text:
    Morgan R. Stocker, plaintiff and respondent, vs. Joseph R. Partridge, defendant and appellant.
    1. A contract of sale of merchandize, which is deficient in a description of the article, its price, time of delivery and payment, if not forthwith to be delivered and paid for, is not binding.
    2. An oral understanding cannot, under the statute of frauds, be incorporated in a written agreement.
    3. It is not compatible with the duties of a mutual agent, for him to sell merchandize on behalf of one of his principals, before he owns them, to the other, and then to buy them from a third person to enable him to complete the contract on behalf of the vendor.
    4. Where S., before the plaintiff owned any petroleum oil, and by virtue of a general employment as his agent, sold 250 barrels, on his behalf, to the defendant, of whom he was a broker for the purpose, and without any new instructions from the plaintiff, bought that quantity from a third person, on Ms own account, for the purpose of fulfilling the contract; Held that he occupied the position, in the transaction, of a broker or mutual disinterested agent of the parties to the action.
    6. A written document, whether subscribed or not, cannot be imported into a writing or correspondence, duly subscribed, so as to charge the parties, unless the reference to it in such correspondence or writing be free from all doubt. No amount of verbal evidence, however apparently conclusive, can so far engraft one written document on another as to constitute one contract in writing subscribed by the parties, within the provisions of the statute of frauds; unless there be such a description of the document referred to, in that referring to it, as to enable the court by their simple inspection to determine that the former was intended by the latter. The moment recourse is had to verbal evidence to determine what was the document referred to, the entire contract ceases to be evidenced by writing.
    6. In an action upon an alleged contract of sale by the vendor, the only adoption of any bill rendered, in any contract created by the correspondence between the parties, was by the reference to one, in the first two notes passing between the parties, on the 24th of November, and two of the vendor’s on the 29th. In the first of the former, the defendant said: “ On tills rendered you say cash on Wednesday the 26th;” and the vendor, in his reply, spoke of “ the payment of the till rendered on Saturday.” In the other two, written by him, he spoke of “ my bill sent you,” and “ paying the oil bill.” From the rest of the correspondence it was only to be gathered that “two hundred and fifty barrels,” containing an undefined quantity of some kind of refined oil of a standard gravity and test of heat,” bought by the vendor, of the “ Genesee Oil Co.” in his own name, and paid for by Mm, they knowing him alone, and not the defendant, in the transaction; which they delivered to the vendor, had been sold by the latter as a broker, to the defendant, for some price, to be paid on the 29th of November, or earlier if possible. No mention was made, any where in the correspondence, of the sold note.

      Meld that there was no such reference, in the correspondence, to the bill rendered, as to make its terms a part thereof; and that the terms of the contract, so far as they were in writing, were still left indefinite.
    (Before Robertson, Ch. J., Garvin and McCunn, JJ.)
    Heard February 17, 1864;
    decided April 23, 1864.
    This was an action brought to recover the price of a quantity of petroleum oil alleged to have been sold to the defendant in November, 1862, by the plaintiff, through his alleged agent and brother, Henry W. Stocker. Some negotiation in reference to such purchase, took place on the 18th of that month, between Stocker (Henry W.) and the defendant, as to the nature and result of which the testimony is conflicting. Stocker was a broker, dealing in that kind of merchandize. The defendant testified, substantially, that he employed him as such broker, to buy the oil in question ; that he asked him (Stocker) if he could get him (the defendant) a lot of oil; Stocker said he thought he could ; after going out of the place where the conversation was had, and returning, he informed the defendant he thought he could buy a lot of 200 barrels for him,, at a dollar and five cents a gallon; which the defendant agreed to take. Stocker then said he had purchased the oil nt that price, but there were 250 barrels. Those the defendant agreed to take. Two other witnesses (Smith and Spearpoint) corroborate this statement.' Stocker, however, on the other hand, testified that on that occasion he told the defendant he could, sell him some oil at from one dollar to one dollar five cents per gallon ; that he went out, ascertained for what price he could buy such oil, returned and offered at the higher price before named, to the defendant, the quantity he wanted, and he agreed to take it. He further testified that he bought such oil on the same day, of the Genesee Oil Co., and made both the purchase and sale on account of his brother, thp plaintiff, who resided in Otsego county. He did not state what he had paid for the oil, where or how it was delivered, but only that he paid part of the purchase money in a few days after he bought it.

      Ho thing further was done until the following Saturday (the 22d,) when • the defendant wrote to Stocker (H. W.) asking for some explanation as to the oil trade, and stating that he had met the person who gave him the order to buy oil on Wednesday previous, who told him he had purchased it for a better price than he (the defendant) had proposed to get it. He added in his letter, “No invoice forthcoming from you, he purchased elsewhere just the quantity and brand he required. I presume you did not count on your transaction as a sale, and I find my buyer would laugh at the idea of buying for delivery at some date after the transaction." . Ho reply was made to this, except by Stocker’s sending- the defendant on the following Monday (24th) three documents, to wit, a gauger’s certificate of the net contents of the barrels of oil bought of the Genesee Company by him ; a bill therefor against the defendant, in his own name, as agent, stating the terms to be cash Wednesday 26th; and also a sold note sub-, scribed by Stocker as agent. Its kind was mentioned therein as “ Refined Petroleum, Genesee Oil Co, brand ; ’•’ to be tested at. 120 degrees Fahrenheit. The price mentioned in such papers was one dollar five cents ($1.05) per gallon. Ho charge was to be made for packages. The terms of payment were cash; the condition of the oil and its place, were also mentioned ; all of which particulars were both in such sold note and- bill.
    A correspondence ensued between the defendant and Henry W. Stocker, both of whom resided in the city of Hew York, consisting of fourteen letters, commencing on the 24th of Hovember, 1862, and ending on the 29.th following ; of which each party wrote one on the 24th (Monday ;) two on the 25th (Tuesday ;) one on the 26th (Wednesday ;) and two on the 29 th (Saturday.)
    The defendant’s.note of the 24th, after receiving the sold note and bill of parcels, referred to the time of payment “ on bill rendered, being cash, Wednesday 26th ;’’ but added • “It will not be possible for me to pay it before Saturday or Monday, and as you seem to have set a time f or payment, it can, no doubt, be arranged. I do not' yet know about the brand ; the top market price is charged, and the best brands will, of course, be expected. Hope all' will be right in the end.” Stocker’s reply, of the same day, acknowledged the receipt of such note. He states therein that so far as he is “personally concerned, the payment of the bill rendered ■ on Saturday would make no difference.” But oil dealers had adopted the custom of collecting within two or three days after rendering the bills, “ and .proposed to the defendant to pay, say $5000 on account on Wednesday, and the balance on Saturday next,” and closes by.saying, “ By doing this, I think I can make the arrangement with the sellers.”

