author: By the Court, Monell, J. Robertson, J.

text:
    Garrett S. Mott, plaintiff and appellant, vs. Israel Coddington et al. defendants and respondents.
    1. A cause of action for damages for injuries to real property By the negligence of the defendant, is necessarily local; and the courts of this state have not jurisdiction of such an action relating to real property without the state.
    2. But a cause of action for Breach of a covenant to convey real property is • transitory; and if the courts of this state obtain jurisdiction of the parties, they can entertain jurisdiction of the action.
    3. A stipulation either in a deed of real property, or in a separate instrument executed by the vendor and' purchaser, and not merged in the deed, that the vendor shall retain possession for a time, and then shall deliver possession to the purchaser, does not create the relation of landlord and tenant, between them during such period. The premises are meanwhile at the risk of the purchaser; and the vendor is not liable to him, upon such contract, for a loss By fire Before the delivery of possession.
    4. Even were it otherwise, the purchaser’s acceptance of the deed, after the fire, with knowledge of the loss, would extinguish any claim to indemnity.
    (Before Moncrief; Robertson and Monell, JJ.)
    Heard October 19, 1863;
    decided November 14, 1863.
    This was an appeal from an order, denying a motion made by the plaintiff, upon the judge’s minutes, for a new trial upon the exceptions taken at the trial. '
    The action was to recover damages from the defendants, who Were Israel Coddington and John Herbert, for the loss by fire of a mill and machinery, located at South Bound Brook, New Jersey.
    In June, 1861, the plaintiff and defendants entered into an agreement, whereby the defendants agreed to convey to the plaintiff certain premises at South Bound Brook, upon which was situated the mill in question. In consideration of this conveyance, the plaintiff agreed to convey to the defendants certain premises in the city of Brooklyn. The deeds were to be exchanged at the office of Tracy, Wait '& Olmstead in the city of New York, “on or before the 22d day of July, 1861.” It was further agreed that the defendants should retain possession of the real estate at Bound Brook, to be conveyed by them as aforesaid, until the 19í7¿ day. of September, 1861, when they should deliver possession thereof to the plaintiff. The deed for the Bound Brook property was executed on the 26th of June, and for the Brooklyn property on the 16th of July; but the deeds were not exchanged until some time afterwards, being both left in the hands of Tracy, Wait & Olmstead until certain liens on the Brooklyn property could be removed.
    While the deeds remained thus in escrow, and on the 13th of August, 1861, the defendants then being in possession, under the agreement between the parties, the mill, machinery, and out-buildings were destroyed by fire.' The deeds were exchanged oh the 16th of August, after the fire, at which time the plaintiff gave the defendants notice in writing that he should hold them responsible in damages for the loss of the mill, and requiring them to replace the same prior to the 19th of September ensuing.
    The deed from the defendants to the plaintiff of the mill property contained this clause, “subject, nevertheless, to the possession of said premises by said Coddington and Herbert, until the 22d day of September, 1861, when they agree to deliver possession of the same to the said party of the second part, or his assigns.”
    The plaintiff claimed in his complaint to recover, first, damages for a breach of the agreement between the parties, in not delivering possession of the mill, &c. on the 19th of September, 1861, and second, damages for the loss of the mill, &c. caused by the negligence of the defendants while in possession thereof under said agreement.

      The action was tried, before Mr. Justice Moítceief and a jury, on the 11th of March, 1863.
    At the close of the plaintiff's evidence the counsel for the defendants moved to dismiss the complaint on the following grounds:
    1. That the court has no jurisdiction, this action being for injury to real estate in the state of Yew Jersey.
    2. The plaintiff must show that he was seized of the property when the injury happened, and that the defendants were in possession as tenants at the time of the fire.
    3. When the plaintiff áccepted the deed, after the affair occurred, his contract ceased to be the subject of an action, there being a covenant in the contract to keep the buildings there.
    4. There was no proof of negligence being the proximate cause of the fire.
    Whereupon the conrt dismissed the complaint, and the plaintiff excepted.
    A motion for a new trial having been denied at special term, the plaintiff appealed from the order.

      A. R. Dyett, for the plaintiff, appellant.
    I. As to the first ground of nonsuit, this court has jurisdiction of this action. It is not an action local to Yew Jersey. This action is founded and based on the contract, which was made in this city, and was to be performed here. The fact that in one aspect of the cause of action one of its elements is negligence, does none the less make it an action on the contract, which was necessary as the basis of the action. (4 Moo. & S. 249. 3 Kernan, 587. 6 Abb. 165, and cases cited in the opinion. Strange, 614. 1 Wallace, Jr. 275, and cases at p. 282. Story’s Conflict of Laws, §§ 35, 555.)
    Besides, the cause of action in the complaint, "in one aspect, is entirely based on the non-performance of the contract.
    II. As to the second and third grounds of nonsuit, which will be considered together :
    1. The action was brought on the contract and not on the
      deed. Both are under seal. The clause in the contract upon which the action is brought is an independent covenant, and by its terms is to remain in force after the delivery of the deeds. The delivery and acceptance of the deeds on both sides, did not, therefore, merge or affect the covenant referred to, nor was it so merged or affected by the clause in the deed, that the conveyance was made subject to the defendant’s right of possession.
    2. The last clause in that deed was drawn and executed before the fire, and was necessary to limit the covenants in the deed, and was rather a confirmation of the contract than a merger of it. When this cause of action arose, the defendants were in possession under the contract alone.

    3. Upon the execution and delivery of the agreement, the plaintiff became the equitable owner of the lands and mill, machinery, &c. and the defendants held them merely as trustees. (1st Sugden on Vendors, 190.) When the plaintiff conveyed his lands to the defendants, this equitable title of his became, if possible, stronger and of greater force than before.
    4. But whether the plaintiff waived the cause of action, involves a question of intent, and that intent was a question of fact for the- jury. The notice referred to, which was given
    in writing at the time, showed beyond all question, there was no intent to waive the cause of action. But the notice just referred to, as matter of law, saved the cause of action from being waived by the plaintiff or merged in the deed. (Moore v. Westervelt, 1 Bosw. 366.)

      5. The plaintiff could not have sued until after the 19th of September. The defendants had a right to retain possession until that time, and an action would have been premature if brought before. Non constat, but the defendants would rebuild, and on the 19th September deliver us possession of the premises in good order and condition. They had a right to do so. The plaintiff could not refuse to accept the deed of the premises. He did not accept possession, because the defendants would not then deliver possession, which they were not bound to do until September following. All the plaintiff could do was to give the notice he did.
    The deed of the Bound Brook property was acknowledged, and left to be delivered to the plaintiff, some weeks prior to the fire. If it did not then take effect, all the plaintiff did was to comply with the condition upon which it was to be delivered to him, in order to render the delivery absolute.
    Such deed being delivered for the purpose of vesting title in the lands conveyed to the plaintiff, and sustaining his rights in and to the same and his present cause of action, even if it were in escrow, took effect from the time of such delivery to Tracy, Wait & Olmsted. (18 John. 544. 13 id. 285. 4 id. 230. Shep. Touch. 58, 59. Odell v. Wake, 3 Campb. 394. 1 John. Cases, 81. 1 John. Ch. 288, 296, 304. 2 Mass. Rep. 447. Cruise’s Dig. tit. 32, ch. 2, 86 to 93. 9 id. 397. 3 Reports, 28, 29, 30.)
    7. It clearly follows, therefore, that the acceptance of the deed by the plaintiff, after the fire, was no waiver of the cause of action upon which he seeks to recover, nor was that cause of action merged in the deed. (1 Bosw. 366. 14 Eng. L. and Eq. 320.)
    III. As to the third ground of nonsuit, there was abundant evidence to go to the jury on the question of negligence, vide supra.

      Charles Tracy, for the defendants, respondents.
    I. The court has no jurisdiction of the action, if it be for an injury to real estate in New Jersey. (3 Black. Com. 294. 1 Burrill’s Prac. 123, notes a. and b. 2 R. S. 409, § 2. Watts v. Kinney, 6 Hill, 82. Ring v. McCoun, 3 Sandf. 524. Code of Pro. §§ 33, 123, 124.)
    II. If this is an action upon contract, the plaintiff has clearly no right to recover. (Masters v. Stratton, 7 Hill, 101, 104. Wilbur v. Brown, 3 Denio, 356, 362.
    1. The parties were mere vendor and vendee, by an executory contract. (Gardiner v. Heart, 1 Comst. 528.)
    2. Even a landlord has no right of action against his tenant, for buildings burned by negligence of the tenant, unless there is an express contract of the tenant to sustain it. (3 Black. Com. 229, note 4. Countess of Shrewsbury's case, 5 Coke’s Rep. 13. The Countess of Salop v. Crompton, Croke Eliz. ,777, 784. S. C. Co. Litt. § 71. Stat. Gloucester, 6 E. 5, C. 5.)
    3. The vendee had an insurable interest, and if he did not take out a policy of insurance, he stood as his own insurer. (1 Sugden on Vendors, 10th Eng. ed. 467-469, ch. 6, § 2. Paine v. Meller, 6 Vesey, 349, 353. Dart on Vendors, 117. Gates v. Madison Co. Mutual Insurance Co., 1 Selden, 469.)
    4. At the time of the fire the plaintiff had not perfected any right to the Bound Brook property. He had not cleared the title of the Brooklyn property from taxes, &c. until after the fire. He, therefore, had neither a legal nor a perfected equitable title to the mills.
    5. Neither the contract for the exchange, nor the deed, contains any express agreement to insure the buildings, or to preserve or renew them.
    6. The voluntary acceptance of the deed after the fire occurred, was a waiver of all the- claims to restore or renew the buildings, and the plaintiff is estopped from maintaining this action. (Addison on Contracts, 172. Co. Litt. 352 a.)

