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

text:
    William Clarke, Plaintiff and Respondent, v. Charles A. Meigs et al., Defendants and Appellants.
    1. The plaintiff employed the defendants, who were stock brokers, to buy certain stocks on time, malting, and agreeing to keep good, in the defendants’ hands, a deposit to indemnify them against depreciation in the market value. The stocks having fallen after their purchase, the defendants called on the plaintiff for a further deposit, and he replied that it was not convenient that day, but that he would make it the next day. At the same interview he gave them written authority to sell, in these terms: “Please sell, for my account, 200 111. Central R. R. at 51.” After receiving this written authority, the defendants sold the stocks the same day, at 52. Held,
      that in an action against the defendants for so selling, evidence was competent, on the part of the plaintiffs, that it was agreed at the same interview and before giving the authority to sell, that the defendants should wait until the next day for a further deposit, and that if the stock went down to 51, meanwhile, (at which point the existing deposit would be exhausted,) the defendants might sell the stock. Such evidence does not contradict such a written power.
    2. Such an agreement to delay is not void as being without consideration.
    3. A general allegation in the complaint in such an action, that the defendants sold without authority from the plaintiff, and in violation of their agreement and duty as brokers, is sufficient to admit of evidence of such an agreement to delay.
    4. A principal is not necessarily to be deemed to have ratified a wrongful act of his agent so as to exempt the agent from liability to him, merely because he does not notify to the agent his dissent at the earliest possible opportunity after being informed of the wrongful act.
    5. The contract which the defendants made on behalf of the plaintiff, being for the delivery to him of the stocks, at any time at his election, within a certain period, an offer of the defendants, made after selling the stock without authority before the.expiration of such period, to replace the stock, does not bar the plaintiff’s right of action. He is entitled to be reinstated in the contract, not merely to have the stock replaced. (Robertson, J., dissented.)
    6. Where an agent has thus violated his instructions and duty, and made himself liable to an action for damages, nothing but payment of the damages, an accord and satisfaction, or a release, is a bar to an action. His offer to replace the stock, so long as it is unaccepted, affects neither the principal’s right to recover nor the measure of damages. (Per Bosworth, ■ Oh. J.)
    7. The Judge charged the Jury in this action that the rule of damages was the difference between the price at which the stock sold on the 19th, and the price at which the plaintiff could have purchased the same stock on the 20th.

      Held, that this rule was as favorable as the defendants could claim. They were not entitled to have the Jury instructed that if it appeared that by waiting until after the 20th they might have been entitled to sell the stock at a time when it was as low as it was on the 19th, the plaintiff would only be entitled to nominal damages. (Robertson, J., dissented.)
    8. It is not necessary for the plaintiff in such action to prove that the defendants were paid or to be paid anything for their services, for the law implies a promise to pay what their services were reasonably worth.
    9. Nor is it necessary for him to prove a demand upon the defendants for the stock and their refusal to deliver it; nor that the plaintiff had paid or offered to pay, or been ready and willing to pay, the balance due. (Robertson, J., dissented.)
    10. Where a motion for a new trial is granted unless the plaintiff stipulate to reduce the verdict, in which event the motion is denied, the plaintiff, by giving the stipulation and entering judgment thereon, waives his right to appeal from the judgment.
    11. The awarding costs is not in the discretion of the Court, on affirming, on appeal, an order denying a new trial, or affirming a judgment in whole. (Per Boswobth, Ch. J.)
    (Before Bosworth, Ch. J., and Robertson and Barbour, J. J.)
    Heard, December 11, 1862;
    decided, March 14, 1863.
    Appeal by both the plaintiff and the defendants from a judgment entered upon a verdict in favor of plaintiff.
    This action was brought against Charles A. Meigs, Augustus W. and E. B. Greenleaf, for an alleged violation of their duty in selling certain stocks.
    A decision upon a demurrer to the complaint is reported in 13 Abb. Pr., 467, S. O., 22 How. Pr., 340. The defendant having subsequently answered, the action came on for trial before Mr. Justice Mohell and a Jury, on the 19th day of February, 1862.
    It appeared that, on the 15th November, 1860, the plaintiff gave to the defendants, who are stock brokers at the City of New York, an order to purchase for him two hundred shares ($20,000) of the stock of the Illinois Central Eailroad, at sixty-five, buyers’ option, thirty days, upon which, for the defendant’s security, the plaintiff was to make with them, and keep good a deposit of five per cent.
    On the same day, the defendant, upon this order, bought for plaintiff’s account and risk, the two hundred shares, at sixty-one, buyer’s option, sixty days, which purchase was accepted by plaintiff.
    On the date of the purchase, and on account thereof, plaintiff deposited with defendants $1,000, “margin,” and on the 17th November, the stock having declined to fifty-eight, the defendants called for a further margin of $1,000, which the plaintiff deposited with them.
    On the 19th November, the stock having further declined, defendants called for a still further margin of $1,000. This call was made between two and three o’clock in the afternoon, and resulted, as the plaintiff claimed, in defendants agreeing to hold the stock until the next day, provided -.the price did not fall to fifty-one.