    The next day (Tuesday, 25th) the defendant, by his first note, acknowledged the receipt of the note of Stocker of the day previous. In it he promised “to see what he can do;” but states he does not see that he should “ have a dollar free before Saturday ; ” he also professes his ignorance of the rules of the trade ; but adds : “ If I make a loss, I will stand by it, and learn something. If I am to take this oil,l shall feel obliged if you will take hold and sell it, and report to me. If it can be sold at a good rate, and is the best article, I shall pay the loss, and let the matter pass.” Stocker’s reply on the same day, to such note, acknowledged its receipt, and excused his omission to take notice of the term “ brands ” used in the defendant’s note of the day before, by mistaking it for another word. He then-added: “The brand is all that can be desired ; the quality of it is beautiful, and sells as readily as any. Whatever I can do for you towards disposing of it, I will do with pleasure.” He then advised him therein not to sell, as prices would be higher, and concluded by saying : “Please do what you can for me before Saturday.” The defendant’s second note of that day stated that he had “heard from all sources employed to get at the right of that oil transaction, and that the brand” which Stocker “handed” him “was not known, and is not what would be expected, and wanted on a sale at the top of the market, and for the best brand.” He concluded by saying: “You, of course, will not be a sufferer by any course"this takes. Your commissions will be paid rather than have a word or feeling in this matter. But I doubt if I am bound to talce the oil at all.” Stocker’s' reply, on the same day, to that note, acknowledged its receipt. He stated therein that at the time he sold the defendant “ the 250 barrels of oil, no mention was made as to the brand to be delivered; the only guaranty being as to gravity and test of heat; which were to be the standard,” and the accompanying sample would show this had been delivered “ upon test.” He declines, therein, settling the matter by allowing his commissions, because he was bound to The Genesee Oil Go., who looked to him alone, and knew nothing of the defendant; and that he would have to' pay for the oil next day; as they had delivered to the defendant what he (Stocker) had sold, to wit, “ Refined oil of standard gravity and test of heat.” He closed by saying : “ I, of course, must rely on the carrying out of the contract by yourself. If possible, give me $5000 to-morrow, on account.”
    On the next day (Wednesday, 26th,) Stocker (H. W.) saw the defendant, after sending him the sample, when the latter said he would take the oil, and had made arrangements with a Mr. Smith for paying him (Stocker) something on account, and authorized the latter, as he went to his office,, to ask Mr. Smith for it. Afterwards, the defendant wrote his note of that date, stating some information he had as to the ¡nice of oil. He said therein : “ I expect a check from Mr. Smith every moment, and will hand it to you,” and directed Stocker to “ offer ” a certain quantity of oil, of different enumerated kinds, at different prices, ending with, “ and the 300 I had of you at 95. . This for to-day.” It was established in evidénce, that the defendant, never had any other oil of Stocker than that in controversy. Stocker’s note of the same date stated he had just paid the bill for “the 250 barrels of oil,” and requested the defendant to give the bearer what he could, “ on account, or send it over,” and that he would “expect the balance to be paid on Saturday.” He closed by saying : “ Please do what you can for me to-day, or sooner than Saturday, if possible.”

      Early on the 29th (Saturday,) Stocker wrote to the defendant, stating that it “ being the day set by him, (the defendant) for paying the bill oil,” he (the writer) “ had made such ■ arrangements that disappointment would be a disaster,” and requested the defendant to hand him (Stocker) his (the defendant’s) check, at once, by half past ten o’clock. . A subsequent note of the defendant’s, written on the same day, says : “ I supposed the oil was sold this morning, but it seems not. Mr. Smith has a check for me, which Spearpoint will hand you, so Mr. S. notified you yesterday. I hope you loill place the lot to day. * * I should think this lot at 90c. was very low
    as the market is. Can you not get it off ? ” He then added therein : “In this transaction, hastily made and not well understood, I am particularly unfortunate. But dealing with you as a broker, you have, I suppose, done all you could.” The defendant also wrote a second note to Stocker, on the same day, closing the correspondence on his part, in which he says he found some deception practiced on him, on investigation of the facts connected with the oil transaction, and declined to take the lot of oil, adding : “ If,- your statement is correct in some particulars, it is faulty in others; and I do not care to be a victim in the case.” Stocker closed the correspondence on his part by announcing in a note of the same day, that he had just paid 2000 dollars on account of “ the 250 barrels of oil sold ” the defendant, and notifying him that unless the bill was paid that day or the following Monday, he should sell the oil on his account, and collect any loss by legal proceedings. There was no direct evidence which of the last two notes were first written or received.
    There was no other evidence, offered, of any offer to deliver the oil in question to the defendant, or any other demand of the price either of it, or of the amount paid by Henry W. Stocker or the plaintiff, therefor, or what the price was, Stocker (H. W.) as principal or agent paid, or agreed to pay, therefor, to the G-enessee Oil Company, except that of one witness, a Mr. Guyer, who testified it was worth $1 or thereabouts.

    The oil was subsequently sold by Stocker (H. W.) at a lower rate than one dollar a gallon. In December, 1862, before this' action was brought, he assigned the claim and demand for which it was bought, and all his interest therein.
    On the trial the defendant moved to dismiss the complaint substantially on these grounds: 1st. The want of sufficient facts in it to constitute a cause of action. 2d. The insufficiency of any contract proved under the statute of frauds. 3. Want of notice of the time and place of re-sale. It was denied, and an exception was taken. It was subsequently renewed with like results. The case was submitted to the jury, who found a verdict for the plaintiffs for $2859.12, being about the amount of the deficiency at such re-sale, and interest.
    A motion for a new trial was subsequently made, and denied, and defendant appealed.

      C. Tracy, for the defendant, appellant.

      A. R. Dyett, for the plaintiff, respondent.
   By the Court,

Robertson, Ch. J.

As no objections were taken on the trial, that whatever contract was established, was different from that set out in the complaint, it is only necessary to determine whether such a contract was made out as would justify the verdict; and to which the pleadings could be made to conform, without changing substantially the claim. {Code, § 173.) The complaint sets out as a cause of action, a sale of oil by the plaintiff, through his agent and brother, (H. W. Stocker,) to the defendant. There was enough evidence in this case to have sustained the finding of the mere employment by the defendant, of Stocker (the brother) as a broker, to buy for him the same kind and quantity of goods; and his purchase' of them under that employment. Possibly there may be so material a difference between the two kinds of contracts of principal and agent and vendor and vendee, in regard to the evidence of them, as well as acts required to be done, to sustain an action, and the rule of damages, as to render it at least doubtful, if a contract of agency only had been proved, whether the complaint could legally be amended to conform to such evidence. It will, however, still be necessary, even if it could, to consider, whether such a contract alone was'proved; and if it were whether the plaintiff was entitled to recover on it the amount of damages given by the jury. It may be questionable, also, whether such a claim would pass by the assignment to the plaintiff. The complaint alleges an assignment of a cause of action growing out of a contract of sale alone; but the parties have not set out any copy of the assignment, in the case, to enable the court to pass on the question. It is very clear, however, on such a contract of agency, even if the claim was duly assigned, the plaintiff could only recover his brother’s commission as broker, unless the latter not only paid the price of the oil, but proved what it was; which was not done on the trial in this case.

As all the witnesses concur in testifying that the negotiation between the defendant and the plaintiff’s brother, (H. W. Stocker,) ended in a definite arrangement of some kind between them, is may be assumed to have done so, when determining the propriety of the refusal of the court on the trial of this action to dismiss the complaint, and the obtaining by the plaintiff of the verdict which he did. The nature of the arrangement thus made is important, not only in ascertaining what the rights of the parties would be under it, if standing alone, but also in shedding its light forward upon the subsequent acts and corrpondence of the parties to it. If it were a contract of sale of merchandise by the plaintiff, it would be invalid by reason of not being in writing ; and the subsequent correspondence would be indispensably necessary to create a valid one of the same kind. That correspondence, without the incorporation in it of facts, established only by extrinsic evidence, will be found not to exhibit on bare inspection of its contents alone, all the necessary elements of a contract, so as to bring it without the statute of frauds. The article professed to be sold, is only described in such correspondence as “ oil” except in the letter of Stocker' (H, W.) of the 25th

November, wherein, he states it to be “ refined oil of standard gravity, and tlst of heat,” without, however, even then specify-the kind of oil. Neither time or place of delivery, nor a price, is fixed in such correspondence ; and even the time of paying that price is left very loosely. Thus Stocker proposes' in the bill he sent on the 24th, and Wednesday the -26th. The defendant forthwith demurs in his first note, to this, declaring the impossibility of his paying it before the 29th or 31st, and thinks as Stocker has set a time for payment, it can no doubt be arranged. To this Stocker replies on the same day by letter, proposing a division of the payment into $5000 on the 26th, and the residue on the 29th. The defendant only rejoins to this on the same day, he will see what he can do, but expressing his disbelief of his ability to do anything before the 29th. Stocker forthwith asks for $5000 on the next day, on account, but only if possible ; and again on the same day asks the defendant to do what he could for him before the 29th ; still if possible. The next day Stocker, after stating he had paid the oil bill, renews his request for what the defendant could give or send on account, and he would expect the residue on the 29th; still only if possible. No further communication seems to have passed between them until the 29th; yet Stocker claims in his first note of that day, that the defendant had set that day for paying the oil bill, and asks for a check at an early hour; but still only if possible. Subsequently, however, on the same day, he notified the defendant, that if he did not pay on that day or Monday (the 21st) following, he (Stocker) would sell the oil and hold the defendant liable for any loss. The defendant wrote Stocker two notes on that day, one saying he thought the oil had been sold, expressing his hope to place the lot that day, and asking Stocker if he could not get off “ this lot.” This constitutes all that is to be found in the correspondence about payments, except in the two letters of the defendant on the 26th and 29th of November, wherein he promises to give Stocker a check from a Mr. Smith, but neither its amount, nor on what account it is to be given is stated. No certain time of payment, capable of being enforced in case of non-payment at the day, can be said to be definitely arranged by such statements ; the nearest approach to definiteness, to be inferred therefrom, is, that the payment was to be made, if at all, on the 29 th or earlier, if the plaintiff could, which Stocker extended to the 31st; having himself in the meantime, as stated by him, actually paid the price. There can be no contract of sale of merchandize, which is deficient in a description of the article, its price, time of delivery, and of payment, if not forthwith to be delivered or paid for.