    7. The contract was merged in the deed, and became extinct. (Jackson v. Camp, 1 Cowen, 605. Haughtaling v. Lewis, 10 John. 297. Howes v. Barker, 3 id. 506. Witbeck v. Waine, 16 N. Y. Rep. 532. Morris v. Whitcher, 20 id. 41.)
    III. It was not proved that the fire was caused by negligence of the defendants. (1 Parsons on Contracts, 603. Edwards on Bailments, 312. Stephens v. Vroman, 18 Barb. 250, 257. 1 Green. Ev. §§ 200, 209. Hayne v. Rogers, 9 Barn. & Cress. 577, 587. Crain v. Petrie, 6 Hill, 522, 524. Armstrong v. Percy, 5 Wend. 535, 538. 1 Saund. Pl. and Ev. 344. 2 Green. Ev. § 256. Butler v. Kent, 19 John. 223, 228.)
   By the Court, Monell, J.

The second cause of action stated in the plaintiff’s complaint, namely, the injury ocoa^ sioned by the negligent act of the defendants while in possession of the premises, this court, clearly, has not jurisdiction to try. This cause of action is for an injury to real property; is local in its nature, and must be tried in the state where, the real property is situated.

The distinction between local and transitory actions, as stated by Chief Justice Marshall, (Livingstone v. Jefferson, 1 Brockenb. Rep. 203,) is, that actions are to be deemed transitory where the transactions upon which they were founded might have taken place any where ; but were local, when the cause of action was in its nature necessarily local. (Watts v. Kinney, 6 Hill, 82.) Injuries caused to real property by the negligent act of another, like permissive waste, is necessarily local.

If, however, the action for a breach of the agreement entered into between the parties, can be sustained, I can see no jurisdictional difficulty in the way. That cause of action is for a breach of a covenant contained in ■ a contract; and the action is necessarily upon the contract; and we having obtained jurisdiction over the parties, can entertain jurisdiction of the cause of action. Actions upon contract have always been regarded as transitory, and are equally so whether they relate to real or personal property. (Sutphen v. Fowler, 9 Paige, 280. Massie v. Watts, 6 Cranch, 148.) The claim is for damages for not performing a contract; the recovery, if any, must be personal, and can not affect the real property.

This brings me to the remaining question in the case, namely, has the plaintiff shown any cause of action ?

I have already disposed of the question of negligence, being of opinion that all evidence on that subject was inadmissible, this court not having jurisdiction of such a cause of action.

I do not think the relation existing between the parties intermediate the delivery of the deed and the 19th September, was that of landlord and tenant. The defendants owed no such duty to the plaintiff as is expressed or implied in cases of tenancy. Their right to retain possession was determined by the limitation in the contract ; hut it was a mere retention of possession, the estate proceeding from the defendants which was not affected or defeated by the subsequent delivery of the deed. (Bogart v. Burkhalter, 2 Denio, 125. Miller v. Avery, 2 Barb. Ch. 582.) This is more especially so, as the deed continues the right in express terms.

Although possession or the right of possession follows the delivery of the deed, it is competent for the grantor to reserve the possession to himself for a determinate or indefinite period, either in the deed or by a cotemporaneous instrument not merged in or extinguished by the deed. Such reservation does not constitute-a tenancy.

In Provost v. Calder, (2 Wend. 517,) the grantor reserved to himself and his heirs the exclusive right to the use of a stream of water running through the land, and subsequently demised the privilege of erecting a dam, and using the water, to a lessee. The reservation was held to be valid. In this case it was said, a man may grant a messuage with the appurtenances, reserving one of them. So, too, he may grant a tract of land, reserving all mines, and he may grant a tract of land reserving all mill sites, and such a reservation is valid.

In Dygert v. Matthews, (11 Wend. 36,) a reservation out of the grant of so much land as is necessary'for the use of a grist mill, was sustained.

In Jackson v. Swart, (20 John. 85,) the grantors reserved to themselves the use of the premises during their natural lives, and the question arose whether the deed was void, as conveying a fee to commence in futuro; and it was held that the deed operated as a covenant to stand seised, if the estate of the grantee was to take effect after the death of the grantors. And the case, of Jackson v. Dunsbagh, (1 John. Qas. 91,) is referred to, where it is expressly decided that a deed of bargain and sale, founded on a pecuniary consideration, to take effect in- futuro, was effectual.

In all these cases, where the reservation has been clear, and the intention of the parties undoubted, it has been sustained, and that, too, whether it was of a part only, or of the whole of the granted premises.

In this case the reservation is of the possession, which carries with it the use of all the granted premises, for a definite period. And, in my view, it is not material whether we look for the reservation in the contract between the parties, - or in the deed; the former, as we have seen, not being extinguished by, or merged in the latter, either is effectual and operative ; although the deed may be resorted to as furnishing evidence of the intention to make the reservation, if further evidence was needed.

If it is true, then, that the reservation of the possession of the whole of the granted premises was effectual, and the defendants had the right to continue to occupy them until the 19th of September, (or the 22d, as named in the deed) then it follows, there was no actual delivery of the premises, nor had the plaintiff any right of entry at the time of the happening of the fire. In short, the grantors had not at that time delivered, nor did they, until some time afterwards, deliver possession of the premises to the grantee. The contract remained executory, and the execution and delivery of the deed, though it conveyed the legal title, was only a partial performance of the contract, and did not carry with it the possession, nor the right to the possession, until the expiration of the period reserved to the. grantors to occupy and possess the premises.

Such possession was not under, nor in subordination to the rights of the grantee. It was created by the act and deed of the grantors, and originated at the time that the legal estate was passing from them. Such legal estate, however, did not vest in the grantee in presentí, and, as respects the possession, was suspended, or as I might better express it, did not- take effect, until the termination of the right which the grantors' had reserved to themselves.

I have thus endeavored to show that the relation of landlord and tenant did not exist between these parties; and I have spent more time in this effort than I should have done, had not the able argument of the counsel for the appellant raised a doubt in my mind on the subject. But I can not yield my judgment to his convictions, in the face of principles and authority which to me,are most satisfactory.

The act of the parties as evidenced by their written contract, was the selling and buying of the premises in question ; hence the relation between them was that of vendor and vendee. The plaintiff, as vendee, became the equitable owner of the estate, and according to well settled principles could he compelled to pay the consideration, even though the estate itself should be destroyed between the date of the agreement and the conveyance. (Sugden on Vendors, 6th Am. ed. 468.) From the time the contract was sealed by the parties, the premises were at the risk of the vendee, who had an insurable interest, and could have protected himself from loss by fire. At any rate, as he was entitled to any benefit which might accrue to the estate in the interim between the contract and deed, he must take the risk and bear the burthen of loss.

But even if this were not so, the acceptance of the deed by the plaintiff, after the fire, with knowledge of the loss, would extinguish any right to indemnity he otherwise might have had. (Paine v. Meller, 6 Vesey, Jr. 349.)

I think the plaintiff has failed to show any cause of action against the defendants, and that the justice decided correctly in dismissing the complaint.

The order appealed from should be affirmed, with costs.

Robertson, J.

The agreement for the exchange of land in this case permitted the defendants to retain possession of the real estate to be conveyed by them,, until a time subsequent to that when the destruction of the mill thereon complained of in this case occurred, when they were to deliver possession of the same to the plaintiff. The deed actually conveyed the premises in presentí, subject to a possession of them by the defendants, until three days after the time fixed in the agreement, when they agreed to deliver possession of the premises to the plaintiff. No rent was agreed to be paid for such occupation, nor was any thing else required to he done, from which it could be inferred that the relation of landlord and tenant existed between the parties. The question then is, whether such deed operated to convey the estate, to begin only from the date fixed in such clause, leaving the estate in the defendants, and no relation subsisting between the parties until then; or whether the defendants conveyed the whole estate in fee, taking back an estate for the period during which they were to retain possession.

An exception must be part of the thing granted, wherein it differs from a reservation, which is not part of it, but some new thing issuing out of it. (Craig v. Wells, 11 N. Y. Rep. 315.) Words óf reservation may create an exception however, (Provost v. Calder, 2 Wend. 517; Borst v. Empie, 5 N. Y. Rep. 33,) and sometimes an implied covenant or estoppel. (Case v. Haight, 3 Wend. 632.) On the other hand, words of exception may create a reservation. (Dygert v. Matthews, 11 Wend. 35.) An exception must be certain, and what would otherwise be an exception may be construed as a reservation, in order to prevent its being void for uncertainty, (Thompson v. Gregory, 4 John. 81,) but it must be construed as the former, if it can be reduced to certainty. (Jackson v. Vermilyea, 6 Cowen, 677.) The reservation of an estate for life, in the grantors of an estate in fee, (husband and wife,) although void as such, was held to create a covenant to stand seised for the use of the sxirvivor, (the wife,) although a conveyance in fee, to take effect in futuro, might be void, (Jackson v. Swart, 20 John. 85,) except under the statute of uses. (Jackson, ex dem. v. Dunsbayh. 1 John. Cas. 91.)

It is not material whether there can be a technical reservation of an estate in the premises or not, provided the deed can be construed so as to prevent an estate from vesting until some future day. The Revised Statutes make it the duty of courts to carry into effect the intent of parties in an instrument affecting real estate, so far as it can be gathered from the whole of it. (1 R. S. 748, § 2.) There can be no doubt that by the deed in question in this case, the defendants intended only to create an estate in the plaintiff to begin at the end of their possession. No relation, therefore, of landlord and tenant existed, and no right of action could accrue for waste.

The plaintiff had an insurable interest in the buildings burnt, but the defendants had not. (McLaren v. Hartford Fire Ins. Co., 5 N. Y. Rep. 151.) They were not bound to restore them either under the agreement, (Sugden on Vendors, 6th Am. ed. 468,) or the deed, which contains merely a covenant to deliver possession of the premises, but not in the same condition as they were at its date.