      Further details of the testimony, and of a motion to dismiss the complaint, are stated in the opinions of the Court.
    The plaintiff’s counsel requested the Court to charge the Jury that if they found in favor of the plaintiff, he was entitled to recover the difference between sixty-one and seventy-seven and a half, which had been shown to be the highest price obtained for Illinois Central during the running of the contract.
    The Judge refused so to charge, to which refusal the plaintiff’s counsel excepted.
    The defendants’ counsel, in substance, requested the Court to instruct the Jury:
    1. That if the defendants agreed to hold the stock until the 20th, such agreement, being without consideration, is void, and must be disregarded.
    ' 2. That there being in the complaint no allegation of a new agreement between the parties as to the defendants agreeing to hold the stock until the 20th, evidence of any such agreement should not have been admitted, and should be disregarded.
    3. That if the plaintiff had notice of the sale soon after it was made,, and did not notify the defendants of his dissent until the next day, his silence, under the circumstances, is a ratification of their acts.
    4. That if the defendants, soon after the sale, offered to replace the stock, the plaintiff cannot recover.

      5. That had plaintiff’s instructions to sell been obeyed, he would have sustained the' same loss which he now claims to have sustained, then the Jury are to give nominal damages only.
    The Judge refused each of these requests to charge, and the defendants’ counsel excepted.
    The defendants’ counsel further requested the Court to charge, that there being no evidence of any fraud or mistake in regard to the order to sell, any evidence of any past agreement between the parties tending to vary or control the order, is not to be regarded, which instruction the Courj; refused to give any further than he had charged on that subject; to which refusal the deféndants’ counsel excepted.
    The Judge, in charging the Jury, referred to the testimony, and proceeded:
    If you are satisfied that the defendant agreed to hold the stock to the 20th instant, without a further deposit, the plaintiff is entitled to your verdict. * * * *
    The rule of damages, in my judgment, is the difference between the price at which the stock sold on the 19th— 52 cents— and the price at which the plaintiff could have purchased the same stock on the 20th. You may take either the highest or lowest price on that day, which, according to the evidence, was 53f cents and 55 cents. To this difference, if you find for the plaintiff, you will add interest from the 20th November, and you must deduct interest on $8,200 for five days.
    Plaintiff’s counsel took exception to the charge in relation to the rule of damages.
    The Jury thereupon found a verdict for the plaintiff, and assessed the damages at $862.19.
    The defendants moved at Special Term for a new trial, on the ground, among others, that the verdict was against the weight of evidence and was excessive. The Court, on hearing the motion, granted a new trial, unless the plaintiff should stipulate to deduct from his recovery the sum of $50, being the amount of commissions on the purchase or sale.
    The plaintiff gave the stipulation required, and entered judgment for the amount of the verdict so reduced.
    The defendants now appealed from the judgment and from the order denying the new trial in case plaintiff* should stipulate; and the plaintiff appealed from the judgment which he had entered.