Without reference to the bill, and sold note, sent by Stocker (the plaintiff’s brother) to the defendant there is nothing, therefore in writing, in the evidence by which ‘whatever is indeterminate in the correspondence in regard to the terms of any contract of sale between the parties cp-n be made certain ; and it is definitively settled in this state that no oral understanding can, under the statute of frauds, be incorporated in a written agreement. (Wright v. Weeks, 25 N. Y. Rep. 153. S. C. 3 Bosw. 372.) The terms, however, of both such bill and note,are rendered so ambiguous by the addition of the term “ agent ” to the name of Stocker, (H. W.) .as to make the description of contract referred to in it, consistent with the latter’s action as agent for his brother, if he were acting for him, and broker for the defendant or both parties. As broker for two parties, he was bound to enter in his own books the contract signed by him, to bind them both, or deliver to each a note of it, as of purchase or sale as the case might be. By the delivery of the sold note he only bound the seller and not the defendant. (Roget v. Merritt, 2 Caines, 117. Waring v. Mason, 18 Wend. 425. Merritt v. Clason, 12 John. 102. Worrall v. Munn, 5 N. Y. Rep. 229. Fenly v. Stewart, 5 Sandf. 101. Bailey v. Ogden, 3 John. 399.) If the retention of that sold note was to have any effect upon the defendant’s rights, I apprehend he had a right to show the nature of the arrangement of the 18th November, to explain under what apprehension he' received and retained it. Possibly the subsequent corrrespondence might have adopted such sold note by referring to it as the basis of a contract different from that of the 18th of November, and. thus rendered the latter immaterial. But if the. language of such correspondence was equivocal, it was as admissible as any other extrinsic fact to explain it. It may be remarked that nothing is said in such correspondence of any other seller than the Genesee Oil Co., from whom Stocker says in his letter of 29th November, he bought it in his own name, by whom as he stated in his letter of the 25th, no one else was known as purchaser,, the oil being delivered, as he subsequently declared, by them to the defendant as sold by him, and the price paid by him to them.

If it be assumed that the sold note and bill are to be imported into the written contract supposed to be made out by the correspondence, subject to their explanation by the result of the previous negotiation of the 18th of November, the testimony of their witnesses, two besides the defendant (Smith and Spearpoint) against that of Stocker (H. W.) makes such contract to have been a mere employment by the defendant of Stocker as his broker or agent to buy for him. Except in one note of Stocker’s of November 26th, there is nothing in the correspondence on the part of the defendant which does not corroborate that view, and nothing on the part of Stocker adverse to it. The defendant’s letters treat the terms and even obligation of the contract as unsettled, until undeceived by being informed by Stocker that he (Stocker) had bought the oil and was liable for its price. He was not informed in it óf any principal as vendor, except the Genesee Oil Co., or of any purchase except from them. The note of Stocker of the 26th, just alluded to, which is directed to correcting some misapprehension by the defendant of the representation of the character or kind of oil spoken of, and also to the fact of the delivery of oil corresponding with that sold, is the only one which speaks of a sale by Stocker, and in it he mentions his purchase of it from the Genesee Oil Co. It is true, he therein speaks of his having sold it to the defendant. But that could only be understood of a sale on his own account or of the company mentioned, or else of his acting as a broker. A careful examination of the whole correspondence seems to me to show its tenor and. spirit to have heen confidential and communicative as by a principal to a trusted agent, and that it was not wary and exact in making propositions for a contract between principals. The jury may, however, have thought otherwise and preferred to take the version of Stocker (H. W.) of the transaction of the 18th of November, so as to render its effect on the correspondence immaterial.

It is hardly possible to make the position of Stocker (H. W.) in this transaction that of a broker or mutual disinterested agent of the parties to this action. Before his brother owned any oil, and by virtue of a general employment, he sold it on his behalf to the defendant; without any new instruction from his brother he bought it on his account, (Glentworth v. Luther, 21 Barb. 145. Coleman v. Garrigues, 18 id. 60.) It does not seem compatible with the duties of a mutual agent, to purchase goods of one of his principals for himself as his agent for the other, before the former owns them, and then to buy them of a third person to enable the vendor to complete his contract. He was not authorized to buy any particular merchandize, but only oil of a certain,kind.

Assuming, however, the sold note and bill to have been the only commencement of the negotiation for a written contract, the question is presented whether from their receipt by the defendant, followed by the correspondence which took place between the parties, a contract in writing can be made.out to satisfy the provisions of the statute of frauds. I have already adverted to the entire destitution of such correspondence of the proper terms of a contract, without the aid of such bill and note. The first rule applicable to the importation of a written document, whether subscribed or. not, into a writing or correspondence duly subscribed so as to charge the parties, is that. the reference to it in such correspondence or writing must be. clear of all doubt. (Tyssan v. Kilton, 3 Com. L. Rep. 705. Parkhurst v. Van Cortlandt, 14 John. 15. Kenworthy v. Scofield, 2 Barn. & Cr. 954. Blackburne on Sales, 49, and cases cited. Wright v. Weeks, ubi sup.) No amount of verbal evidence, however apparently conclusive, can therefore so engraft one written document on another as to constitute one contract in writing subscribed by the parties, within the provisions of the statute of frauds, unless there be such a description of the-document referred to in that referring to it, as to enable the court by their simple inspection to determine that the former was intended by the latter. The moment recourse is had to verbal evidence to determine what was the document referred to, the entire contract ceases .to be evidenced by writing. In this case the proof may have been very satisfactory, that there was only one dealing between the parties and only one bill rendered. Still that does not exclude the possibility of another having been intended by the only legitimate statutory evidence, which is writing. If there had been even any oral contradictory testimony on that point, it must have been submitted to the jury, and the existence and obligation of a contract would have depended upon a fact not appearing upon the face of a writing, upon which a court alone would have a right to pass, but passed upon by a jury.

In this case, the only adoption of any bill rendered into any contract created by the correspondence, is by the reference to one, in the first two notes passing between the parties on the 24th of November, and two of Stocker's on the 29th. In the first of the former, the defendant says : “ On hills rendered you say, cash on. Wednesday, the 26th, and Stocker (H. W.) in his reply speaks of the payment of the hill rendered on Saturday.” In the other two written by him he speaks of “my bill sent you,” and “ paying the oil bill.” From the rest of the correspondence it is only to be gathered that “ two hundred and fifty barrels,” containing an undefined quantity of some kind of refined oil of a standard gravity and test of heat,” bought by Stocker of “the Genesee Oil Co.,” in his “own name,” and paid for by him, they knowing him alone, and not the defendant in the transaction, which they delivered to the plaintiff by delivering it to Stocker, had been sold by the latter as a broker, to the defendant,” for some price, to be paid on the 29th of November, or earlier if possible. No mention is made any where in the correspondence of the sold note. There is, therefore, no such reference in the correspondence to the bill rendered as td make its terms part thereof, and the terms of any contract, so far as they are in writing, are still left indefinite.

I think the motion to dismiss the complaint should have been granted. The judgment should, therefore, be reversed, and a new trial had, with costs to abide the event, and the plaintiff permitted to apply to the court to amend his complaint.


source: Caselaw Access Project

author: Robertson, Ch. J.

license: Public Domain

text:
    Nathan K. Ballard and another, plaintiffs, vs. Philip Burrowes and Cornelia, his wife, defendants. In the matter of the petition of Edward Fox, in the above entitled action, (Edward Fox, appellant.)
    1. An action was "brought and judgment recovered against F. and B. jointly, on a promissory note of which F. was accommodation maker, and B. indorser. F. paid the judgment, so far as it was against himself, and took an assignment of it, so far as it was against B. The interest of B. and his wife in certain real estate was converted into personalty by a judicial sale in a partition suit, and the proceeds were paid into court. B. subsequently assigned his property to H- in trust for the benefit of his creditors. F. commenced an action against B., for moneys paid for him at his request, procured an attachment, under which he attempted to levy upon bis interest in the fund, by notice to the city chamberlain, obtained a judgment, and issued execution. He then, upon petition, without notice to B. or his wife, obtained an order of reference as to the claims on such fund, and their priorities.