It is not necessary, therefore, for me to express any opinion as to the ability of the plaintiff to maintain an action in this state for, permissive waste on land in New Jersey.

I therefore concur in the judgment of affirmance. '


source: Caselaw Access Project

author: By the Court, Monell, J.

license: Public Domain

text:
    Joseph Agate, plaintiff, vs. Claudius Gignoux et al. defendants.
    1. The estate or interest of a lessee of real property under a sub-lease made by Mm to third perssons, for a term exceeding one year, with a reservation of a right of re-entry for breach of covenant, is an estate or interest in land, witMn the meaning of the statute of frauds, (2 U. S. 134, §§ 6, 8; 29 Car. 11, c. 3, §§ 1, 2, 3;) and can not be assigned by parol.

      2. The fact that such interest was held by partners upon dissolution of whose partnership it was treated as passing with other assets to a new firm which succeeded them, does not take the case out of the operation of the statute, as between the sub-lessfeSs and ail assignee by deed.
    3. Thus, where partners, who had taken a lease of premises, and sub-let a part for a term of years, with the reservation of such right of entry, dissolved' their partnership, and a new firm was formed, which acquired the ownership of their other assets and succeeded to their position under both leases, but without any assignment in writing; Held that a debt due from such new firm to the sub-lessees could not be setoff by the latter against a claim by one who held a subsequent written assignment of the lease from the members of the original firm, for rent accrued after such assignment.
    (Before Moncrief, Robertson, and Monell, JJ.)
    Heard October 20,1863;
    decided November 14, 1863.

      The action was brought against Claudius Gignoux, Charles H. Christmas and Tileston Cushing, to recover a quarter’s rent of premises in the city of New York. Cameron, Edwards and Burritt, (Burritt being a special partner,) were the lessees of the store No. 265 Broadway; the lease being to Cameron & Edwards, the copartnership name of the firm. On the 18th of November, 1856, Cameron & Edwards sub-leased the four upper lofts of the store to the defendants, for a term of five years and two months. This sub-lease contained covenants of forfeiture for the non-payment of rent. The partnership of Cameron & Edwards expired by its own limitation on the 31st of December, 1856, when a new firm was formed, composed of Cameron, Edwards, Gilbert and Boyd, under the name of Cameron, Edwards & Co. All the assets of the old firm went into the new firm. The new firm occupied the same store that Cameron & Edwards had occupied, being the lower part of the premises, the upper part of which Cameron & Edwards had leased to the defendants. They collected ' rent from the defendants upon the sub-lease by Cameron & Edwards; and they paid to the original lessor the rent of the whole premises, under the lease thereof to Cameron & Edwards. No written assignment of that lease was made by Cameron & Edwards to the firm of Cameron, Edwards & Co.
    On the 23d of August, 1861, the plaintiff by written assignment became the owner of the interest of Cameron & Edwards in the sub-lease to the defendants ; of which the defendants then had notice.
    Previous to the last mentioned assignment, and in August and November, 1860, Cameron, Edwards & Co. had become indebted to the defendants in upwards of $5000, for money lent, &c. $2000 of which remained due and unpaid on the 1st of November, 1861, the day when the quarter’s rent fell due, to recover which this action was brought.
    The defendants, in their answer, alleged that the firm of Cameron, Edwards & Co. on the formation of that firm on the 1st of January, 1857, became the owners of the lease to the defendants ; and were such owners at the time they became indebted to the defendants ; and they claim the right to set off the said- indebtedness of Cameron, Edwards & Co. to them against the plaintiff’s claim for rent.
    The cause was tried before Mr. Justice White and a jury, on the 15th and 16th of May, 1862.
    The justice charged the jury that “a roritten transfer of the lease from Cameron & Edwards to Cameron, Edwards & Co. is not necessary to invest Cameron, Edwards & Co. with a title to it. They might in fact, with the assent and by the will and act of Cameron & Edwards, and their own will, and without any witness, become the owners of it. If it was transferred to them, and they accepted it and assumed all its liabilities and advantages, they would become the owners of the lease without any writing on the subject.” To these several propositions, the plaintiff severally excepted.
    He further charged, that “ any demand or amount due and payable to Grignoux & Co. from Cameron, Edwards & Co. at the time of their receiving the first notice or intimation that Cameron, Edwards & Co. had parted with their title to the lease* may be set off by them against the claim of the- plaintiff = to this suit.”
    To this the plaintiff excepted.
    The plaintiff made several requests of the justice to charge the converse of the' foregoing propositions, all of which were refused, and the plaintiff excepted.
    The jury rendered a verdict for the defendants. The judgment was suspended, and the exceptions were directed to be heard in the first instance at the general term.

      D. E. Wheeler, for the plaintiff.
    I. The law of set off is inapplicable to an assignment of rent.
    1. The Code has not changed the law of set off as to assignors or assignees. The question, therefore, of notice is immaterial unless equities arise between the assignment and the notice, which is not pretended here. (Beckwith v. Union Bank of New York, 9 N. Y. Rep. 211, aff. S. C. 4 Sandf 604.)

      2. At common law there was no right to set-off. When the statute of set off was passed it applied only as between parties to the record. Choses in action not being assignable at law, and the action therefore brought in the assignor’s name, no other protection to demands against the assignor was necessary. No provision was therefore made on the subject. The Code, which requires all actions on assigned choses in action to be brought in the assignee’s name, expressly reserves the right to any set off or other defense existing at the time of the assignment.
    3. The plaintiff here does not claim under the Code, or under any statute, but under the common law, by which an action, for rent, which has been assigned before it is due, must be brought in the assignee’s name. The defendants must, therefore, show some statute or decision at common law, authorizing a claim against the assignor to be set off in such a case, which, it is submitted, can not be done.
    II. Rent not due is not a chose in action, but part of the realty, and incident to the reversion.
    1. The covenant to pay it is a real, not a personal covenant, and runs with the land, for which reason the action for it, when it accrues, is to be brought in the name of the assignee or grantee of the reversion, (Taylor, Landlord and Tenant, § 447, pp. 313, 314; Van Wicklen v. Paulson, 14 Barb. 654; Willard v. Tillman, 2 Hill, 274 ; Moffatt v. Smith, 4 N. Y. Rep. 126 ; Allen v. Bryan, 5 Barn. & Cres. 512 ; Demarest v. Willard, 8 Cowen, 206; Bank of Pennsylvania v. Watts, 3 Watts, 394; Ruckman v. Astor, 3 Educ. Ch. 373,) which shows conclusively that rent not due is not a chose in action; for nothing is better settled than that at common law the assignee of a chose in action could not sue in his own name. (Jessel v. The Williamsburgh Ins. Co., 3 Hill, 88.)
    2. All the cases as to covenants real draw this very distinction, and show beyond controversy that, until breach, they run with the land, but, when broken, become choses in action, and not till then, and are not assignable at law. (Cases before cited. Withy v. Mumford, 5 Cowen, 137. Greenby v. Wilcocks, 2 John. 1. Sharp v. Key, 8 Mees. & Wels. 379.)

      III. The law of set off is, by its terms already quoted, applicable only to assignments of things in action. Therefore, “in an action for rent due to an assignee of a lease, and which became due after the assignment, a demand due from the assignor to the defendant before the assignment can not be set off.” (McDonald v. Menaire, 5 N. Y. Legal Obs. 18.) The plaintiff being the owner of the reversion originally, and becoming by assignment the owner of the sub-lease to the defendants, and no objection being made by them, when notified of this assignment, they must. be taken to have consented to hold, from that time, the store as tenants to the plaintiff. It is clear, therefore, that rent which accrued under the lease after the plaintiff became its owner and the defendants had consented to occupy as his tenants, could not be offset by a demand owing to the defendants by their original landlords. (Peckham v. Leary, 6 Duer, 494.)
    The policy of the recording act as to leases,. (1 R. S. 756, 762, §§ 1, 36,) sustains this view of the law.
    IV. There is no proof of a valid assignment to Cameron, Edwards & Co. of the lease on which the suit is brought: (2 R. S. 134, 135, §§ 3, 6, 8. Browne on Stat. of Frauds, §§ 41, 45, 46. Taylor, Landlord and Tenant, § 427. p. 299, 3d ed. Bolting v. Martin, 1 Camp. 317. Rowan v. Lytle, 11 Wend. 616. Doe v. Jones, 9 Mees. & Wels. 372.) On this subject the charge is plainly erroneous ; and s.o were various rulings as to the admission of evidence. (Shindler v. Houston, 1 Comst. 261. People v. Beebe, 1 Barb. 379, 381, 383. Foster v. Beals, 21 N. Y. Rep. 247. Booth v. Swezey, 8 id. 276. Seaver v. Coburn, 10 Cush. 324. Otis v. Sill, 8 Barb. 102, 105, 122.)
    The lease belonged to Cameron & Edwards as tenants in common only in possession of the term, not as a firm. (Coles v. Coles, 15 John. 159. Lawrence v. Taylor, 5 Hill, 107.)

      Augustus F. Smith, for the defendants.
    I. As between partners, real estate is treated, to all intents' and purposes, as a part of the partnership funds, whatever may be the form of the conveyance. (1 Story’s Eq. Jur. § 674. Story’s Partnership, §§ 92, 93, pp. 127, 128.)
    II. Cameron, Edwards & Co. could have sued the defendants for the rent in question, had no transfer of the lease been made to Agate and Baudouine. Before the Code they would have filed a bill in equity alleging the title to the lease, that no assignment good at law had been made to them, and would have had a decree. By the Code they were “ the real parties in interest,” and could have brought the suit at law. (Code, § 111, and note d. on p. 76. Voorhis’ Code, 6th ed.)