      T. M. Wheeler, for defendants.
    I. The Judge erred in allowing parol testimony to be given, altering and contradicting the written order to sell, and in refusing to charge the Jury as requested by the defendants’ counsel.
    The order to sell beiftg in writing, parol evidence, altering and contradicting it, should not have been admitted. (Durgin v. Ireland, 14 N. Y. R., [4 Kern.,] 325 ; Story on Agency, § 79, 6th ed.; Wolfe v. Myers, 3 Sandf., 7; Norton v. Woodruff, 2 N. Y. R., [2 Comst.,] 153; Armstrong v. Munday, 5 Denio, 166; Thompson v. Ketcham, 8 Johns., 189; Norton v. Coons, 6 N. Y. R., [2 Seld.,] 41; Van Allen v. Allen, 1 Hilt., 524; Fitzhugh v. Runyon, 8 Johns., 375; Payne v. Ladue, 1 Hill, 116; Ely v. Killborn, 5 Denio, 514; Erwin v. Saunders, 1 Cow., 249; Gridley v. Dole, 4 N. Y., [4 Comst.,] 486; Brown v. Hull, 1 Denio, 400; Dunlop v. Munroe, 7 Cranch, 242; S. C., 2 Curtis, Dec., 522; Barrett v. Union Mutual Fire Insurance Company, 7 Cush., [Mass.,] 180.)
    An agent is bound to obey the instruction of his principal. (1 Parsons on Contracts, 69, 3d edition; Story on Agency, §§ 172, 189, 6th edition; Blot v. Boiceau, 3 N. Y. R., [3 Comst.,] 78; Marfield v. Goodhue, 3 N. Y. R., [3 Comst.,] 62.)
    II. The Judge erred in refusing to charge that, if they found that defendants agreed to hold the stock until the 20th of November, such agreement, being without consideration, was void, and must be disregarded.
    A promise for which there is no consideration cannot be enforced at law. (1 Parsons on Contracts, 353; Burnett v. Bisco, 4 Johns., 235; Geer v. Archer, 2 Barb., 420; Van Derveer v. Wright, 6 Barb., 547; Smith v. Ware, 13 Johns., 257; Crosby v. Wood, 6 N. Y. R., [2 Seld.,] 369.)
    A consideration consists either in some right, interest, profit, or benefit, accruing to the party who makes the contract, or some forbearance, detriment, loss, responsibility, or act, or labor, or service on the other side. (Story on Prom. Notes, § 186; 1 Parsons on Contracts, 358.)
    Part payment by a debtor of a debt actually due is no consideration for an agreement by the creditor to forbear and give time for the payment of the residue. (Hunt v.
      Bloomer, 5 Duer, 202 ; Patchin v. Pierce, 12 Wend., 61, 63; Miller v. Holbrook, 1 Wend., 317; Gibson v. Renne, 19 Wend., 389; Pabodie v. King, 12 Johns., 426.)
    III. The Judge erred in refusing to charge that, there being in the complaint no allegation of such a new agreement to hold the stock, evidence of such agreement should not have been admitted, and should be disregarded.
    IV. The offer of the defendants to prove, in mitigation of damages, that they had the day after the sale, and several times thereafter, offered to the plaintiff to replace the stock for him, without charge, was improperly rejected. The judge also erred in refusing to charge that if the defendants, soon after the sale, offered to replace the stock for the plaintiff, then the plaintiff could not recover.
    If, the day after the sale, the defendants offered to put the plaintiff in exactly the same situation in which he would have been had the sale not taken place, then any loss which occurred to the plaintiff was occasioned, not by the wrongful acts of the defendants, but by the fault of the plaintiff himself. (Gainsfred v. Carroll, 2 Barn. & Cres., 624; Cited in Clark v. Pinney, 7 Cowen, 691; Gray v. Portland Bank, 3 Mass. R., 382.)
    It is a good defense to an action by the principal that the misconduct of the agent has been followed by no loss or damage whatsoever. (Story on Agency, § 236; Blot v. Boiceau, 3 N. Y. R., [3 Comst.,] 85.)
    There must be a real loss or actual damage, and not merely a possible or probable one. (Story on Agency, § 222.)
    The plaintiff had paid no money upon the purchase of the stock. In conversion, the general rule in regard to personal property is that its return is no bar to an action, but is admissible in mitigation of damages. (Sedg. on Dam., 548, 578; Vosburg v. Welch, 11 Johns., 175.)
    After conversion, the restoration to or repossession of goods by the plaintiff before suit brought, will go in mitigation of damages. (Sedg. on Dam., *492; Reynolds v. Shuler, 5 Cow., 323; Hallett v. Novion, 14 Johns., 273;
      Wheelock v. Wheelwright, 5 Mass. R., 106; Hanmer v. Wilsey, 17 Wend., 91.)
    V. The Judge erred in refusing to charge that if, had the instructions of the plaintiff to sell been obeyed, the plaintiff would have sustained the same loss which he now claims to have sustained, then the Jury are to give the plaintiff nominal damages only. It was proved that, on the 7th of December, before the expiration of the sixty days the contract was to run, the stock sold at fifty-one.
    VI. The Judge erred in refusing to dismiss the complaint on each of the grounds specified in the motion, to dismiss.
    VII. As to the rule of damages, if the agreement of the defendants with the plaintiff to hold the stock until the next day was valid, then the plaintiff was entitled to the whole of the next day in which to pay the $1,000, and the defendants were bound to hold the stock for that time-, and, in default of the plaintiff making the payment, they could not have sold the stock until the 21st of November. The plaintiff is, therefore, entitled to recover* as damages, the difference between the price at which the stock was sold, and the price at which he could have purchased the stock on the 21st of November.

