenth day of May, 1852, or that he then demanded from the defendant the said bond or the value thereof, or that the said defendant then admitted that said bond Was in Ms possession or under Ms control.
    5. The defendant further answering says, that the said J. T. X. Lothrop, in said bond mentioned, was at the time of his death a citizen and a creditor of the Eepublic of Texas; that he died in said Texas, in the month of ——1845; that the said Texas was then justly indebted to Mm in the sum in said bond mentioned ; that afterwards, and in or about the month of Hay, 1845, the said E. W. Moore, in said bond mentioned, was duly appointed in the State of Texas admiMstrator of the estate of' said Lothrop, and that the State of Texas issued and delivered to said Moore, as such administrator, the said bond as the evidence of obligation for the debt so due from said Re» public to said Lothrop; that the said Lothrop, at the time of his death, left Mm surviving a mother and two brothers and tM’ee sisters, and the children of a sister, then deceased, which said mother, brothers, sisters, and children, are still living, and also, by the laws of Texas, then were and still are the distributees of the personal estate of said Lothrop, and entitled thereto under the statute of distributions of said Texas» And this de« fendant further answers and says, that after the said bond was so issued and delivered to said Moore as aforesaid, and in or about the month of December, 1849, the same came into the possession of one James S. Holman, and that said Holman, as between himself and the said Spooner, in said complaint mentioned, and said plaintiff, and all other persons except the ad» ministrator and said distributees of said Lothrop, had, in the month of August, 1851, and at all times after the same came into his possession as aforesaid, the right and title to said bond ¿ and that in said month of August, 1851, and at all times before and after, the same in fact belonged to, and was owned by and was the property of, the administrator and of said distributees of said LotM'op, the legal right and title thereto being in such administrator, and the beneficial interest, right, and title there» in, after payment of the debts of said Lothrop, being in said distributees; and this defendant further answers, that while the said bond was so in Ms possession as aforesaid, and in or about the said month of August, 1851, he was advised and informed, by and in behalf of the said parties so owning and having right and title to said bond as aforesaid, of the facts above set forth as to the ownership thereof and the right and title thereto, and he Was by them directed and requested not to deliver said bond to any person or persons, except the said parties so owning and having a right and title thereto as aforesaid, and he was by them required and directed to deliver the same to the said parties or their agents, and he did thereupon, and on or about the first day of September, 1851, accordingly deliver up said bond to and for the benefit of said parties so owning and so having right and title to the same; and he defends this suit at the request, and wholly for the benefit, and under the direction of the said parties so owning and so having right and title to the said bond as aforesaid.
    . 6. And this defendant alleges and insists, that by his own showing in said complaint, the plaintiff is not entitled to maintain this action.
    The defendants demurred to all that part of the answer contained in the fifth paragraph, on the ground that the matter alleged therein constituted no defence. The demurrer was overruled at Special Term with liberty to the plaintiff1 to reply, Upon the usual terms»
    Prom tMs order the plaintiff appealed,
    L. B. Shephard, for the plaintiff,
    insisted that the demurrer Was well taken, upon the following grounds,
    I. The defendant having accepted the bond from plaintiff’s assignor, upon a special contract that he would either purchase or return the same upon demand, cannot set up the right of Moore, Holman, and the distributees of Lothrop. 1, His undertaking to return is absolute, and such an undertaking is not answered by asserting the jus tertvL (Year Book, 9 Henry, 6 fo. 58, pl. 4; 1 Rolle Abr., p. 606; Southcote’s Case, 4 Coke, 83 b; Story on Bailments, § 33 Coggs v. Barnard, 2 Ld. Raym. 909 ; 1 Smith’s Leading Cases, p. 82; Kettle v. Brumsale, Willes, 118; Steward v. Dunkin, 2 Campbell, 344; Miles v. Cuttle, 6 Bingham, 747; Gosling v. Birnie, 7 Bingham, 339; Per Pollock, C. B., and Parke, B., in Cheeseman v. Exall, 6 Welsb., Hurl. and Gord. 341, S. C. nom.; Cheeseman v. Exall, 4 Eng. L. and Eq. R. 438; Digest, Lib. 50, tit. 17, c. 23; Pothier de Dépót, Prelim. Art, and 2 Art. § 2, pi. 49, 50, 51; Dig. Lib. 16, tit. 3, c. 31, § 1.) 2. The cases in wMch theyiíg iertii have been allowed to be set up have been usually actions of trover. in ti’over the plaintiff claims as owner, and the gist of the action is a conversion of his property by the defendant. It is, therefore, manifestly proper, in that action, for the defendant to show that the plaintiff was not owner*, and that there was no conversion of his property, (King v. Richards, 6 Wharton, 418; Schermerhorn v. Valkenburg, 11 Johnson, 529; Kennedy v. Strong, 14 id. 128; Rotan v. Fletcher, 15 id. 407.) 3. The jus tertii has always been limited to cases where the depositor fraudulently obtrined possession of .the things deposited. See cases cited, supra sub. 1.
    II. Spooner had a right to assign his cause of action against the defendant. The action is upon the contract. But he had also a right to assign the bond so as to give the plaintiff, upon demand and upon refusal, a right of action against the defendant. (Hall v. Robinson, 2 Comst. 293; Robinson v. Weeks, 1 Code Rep., N. S. 311.)