    III. Had they brought the suit, of course the set-off would be allowed.
    IV. Had Cameron & Edwards brought the suit, though for the benefit of the new firm, it is equally clear that the set-off must have been allowed. (Ferguson v. Lothrop, 15 Wend. 625. Driggs v. Rockwell, 11 id. 504. Platt v. Halen, 23 id. 456.)
    The assignment of the lease can not deprive the defendants of their right to the set-off. The two thousand dollars was due to them not only before notice of the assignment but before the assignment. (2 R. S. 354, § 18, sub. 8. See Code, § 112.) It was not material when the rent fell due, whether before or after the assignment.
    VI. The testimony introduced to establish the title of Cameron, Edwards & Co. to the lease, was not only admissible, but it was uncontradicted and conclusive. (See Collumb v. Read, 24 N. Y. Rep. 505, 511, 513.) Agate, the plaintiff, knew from the payments made to him, the checks given to and the receipts signed by him, that Cameron, Edwards & Go. owned the lease.
   By the Court, Monell, J.

If the instruction of the learned justice to the jury, that no written transfer of the lease was necessary to invest Cameron, Edwards & Co. with the title to it; and that they might become the owners of it by the assent of Cameron and Edwards and their own will, and by assuming its liabilities, was' correct, I think there was sufficient evidence in the case .to go to the jury, and their verdiet in favor of the defendants, establishing a transfer by parol, will not be disturbed.

The case upon this view was fairly placed before the jury, and there is no such preponderance of evidence, against their finding, as would, under the settled practice of the courts, authorize us to set aside their verdict. But as my associates differ with me on this question, it is not necessary for the determination of these exceptions.

It becomes important, therefore, to examine the instruction of the learned justice, that no “ written ” transfer of the lease was necessary to invest title to it in the transferee.

Our statute is, (2 R. S. 134, 135, §§ 6, 8,) that “ Eo estate or interest in land, other than leases for a term not exceeding one year, shall be assigned, unless by act or operation of law, or by deed or other conveyance in writing.”

The statute of frauds, of 29 Car. 11, ch. 3, §§ 1, 2, 3, from which our statute is derived, provides “ that no lease or estate, either of freehold or term of years, shall be assigned, granted or surrendered, unless in writing.”

There is no essential difference between these statutes ; ours being, if any thing, the most comprehensive, the words “ estate or interest in land ” embracing every species and title to real property known to the law.

As rent issues from the land, so, in the absence of any other designated place, in the lease, it is payable on the land. (Livingston v. Miller, 11 N. Y. Rep. 80.) It is incident, though not inseparably so, to the reversion. (Co. Litt. 143.) It passes with a general grant of the reversion, and may pass without the reversion ; and the assignee of the rent without the reversion, may maintain an action for its payment in his own name. (Moffatt v. Smith, 4 Comst. 126.) And a “rent charge” being a rent reserved by deed, when the landlord has no reversion, nor any express power of distress, is regarded as real estate. (Brad. on Dist. 15, 32, 34. People v. Haskins, 7 Wend. 467.)

The lease to the defendants reserved to the lessors the right of entry on the breach of any of the covenants contained in the lease, including the covenant to pay rent. And upon the failure of the lessees to keep these covenants, the lessors might regain, repossess and enjoy their former estate in the premises.

The assignments of a lease containing such a reservation, necessarily carried with it the reversion of the term in the event óf a breach of any of the covenants by the lessees, when the right of the assignee to re-enter would be complete. It was a right to re-enter upon and repossess the estate which had been granted, and was, therefore, necessarily, T think, an estate or interest in land, within the meaning of the statute to which I have referred.

We were not referred on the argument, nor have I been able to find a case, where an assignment without writing, has been held to be sufficient under our statute or the statute of Oar. 2. On the contrary, all the cases under either statute, regard a lease, as well as the assignment of it, either by the lessor or the lessee, as an estate or interest in land, which can be transferred only by a written instrument.

The language of all the statutes, of ours particularly, is too plain to admit of question; and I can not doubt that the lease to the defendants was within the prohibition of a parol transfer.

The defendants counsel, substantially admitting that the lease was real estate, attempt to sustain the instruction of the learned justice, by claiming that the lease was taken in the firm name of Cameron and Edwards, and thereby became partnership property, and is, therefore, to be treated as partnership funds, and passed as assets to Cameron, Edwards & Co.

That in equity, it might have been regarded as partnership property, as between the partners, and as such might have been reached by partnership creditors, or formed a part of their assets subject to distribution among the members of the firm on dissolution, does not take the lease from the operation of the statute, nor furnish a reason for another kind of transfer than the statute requires. There is no description of real-property, whether it be held by partners or individuals, which can be granted or conveyed except by an instrument in writing.

There is only one remaining question.

The money which the defendants claimed the right to set off, became due before the assignment of the lease to the plaintiff; and it is urged, that the defendants can not be deprived of their set off, by a subsequently acquired interest in rents reserved in the lease. The rent, to recover which the suit was brought, became due November 1, 1861, long after the assignment of the lease, and long after the defendants had notice of the assignment.

But the debt was due from Cameron, Edwards & Co., who, as I have endeavored to show, never were the owners of the lease, and therefore, had no interest in the rents, against which the defendants claim the right of set off. Had the loan been made to Cameron & Edwards, before the dissolution of that firm, it might have been otherwise.

Viewing the law as I do, I think the learned judge erred in his instructions to the jury, and that, therefore, the exceptions were well taken, and there should be a new trial, with costs to abide the event.

New trial ordered.


author: Bosworth, Ch. J. Robertson, J.

text:
    Marshall O. Roberts, plaintiff, vs. George Opdyke, defendant.
    1. Where a charter party, which did not specify the capacity or burthen of the vessel, contained a stipulation that she should carry on an outward voyage “ 700 tons measurement of assorted cargo, or more, if that does not make her draw over 14 feet of water, and to bring back 600 hhds. of sugar or its equivalent, or more in case her draft of water does not exceed 14 feet;”

      Held, that, upon a fair construction of the instrument, the vessel was to be so laden as not in any case to draw over fourteen feet of water.
    2. It seems that the term, “ assorted cargo,” as thus used, means such as usually pays freight according to measurement tonnage, and not upon its weight. Per Bo.sworth, Ch. J.
    3. Even if such stipulation required the vessel to carry 700 tons measurement of assorted cargo without reference to the draft of water, it would be no defense to an action against the charterer, for the hire of the vessel, to show that the vessel sailed drawing fourteen feet of water with a cargo of only 361 tons, unless it were also shown that such cargo was “assorted cargo.” Per Bosworth, Ch. J.
    4. The charterer, by permitting that cargo to be carried without objection, and sending back a return cargo according the charter-party, must be deemed estopped from objecting that it was not a performance of the contract, and to have waived the alleged partial non-performance. Per Robertson, J.
    (Before Bosworth, Ch. J. and Robertson and Monell, JJ.)
    Heard November 2, 1863;
    decided November 28, 1863.
    Exceptions taken at the trial, and there ordered to he first heard at the general term.
    The complaint sets forth, verbatim, a charter party between the plaintiff and defendant, dated August 21, 1862, whereby the defendant chartered the steamship Philadelphia, “ for a voyage from the port of New York to New Orleans, and return to New York.” The defendant covenanted to pay to the plaintiff “ for the charter or freight of the said vessel during the voyage aforesaid,” $25,000, “upon delivery of her cargo at New York.” The charter party contains this clause, viz : “It is understood that the steamer is to carry out to New Orleans seven hundred tons measurement of assorted cargo, or more if that does not make her draw over fourteen feet of water, and to bring back six hundred hogsheads of sugar, or its equivalent, or more in case her draft of water does not exceed fourteen feet.”
    The complaint alleged that “ the measurement of said steamer was more than a thousand tons, and she was, under said charter party, loaded by the defendant until she drew full fourteen feet of waterthat she made the voyage contemplated, and returned on the 26th of September, 1862, and delivered her cargo at Hew York on that day; that on the 13th of October, 1862, the defendant paid $15,000 on account, and refused to pay the balance of the $25,000, and it prayed judgment for $25,000, with interest from September 26,1862, less the $15,000 paid on the 13th of October.
    The third and fourth allegations of the answer were as follows, viz :
    “ Third. That, thereupon, the defendant commenced to load the said vessel with an assorted cargo, but when she was loaded to the extent of 361 tons of such cargo, the plaintiff, against the demand of the defendant to be allowed to load her to the extent contemplated by the said agreement, refused to receive on board the said vessel any additional amount, and the said vessel embarked on her voyage to Hew Orleans, with that amount of cargo and no more.

      Fourth. That, when the vessel departed on her said voyage, loaded as aforesaid, she neither carried 700 tons cargo, nor did she draw fourteen feet of water.”
    The action was tried on the pleadings, and certain admissions in writing as follows, viz ;

      First. The making of the charter party, the voyage of the steamer to Hew Orleans, her return to Hew York, her tonnage, and the amount paid on account of the charter money, as stated in the complaint, and not denied .by the answer.