      H. M. Hyde, for the plaintiff.
    I. It was not necessary to prove a demand before suit.
    1. Plaintiff’s option, under the contract, had been once exercised, and the seller had responded; a demand of him would have been idle.
    2. Equally useless would have been a demand of defendants. The plaintiff had no contract with them for the delivery of stock at his option; and the position practically assumed by them on the 19 th of November, closed their connection with the contract. If they were right, it only remained to apply the deposits to the difference between 52 and 61, and to their charges, and to pay over the balance to plaintiff. If they were wrong, a cause of action accrued that day to the plaintiff, which no act of his .could strengthen—which no act of theirs,.short of satisfaction, could impair.
    3. The case is entirely unlike that of a broker who, having purchased and taken a delivery of stock in his own name, is not bound to hold the identical stock for his principal, but fulfills his duty by keeping a like number of shares on hand at all times when a demand could be made. (Horton v. Morgan, 19 N. Y. R., 170.)
    4. The transaction' of November 19th, amounted to a declaration that defendants would not fulfill the contract of purchase for themselves, nor for the seller, and excused a demand and readiness on plaintiff’s part. (Traver v. Halsted, 23 Wend., 66; Franchot v. Leach, 5 Cowen, 506; Cort v. Ambergate R. R. Co., 6 Eng. L. and Eq., 230; Hochster v. De Latour, 20 Id., 157; Lovelock v. Franklyn, 8 Q. B., 371; S. C., 55 Eng. Com. L., 376.)
    5. The question was decided by the General Term of this Court, upon .the demurrer in this action. (See 13 Abbotts’ Pr., 467.)
    II. The offer to prove that defendants offered to “replace the stock,” was properly rejected. It was not an offer to, make good plaintiff1's. loss, but to buy for him other 200 shares without charge for commissions. And there was no plea of tender, nor offer to prove tender.
    TIT. The Court properly declined to instruct the Jury as requested by defendant.
    1. The right to call for additional margin, was one which defendant could waive. The Jury found that they did waive it.
    Beside, the margin was not exhausted by the lowest price- (52) of November 19.
    2. The plaintiff repudiated the sale as soon after he learned of it as was practicable.
    ■ The principle of ratification does not apply. The controversy is directly between the parties, and not involving a third person. >
    3. The fifth proposition ignores the fact that the order to sell at 51 was a part of the agreement to hold, provided the stock on the 19th did not decline to that figure.
    IV. The plaintiff insists that the Court erred in determining the rule of damages. Plaintiff is entitled to recover of defendants what, but for this act of November 19th,. he could have recovered of the seller of the stock had he made default, in fact precisely what, by way of profits, would otherwise have accrued to plaintiff, viz.:
    The difference between 61 and 77J on the stock.
    The amount paid on the purchase, (the “margin” retained by defendants,) $2,000.
    Interest on the latter sum from November 19th.
    Interest on the former from January 14, 1861, (the end of 60 days from the purchase.)
    Less $50, commissions, and the interest on $8,200 from November 15th to January 14th, 1860.
    V. There is no need of a new trial. The facts are found by the verdict, and it only remains for a computation of damages to be made by the Court, and the judgment to be in that respect reformed.
   Bosworth, Ch. J.

The defendants did not except to the charge as made, but took several exceptions to refusals to charge as requested.

The defendants sold the stock on the 19th of November, 1860. The main question of fact submitted to the Jury was, whether the defendants agreed on the 19th, to hold the stock until the 20th, without a further deposit being made on the 19th. On the 19th, at the lowest price of the stock, the defendants were indemnified by the deposits in their hands, against all the depreciation that had. occurred after they made the contract to purchase, up to that time, and had a surplus of $200. This question was properly submitted, if it was competent to receive evidence of such an agreement. The evidence was received without objection. If incompetent, it could only be so because of plaintiff’s written order of November 19th, 1860, which is in these words, viz.:

“Hew York, Nov. 19th, 1860.

Messrs. Meigs & Greeíjxeaf :

Please sell for my account 200 111. Central R. R. at 51.

W. CLARKE.”

The plaintiff testified that on the 19 th, Mr. Greenl’eaf, (one of the defendants,) called on him; said the stock had declined to 52; “asked for another margin of $1,000; I said * * it was not convenient that day, and I asked him if he could not wait until the next day; he first thought he could not conveniently, but after some little Conversation, he agreed to wait until the next, for another $1,000.”

* * “After making the arrangement to wait until the next day, I said to him voluntarily, if the stock ran down to 51, so that all the margin ran out, he had the privilege of selling.” * * * *

“ Q. At the interview you had with Mr. Greenleaf, on the 19th, you say it was agreed between you that if it went down to 51 that day, they might sell?

“Objected to, as conversation prior to the written instructions. Allowed. To which defendants’ counsel duly excepted.

“A. Yes, sir.

“ Q. Was this order given in pursuance of that arrangement?

“A. It was entirely so; it was called for by Mr. Green-leaf himself.”

The above is the only exception taken to the admission of any part of this evidence.

I think it was competent. It does not contradict the written order. That could not be construed, in the light of the facts present to the minds of both., parties at the time it was made, as requiring or authorizing a sale at 51, if the defendants were offered more, or knew they could get more. The stock had only fallen to 52, when it was written. That was the lowest price at which it was sold that day. The plaintiff wished until the 20th to make a further deposit of $1,000, and take his chánces of a rise. Even though "the defendants may have had a right to demaud a deposit of $1,000 on the 19th, and on the plaintiff’s refusing to make it, to sell the, stock, yet they could waive it, and give the plaintiff until the next day. Non constat, if they had refused to waive it, that the plaintiff would not have made a deposit that day. Having agreed to wait until the next day, and thus made it unnecessary for him to deposit that day, it would he a fraud- on him to allow them to recede; and especially so, without notice to the plaintiff.