      Held that all the relations of principal and surety were not necessarily created by means of a contract drawn in such a form as the promissory note above mentioned, and a question might arise whether the maker of a note, although an accommodation qne, was necessarily entitled to be subrogated to the rights of a creditor who had obtained a judgment against the indorser of such note, for whose accommodation it was made; and that therefore the court, as the custodian of the fund, ought not to part with it, unless and until some one was heard on bphalf of R. and his wife, pr waived .the fight, by their authority. McCvsu, T. dissented.
    2. Held, also, that the order of reference did not copier on the referee jurisdiction to accept any waiver of B.’s rights, from H. his assignee for the benefit of creditors. That he was confined to reporting upon those judgments only which were liens on the fund. It would he improper for the court to part with the fund without some formal stipulation, waiver or release, binding on such assignee, on the record.
    3. Held, further, that unless F.’s claim could be sustained under the attachment, and H., the assignee, waived his priority, the court would not be justified in ordering the interest of B. in the fund to be paid over, without notice to him in some way recognized by law, or his appearance.
    4. Where an attorney appears before a referee, for parties interested, and having filed exceptions to the report, as such attorney, is heard in behalf of such parties before the court at special term, upon the report, such appearance will be deemed a complete appearance; notwithstanding the attorney limits his appearance as being to object to the proceedings for irregularity because of want of notice to his clients. The limitation, under such circumstances, is void for incompatibility.
    (Before Robertson, Ch. J., Garvin and McCunn, JJ.)
    Heard February 20, 1864;
    decided April 23, 1864.
    In the above action, which was a partition suit, judgment of sale was rendered March 15, 1853, and the sum of $822.67, the property of the defendants, deposited to the credit of this suit in the hands of the city chamberlain, March 7, 1856, subject to a mortgage to Henri Schultz, and to the inchoate right of dower of Mrs. Burrowes. Schultz’s mortgage was paid out of other property on which it was a lien. On the 25th of October, 1861, Edward Fox commenced an action in the Supreme Court for moneys paid out against the defendant Burrowes, obtained an attachment and attempted to levy upon his interest in this fund by giving notice of such attachment to the city chamberlain as county treasurer. He afterwards obtained judgment in such action, issued execution, and demanded Burrowes’ interest in such fund in the chamberlain’s hands, which the latter declined to pay. ■ Without notice to Burrowes or his wife, Fox, then, on a petition setting forth the foregoing facts, applied to and obtained from this court an order of reference to Murray Hoffman, Esquire, directing him to report to the court upon the claims upon such fund, and their priorities. It appeared upon such reference, that in January, 1855, Philip Burrowes made a general assignment of all his property to Henry Hilton, and that the oldest unsatisfied judgment against Burrowes was a judgment recovered by Joseph R. Brandon and Judah S. Abecossis against Philip Burrowes, in the Superior Court, September 22, 1854, for $1768.88, and assigned to the said Edward Fox by the plaintiffs in that action, pursuant to an order of the Superior Court subrogating said Fox to all the rights of the said plaintiffs, subject to any equities that might exist between Fox and Burrowes ; the said judgment was recovered upon an accommodation note made by said Fox, and indorsed by said Burrowes. The referee reported that the note on which this last judgment wa's recovered, was Philip. Burrowes’ own debt, repeatedly acknowledged by him so to be, and that there was then due to said Fox, on such judgment, the sum of $1843.64. That said Fox was entitled to the share belonging absolutely to Philip Burrowes in such fund in the chamberlain’s hands, (being two thirds therepf,) to be applied in part payment of this judgment of the 22d of September, 1854/ Judge Hilton, the assignee of Burrowes, was notified of the proceedings on the part of said Fox, sworn by the referee, and waived all claim to the moneys in question as against judgment creditors of Burrowes prior to the assignment to him, in which class was Mr. Fox, as the oldest judgment creditor.
    On reading and filing the report of said referee, dated 5th August, 1863, and his supplemental report of the testimony and proceedings before him, and the affidavit of William R. Martin and the affidavit of said Edward Fox : And on motion of said Edward Fox, upon notice, for an order directing the said .chamberlain to pay to him the sum of $734.60, with the interest thereon, out of the moneys deposited undér the judgment in this action with the said chamberlain, and for the costs, counsel fee, &c. of said Fox: And on hearing Mr. Henry M. McQuoid for the motion, and Mr. David R. Jaques, attorney of Francis E. Parker, a judgment creditor of Philip Burrowes, one of the defendants, and Mr. William R. Martin, who appeared for the defendants Philip Burrowes and wife, “ solely to object to the proceedings of said Edward Fox for irregularity,” in opposition to said motion : It was ordered by Justice White, at special term, that the said motion of Edward Fox be, and that the same was thereby, in all respects, denied, without costs to either party, and without prejudice to any other, or further proceedings by Fox, &c.
    From this order Fox appealed.

      H. M. McQuoid, for the petitioner and appellant, Fox.

      D. R. Jaques, for the claimant, Parker.

      W. R. Martin, for Burrowes and wife.
   Robertson, Ch. J.

The interest of the defendant Burrowand his wife in certain real estate, was converted into personalty by a judicial sale in this action in May, 1853. The proceeds remained in the hands of the referee by whom the sale was made, until March, 1856, when it was paid into court, subject to a mortgage alleged to have been since satisfied, and subject to the inchoate right of dower therein of Mrs. Burrowes ; no notice of this proceeding was given to the mortgagee. In September, 1854, a judgment is alleged to have been recovered against Burrowes, by J. R. Brandon and another, for over $1700, upon a promisory note, whereof the petitioner, (Fox,) was maker, and Burrows indorser; which it is alleged, has been assigned by the plaintiffs therein to the petitioner. In January, 1855, as is alleged, Burrowes executed an assignment of all his property to Judge Hilton, who accepted the same. In October, 1861, the petitioner commenced an action against Burrowes, and recovered judgment against him, on which execution was issued. In such action an attachment was issued against Burrowes, and notice thereof given by the sheriff, to the city chamberlain.

An entry was made by the referee, in his minutes in this matter, that Judge Hilton after appearing by counsel, (M. Campbell,) stated that if the claim of the petitioner was made upon the Brandon judgment of September, 1854, he did not oppose the application. But in the cross-examination of him, as a witness before such referee, he testified only that “ judgmeats were upon Ms (Burrowes’) real estate. ® * I have and make no claim upon the money, as against the holders of such prior judgments.” If the referee’s entry is intended to be a minute of the declaration contained in such testimony, it is incorrect; as the assignee only relinquishes in favor of liens on the real estate of the assignor. The real estate of which the money in court is the proceeds, had been converted in 1853, into personal estate; the judgment was recovered in 1854; and the assignment, was executed in 1855. The fact that such conversion was effected by a judicial sale or in invitum could not retain the character of realty for the proceeds. As regarded Mrs. Burrowes alone, not being sui juris, her interest of course remained re.al estate. But I know of no principle by virtue of which the interrest of Burrowes can be held to remain real estate, so as to be subject to the lien of a judgment. Another grave question arises on the Brandon judgment, as to which Burrowes is entitled to be heard, which is, whether it has not been paid and satisfied. The action in which such judgment was recovered, was brought against the petitioner and Burrowes jointly on a promisory note, of which the former was maker, and the latter indorser, and not' on a debt due by the latter. Fox paid the judgment against himself, and took an assignment of that against the indorser, As all the incidents of the relation of principal and surety do not necessarily attach to a contract drawn in such form, (Howard Banking Co. v. Welchman, 6 Bosw. 280,) a question may arise as to whether the maker of an accommodation note is necessarily entitled to be subrogated to the rights of a creditor under a judgment against the indorser, upon such a contract, The court, as the custodian of the fund, ought not to part with it, unless some one appeared on behalf of Burrows to discuss such question or waive the right.