      Second. That the defendants were prepared to load the steamer with seven hundred tons measurement of assorted cargo, but that when she was loaded to the extent of 361.95 tons with the goods contained in schedule Ho. 1, the plaintiff refused to carry any more, on the ground that she drew full fourteen feet of water. That the vessel was loaded by the defendant, and the cargo received by the plaintiff, and that the vessel drew full fourteen feet of water. It was also proven that the balance of the charter money, with interest, amounted, at the day of trial, to $10,516.98.
    Both parties in open court admitted that there was no disputed question of fact in the case, and that the sole question is a question of law arising upon the legal construction of the clause in the charter-party in the words following:

      “ It is understood that the steamer is to carry out to New Orleans seven hundred tons measurement of assorted cargo, or more if that does not make her draw over fourteen feet of water, and to bring back six hundred hogsheads of sugar, or its equivalent, or more in case her draft of water does not exceed fourteen feet.”
    Thereupon the court directed the jury to find a verdict for the plaintiff in the sum of $10,516.08, and the jury so found ; to which ruling and direction the defendant’s counsel excepted.
    The court ordered the exceptions to be heard in the first instance at the general term, and the judgment to be meanwhile suspended.
    Of the goods contained in said schedule (No. 1.) there were 264 tierces of hams; 142 barrels of mess pork and beef; 251 firkins of butter; twenty-six tierces and twenty-three barrels of lard; 246 boxes of cheese; 300 boxes of soap; and besides these there were corn meal, beans, potatoes, onions, starch, lemons, thirty-five barrels of eggs, and 200 dozen of brooms.
    The exhibit concluded thus, viz:
    “Number of tons as per bill of lading, tons.
    do. By weight,,..................... 44
    do. By measurement,________________ 915
    do. Own cargo,_____________________ 225,30-40
    360,30-40.”
    No witness was examined by either party, and no other or further evidence than is above stated, was given or offered.
    The defendant moved on the exceptions for a new trial; and the plaintiff, for judgment on the verdict.

      C. E. Jenkins, for the defendant.

      Edwards Pierrepont, for the plaintiff.
   Bosworth, Ch. J.

The defendant insists that hy the terms of the contract, the plaintiff was hound to carry out to Hew Orleans 700 tons measurement of assorted cargo; that the defendant was prepared to load the vessel, to that extent, hut that when she was loaded with 361 tons of such cargo, the plaintiff, against the demand of the defendant to he állowed to load her to the extent agreed upon, refused to receive on board the vessel any greater amount than 361 tons, and the vessel thereupon embarked on her voyage to Hew Orleans- with that amount, and no more.”

That the contract is entire, and if the foregoing interpretation of its meaning he correct, then the plaintiff has not proved performance hy him of the conditions precedent, and can not therefore recover.”

The defect in the defendant’s case is that it does not appear that the steamer could not carry seven hundred tons measurement of assorted cargo,” without drawing over fourteen feet of water. The admission at the trial is cautious and guarded, and seems to have been drawn in the form agreed upon, with a view to exclude the idea that the 361.95 tons laden on board was “ assorted cargo ” within the meaning of the clause in the charter party, the construction of which is now in question. That clause seems to contemplate by the assorted cargo ” of • which it speaks, such cargo as usually pays freight according to its measurement tonnage, and not upon its weight.

The admission seems to favor this view; for while it is admitted that the defendant was “ prepared to load the steamer ■with 700 tons measurement of assorted cargo,” it is further admitted that, when she was loaded to the extent of 361.95 tons, with the goods contained in schedule No. 1, the plaintiff refused to carry more, on' the ground that she drew full fourteen feet of water,” and' that the vessel with such cargo did, in fact, draw full fourteen feet of water. It is carefully ex-eluded from the admission that this cargo was an “ assorted cargo.”

It does not appear that the defendant 'then complained that the ground taken by the plaintiff was inconsistent with his duty, or the defendant’s rights, under the charter party.

The exhibit, in its description of the tonnage of the cargo, specifies forty-four tons by weight, and 91-g- tons by measurement:, and as to the residue makes no mention how "its number of tons was ascertained, unless it is to be inferred from the figures, “225, 34rA0.”

It is admitted that the tonnage of the steamer was, as stated in the complaint, viz: “ that the measurement of said steamer was more than a thousand tons.” It is quite obvious that lead and iron might make the steamer draw fourteen feet of water, when consisting of less than 300 tons measurement, while 700 tons of goods, known as “ assorted cargo,” might not make her draw fourteen feet of water.

The plaintiff, certainly, does not contract that the steamer can cany 700 tons measurement of every kind of cargo. His contract, if there be any, as to the number of tons the steamer could carry, is that she can carry 700 tons measurement of “ assorted cargo.”

The court, so far as I am advised, is not presumed to know, judicially, that the cargo “ contained in schedule No. 1,” is such as is commonly known, in the carrying trade,' as an “ assorted cargo.” Until that fact is proved or admitted, the defendant has not in his case the facts necessary to raise the question, which, in his behalf, is now pressed on the consideration of the court.

The allegation in his answer is, that the 361 tons consisted of “ an assorted cargo.” This he has failed to prove. The written admission, on which the trial was had, did not state that it was “assorted cargo but on the contrary, seems to imply, in connection with the schedule No. 1, forming part of the admission, that it was not cargo ,of that description.

There is no complaint that the steamer, on the return from New Orleans to New York, did not bring back “six hundred hogsheads of sugar, or its equivalent.”

It does not, indeed, appear that she brought back any cargo. But the fact remains that, no complaint is made, or defense •attempted, on any failure or incapacity of the steamer to bring back all that, under any construction of the charter party, it can be insisted that. the plaintiff covenanted she should or could bring back.

The only defense is, that that the cargo actually laden on board at Hew York, being 361.95 tons by weight and measurement, made the steamer draw fourteen feet of water ; and on that' ground the plaintiff refused to receive more cargo on board, to which act the defendant does not appear to have made any objection, or taken any exception at the time.

For the reasons already stated, I think the defendant has not shown that the vessel could not carry seven hundred tons measurement of “ assorted cargo and that the just inference, from the pleadings and the admissions at the trial, is, that the 361 tons laden at Hew York was not an “assorted cargo,” according to the parties’ understanding of those words, as used in the charter party.

I think, therefore, that the motion for a new trial should be denied, and that the plaintiff should have judgment on the verdict.

But even if it be assumed or conceded that the cargo contained in schedule Ho. 1, was an “assorted cargo,” I think that the plaintiff is, nevertheless, entitled to recover.

The concluding clause of the provision in question is, that it is understood that the steamer is “ to bring back six hundred hogshead of sugar, or its equivalent, or more, in case her draft of water does not exceed fourteen feet.” It is quite clear that, whether she was to bring back full six hundred hogsheads of sugar, was made dependent on the fact whether she would be made, thereby, to draw over fourteen feet. That she should not be made, thereby, to draw over fourteen feet, is as much a condition to her being required to bring back six hundred hogsheads of sugar, as to bring back “its equivalent,” or to bring back more.

The tonnage of the vessel was such as to admit of her containing seven hundred tons of measurement goods; but to what extent her draft should be affected by the cargo put on board, seems to be a point in regard to which the plaintiff desired to protect himself and his vessel.

' He seems willing' that she might be so laden as to draw fourteen feet of water, but no more. The words, “or its equivalent,” are not of very obvious import, in the place they occupy. They can not mean equivalent in tulle, without reference to the specific gravity of the equivalent cargo. The number of hogsheads of sugar she was to bring back had no limit, except their effect on the draft of the vessel. And that was not to exceed fourteen feet, whether that result was produced by five "hundred and fifty or seven hundred, or the equivalent of either. I think the words, “ its equivalent,” as used, mean any thing else of like weight; and that was qualified by the condition as to the draft of water.

Hence, the. condition with which the clause in question concludes, expressed by the words, “in case her draft of water does not exceed fourteen feet,” applies with equal force and absoluteness to the words, “six hundred hogsheads of sugar,” as to the words, “ or its equivalent,” and to the words, “ or more.”

The obviousness of this meaning will aid in' construing the first clause of the same article, where its true meaning might be otherwise doubtful.

It all tends to show that the words, “ if that does not make her draw over fourteen feet of water,” apply to the understanding expressed “that the steamer is to carry out to New Orleans seven hundred tons measurement of assorted cargo ;” and that the words, uif that,” after the words “or more,” do not relate solely to, or solely qualify the words “ or more.”

There is no pretense that the steamer had not' sufficient capacity to carry seven hundred tons measurement of cargo. There can be no pretense that various kinds of cargo, of that number of tons measurement, would not make her or any vessel draw fourteen feet of water. It is clear that three hundred and sixty-one tons of described cargo made her draw full fourteen feet. If every ship’s cargo, consisting of different articles, can be properly called an assorted cargo,” then I think it absurd to hold that the plaintiff covenanted to carry seven hundred tons measurement of any kind of cargo consisting of different articles, no matter what might be its specific gravity.

And if this be so, then I think it logically follows that the defendant has no defense, as he has not proved that the cargo he put on board was “ an assorted cargo,” as known in the carrying trade, or in the trade generally ; and that the fair construction of the contract, in the light of the facts before us, is that the vessel was to be so laden as not to draw over fourteen feet of water.

I, therefore, think that the plaintiff is entitled to judgment on the verdict.

Robertson, J.

Before considering the clause in controversy in this case, it may be necessary to take note of one or two other parts of the charter party. The capacity of the steamer chartered is not specified in the charter party, but is left blank. After the second stipiilation of the defendant therein, it is provided that he may have the use of the cabin for passengers, and also carry, if desired, steerage passengers between decks. In the second stipulation of the plaintiff, the necessary room for the accommodation of the crew and stowage of sails, cables and provisions, is excepted from the part of the vessel hired. Of course, the part occupied by the engine, machinery and appurtenances and necessary passage ways and accommodations, must also be exempt from occupation, with a cargo, by the charterer. All these exceptions would, of course, considerably reduce the carrying capacity of the vessel, and it would seem to be necessary and proper that this should be fixed in the agreement. Here dimensions alone would not be sufficient, as cargoes of different weight with the same dimensions, might make the vessel unmanageable, or even submerge her altogether. The proper standard would be one composed of a restriction of both excessive dimensions and weight. It would not follow, therefore, that the carrying capacity of a steamer of a thousand, tons, by being stipulated for at seven hundred tons measurement, was so reduced, merely for the purpose of defining the proper burden of the boat. Hence it is necessary to examine the terms of the clause in question to ascertain whether its object was to establish such a standard, merely, or to accomplish something further. Of course whatever may be implied from a contract is in law in it, (Rogers v. Kneeland, 13 Wend. 114, S. C. 10 id. 218,) and full effect must be given to all its parts.) (Westcott v. Thompson, 18 N. Y. Rep. 363. Ward v. Whitney, 4 Seld. 442.) In a charter party, eminently, its. intent is to govern its construction. (Weisser v. Maitland, 3 Sandf. 318.)