      C.P. Kirkland, for plaintiff.
    1. The paragraph of the answer which is demurred to, shows that the bond in question is and always has been the property of third persons; and that the possession of it belonged to those persons when this suit was brought; that the suit is defended for their benefit and under their direction, the bond having previously been delivered to them by the defendant, And this paragraph is of course to be taken and construed in connexion with the preceding parts of the answer, denying that Spooner had any title to the bond, and denying any right to the plaintiff; the plaintiff cannot separate one part of the answer from another and demur. On the demurrer, the whole answer is to be resorted to; and here the answer sets up a perfect defence by denying that Spooner had any title, when he (as alleged) placed the bond in defendant’s hands, and by showing who had the title; and why and how the defendant defends. 1, The bailee has a good defence against the bailor, if the bailor had not a valid title, and the bailee delivers the goods to the true owner. (2 Kent Com. 566, 567; 1 Greenl. Ev., § 207, note 1; Story on Bailms., § 552,102, 34,132; Schermerhorn v. Van Valkenburg, 11 John. 529; Story Ag., § 217, note a; 9 Bing. 382; 6 Whart. 418 ; 15 Johns. 207; 2 Greenl. Ev. § 648; 14 Johns. 132.) 2. Where bailor has not title, and the rightful holder demands possession of bailee, the bailee cannot interplead, but is to be deemed a tortious possessor, if he withhold the goods from the rightful owner. (Stor. Eq. Jur., § 819; Taylor v. Plummer, 3 M. & S. 562.) It would be a palpable perversion of justice and of right to hold that, under the facts stated in the answer and concealed by the demurrer, this plaintiff could recover.
    II. The plaintiff, by Ms own showing, cannot maintain this - action. He is the assignee of a tort; and a tort is not assignable. (Code, § 111; Gardner v. Adams, 12 Wend, 296.)
   By the Court.

The order overruling the demurrer must be affirmed. In judging of the sufficiency of the defence which is set up in that part of the answer to which the demurrer relates, we are clearly of opinion that we have no right to reject from our consideration those parts of the answer which precede it. They must be read and construed in connexion. In determining the question, whether matters pleaded as a separate defence do or do not constitute a bar to the plaintiff’s recovery, it must in many cases be a material consideration, whether the allegations in the complaint are admitted or denied, since upon the one supposition a defence may he plainly insufficient, which upon the other would be as certainly valid.

Here the first paragraph in the answer explicitly denies that the Texas bond, if bond it may he called, was deposited with the defendant by Spooner, or any agent of Spooner. It denies, therefore, that there was any such bailment as the complaint alleges. Hence, upon the pleadings as they stand, the question whether a bailee can set up the title of a third person in opposition to that of his bailor, does not at all arise, and consequently the whole argument in support of the demurrer falls to the ground. If there was no relation of bailor ' and bailee between Spooner and the defendant, the plaintiff can only recover upon the ground that he is the true owner of the bond in question, and to his claim as such the facts set forth in that part of the answer, which is covered by the demurrer, constitute a full defence.