It is consistent with the terms of the written order, that it was given to be acted on, on that day, only in case the stock fell to 51 that day. It is not a case where the rights of third parties intervene; but a case between principal and agent, between the parties to the transaction.

It is not a forced construction of the power of attorney, to hold that it authorized a sale only in the event of the stock.falling to 51. But without attaching any importance to that suggestion, I think the evidence was competent and admissible, even if all of it had been objected to. (Crane v. Maynard, 12 Wend., 408; Flynn v. McKeon, 6 Duer, 203.)

A verdict in favor of the plaintiff on this point is not against evidence. The testimony of E. H. Shaw as to the agreement of the defendants to wait until the 20th, is direct and pointed.

The request to charge that this agreement to wait was without consideration and void was properly overruled.

It was'for the defendants to insist on having the deposit on the 19th, or else they were precluded from objecting. After agreeing to wait until the 20th, the position of the parties was the same as if no deposit had been asked for on the 19th;_ at least, the defendants’ position was no better, and the plaintiff’s not worse. If the plaintiff had said, I will make the deposit to-day, if you insist on it, but it will be more convenient to do it to-morrow; and the defendants had said, you need not make it till tomorrow, and they had then sold on the 19th without notifying’the plaintiff of their intention to do so, the act would be a fraud on the plaintiff. The actual fact as the jury has found it, is the same in legal effect.

The substance of the transaction was the same as if the defendants had called on the 19th, and demanded that a further deposit of $1,000 should be made on the 20th, and the plaintiff had said he would make it, and also agreed on his part, if the stock fell to 51 on the 19th, it might be sold that day, at that price. That put it in defendants’ power to protect themselves from loss, and gave the plaintiff the chances of the next day’s market, if the stock did not fall to 51 on the 19th. The defendants concluded, by their agent, to wait till the 20th for a further deposit.

The second request to charge was properly refused. The averment in the complaint is that defendants sold on the 19th, without authority from the plaintiff, “ and in violation of their agreement and duty as such brokers.” This allegation is broad enough to admit under it the evidence received. (Crane v. Maynard, supra.)

The third request was properly refused. There is no such rule of law as that, where an agent does an illegal act, on a certain day, and his principal receives notice in the afternoon of that day, he will be deemed, as a matter of law, to have ratified it, if he does not look up the agent and express his dissent before the next day.

The fourth request is untenable. Where an agent has violated his instructions and duty, and made himself liable to an action in damages, nothing but payment of the damages, an accord and satisfaction, or a release, is a bar to the action. And whatever offers or tenders have been made, so long as they are unaccepted, .they neither affect the right to recover, nor the measure of damages. Where a tender authorized by common law or statute has been duly-made, and is properly pleaded, an action to recover more than the sum tendered may be barred. But even in such cases a tender of anything less than the full sum due is not matter in mitigation. (Clark v. Halleck, 16 Wend., 607; Gould v. Banks, 8 Id., 562.) And a tender of the exact sum due, and keeping it good, even when pleaded, only precludes the recovery of subsequent interest. (Raymond v. Bearnard, 12 Johns., 274.)

The fifth request was properly refused, if the Court, in its instructions as to the rules of damages, was as favorable to the defendants as consists with the rules of law. If the defendants had agreed not to sell until the 20th, and sold wrongfully on the 19th, the plaintiff was, at the least, entitled to the difference between 52 and the price at which it sold on the 20 th.

But there was no evidence on which the matter of that request could be submitted. The lowest sales on the 20th were at 53f. So that, had the plaintiff’s instructions been obeyed, and a sale been made on the 20th, he would not have sustained the same, or as much loss as by a sale on the 19th. If the request meant to include the contingency of the plaintiff’s holding beyond the 20th, and to refer to a time when, after that, he might possibly have authorized a sale, then it involved no rule of law which a Jury or a Court could apply, and was properly disregarded.

The rule of damages stated to the Jury was favorable to the defendants. It virtually assumes that the plaintiff would not have made a deposit of $1,000 on the 20th, and that the defendants would rightfully have sold the stock that day. It was easier to deposit $1,000 than to purchase 200 shares at 55, or even 53|, and pay for it. If the deposit of $1,000 had been made on the 20th, the plaintiff would have been entitled to the benefit of his contract, and to have the stock held during the whole of the 60 days. The stock is not shown to have so depreciated during the 60 days, as that a further deposit could have been required. On the 21st Oct., fell to 51g; on the 22d, ranged from 55 to 59; on Dec. 7, 300 shares were sold at 51, and during the 60 days it rose to 77£. If, under this request, the defendants wished it left to the Jury to find whether the plaintiff would not have sold on the 7th of December, the request was properly refused.