The object of the clause under consideration could not have been simply to guaranty that the vessel would- carry seven hundred cubic tons of any assorted cargo the defendant chose to put on board ; because its second branch expressly provides that the amount of return cargo specified, and any thing beyond it, is only to be brought back “ in case her draft of water does not exceed fourteen feet.” It could hardly be supposed that the owner meant, in the same clause, to permit a fixed quantity of out,ward cargo of indefinite weight, to be carried without reference to the draft of water, while the vessel was to carry no more if the draft of water produced thereby exceeded a certain depth, and yet refuse to bring back a return cargo whose weight would sink the vessel beyond that depth. The simpler and more valuable form of such a guaranty would have been that the vessel could carry a certain quantity of cargo, of whatever the charterer might make it up, and without regard to the draft of water produced by it. Physical laws would also probably forbid the loading of vessels of a thousand tons capacity only, with a cargo of goods composed of - iron or lead, occupying seven hundred cubic feet, without rendering her useless, if not sinking her.-

The argument that the plaintiff could not have intended to have agreed to confine himself to a cargo of three hundred and sixty-five tons in a vessel of the capacity of one thousand, has but little weight when we consider that he could select his own cafgb, and thus determine its weight. Só also the inference that'the defendant did not intend to .reserve the power to limit the plaintiff, to the use of a littlé over half the stipulated capacity or dimensions, is unwarrantable, if the only object was "to express the utmost limit of the dimensions of the cargo of however light matérials composed. It was as much for the defendant’s interest to do that, while the space to be occupied by cargo was undetermined by the rest of the' contract, as it was for the plaintiffs to specify the depth of water, which was to control the weight of such cargo.- If fourteen feet was the ptoper draft "of water, as appears by the second branch of such clause, it would have been worse than idle for the plaintiff to have stipulated 'that seven hundred tons measurement of any ■kind'of'cargo"'might' be put on" board, when one of half the dimensions brought her down to that depth. It is true, there is’hb extrinsic evidence of the proper depth of the draft of water, but such a stipulation is, at least, strong evidence of the understanding of the parties.

■It wasipressed'upon us on the argument that grammatical construction required the contingency of the depth of the vessel’s.draft of water to- be .applicable only to the excess of the: cargo beyond the prescribed dimensions, and not to its merely reaching, it. If that were so, it would equally be a co'veüant to carry more than a thousand tons provided it did not depress- the vessel below the fourteen feet, so as to occupy, even the cabins, the engine-roóm, and every particle of space on board'; ánd it .would still leave the question of what, within the meaning of such clause, was an assorted cargo, undetermined, . But no' invincible rule of grammar confines such contingency tó the last of the two preceding alternatives, to' wit, the excess beyond the fixed quantity. The word “ that'” used in the expression of such contingency, is not in that connection the relative, but the demonstrative pronoun, and therefore has not necessarily a technical antecedent; when used in contrast with “ this,” it generally refers to the more remote object spoken of. To what it points is not to be determined by the arrangement of the words, but the sense. Had “ more ” (that is the excess) been intended to be referred to, the proper word would have been “ it,” and the disjunctive conjunction or,” creating an alternative, should have been changed to the copulative “ and.” So that it would have read seven hundred tons and more, if it does not,” &e. It is a common form of expression to say, I will walk a certain distance, or more if that does not fatigue me,” when the proper arrangement should be, as it is always understood, “ or, if that does not fatigue me more.” Such must necessarily be the construction of any sentence containing two alternatives, the first fixed, and the second including the first, but also something beyond it, where a subsequent contingency is the only means furnished for determining which alternative is applicable. The grammatical construction of such clause does not, therefore, necessarily interfere with its purpose as derived from the whole of the contract and its own terms, which was two fold —to limit the dimensions of the cargo to seven-tenths of the capacity of the vessel, and its weight to that which would depress it fourteen feet in the water.

But the defendant seems to have acquiesced in this construction. Knowing what the plaintiff claimed to be the construction of this clause, he not only permitted his goods to be carried in the vessel,, without objection, to the destined port, but received them there, and shipped on board again, at such port, and received at New York, another cargo according to the terms of the charter party. If his views be correct, the contract was entirej and the plaintiff could not recover for any thing done under the charter party if all was not done, (Smith v. Brady, 17 N. Y. Rep. 173 ; Cunningham v. Jones, 20 id. 486,) unless the part undone was waived, or the defendant estopped by accepting performance of the rest of the contract, knowing that it was done under a belief of the plaintiff that he had thereby performed the whole contract, and earned the compensation. He availed himself actively of the plaintiff’s mistake (if it "was one,) to procure an advantage, (Dezell v. Odell, 3 Hill, 215,) and should he estopped. But he must also he held to have waived the prior non-performance of part of the contract (if there was any.) (Betts v. Perine, 14 Wend. 219. Bristol v. Tracy, 21 Barb. 236.)

Ho error was therefore committed in the direction to the jury. The exceptions must he overruled, the motion for a new trial denied, and the plaintiff permitted to enter judgment for the amount of the verdict.

Judgment accordingly.


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

text:
    Joseph W. Delano, plaintiff and respondent, vs. James Wright (who was impleaded with Amos Howes et al.) defendant and appellant.
    1. Although the mortgagee of a vessel, notwithstanding the bill of sale to him be absolute in its terms, and he is registered as a part owner, is not thereby made liable for supplies ordered by a person not authorized as his agent; yet he may be made so by adopting the risk and expenses of a voyage for which she had been chartered and is to be fitted out by the ship’s husbands, and refusing to allow it to be made at their expense and profit. So held where upon an offer to permit him to do so, by a letter of such ship’s husbands, informing him of the chartering and intended fitting out such vessel, and that he would be liable for the expenses and outfits, but requesting him to say if he desired it to be at their expense and risk, and offering to give bond if he would do so for her safe return; he made his election to do so by bringing an action against the ship’s husbands for a share of the profits, in the complaint "in which he stated under oath, that he had not elected to have such voyage at the risk and profit of such ship’s husbands, but had acquiesced in it as for his account in part—although he never had answered or otherwise taken notice of such letter.
    2. It does not alter such liability that after the voyage the ship’s husbands disputed his right to share in the profits and his consequent liability for expenses, and litigated his action to recover his share of the profits; and therefore evidence of these facts is not admissible in defense of the action against him for the price of the supplies.
    (Before Bosworth, Ch. J. and Mohcrief and White, J.J;)
    Heard May 8,1863;
    decided November 28, 1863.

      This was an appeal from a judgment entered on a verdict.
    The 'action was brought against Amos and Mulford Howes, James A. Suydam and James Wright, to recover from them, as alleged owners of a .ship, (Neptune’s Oar,) for certain supplies furnished to the ship on the 1st of November, and the 3d of December, 1869, and various intermediate days.
    The answer of Wright, the only one who interposed any defense, denied that he was an owner, and alleged that his only interest in the ship, at any of' the times involved in the action, was as mortgagee of one fourth part thereof. He further alleged that he had no actual possession of her, and whether he was constructively in possession as mortgagee of one-fourth, he submitted, as a doubtful question of law, to the court.
    The cause was tried on the 13th of November, 1862, before Mr. Justice Babbode and a jury.
    It appeared by the evidence, that in 1858, one Philips conveyed, by a bill of sale, one-fourth part of the ship, ■('Neptune’s Oar,) to the defendant Wright, which bill of sale was duly recorded at the collector’s office, and although absolute in terms, was in fact a mortgage.
    The remaining three-fourths of the ship were owned by the other three defendants in this action. The firm .of Howes & Co., two of the defendants, were the ship’s husbands. After-wards, and on the 19th of November, 1859, Howes & Co. as such ship’s husbands, wrote to the defendant Wright in the following terms :
    “We write to say that the ship Neptune’s Oar is chartered for a voyage from the port of New York to San Erancis.co, California, and will in due time he fitted out and sent on the same, and that you will be held liable for the expenses, bills and outfits attending such voyage. In case you desire to have the voyage performed at our expense, and for our profit, and to receive a bond for safe return, please to say so, and we will give it with pleasure; otherwise we shall consider that you acquiesce in the voyage, and intend to be responsible for your share in the expenses and losses.”
    This letter was received by Wright, and he made no reply thereto. The vessel was accordingly fitted out for the voyage, and soon after sailed under the charter party referred to. Upon the voyage to San Francisco, the ship lost money. Upon the return voyage there were profits. Soon after her arrival at New York, the defendant .Wright commenced a suit against the other part owners of the ship, claiming his one fourth of the earnings of the voyage, setting forth that although his bill of sale was intended as a mortgage, yet that as he had acquiesced in, and consented to, the terms of the letter of November 19th, and had thus become liable to pay his proportion of the outfit of the vessel, he was entitled to share in her earnings on the return voyage, as the same was a part of the contemplated voyage referred to in the letter of November 19.
    The complaint of Wright in that suit, which was sworn to by him, .alleged, after setting forth the letter above mentioned, “ That the plaintiff .did not elect to have such voyage performed at the expense or for the profit of said Howes & Co., nor to demand or receive a bond for the said safe return of said ship, but that he acquiesced in such voyage- of said vessel from New York to Ban Francisco, and her return via Callao and the Chincha Islands, with a cargo of gitano as aforesaid, as for his account and risk as to the one fourth interest corresponding with the share of said vessel so conveyed to him as aforesaid.” Arid further, stated the amount of earnings, and that Howes & Co. had not accounted to' hirri for his share thereof. These allegations, and others to the same effect from, an affidavit made by Wright in that action, were read in évidence by the plaintiff, upon the-trial of the present action.
    The plaintiff "being called as a witness in-his own behalf, was asked on-whose credit the goods were furnished.
    This question was admitted, against the objection and ex- . ception of the defendant.
    A. “I was informed at the timé that Mr.-Wright was part owner ; the other part owners were Howes & Co.
    Q. Had you any knowledge, from any source, that Wright claimed that the bill of sale w$s simply intended to be a mortgage ? : ,
    A. No, sir.”