The only other claim which I can perceive the petitioner can make to this fund, is under the attachment, as the sheriff may have a right to apply to the. court to have the fund paid to him. A sheriff is authorized, (Code, § 232,) on an attachment, to “ collect and receive into his possession all debts, credits, and effects of the defendants,” and take such legal proceedings either in his own name, or in the name of such defendant, as may be necessary for that purpose.” This undoubtedly was the only ground of the original order of reference since the Brandon judgment was not mentioned in it. In such case, however, the sheriff should have been a party to the petition. Nothing appears in the papers to determine for what the action was brought, in which the attachment was issued; whether on the Brandon judgment or not. At all events the Hilton assignment must stand in the way of a claim under such attachment. Ought such a mere entry in a referee’s minutes of a personal declaration by a trustee, although represented by counsel, that he does not oppose a claim to deprive him of his right when hy the whole evidence they appear to be superior; particularly when he afterwards in his testimony, stated that he only relinquished in favor of claims that are liens on the fund in controversy as real estate ? The order of reference to the referee, did not confer on him jurisdic*tion to accept any waiver of rights. He was confined by it to reporting upon those judgments only which were liens upon the fund in court; and he has not found that the Brandon judgment was so; nor does he report whether there is or not any trustee or assignee of Burrowes 'who had an interest in the fund, as he was required to do. He does not profess to decide by his report, that the assignee examined before him had no claim, or had relinquished it. It would, therefore, be improper to part with such fund without some formal stipulation, waiver or release, binding on such assignee, to be put on the record.

Unless the petitioner’s claim can be sustained under the attachment, and the assignee waives his priority, this court would not be justified in ordering the interest of Burrowes in the money to be paid over, without notice to him in some way recognized by law, or his appearance. If this be a proceeding in rem merely, his interest cannot be taken away without giving him an opportunity of being heard. The clearest evidence, if exparte, would not authorize such a proceeding, and as the money if paid out wrongfully, could scarcely be recovered back by an action against any one, the party to whom it primarily belonged should be allowed to be heard. An attorney of this court (Mr. Martin) appeared for Burrowes and wife before the referee, was heard on their behalf before this court at special term, upon the report, having previously filed exceptions to it. as such attorney, limiting however his appearance as being to object to the irregularity of the proceedings, which he claims to be want of notice to Burrowes and his wife. Unless there was some apprehension of remissness on the part of the court in its duty, there was not much necessity of appearing for that purpose; a mere notice to the court as amicus curia would have been sufficient. In the original petition, the only claim made was on the attachment; nothing was said as to the Brandon judgment. The report of - the referee, giving his opinion as to its validity and the right of the petitioner under it, or at all, was extrajudicial. He was merely directed to report the proceedings and testimony taken before him and facts found by him. The court, without an oversight, would never order the fund in question to be paid out, on a report, which not only wholly ignored the original ground, on which the petitioner made the application, and which rendered notice to Burrowes, or his appearance, unnecessary, but decided the petitioner to be entitled to the fund by virtue of a different right, of which the court had never previously heard any thing, and upon which Burrowes was entitled to be heard.

If any notice to Burrowes, under the original petition, was necessary, I apprehend the appearance for him was complete, and the limitation of the purposes of such appearance was void for incompatibility. A notice of appearance may be limited to a particular object, such as setting proceedings aside for irregularity, and the like, (Malcolm v. Rogers, 1 Cowen, 1; Seymour v. Judd, 2 N. Y. Rep. 464 ;) because the party is supposed to come into court only for a particular purpose, and when that is accomplished, to quit it. If there had been any thing in the order of reference in this case irregular by disposing of the rights of Burrowes without notice to him, where he was entitled to it, the attorney, who should give notice of a motion to set aside "such order by limiting his action as such to the motion, would be entitled to withdraw after the motion was disposed of. But one who appears permanently to oppose every movement of the moving party in court, or before its officers, however much he may restrict himself in his objections, 'still appears generally and thereby defeats the very objection to which he has restricted himself. He must have authority from his client to appear in that proceeding, and that presupposes notice of the proceeding. His limitation of himself cannot deprive his adversary of any rights ; he is entitled to insist that an appearance for one purpose is so for all. In this case, however, only the petitioner’s rights, under the attachment were involved; the claim under the Brandon judgment was not in controversy ; in any proceeding to get the fund by virtue of that, Burrowes would be entitled to notice. But the petitioner can only present his claim on that by a new petition.

Possibly the petitioner may be entitled to this fund under his attachment, provided the claim of the assignee is out of the way ; but the sheriff must join in the petition, which he may do by amendment. If, therefore,- the petitioner can within a reasonable time procure and file a release of all claims of such assignee on such fund, to him, duly proved or acknowledged, or his stipulation that the fund in question be paid to him, to be annexed to the amended petition and referred to therein, such petition may be referred back to the referee to take proof of the facts therein stated and of any other prior claims to or liens upon such fund, with power to advertise as in actions of partition, for such other claims or liens, otherwise the order appealed from should be affirmed.

It is a matter of some doubt, whether the order, if it had merely required notice to be given to Burrowes and wife, would have been appealable, as it did not affect a substantial right. (Code, § 349.) It is difficult to perceive why a creditor’s action, if it can be sustained, should be so expensive as to consume over eight hundred dollars, which is the amount of the fund after deducting the interest of Mrs. Burrowes, who was not entitled to • any of the income. I see no other remedy, however, if the petitioner is unable to obtain the consent of the assignee.

The order must be .modified, as before stated, without costs to any of the parties appearing.

McCttnn, J. dissented.


author: Monell, J. Barbour, J.

text:
    William Walker, administrator, &c. of Emily Olcott, deceased, plaintiff, vs. George B. Gilbert and Thomas H. Bird, defendants.
    1. Without covenant on the part of a lessor to repair damages sustained hy a tenant by injury to merchandize from, the -leaky condition of the ceiling or roof of the demised premises are not the subject of recoupment, or counterclaim, in an action for rent; unless the lessor has hound himself by a special valid promise to repair the leak.
    2. A promise by parol, made subsequently to the execution of the lease, needs a new and sufficient consideration to uphold it.
    3. A subsequent promise, by the lessor, to repair, cannot be deemed to have been broken, except by his neglect to perform it, after sufficient time has been afforded him for that purpose.
    4. A promise hy the lessor, to pay for damages after they have been sustained, or to allow the same upon the rent, made without any sufficient consideration, is not binding upon Mm; nor is the refusal to perform it available as a defense to an action for rent. •
    6. A promise by a lessor, in such case, to a tenant, to pay the difference between the price such goods would bring, in case they were sold at auction hy Mm, and the invoice price, is not binding upon him, for want of a sufficient consideration, without a concurrent obligation by the tenant so to dispose of them; or some other valid consideration.
    6. The mere subsequently acting upon the lessor’s suggestion, by selling the goods at auction, would not make the. prior agreement mutual.
    (Before Barbour, Monell and Garvin, JJ.)
    Heard March 16, 1864;
    decided April 30, 1864.
    The plaintiff is an administrator with the will annexed on the estate of Emily Olcott, deceased. The estate was possesed of certain leasehold premises, known as No. 114 Chambers street, in the city of New York. On the 13th day of March, 1862, the plaintiff, as administrator, leased the premises to the defendant for one year from the 1st day of May, 1862, at an annual rent of $1500, payable quarterly. The defendants refused to pay the quarter’s rent that became due on the 1st day of May, 1863, and this action is brought to recover the same. The defendants, by way of defense, state that on the 14th day of April, through a defect in the roof of the building, they were flooded and damaged to the amount of $1240, and they set up that there was an agreement to allow this damage by way of payment of the rent for which this action is brought. They also set up in their pleadings an agreement, upon a “ valuable consideration,” to repair. The lease contained no such agreement, and the defendants did not claim it under the lease.
    The case came on to be tried on the 18th day of February, 1864, before his Honor Judge Monell and a jury.
    The court directed a verdict for the plaintiff for $396, to which ruling and direction the defendants’ counsel excepted. The court then ordered that the exceptions be heard in the first instance at general term, and that judgment be in the mean time suspended.