It is not to be inferred from these remarks that had the defendant admitted that he received the bond as the bailee of Spooner, he could not, in our opinion, have interposed the defence which is now set up in his answer. The judges of this court who dScided the case of Bates v. Staunton, 1 Duer S. C. R., p. 85, were disposed to think that in actions like the present, the right of the true owner may be set up, in all cases where, upon his demand, the property has been in fact delivered to him before the commencement of the suit,” and Chancellor Kent has clearly expressed the same opinion—2 Kent’s Com., p. 567. It cannot, however, be said that the question is wholly free from doubt, and as we do not think it is properly before ns, we shall leave it undecided.

Holding the answer to he good, it is not necessary to express any opinion upon the objections that were taken to the complaint.

Order overruling demurrer affirmed, with costs,


author: By the Court. Oakley, Ch. J.

text:
    Cohen v. Frost and others.
    (Before Oakley, Ch. J., Campbell and Emmet, J.J.)
    June 24;
    July 2, 1853.
    The plaintiff, an. emigrant German, was a steerage passenger in a ship owned by the defendants, on a voyage from Liverpool to New York, and during the voyage, his trunk containing wearing apparel, &c., was stolen and never recovered.

      Held, that as it appeared that the trunk was in the exclusive possession and cus. tody of the plaintiff himself, and that he trusted to his own care and vigilance to protect him against its loss, the defendants as common carriers were not bound to indemnify him.
    To render those who. transport persons for hire responsible for the loss of baggage, it must he placed under their charge, and it is not so placed when the passenger retains possession and trusts to his own care for its safety.
    Verdict for plaintiff set aside; verdict and judgment thereon entered for defend, ants.

      Case on a verdict subject to the opinion of the court at General Term,
    The action was against the defendants, as the owners of the ship Princeton, a ship employed in the carriage of passengers and freight between the ports of Liverpool and New York, and was brought to recover the value of a trunk and its contents, the property of the plaintiff, which it was alleged,'through the negligence of the defendants, were stolen and lost on the pas» sage of the ship from Liverpool to this port.
    The answer denied that the trunk was in the possession or under the control of the defendants on the voyage, and that it was lost through their negligence or that of their servants; and alleged that by the usage of ships engaged in the transportation of emigrant passengers from Liverpool to New York, the passengers retain the exclusive possession and control of their personal baggage; that the plaintiff was a passenger of this class, and that the usage was well known to him when he was received on board, and that he acted in conformity to it,
    The reply denied that the plaintiff had any knowledge of the alleged usage, or that he would have been bound by it, had its existence been known to him.
    The cause was tried before the Chief Justice and a jury at the February trial term, 1853.
    The following are the material facts proved on the trial: The plaintiff is a German emigrant, and took his passage as such in the steerage of the Princeton, on the voyage referred to in the pleadings; when he went on board he took his trunk with him into the steerage, and kept it for some time under Ms bed, and then tied it with ropes to the berth in which he slept, During the rnght of a violent storm, which occurred when the ship had been, seven or eight days at sea, the ropes which fastened (the trunk were cut, and it was carried off and stolen by some unknown persons and never recovered. The contents were proved to be of some value—wearing apparel and some gold and silver coins.
    "When the testimony on the part of the plaintiff was closed, the defendants’ counsel stated, "that he proposed showing that the transportation of passengers was a business prosecuted by various lines of vessels sailing between New York and Liverpool, and had been followed as a business for many years; and that the general custom and usage, by and among the masters and owners of such vessels in such business, and the emigrants, whom they carried, was, that all the luggage of such passengers continued to be under their own direction and control; and that the same was never taken into the possession or custody of the owners or masters of such vessel or their agent, and that the same was never delivered to nor accepted by them.
    The plaintiff’s counsel objected to the evidence of any such custom or usage. The court overruled the objection, and to its decision the plaintiff’s counsel then and there duly excepted.
    The usage alleged was fully proved by several witnesses; and that it had existed for many years past. There was no contradictory testimony.
    The case was here rested on both sides.
    It was then agreed by the respective counsel that the jury should pass upon the damages the plaintiff was entitled to recover, if entitled to recover at all.
    The jury, after retiring under the charge of the court, rendered a verdict for the plaintiff for $300 damages and costs; two hundred dollars thereof being for the wearing apparel of the plaintiff contained in the lost trunk, sixty-four dollars for money, and thirty-six dollars for the jewelry also contained in the trunk and lost with it.
    By the consent of the respective counsel all questions of law as to the right of the plaintiff to recover were reserved for the future consideration of the court, at General Term, with liberty to the court to order a verdict and judgment to be entered for either party, as it might then determine.