      On cross-examination, he stated that the goods were ordered at his office; but he could not say who gave the orders ; he supposed the masters, ship-keepers or captain. The goods were delivered on board. He further stated :
    “I never saw Mr. Wright; I was informed that Mr. Wright was part owner at the time; it was shortly after the arrival of the ship here, that I was informed that Mr. Wright was part owner ; I think Howes & Go. informed me; I think that I also saw it on the register at the custom house ; I examined the books; 1 had occasion to go there to examine about the ownership of other vessels ; I examined it in the summer of 1859 ; after the ship arrived here, and before I furnished the goods. * * * I did not know Mr. Wright’s agent here.” The plaintiff having rested, the defendants’ counsel, among other things, offered in evidence an affidavit made by James A. Suydam, one of the firm of Howes & Go., in the former suit by Wright against them, in which Suydam alleges that neither Philips nor Wright ever had any possession ; and further, that on the 19th of November, .1859, deponent’s firm of Howes & Go., as owners, agents and ship’s husbands of said ship, not knowing who were the real owners of said one-fourth of said ship, which the plaintiff now claims to represent, with a view to ascertain if possible whether said Wright or said Phillips claimed to be owners of any portion of said ship, informed each of them by letter that they, said Howes & Go., had chartered said ship for a voyage from New York to San Francisco, and informing each of them that he would be held liable for the expenses attending said voyage, and that unless he should desire to have that voyage performed at the expense of deponent’s said firm, Howes & Co., and for their profit, he would be considered as acquiescing in the voyage, and intending to be responsible for his share in the expenses and losses, but deponent's said firm did not thereby say or admit that either said Phillips or said Wright, or both of them, were actually owners of any share of said ship, nor in any manner to change the actual relations of said Phillips or said Wright to said ship, or to deponent’s said firm.

      The defendants’ counsel also offered in evidence the answer of the defendants in such former suit, in which they alleged that neither Phillips nor the plaintiff ever had any possession, and had not before claimed to share the earnings, and had never paid, but always declined to pay any expenses; and that Howes & Oo. wrote the letters referred to, to both Phillips and Wright, for the purpose of ascertaining who was the owner if either claimed to be so; and that neither ever replied to the letter to him, or in any manner acquiesced in or acknowledged his liability for expenses, and they denied that either was liable to pay any of the debts of the ship.
    Both of these offers of evidence were excluded on the plaintiff ’s objection, and the defendant excepted.
    The defendant then proved by Phillips, as a witness, that Howes & Go. sent to him a letter in the same terms as that sent to Wright, and that he made no reply.
    At the close of the trial the judge ordered a verdict for the plaintiff for the full amount claimed, and judment having been entered the defendant appealed.

      Joseph H. Choate, for the defendant, appellant.
    I. The action being for goods sold and delivered, can only be sustained against the defendant Wright by showing a sale and "delivery to him, or for his account, or to his agent, or by his request or authority. The question of the nature and extent of his interest in the vessel is only material, as bearing upon that issue.
    II. Wright was a mortgagee out of possession, claiming no interest or doncern in the ship until the writing of the letter •of: November 19th, 1859. Therefore, for the goods which, by the stipulation and the bill of particulars, appear to have been sold and delivered to the ship prior to the 19th of November, 1859, and which, in the aggregate, amount to §168.27, the defendant James Wright is in no way chargeable, and the direction of the. court to the jury to find a verdict for that part of the hill was clearly erroneous.
    1. As a mortgagee • out of possession, he was not liable,. although his name may have appeared in the register. Those goods were not • bought at his request or in his name, and whatever view the court may take of the letter of November 19th, as affecting Iris liabilities subsequently, it can have no reflexive force as between Wright and the plaintiff, to make him liable for goods sold to other parties before that letter was written.
    2. The sales prior to the 19th of November were made to the ship’s keeper, the ship’s husbands or the master, all of whom were total strangers to Wright. They did not buy in his name, or for his account, or by his authority. It was not communicated to him in the letter of the 19th that any such purchases had been made.
    3. As between Wright and the - owners of the other three quarters, it may be that they may be entitled to bring into their account all expenses incurred by them in outfit for that voyage, before as well as after the letter was written. But the plaintiff has nothing to do with that; he sold his goods to other parties, not to Wright, and he must look to them, and not to him, for the price.
    4. Whatever effect may be given to the letter,. it can have no greater force than an absolute transfer of one quarter on that day to a stranger would have. Such a transfer could not subject the purchaser-, even if he subsequently participated in the voyage, to any liability to the sellers for goods before the transfer sold and delivered to the ship.
    III. The letter of November 19th, and the failure 'of the defendant Wright to reply to it, did not alter his legal relation to the ship. He still remained a mortgagee but of possession, and as such not liable for her supplies, nor entitled to, her' earnings.
    1. The only test of liability for repairs and supplies furnished to a ship is whether" the contract was made, or the supplies procured by the authority, express or implied, of the person sought to be charged. If he is in fact a mortgagee and has not taken possesion, he is not liable. (Mitcheson v. Oliver, 1 Jurist, 900, Excheq. C. C. 5 Ellis & Black. 419. Myers v. Willis, 17 C. B. 77, 92. S. C. on appeal in Excheq. 18 id. 886. Hackwood v. Lyall, 17 id. 124. Brodie v. Howard, Id. 109. 2 Parsons on Marit. Law, pp. 113, 120, and cases there cited.)

    2. The defendant Wright never did take possession, nor do any thing which in view of his status as mortgagee of one quarter, was in law equivalent to taking possession.
    3. When the letter of November 19th was written by the other owners to Wright, he did not occupy such a relation to the ship as that his silent receipt of it could become an acceptance of the proposition made in it, or equivalent to a contract upon the terms proposed.

      (a.) There was no relation of partnership, part ownership, or of "agency existing which would give the effect to the letter and its silent receipt, which the plaintiff attempts in this case to give to such silent receipt, and the defendant’s failure to call for the security offered. A part owner’s relation to the other part owners may be such that no other construction could be put upon such conduct on his part, than that he assented to the joint enterprise. But a mortgagee of one part, until possession taken, stands in no relation whatever to the owners of the other part, and can not call upon them for security, nor they upon him, to take part in the business.

      (b.) As between the plaintiff and the defendant the latter is not by the fact of his failing to dissent from the letter of November 19th, estopped to deny the authority of persons in charge of the ship to order supplies on his account, because that fact was not communicated to the plaintiff, nor did he act or rely upon it, or part with his goods upon the faith of it.
    (c.) Phillips himself never had possession, and Wright was only a mortgagee under him.
    IY. Whatever acts on the part of a mortgagee of a minor portion of a vessel'may be tantamount to taking possession, since his right as against his mortgagor, to have the possession and enjoyment of the interest mortgaged, may conflict with the right of the majority owners to keep exclusive possession of the whole vessel, he can not be subrogated to all the rights of his mortgagor, and clothed with all the rights and consequent liabilities of absolute owner of a part unless he either takes actual possession, or is permitted by his mortgagor to receive his share of the earnings, or some transaction takes place between the mortgagor and mortgagee by which the latter supplants the former in the enjoyment of the mortgaged property. But the mortgagee of one quarter, and the owners of the other three quarters, could not by a private arrangement between themselves, not made known to the mortgagor, foreclose his rights.
    V. The plaintiff’s rights growing out of his sale of supplies to Howes & Co. or to the master or the ship keeper, for the ship, are not to be confounded with any rights which Howes & Co. may base upon the letter of November 19th, to hold the defendant as a partner in the enterprise to San Francisco. The writing and receipt of that letter created no privity of contract between the plaintiff and defendant. The owners can take no advantage of that transaction, because they subsequently ignored it, acted as if no arrangement for a joint enterprise had been made; received and appropriated to their own use the $25,000 accruing on the voyage to San Francisco ; refused to pay or account for any portion thereof to the defendant, and disposed of all the return charter money without consulting him, and uniformly refused to recognize him as having any interest in the earnings of the vessel. It will be grossly inequitable to treat the transaction of November 19th, as charging the defendant for supplies, when the other owners repudiated it, and monopolized the earnings, and the sole benefit of the supplies sold to them by the plaintiff.
    VI. No new liability was assumed by the defendant Wright, by filing his complaint in this court, in February, 1861, which is set out in the printed case.

      (a.) The sole object of that action was to ascertain, by a competent adjudication, his rights and liabilities in the premises, and in the event of establishing a right as part owner, to provide thereby for the liabilities of that relation, by impounding the return charter money.

      (5.) Eo fact is stated in that complaint different from or inconsistent with or in addition to the facts in evidence here. The legal conclusions stated in that bill must be construed in view of the facts in evidence. Wright’s allegation in the bill, that he did not elect to have the voyage performed at the expense of Howes & Co. and that he acquiesced in the voyage to San Francisco, mean simply, that he did not make the answer called for by the letter, which is the only fact upon which those allegations were predicated, because it is proved that after the receipt of the letter, Wright never made any communication whatever to the writers of it.
    (c.) If the allegations of Wright’s complaint are to be taken as additional material evidence, it can only be as evidence of what his intentions were, and as going to show an understanding or agreement between him and Howes & Co. If his intentions were material evidence, then it should have' been left to the jury to find as matter of fact what that intention was, and the evidence offered as to what passed in the mind of the other contracting party, Suydam, should not have been excluded.