      E. B. Hinsdale, for the plaintiff,
    I. A landlord is in no case bound to repair, unless by force of an express covenant or contract. (Howard v. Doolittle, 3 Duer, 464. Sherwood v. Seaman, 2 Bosw. 127. Cleves v. Willoughby, 7 Hill, 83.) If a parol agreement to repair is proved to have been made subsequent to a written lease, it must be upon a “new and sufficient consideration.” (Post v. Vetter, 2 E. D. Smith, 248.) There is no pretense that there was an express covenant to repair. The only parol agreement attempted to be proved is at fols. 3 and 4. At fol. 9, this witness admits that he “ did not agree to pay any. thing for making these repairs.” The pretended agreement, as proved by the defendant, is therefore utterly void. There is not enough in the evidence, by the most liberal construction, to amount to a contract in any legal sense.
    II. As the plaintiff was not bound to repair in any manner, so also was he not responsible for the consequences of not repairing. . It would be absurd to hold him liable for the consequences of failing to repair, when he was not under obligation to repair. The pretended agreement to allow the damages as an offset to the rent, set up in the answer, is in the first place void, for a want of consideration, and secondly, is not proved by the evidence. If any agreement was made between these parties, as set out in the answer, it would, like all other legal agreements, require a consideration to sustain it. There are but two sources from which a sufficient consideration could have Drung. One source would be for the defendants to pay or do something for the plaintiff which would constitute a consideration. On the cross-examination of both of the defendants’ witnesses, they were asked for the consideration, and they agree that “ nothing was paid for the agreement. As no' obligation to repair rested on the landlord, and nothing was paid for any agreement to allow the damages on the rent, it follows that if any agreement was ever made it was a perfect nudum pactum.

    III. The pretended agreement to allow the damages as an offset to rent, is not proved. The evidence shows negotiations only, and before any bargain was closed, Mr. Walker consulted with the heirs and refused to close up the matter after they objected to it. This was the only course a prudent man could take.
    IV. There is nothing in the facts set out in the answer to constitute a defense or counter-claim, aside from the pretended agreements, which were made without consideration, and are therefore void. (Edgerton v. Page, 20 N. Y. Rep. 281.)
    V. The defendants’ offer to show neglect in repairing the roof was properly excluded. The pleadings set up no such matter by way of defense. The neglect proposed to be proved -was first, in “ construction.” A leaky roof cannot be contorted into a defect in construction. But whatever the defect in construction was, there is no implied contract or warranty on the part of the landlord that a tenement shall be, or continue fit for the purpose for which alone it is demised. (Howard v. Doolittle, 3 Duer, 464. Schermerhorn v. Gouge, 13 Abb. 315. Arden v. Pullen, 10 Mee. & Wels. 321. Post v. Vetter, 2 E. D. Smith, 248.) Secondly. The offer was to show neglect in “ repairing ” the premises. This the landlord was not bound to do. Thirdly. The offer was to show neglect in “ upholding.” This is a term of no very clear legal meaning in this connection, but probably means about the same as “ repairing.”

    VI. The offer of the defendant was to show the neglect of. the plaintiff to construct, repair and uphold the premises above those occupied by the defendants. There is no such distinction known in law. The common roof over the whole premises was as much a part of the premises rented by these defendants, as the common foundation stones under the whole building. The defendants rented the premises and took them as they were constructed, both as to foundation and roof, and exacted no covenants from the landlord as to the condition of the building, or as to future repairs. (Schermerhorn v. Gouge, 13 Abb. 315. Arden v. Pullen, 10 Mee. & Wels. 321. Sutton v. Temple, 12 id. 52. Hart v. Windsor, Id. 68.)
    VII. The case of Eakin v. Brown, (1 E. D. Smith, 36,) has been cited by the defendants to sustain this defense. A close examination of that case shows that it has no bearing upon the case now in court.

      First. The parties in that action were co-tenants of the same building. The relation of landlord and tenant did not exist between the parties, and of course all that great system of laws applicable to landlord and tenant, had no application in that case. .

      Second. The gravamen of that action was negligence in the use of internal machinery introduced into the building to control the flow of the Croton water. All that the learned justice says about the law as applicable to the relation of landlord and tenant, is obiter dictum. When rightly understood, the judge in that case does not say any thing which can susr tain the defense interposed in this action.
    VIII. There is nothing in the circumstances of this case that calls upon this court to override well settled rules, or to strain the law to fasten upon the heirs of this estate this loss. It was simply an accident, without bad faith or fraud upon any one. Neither party knew that the property was in so great peril. The defendants were certainly greatly to blame for leaving their goods so exposed, if they knew it, and in not communicating their knowledge to the landlord. The defendants, both in law and common justice, are the proper parties to bear the loss from this accident, and judgment should be ordered for the plaintiff.

      Henry Wittaker, Jr. for the defendants.
    I. The agreement of the plaintiff to ascertain the amount of the damage done to the defendants’ goods in a certain way, and to apply the amount of such damage, when so ascertained, in payment of the. rent as it should fall due, is valid and conclusive. When the amount of damage was ascertained in the way agreed, no further act remained to be done, and the rent was pro tanto paid. The contract then became ipso facto an executed one, and ceased to be executory. (Flint v. Clark, 12 John. 374.)
    II. The agreement was in effect a submission to arbitration, and the fact of a controversy existing between the parties, and of the defendants agreeing to part with their property, and send the same to auction, was a sufficient consideration for the agreement of the plaintiff. The defendants having performed their share of the contract, the plaintiff is bound to abide by the result or award, and no special agreeement to do so need be proved, as the law will imply it. (Valentine v. Valentine, 2 Barb. Ch. 430.) And the fact of his being a trustee makes no difference in his power to make the contract. (Weed v. Ellis, 3 Caines, 253.)
    III. But there was a still further consideration for the agreement, in the liability of the plaintiff to the defendants for the damages in question.

      1. The plaintiff, as owner of the premises above those leased to the defendants, was bound to keep and maintain them in proper repair, and to use them without negligence, unskillfulness or malice. He was, as to those premises, an adjoining proprietor, and was liable to the defendants for any damage which arose from their defective construction or want of repair. (Eakin v. Brown, 1 E. D. Smith, 36 [43, 44.] 1 Hilliard on Torts, 2d ed. 129. Comyn’s Digest, Action on the case for Negligence, A. 3. Tenant v. Golding, 6 Mod. R. 311-315. Taylor’s Landlord and Tenant, 3d ed. § 197, p. 134.)
    2. The defendants had no access to the upper part of the building. The water which did the damage came from the upper part, though the ceiling of the premises occupied by the defendants, and, in the absence of any evidence to the contrary, the deluge must have arisen from the defective construction or want of repair in the upper part.
    3. But the defendants offered to prove affirmatively that the damage was caused by the defective condition of the upper part, and the exclusion of such evidence will be ground for a new trial, if the court shall decide that, on the case as it stands, the defendants have failed to prove their defense.
    4. Even if the damage had arisen from want of repair in the premises occupied by the defendants, the agreement of the plaintiff, made before the deluge, would render him liable. A subsequent parol agreement by the landlord to repair, made upon a new and sufficient consideration, is valid. (Post v. Vetter, 2 E. D. Smith, 248.) The premises had been rendered untenantable, and the rent was thereby suspended. (Laws of 1860, p. 592, ch. 845.) And the waiver by the defendants of their, right to claim a suspension of rent under that law, and their consent to remain on the premises, was a sufficient consideration for the agreement of the landlord to repair.
    5. And even if the strict legal liability of the plaintiff was not such as to form of itself a consideration, yet he had by his acts, representations, and promises, induced the defendants to act in such a way, and to relinquish such rights, as to create a moral obligation on his part, which will sustain the promise and form a sufficient consideration therefor. (Bentley v. Morse, 14 John. 468. Cameron v. Fowler, 5 Hill, 306.)
   By the Court,

Monell, J.

The action was to recover a quarter’s rent accruing from February 1st to May 1st, 1863. The demise was of the first floor and basement of premises in Chambers street in this city, for one year ending May 1,1860. The lease was not read, nor was there any evidence that it contained a covenant or agreement by the lessor to repair. On the 14th of April, 1863, a leak was discovered from the ceiling of the store, doing damage to the defendants’ goods. They sent for the lessor, who promised that he would■ immediately have it attended to. The same night a storm occurred, and a large quantity of water came in, wetting the defendants goods, doing them great injury.