      D. Evans, for the plaintiff,
    now moved for judgment upon the verdict, and relied upon the following points and authorities.
    I. By the common law, common carriers are insurers of the goods intrusted to and received by them in that capacity, and are liable for all losses except such as are occasioned by the act of God or public enemies. (Coggs v. Bernard, 2 L’d Raym., Rep. 909; 1 Smith’s Leading Cases, 172; 2 Kent’s Comm., 2d ed., 597; Story on Cont., § 752-769; Hollister v. Nowlen, 19 Wend. 234.)
    II. Gamers of passengers, whether by land or water, are liable as common carriers in respect to the personal baggage of their passengers, of which they are insurers, the consideration for carrying the same being included in the fare or price paid for the conveyance of the passenger owner. (2 Kent’s Com., 2d ed., pp. 601, 602; Story on Cont., §§ 751, 752, 755, 768; Story on Bailm., § 498; Camden & Amboy R. R. Co. v. Burk, 13 Wend. 611; Hollister v. Nowlen, 19 Wend. 234, and cases cited; Cole v. Goodwin, 19 do. 251; Powell v. Meyers, 26 do. 591; Hawkins v. Hoffman, 6 Hill, 586.)
    IH. There is no distinction in respect to liability between carriers by land and. carriers by water. (Story on Cont., § 768, 769, 769 a, 769 b; Abbott on Shipping, 5th Am. ed., p. 288, and cases cited; 2 Kent’s Comm., 2d ed., pp. 599, 600, and id. p. 608, and cases cited in note (c), and cases cited above under n.
    IV. Besides wearing apparel, the term personal baggage may properly include a reasonable amount of money for the passenger’s incidental expenses, and .articles of personal convenience and comfort. (Orange Co. Bank v. Brown, 9 Wend. 85; and see Hawkins v. Hoffman, ubi supra; also, Jones v. Vorhees, 10 Ohio Rep. 145.) 1. If this last point should be denied to be law, in respect to land or inland carriers, the rule still holds in respect to carriers on the ocean, where the proper and usual place of deposit of pocket money of passengers is in their trunks or other baggage.
    V. Even if the existence of the usage in respect to the baggage of emigrant passengers on board the vessels plying between New York and Liverpool, of which evidence was allowed to be given to the jury, should be considered as having been established on the trial, as a question of fact, such a usage, even if brought home to the knowledge of the plaintiff, would not discharge the defendants from their common law liability as common carriers. A general usage, the effect of which is to control the well settled rules of law, is inadmissible. (Hone v. The Mutual Safety Co., 1 Sandford, S. C. R. 138; Schooner

      Reeside, 2 Sumner R. 567; Hollister v. Nowlen, 19 Wend., page 247; Cole v. Goodwin, id. 251; Story on Cont., § 650; Gould v. Hill, 2 Hill, 623; Wells v. The Steam Navigation Co., 2 Com. 204; Price v. Powell, 3 id. 322.)
    VI. 1. Usage is only admissible for the purpose of determining the real intentions and understanding of the parties, where they are not otherwise determined, and are doubtful. (Story on Cont., § 649; Story, J., in Schooner Reeside, 2 Sumner, 567.) 2. But it is against the policy of the law that common carriers should be allowed to vary or limit their ordinary liability, or make contracts by implication in their own favor; and hence even direct notice given by them for the purpose of limiting their liability, is not allowed to prevail in this State. (Hollister v. Nowlen, 19 Wend. 234; Cole v. Goodwin, id. 251; Camden Transportation Co. v. Belknap, 21 Wend. 354; Gould v. Hill, 2 Hill, 623; other cases and authorities, under 2.) 3. Besides, in the present case, the defendants failed to prove any notice to have been given by the defendants in reference to the baggage of the emigrant passengers, for the purpose of limiting their liability in respect thereto.
    VH. 1. The leaving of the baggage, in a measure, under the control' of the plaintiff, on board the ship, does not discharge or vary the liability of the defendants. It was placed in the part of the ship designated by the defendants, and over which they continued to exercise a supervision. (Robinson v. Dunmore, 2 Bosanq. & Pull. 416; 2 Kent’s Com. 2 ed., p. 601; Story on Cont. § 768 ; Hollister v. Nowlen, ubi supra.) 2. The only limitation recognised to this rule applies to articles of baggage so small as to be conveniently carried about the person. (Tower v.The Utica & Schenectady Railroad Co. 7 Hill’s Rep. 47.)