I think the rule was stated as favorably as the defendants could claim. (Andrews v. Clerke, 3 Bosw., 585.) They cannot complain, and did not except to it.

The last request to charge has been sufficiently considered in the review made of the first request, and of the charge actually given in respect to the matter of those two requests.

These remarks dispose of all questions, except those arising on defendants’ motion to dismiss the complaint.

It was asked on three grounds, viz.:

1st. “ Because it had not been proved that the defendants were paid, or were to be paid anything for services.

2d. “Because it had not been proved that the plaintiff had ever exercised his option, nor that a demand was made upon the defendants for the stock, and their refusal to deliver it; nor that the plaintiff had paid or offered to pay, or been ready and willing to pay the balance due for said stocks, under the agreement for the purchase thereof.

3d. “Because it had been proved that the defendants had offered to replace the stock for the plaintiff.”

The third ground has already been considered. It is a sufficient answer to the first, that the law implies a promise by the plaintiff to pay to the defendants what their services were reasonably worth. %

The answer to the second is, that it is untenable. The defendants procured a contract for 200 shares. It may be conceded that the delivery of any 200 shares would satisfy the contract of their vendors. But, assuming the transaction to be a real one, and not a gambling operation, it follows that, when the defendants received 200 shares, under their contract of purchase, they received stock, which, as between them and the plaintiff, was received for him, and on account of which he had paid them, by the deposits made with them, $2,000. They sold stock, when they sold it, which he had bought through them, and sold it as being, as between him and them, his stock, the losses on the sale of which he was to bear, and the profits on which would be his.

By the act of selling, the defendants had put it out of their power to deliver it, if demanded, and no demand was necessary. This is not a suit to recover possession of the stock, or to compel a delivery of it, in which case a request to deliver and offer to pay might be necessary, but is an action for damages for unlawfully selling stock which the defendants purchased for the plaintiff, and received under such purchase, and which it was their duty to hold and deliver to him, unless by reason of some subsequent default they could lawfully sell it, in which event, they would sell it, as being, as between him and them, his stock, and at his risk.

I think the motion to dismiss the complaint was properly denied. The defendants wrongfully terminated a contract which they had made for the plaintiff, and to the advantages of which he was entitled, and rendered it impossible for the plaintiff to obtain an execution of it by the delivery under it by the original vendors of any stock to him.' And for the damages resulting from this wrongful act they are liable.

This .disposes of all questions raised by the defendants’ appeal, and they are not entitled to a reversal of the judgment.

The remaining question is, can the plaintiff’s appeal be considered ?

The defendants moved at Special Term for a new trial, and the Court ordered that a new ¿rial be granted, unless the plaintiff stipulated to deduct $50 from the verdict, in which event the motion should be denied.

The stipulation was given to comply with that condition, and the plaintiff then entered a judgment (reciting such stipulation) for the amount of the verdict, less the sum so deducted.

This is a waiver of the plaintiff’s right to appeal.

It is, in effect, a stipulation to deduct $50, and waive all exceptions taken by him, in the event that the Court will refuse a new trial by reason of the supposed error of the Jury in rendering a verdict too large by the suni of $50. The Court did refuse to grant a nqw trial on that condition, and the stipulation was given to comply with such condition. Such a stipulation should be enforced by the appellate Court. (Townsend v. The Marsterson, &c., Stone Dressing Co., 15 N. Y. R., 587.) But a reversal of the judgment and a new trial is not the form in which the plaintiff seeks relief by his appeal. He insists that he is entitled to the difference between 61 and 77|-, and that this may be awarded to him without a new trial. His fifth point is that “there is no need of a new trial;” that the Court can compute the damages and reform the judgment in respect to its amount.

A new trial would be necessary to reach the result of a recovery of greater damages. A new trial is not a result sought by the plaintiff, and if it is, he has already prevented the granting of one, and the granting of which was refused, merely because he gave a stipulation, which the Court, at Special Term, thought would produce a final result, just to both parties.

The judgment should be affirmed. I do not understand that the giving or awarding of costs is in the discretion of the Court. That kind of discretion cannot be exercised, on appeal, except in two cases, viz.: (1.) Where a new trial shall be ordered;' or, (2.) The judgment shall be affirmed in part and reversed in part.

If affirmed in toto, the law disposes of the question of the right to costs.

Barbour, J.

The case made by the pleadings and proofs upon the trial below, was this:

On the 15th of November, 1860, the plaintiff directed the defendants, as stock brokers, to enter into a cdhtract to purchase for him 200 shares Illinois Central Railroad stock, at a price not exceeding 65 per cent of its par value, the plaintiff to have the right to call for and take the same at his option, upon payment of the purchase price, at any time within thirty days, upon giving one day’s notice of his intention to take such delivery, or, in case no such notice should be given, then it was to be obligatory on the vendor to deliver, and on the purchaser to take and pay for such stock at the expiration of the thirty days.