There being no covenant to repair, in the lease to the defendants, the damages they sustained from the leaky condition of the ceiling or roof over the premises demised, were not the subject of recoupment or counter-claim in this action, Edgerton v. Page, 20 N. Y. Rep. 281; ) unless the promise of the plaintiff in April, 1863, to have the leak attended to, was valid. At that time, the premises had been in the possession and occupancy of the defendants for upwards of eleven months, under a lease wherein they agreed to pay rent, notwithstanding the premises might be out of repair. There was no obligation resting on the- plaintiff to make any repairs, and there was no consideration whatever paid by the defendants to the plaintiff for his promise to repair. Such promise was therefore void, and no action could have been sustained by the defendants for the non-fulfillment of it. The promise having been made by parol, subsequently to the written lease, it needed a new and sufficient consideration to uphold it. Post v. Vetter, 2 E. D. Smith, 248.) Besides, the promise to repair was made on the same day, and shortly before the damage was sustained. It does not appear that there was sufficient time, between making .the promise and the happening of the injury, to have made the necessary repairs ; and the plaintiff cannot be deemed to have broken Ms engagement, except by his neglect to do the thing he promised, after sufficient time had been afforded him for the purpose. And besides, again, the defendants do not claim in their answ.er, either to recoup their damages or recover them as a counter-claim against the plaintiff. The offer of the defendants, therefore, to show that the overflow occurred from the neglect of the plaintiff to repair the upper part of the premises was properly excluded.

But it is claimed that the plaintiff's agreement to pay such damages as the defendants had suffered, or to allow the same upon the rent, was binding, and is available to the defendants in this action.

The evidence was that the plaintiff, upon being informed of the injury, admitted the damage, and said the question was as to how the amount should be ascertained and settled. He “ suggested ” the best way to ascertain the amount of damage would be to send the goods to auction and he would pay the difference between the amount they sold for, and the invoice price. He urged that the estate was poor, had no money, and that this must be paid. out of the rents ; “ to this I (the defendant) assented.” “Nothing further was said at the time. The goods, at his suggestion, were sent to auction ; the account of sales and the invoices were then sent to the plaintiff, and the amount of difference ($1240) shown.” The plaintiff refused to carry out the arrangement.

If the promise to pay or allow the difference between the auction and the invoice price of the damaged goods, as the damages suffered by the defendants, is supported by a suffi-. cient consideration, it is binding ; and the plaintiff's refusal to perform was a good defense to this action.

The plaintiff was not, as we have seen, under any covenant or agreement to repair ; and was not, therefore, liable for the injury occasioned by the defective condition of the demised premises. The assumption of a supposed liability, which has no foundation in law or in fact is not a valuable or sufficient consideration to sustain the promise, (Cabot v. Haskins, 3 Pick. 83,) and one who, through a mistake of the law, acknowledges himself under an obligation, which the law does not impose, is not hound by such promise. (Silvernail v. Cole, 12 Barb. 685. Warder v. Tucker, 7 Mass. R. 449. Ross’ Ex’rs v. McLaughlan’s Adm’r. 7 Graft. 86. 1 Pars. Cont. 363.) And this, perhaps, is the only exception to the rule ignorantia juris non excusat.

A benefit to the one party, or an injury or detriment to the other, is a good consideration, but the benefit must be such as the party is not entitled to, except as a consideration of his undertaking, or the injury must be to the legal rights, not to the wrongful claims, of the promissee. (Converse v. Kellogg, 7 Barb. 590.)

It is not pretended that there was wj.benejit resulting, or that could result, to the plaintiff; nor was there any injury or detriment to any legal right of the defendants. If they sustained any injury, it was in sending their goods to auction, which, it may be said, was attended by some outlay to the defendants. But that was a mere mode of ascertaining the amount of damages ; and it does not appear, (which I think it should, to be at all available,) that the defendants were to any extent damnified thereby. There is no necessary connection between the sale by auction, to ascertain the extent of the injury, and the promise to pay, One is quite independent of the other ; and it seems to me clear, that a supposed or conjectured injury or loss to the defendants, in disposing of their property in the manner suggested by the plaintiff, cannot be resorted to as furnishing a consideration for the promise.

But, if there was an injury to the defendants, and it was such as would furnish a sufficient consideration for the promise, the agreement to send the goods to auction (if a suggestion made by one party and not acceded to by the other can be called an agreement,) was void for want of mutuality.

Chitty says (Chitty on Cont. 15) that if one party never was bound on his part, to do the fact which forms the considera-' tion for the promise of the other, the agreement is void for the want of mutuality. This, however, is confined to those cases where the want of mutuality would leave one party without a valid or available consideration for his promise. (Arnold v. Mayor of Poole, 4 Man. & Gr. 860.)

The case before us shows, that the plaintiff “ suggested” the sending the goods to auction 'as a mode of- ascertaining the damages, but it no where appears that the defendants agreed to such an arrangement; and they were not concluded by the auction sales as the measure of their damages. The plaintiff could not have enforced the agreement and compelled a sale at auction, or insisted upon that as the only mode of determining the extent of his liability.

Subsequently acting upon the suggestion, by selling the goods by auction, did not make the agreement mutual. In The Utica and Schenectady R. R. Co. v. Brincherhoff, (21 Wend. 139) the defendant agreed that if the plaintiffs should locate their road on Water street, &c. in the city of Utica, and should require for the purposes of their road certain lands in the vicinity, the defendant in consideration of the benefits which she would derive from such location, would pay such sum as the said lands should be appraised at, in case the same should be taken by the plaintiffs. The plaintiffs located their road as designated in the agreement, and took certain lands required for the purposes of their road. The action was upon the agreement, to recover the appraised value of the lands taken. The agreement was held to be void. Nelson, Ch. J. says: “ The written instrument is but a simple proposition, and no averment that it was acceded to by the plaintiffs. The fact..that they afterwards located the road agreeably to the terms of the proposition is, of itself, nothing; it should have appeared that they had agreed with the defendant, thus to locate it, as a consideration for the promise. The promise of each must be concurrent, and obligatory at the same time, to render either binding.”

The assent of the defendants, as testified to by the defendant Bird, was to the allowance of the damages upon the rent, not to the sending of the goods to auction ; for he says, (after stating the proposition of the plaintiff to sell the goods, &c.) he (the plaintiff) then went on to urge that the estate was. poor, and that the damages must be paid out the rents ; “ to this I assented.” If there was any question as to the application of the words “ to this I assented,” it was a question of fact for the jury,' and no request was made by the defendants to submit any question to their determination. It is too late to object now.

The defendants not having agreed, at the time, to the sale by auction, were not bound by that mode of ascertaining the damages, and the agreement was, therefore, all on one side. This furnishes an additional reason for declaring the promise void.

We are of opinion that the plaintiff was entitled to a verdict for the rent claimed, and that the direction to the jury was correct.

The exceptions should be overruled, and judgment directed for the plaintiff upon the verdict.

Barbour, J.

dissenting. (After stating the facts.) It is quite clear that the defendants are not' entitled, under the allegations in their answer, to recover the damage sustained by them upon the ground, simply, that the plaintiff was bound by the maxim sic utero tuo ut alienum non Icedas, as .the owner and occupant of adjoining or adjacent premises, and independent of his agreement with the defendants, to keep the roof in such repair, as that injury should not thereby be done to his neighbors. The questions are, -first, whether the undertaking of the plaintiff to repair, was founded upon a sufficient consideration, an oral agreement to that effect, so supported, being good ; (Post v. Vetter, 2 E. D. Smith, 248;) and, if not, then, secondly, whether his implied oral admission that he was liable for the damage, and his agreement with the defendants, that the goods should be sold at auction by the latter, and that such sale was had, (irrespective of any promise on his part to repair,) entitle the defendant to a recovery here.