      J. Cochrane, contra,

    insisted that judgment ought to be rendered for the defendants, upon the following grounds.
    I. The plaintiff’s trunk was gone—alleged to have been stolen. There is no evidence by whom it was taken; but whether stolen by a stranger or a sailor, in either case the defendants are not liable. (Bull v. The Great Western R. R. Co., 7 Eng. Law and Equity R. 442.)

      II. The defendants were not liable for the trunk of the plaintiff as common earners. They did not accept the custody of it. It was not at any time in their custody, but was in that of the plaintiff. ■ To make a common carrier liable for baggage, he must have accepted it. (Angel on Carriers, §§ 140, 141, 322; Addison on Contracts, 809; Miles v. Cuttle, 6 Bing. 743; East India Co. v. Pullen, 2 Strange, 690; 2 Bos. and P. 419; Tower v. Utica R. R. Co., 7 Hill, 47.) A general, known, and valid usage was proved, exempting defendants from all liability for baggage. This was the usual course of business. The basis of any liability of common carriers for baggage is a contract by them, implied from the usual course of business to carry it. (6 Hill, 589.) It is therefore competent to show what is the usual course of business. If that is not to receive baggage there can be no liability.
    IH. If the defendants are liable for baggage, they are not liable for the loss of the contents of plaintiff’s trunk. He was an emigrant. All his worldly goods were packed in his trank. It was his store-house and sub-treasury. It contained all his clothing, all his money, and all his jewellery. It contained more than enough for personal convenience on a journey. Such contents are not usually carried as baggage. (Hawkins v. Hoffmann, 6 Hill, 586, 589, 590.)
   By the Court. Oakley, Ch. J.

We are all of opinion that, upon the evidence before us, the plaintiff cannot be permitted to recover. The ground of our decision is, that the trunk was never placed in the charge or custody of the defendants, as common carriers. It was in the exclusive possession and custody of the plaintiff himself, when the voyage commenced, and so remained at the time of the loss. He took it with him into the steerage, placed it under his bed, and fastened it with ropes to his berth ; all his conduct in relation to it plainly showing that he relied upon his own care and vigilance to protect him against its loss. Whether the usage proved was binding upon the plaintiff, unless communicated and assented to by him, and whether the evidence justifies the presumption that it was in fact made known to him, are questions which we deem it unnecessary to consider, since, even supposing him to have been ignorant of the existence of the usage, we hold that he is concluded by his acts.

The case is not to he distinguished from that of a guest at an inn, who, when he takes his luggage to his own chamber, of which he keeps the key, discharges the innkeeper (Burgess v. Clements, 4 M. & Sel. 306; Jervis v. Utica R. R. Co. 607; 6 Hill, 47). The guest has his election, to trust for the safety of his property to the care and responsibility of the innkeeper, or to Ms own prudence. He cannot impute negligence to the innkeeper, when his conduct shows that he trusted Mmself. The innkeeper is not liable unless the property is placed in his charge. It is not so placed when the guest retains its exclusive possession and control, and we see no reason to doubt that these remarks equally apply to the relation between passengers and those who undertake to transport them for hire.

Mr. Justice Bronson, in the able opinion delivered by him, in the case of Hawkins v. Hoffman (6 Hill, 586), appears to have shown that the doctrine, that those who transport persons for hire, are responsible for the safe keeping arid delivery of the baggage of passengers, is of modern origin, and rests not upon any positive rule of the common law, but upon a contract which has been implied from usage ; and it seems a necessary consequence, that this implication may be repelled by evidence of an opposite usage. If so, the evidence of usage given upon the trial was properly received, and was of itself conclusive. It is not, however, upon tMs ground, but upon the reasons we have before given, that we place our judgment, which must have been the same had no usage been proved. The defendants, as carriers, never had charge of the plaintiff ?s trunk, and are not responsible for its loss.

The verdict for the plaintiff must be set aside, and a verdict and judgment thereon be entered for the defendants, with costs.