The defendants, in pursuance of this direction, on the sáme day, made such contract to purchase the 200 shares at 61 per cent, deliverable, however, at buyer’s option, within 60 days.

To this contract the plaintiff assented; and on the same day, in accordance with the custom in regard to such agreements, placed in the hands of the deféndants the sum ■of $1,000 in money, to stand as security to the vendor against any loss or hazard that might accrue to him by a fall in the market price of the,stocks, prior to their delivery to the plaintiff.

On the 17th of November, stock of that description having fallen in the market to 58, the defendants called upon the plaintiff and received a further deposit of $1,000, (among dealers'in stocks, technically termed a margin,) by way of security.

Although there is no direct testimony upon the point, it may, I think, be inferred from the nature of the transaction, and the manner in which the business seems to have been done by the defendants, including a sale by them, that the defendants made the contract in their own names, but for account and risk of the plaintiff. Upon that theory, the deposits were intended as well for the security of the defendants as of the vendor; and the defendants had the power (not to say a legal right) to pay for and take the stock covered by the contract, and sell them in the market, without the assent of the plaintiff.

On the 19th of November, Illinois Central stock having declined to 52, the defendants made a call upon the plaintiff for a further margin of $1,000. The plaintiff was not ready to meet the call, but promised to do so the next day; and it was thereupon agreed between the parties that the call should be filled the next day, and that the defendants should be at liberty to sell the stock immediately, if it should fall as low as 51; and the plaintiff then gave to the defendants an authority in writing to sell such stock at 51, without expressing any condition or limitation in the instrument.

Immediately upon receiving that written authority, and on the same day, the defendants sold 200 shares of Illinois Central stock, deliverable and payable the next day, Cor account and risk of the plaintiff, and sent him a statement in writing of such sale.

There is no direct proof in the case that the defendants called for and received the stock which they had contracted to purchase, at 60 days, buyer’s option, on account of the plaintiff. But neither is there any evidence that the defendants held any other stock for him; and both parties to the action admit and assume that the stock sold by the defendants on the 19th belonged to the plaintiff, and was, in fact, the 200 shares covered by the contract. It must therefore be assumed that the defendants called upon the vendor, paid for and took the 200 shares of stock, and sold them at 52.

On the 20th, stock of this description rose to 53| and 55; and at one period during the 60 days covered by the contract, it was sold at 77-?,-.

Evidence was offered upon the trial to prove that the defendants, within a short time after their sale, offered to the plaintiff to replace the stock, and was excluded by the Court; but there was no proof that an offer was made to reinstate the time contract, or to procure another of the same character.

There can be no doubt that the sale of the stock by the defendants was unauthorized by the plaintiff, and was a violation of their duty to him. The written authority to sell at 51 did not necessarily empower the,defendants to sell at 52. Besides, that written authority was a mere power and wholly without consideration, and was modified and controlled by the verbal agreement that it should not be acted upon until the market price fell to 51. It follows that the defendants are liable to the plaintiff for such damages as he has sustained by their wrongful act.

What, then, is the true measure of the damages to which the plaintiff is entitled ?

The injury to the plaintiff, it seems to ¿ne, consists not merely in the' difference between the value of his stock when sold, and the price it would have brought on the next day, as suggested to the Jury by the learned Justice before whom the cause was tried. Kor, even if the defendants had been permitted to establish their theory that they offered to return the stock immediately, would the damages have been merely nominal. The return of that stock, or a like amount of a similar description, would not have placed him where he stood before the sale. The offer was not to replace the contract, nor to return the stock without the payment to the defendants by the plaintiff of its value as fixed by the sale, or its rate in the market. On the contrary, it appears quite evident that all the offers for a settlement included a condition that the plaintiff should take the stock, or a like amount, and, simultaneously, pay for it. That was not enough. The plaintiff was entitled to be reinstated in the contract, which had wrongfully been abrogated by the defendants, so that he might, in accordance with his intention and that of the defendants, when such contract was entered into, call for the stock at any time within the sixty days when the market should be the highest, and sell it at that rate; and he was also entitled to require the defendants to retain the $2,000 which he had advanced to them as margin, and apply it in part payment for the stock under the contract, when the plaintiff should call for it.

I think, therefore, that the plaintiff was entitled to recover, upon the pleadings and proofs, as they stood when the case was submitted, the'difference between 61 per cent, the contract price of the stock, and 77 i per cent, being the highest price it bore in the market within the sixty days, together with $200 of the deposit left in the defendants’ hands, with the interest, from which should be deducted commissions to the defendants upon the purchase, but not the sale of the stock; and that the charge of the Judge upon the question of damages, to wit, that the damages to which the plaintiff was entitled, if any, was the difference between the price (52) at which the stock was sold on the 19th, and the price at which he could have replaced it on the 20th (from 531 to 55), was, consequently, erroneous.