      (d.) If the defendant was not, at the time of filing that complaint, a mortgagee in possession, and as such liable for' the supplies, and entitled to a share of the earnings, he did not make himself so by filing his bill and claiming that position. (Gardner v. Cazenove, 1 Hurlst. & N. 423. Willis v. Palmer, 7 C. B. N. S. 340.)
    (e.) The filing of that complaint can not be regarded as an election on Wright’s part under the letter of November 19th, because it manifestly was not intended as such, and the'voyage to San FranciscOj to which alone that letter related, had then long since ended, and its earnings been received and appropriated by the other owners. '
    VII. The following exceptions were well taken by the defendant, and upon either of them the judgment below should be reversed, viz :
    1. To the ruling of the court,- refusing to compel the plaintiff to elect on which count he would proceed, he having confessedly hut one cause of action.
    2. To the admission of the question, upon whose credit the goods were furnished—that being a mere question of law, and it being, upon the decisions, immaterial upon whose credit they were furnished.
    3. To the exclusion of the affidavit of James A. Suydam, which was distinctly referred to in the complaint put in evidence on the other side, and which tended directly to disprove any agreement between the defendant and Howes & Co. that he should be concerned in the voyage.
    4. To the exclusion of the answer put in by the defendants in the suit of Wright v. Howes et al.

      5. To the exclusion of the evidence offered, to show the disposition made by Howes & Co. of the charter moneys on the return voyage, it being material to show that they refused to recognize the defendant as a part owner.
    6. To the exclusion of the question as to what was in the mind of Suydam when he wrote the letters of November 19 ; for the reasons stated in point vi.
    7. To the exclusion of the question as to what response the defendant made to the account rendered to him by Howes & Co.; because his response was part of the res gestee, and was material to the defendant to show that he refused to be recognized as part owner, and to rebut any presumption which might be raised against him by the rendering of an account without objection on his part.
    8. To the evidence offered, to show that the claims of Wright, preferred in the suit of Wright v. Howes et al. had been resisted.
    9. The exceptions taken to the judge’s charge, as involving the merits of the case.

      J. T. Williams, for the plaintiff, respondent.
    I. The question of the liability of Wright does not depend upon the question, whether or not he is entitled to recover his proportion of the earnings of the voyage of his co-owners.

      1. His co-owners may defeat his claim upon grounds other than that he did not consent to participate in the voyage. But as the plaintiff in this action is not a party to that, he can not be prejudiced by any thing that may be done in that.
    2. We are entitled to'take the sworn statements of Wright to be true, and if, assuming them to be true, we are entitled, as a question of law, to recover, the verdict can not be disturbed.
    3. There was no effort on the trial to' discredit Wright’s sworn statements made in the other suit. The facts stated hy him, and given in evidence by the plaintiff on the trial, were not disputed. In consenting that there was no question of fact for the jury, it was admitted that the allegations given in evidence :by the plaintiff were true. Indeed this is so, unless the defendants specially claim the right to go to the jury upon some question of fact.
    4. But in fact the defendant’s right to participate in the voyage to San Francisco, under the letter of November 19, is not disputed by his co-owners, in that suit, or elsewhere. It is only his right to participate in the return voyage, that is in any wise disputed: The goods in question were furnished to fit out the vessel for the voyage to San Francisco.
    II. - Even if the bill of sale was in fact intended as a mortgage, it is not in the mouth of Wright to allege it as against the plaintiff, .who parted with the goods upon the faith of his ownership.
    III. None of the exceptions taken by the' defendant on the trial are weE taken.
   By the Court, Bosworth, Ch. J.

The defendant Wright was, apparently, the owner, but in fact, the mortgagee of one quarter of the ship, and as such had the right to take such possession as an owner of one quarter lawfully might take.

When the letter of the 19th of November, 1859, was written, the goods in question to the amount of $168.27 had been furnished. The residue of them, amounting to $78.09, were furnished subsequently.

The defendant is not. liable for the goods delivered prior to Hovember 19, 1859, by reason of any facts then existing. He is not liable merely because he was then a registered part owner. (Hackwood v. Lyall, 17 Com. B. 124.) The person ordering the supplies was not acting therein as his agent, nor had he been held out or recognized by the defendant as authorized to act for him. On such a state of facts, a mortgagee, though made such by a bill of sale absolute on its face, is not liable. (Brodie v. Howard, id. 109. Mitcheson v. Oliver, 5 Ellis & Bl. 419. McIntyre v. Scott, 8 John. 159.)

If the defendant is liable for these supplies and for those subsequently furnished,„it is by force of the communication made to him of the date of Hovember 19, 1859, and proof of his assent to the voyage, and to be deemed liable “ for the expenses, bills and outfits attending such voyage,” and “to be responsible for his share in the expenses and loss.” There is no pretense that the plaintiffs knew this communication had been made, and of course they were not influenced by it in declining the supplies furnished subsequent to its date. But those facts do not determine the question of Wright’s liability.

If what is proved, in connection with the facts offered to be proved and excluded, entitles the defendant to share in the profits of the voyage, then I think he is liable for a fourth part of the outfit, as between himself and the other part owners, and for the whole to those persons who furnished necessary supplies for the voyage, in good faith. (Cutling v. Robertson, 7 Mann. & Gr. 336. Muldon v. Whitlock, 1 Cowen, 290. Stedman v. Feidler, 20 N. Y. Rep. 437 ; and see Provost v. Patchin, 5 Seld. 235.)

The letter of the 19 th of Hovember requests the defendant, if he desired to have the voyage performed at the expense and for the profit of Howes & Go., to please say so, and states that he should receive a bond for the safe return of the vessel, otherwise they should consider that he acquiesced in the voyage, and intended to be responsible for his share of the expenses and losses. The defendant Wright sent no reply. Hothing subsequently occurred, prior to the termination of the voyage, to affect the relations between him and Howes & Co. created by this communication and Wright’s omission to reply to it.

. G-ood faith requires that the defendant Wright should be deemed to have acquiesced in the voyage as one to be made for account of himself and Howes & Co., as part owners of the ship, and that he and they should be estopped to deny that such was their position and relation to each other.

The .defendant Wright, in a suit brought by him against Howes & Co. and others, in his verified complaint of the 30th of January, 1861, alleges that he received the notice or letter of the 19th of November, 1859, and avers that “he acquiesced in such voyage of said vessel * * ■ as for his account and risk as to the one fourth interest corresponding with the share of said vessel so conveyed to him as aforesaid.”

Assuming this fact to be so, then he assented to the voyage with all the incidents and liabilities attaching to a part owner, quoad hoc.

It' must be assumed, for all the purposes of this trial, that he so assented. He has deliberately made oath as a basis of judicial proceedings instituted by him, that he did so assent. Ho subsequent fact or circumstance occurring prior to the termination of the voyage has been proved, which tends to show that he did not then so assent, or that Howes & Co. did not consider that he so assented.

If Mr. Wright was unwilling to assent to the proposed use of the ship, he might, on taking possession under his bill of sale, have compelled Howes & Co. to give a stipulation for her safe return, upon a proper libel filed in the admiralty requiring it.1 (The New Orleans v. Phoebus, 11 Pet. 175, 183.)

Such a stipulation having been required and given, if the ship had been lost, Howes & Co. would have been liable to Mr. Wright for the value of his interest; but not liable to account to him for any part of the profits. (Strelby v. Wilson, 1 Vern. 297.)

But no stipulation having been required or given, if the ship had been lost, Wright would have no claim upon Howes & Co. by reason of such loss. , (Strelby v. Wilson, supra. Moody v. Buck, 1 Sandf. 304. Pars. Merc. L. 335, n 2.)

Such being the position of Mr. Wright and of Howes & Oo._ to each other, it would seem to follow that the letter of the 19th of Nov. 1861, related to a subject in respect to which it was his duty to speak, and contained direct declarations with respect to his rights, and that his silence in omitting to reply might properly be regarded as an acquiescence by him in the alternative, in which the letter stated he would be deemed to acquiesce if he omitted to reply, that he preferred and desired a bond for the safe return of the ship. (1 Cow. & Hill’s and Edw.’s Notes, p. 437, note 127.)

But this rule and its just application do not constitute the strength of. the plaintiff’s case. Mr. Wright has deliberately made oath, as a basis of judicial action, that he did, in fact, acquiesce in the voyage. And even if it were permissible for him to prove the contrary in this action, there is no evidence tending to show that he did not in truth assent.

If? as he has deposed, he did then assent, he is clearly liable for the supplies furnished subsequently. In equity and good conscience, he is equally liable for all proper supplies for the voyage furnished previously, to any one who furnished them, in good faith, on the credit of all the owners.

They were a necessary part of the expense of the voyage, in the profits of which he was to participate, and in which voyage he acquiesced, as for his account and risk as to the one fourth interest corresponding with the share of said vessel so conveyed to him as aforesaid.”

As to such voyage, and its appropriate outfits, he stood in the position of an actual part owner of the ship, assenting to and authorizing it; and the legal result is, that he is liable as a part owner, authorizing the fitting out and employment of the ship.

The refusal of Howes & Oo., after the voyage was concluded, to deal justly with him (and their attempt to defeat his claim to any profits to which he was entitled, if held to the promise contained in their letter of the 19th of Nov, 1859, if they hay e-so attempted,) can not affect Ms rights or their liaMlities, nor-the rights, of third persons.

■ .They should not now be permitted to allege that Mr. Wright did not make such an election as they in writing informed him he would be deemed to have made if he did .not reply to that letter, nor that Ms rights as between him and them are not the. same as.they would be if a formal written contract conforming to such election had been signed by them.

- If the views' already expressed as to the merits of the action are correct, the exceptions taken are untenable. .

- ■. The judgment should be affirmed. .