The point, taken at the hearing, that when the promise to repair was made by the plaintiff, the premises occupied by the defendants were in an untenantable condition, and, therefore, that the running of the rent was suspended under the operation of the 845th ch. of the Laws of 1860, (p. 592,) cannot be sustained; there being no evidence that the premises were then untenantable. But, if it was, legally, the duty of the plaintiff to keep the roof in such repair that the defendants should not be injured thereby, it can hardly be doubted that such obligation constituted a good consideration for the promise. A promise to do that which the promisor is legally bound to do, needs no new consideration to support it. (Chitty on Cont. 47.) Even a moral obligation is, in many cases, sufficient (Id. Bentley v. Morse, 14 John. 468. Cameron v. Fowler, 5 Hill, 306.)

In the printed case before us, it is admitted that the plaintiff was the owner of the entire building, including, of course, the roof, at the time of the injury; and I think the jury would have been warranted in finding, from the plaintiff'’s promise to repair, with the other circumstances testified to by the witness, and in the absence of evidence to the contrary, that he was also then in the actual possession of all the building except that part occupied by the defendants ; and as the case also shows that the premises occupied by the defendants, were wholly unconnected with the other portions of the building, I can perceive no reason why the plaintiff was not bound as a neighbor, owning and occupying adjoining premises, even though covered by the same roof, to so manage his own property, as not to injure that of his neighbor, just' as much as he would have been, had the premises occupied by the respective parties been covered by different roofs, or even separated by intermediate buildings; although he was not, under any provisions contained in the lease, nor at all in his character as landlord, required to keep the roof in a safe condition. (See Eakin v. Brown, 1 E. D. Smith, 36; 1 Hillard on Torts, 129; Tenant v. Goldwin, 6 Mod. R. 311.) The defendants, then, having proved a valid undertaking on the part of the plaintiff to keep his roof tight, were entitled, under the pleadings, to show that the injury to their goods was caused by the plaintiff’s failure to -perform. It follows that the court erred, I think, in excluding the evidence offered to show that the injury was so caused.

I am of opinion, too, that the evidence before the jury would have justified them in finding, had the case been submitted to them for that purpose, that the defendants presented their claim to the plaintiff for the damages in question, and that he admitted his liability ; that it was thereupon agreed between the parties that the goods should be sent by the defendants to auction and there sold, and the amount of damage, thus ascertained, should be applied upon the rent, and that they were so sold in accordance with such agreement; and that those facts would have authorized a verdict for the defendants, independent of the question as to the promise of the plaintiff to keep the roof in proper repair. For the agree-! ment proven was a mutual one ; the defendants undertaking to send their goods to auction, and have them there sold, including, of course, the payment by him of the costs of cartage, and the auctioneer’s commissions, and the plaintiff, in consideration thereof, agreeing that the amount determined' by such sale, should be applied in payment of the rent. The rule of law that an agreement by which one party subjects himself to a charge, or which obliges him to perform an act, is a good consideration for an undertaking on the part of the other, is too well established to require discussion. (Chitty on Cont. 29.)

For these reasons I am of opinion that the direction to the jury was erroneous, and that the verdict should be set aside, and a new trial granted, with costs to abide the event of the action.

Judgment for the plaintiff,


author: Monell, J.

text:
    Joseph W. Yerby, plaintiff and appellant, vs. Joseph Kirkpatrick, defendant and respondent.
    A broker, having a quantity of merchandize for sale, for his principal, at a limited price, agreed with another person to pay him a portion of the profits on its sale, without specifying what portion. He subsequently agreed with a third person that the latter should sell the merchandize, and that they should divide whatever price was received over and above the sum fixed by the principal as such. ■

      Sold 1. That the agreement between the broker and such first person was void for uncertainty in not specifying the portion of the profits to which the latter was to be entitled.
    2. That such first person had such an intm-est in the subject matter of an action brought by such third person against the broker, to recover one half of the profits of the sale of such merchandize as to render him either a necessary or proper party to it.
    (Before Barbour,, Monbm. and Garvin, JJ.)
    Heard March 16, 1864;
    decided April 30, 1864.
    The action was brought to recover one half of the profits of sale of a large number of rifles. The plaintiff, having the rifles in hand, on sale, as a broker, agreed with the defendant, who was also a broker, that the latter should sell the rifles, and that they should divide the proceeds, over and above $16.50 each rifle, which was the price the owner was to receive for the rifles. The defendant sold the rifles, and received a profit of $11,495.
    On the trial the plaintiff, upon his cross-examination, testified that there were parties behind him, who expected to get a portion of the profits; that there was an agreement to that effect, and that if the plaintiff should recover they would be entitled to a portion of the recovery. That he agreed with Mr. Sweet that he should have a portion- of the profits. That the amount Sweet was to have was not agreed upon nor stated. Upon-his re-direct examination, the plaintiff testified that Sweet told him he knew of a person who had some Enfield rifles for sale, and would introduce the plaintiff to such person, and did so ; and that it was simply understood that if they made any thing out of the transaction, Sweet would be compensated ; that no proportion of the profits toas spolcen of, and ther.e was no amount named.

    When the plaintiff rested, the judge dismissed the complaint, on the ground that Sweet was a party in interest, and a necessary party plaintiff in the action. The plaintiff excepted, and appealed from the judgment dismissing the complaint.

      William Allen Butler, for the appellant.

      W. C. Traphagan, for the respondent.
   By the Court,

Monell, J.

I think it is clear that the agreement made by the plaintiff with Sweet did not constitute them partners. There were none of the ingredients of a partnership, such as sharing in the losses as well as the profits ; contributing capital or skill, or personal services in lieu of capital, and the implied right to bind the partners by the acts of each. Nor was there any intention on either side that there should be a partnership. Sweet introduced the plaintiff to the owners of the rifles, and for that service the plaintiff agreed that if any thing was made out of the transaction, Sweet should have some share as a compensation.

The agreement did not create a partnership either as between Sweet and the plaintiff, or as between, them and third persons, the transaction being, I think, clearly susceptible of a different interpretation. It was a mere agreement to give Sweet a share of the profits, if any were made. (Story on Part. §§ 30, 47. Vanderburgh v. Hall, 20 Wend. 70.)

Had Sweet such an interest in the subject matter of the action that he was either a necessary or proper party to it ?

There was no principle of agency applicable to this case. The plaintiff was in no sense the agent of Sweet, in the transaction with the defendant. The contract between the plaintiff and defendant was an entire contract, to which there were no other parties. Sweet was not a party to it, and could not have ■ enforced it, or any part of it. The plaintiff had the absolute right to enforce it, and the absolute right to receive one half of the profits from the defendant; and it cannot he pretended, I think, that sweet had any such right, either solely or in conjunction with the plaintiff.

In principle, this case is not unlike Cumings v. Morris, (3 Bosw. 560.) The action was by an indorsee of promissory notes against the maker. Upon the transfer of the notes by Prime to the plaintiff, the latter gave his promise to transfer certain stock to Prime, which was never done ; the plaintiff testifying that Prime was to guaranty the notes to him, and that if they were not collected, the stock was to remain with and belong to the plaintiff. In other words, Prime was to be paid' for the notes with the money collected upon them. The court held that the plaintiff was the real party in interest. The late chief justice says, (p. 577 :) “A failure of the plaintiff to recover in this action might be as great, and possibly a greater loss to Sergeant (whom Prime represented) than to the plaintiff. But that feature only illustrates the extent to which a person, not a party to an action, may be interested in the event of it, notwithstanding it is prosecuted by the legal and equitable owner of the cause of action stated in the complaint." And in Hastings v. McKinley, (1 E. D. Smith, 273,) it is said that where the plaintiff has the whole legal interest, he is the real party in interest, and alone capable of suing.

A recovery by the plaintiff in this action would be a complete determination of all rights under the defendant’s contract, so far as he was or could be concerned. And that, perhaps, is the best test of who are the parties in interest under it. (Varnum v. Pearson, 2 Hilt. 16.) Sweet could not sue him, but would have to look to the plaintiff under another and an entirely independant contract.

There is another reason why Sweet was not a party in interest. His agreement, (if such it can be called,) with the plaintiff, was void for uncertainty. No portion of the profits was named or agreed upon, and it would be impossible for any court to regulate the recovery. Whether it should be one half of the profits, or one mill, the contract furnishes no means for determining. Besides, I do not find that there was any consideration to sustain the. promise to pay Sweet a portion of the profits, if any were realized.

We are of opinion that the learned judge erred in dismissing ■ the complaint; and that the judgment should be reversed, and a new trial granted, with costs to abide the evenh