But the error of the Court in this regard did not work any injury to the defendants; and, of course, they are not entitled to any relief, upon their- appeal, because of such misdirection. And, as to the counter appeal of the plaintiff, I concur with Mr. Justice Robebtsost in the opinion that the release by the plaintiff of a portion of the verdict, as a condition for refusing the defendant’s motion for a new trial, is a bar to his obtaining any relief upon this appeal.

As I am unable to find, upon careful examination, any error in the rulings or charge of the Judge, except as above mentioned, I am of opinion that the judgment should be affirmed.

Robertson, J.,

(dissenting.) On a motion for a new trial by the defendants, this Court at Special Term determined not to grant one, if the plaintiff would consent to reduce the verdict by a certain sum. He did so: The refusal of a new trial was therefore a benefit obtained by the plaintiff, and an injury wrought to the defendants by his stipulation. It has been held, in many cases, that a benefit obtained by one party, in judicial proceedings, by admissions or stipulations made by him, precludes him from seeking to get rid of the effect of such admissions or stipulations. A party proceeding on an order, or accepting a benefit under it, is precluded from asking its review. (Radway v. Graham, 4 Abbotts’ Pr., 468.) A party alleging, in proceedings in partition, that others were co-tenants with him, is precluded, while such proceedings are pending, from bringing an action of trespass against them. (Van Norman v. Phelps, 9 Barb., 500.) A party availing himself of an execution against his person, to procure the benefit of an imprisoned debtor act, is debarred from suing for false imprisonment under such execution, as irregularly issued. (Reynolds v. Church, 3 Cai., 274.) An affidavit of another, used by a party on a motion, may be used against him as evidence on another occasion. (Bruhle v. Hulse, 7 A. & E., 457.) Under the principle of these cases, an agreement to accept a certain verdict to deprive a party of a new trial, if the Court will refuse it, must bind the party who reduces his verdict in order to procure the favor. If he could immediately afterwards, by an appeal, render his consent of no avail, and thereby deprive the defendant of the benefit of the new trial, (when the Court has decided there were errors to entitle him to one,) or else of the costs of endeavoring to procure one, it would certainly work an injustice. Possibly the new trial might not benefit the defendant, but he is still entitled to what he worked for, and which must, therefore, on the question of estoppel, be considered beneficial to him, because he was deprived of it by the act of the Court and the consent of the plaintiff. The plaintiff’s appeal, therefore, should be dismissed, with costs.

In regard to the defendants’ appeal a great deal of embarrassment arises from the absence of evidence in the case of matters essential to show the nature of the contract made between the parties, their consequent obligations to each other, and their mutual relation. This is evidently not an action by a purchaser against a seller for not delivering what he had agreed to sell, nor is it an action for the conversion of choses in action belonging to the plaintiff; it is much nearer an action by a cestui que trust against a trustee, for breach of trust. This Court held, when this case was formerly before it at General Term, on a demurrer, (13 Abb., 467,) that the allegation in the complaint that the defendants “purchased ” the stock in question for the plaintiff, included an allegation of delivery, or at least admitted proof of it; also, that the allegation “sold,” included a parting with the possession of the stock so bought and delivered to the plaintiff for the defendants and rendered thereby their property. This rendered the whole action simply one for conversion of the property belonging to the defendants. No such case was made on the trial. The only evidence on the trial, of a purchase, was an order to do so, the agreement of purchase by the defendants, and its ratification by the plaintiff; there was not a particle of evidence of the delivery of the stock, at all events until the sale by the defendants of the same number of shares. Nor was there anything to show any obligation by the defendants besides making the agreement to purchase the stock, to pay for it and hold it for sixty days, or until, within that time, the plaintiff was ready to take and pay for it. That would have compelled them, instead of merely becoming responsible to the vendor at the end of sixty days, in case the plaintiff did not pay, to have advanced the purchase-money, and waited for reimbursement until the plaintiff elected to take the stock. They were, however, only bound to' procure a responsible vendor, leaving the plaintiff to his remedy against him, when he should elect to take the stock. That being the contract, the plaintiff’s damage, if any, in this case, would arise only from the defendants anticipating him and procuring a delivery of the stock to themselves before he had made his election, thus debarring him of his remedy against the vendor. Of course, if they had procured the stock and not sold it, the jfiaintiff would have become entitled to it on ratifying the transfer as if it were his own election. The stock would become virtually his, held by them in trust for him, and they would be responsible for any unauthorized sale by them as any other trustee. (Hart v. Ten Eyck, 2 Johns. Ch., 62.) But in this case, besides there being no evidence of any delivery of stock to the defendants, there is also none of any notice by the plaintiff to them of considering the transfer to them as determining his election. The case rests entirely upon an agreement for a purchase of stock made by the defendants as the plaintiff’s agents, and their anticipation of his rights under the contract by procuring its transfer to themselves, and getting rid of it without the consent of the plaintiff. The kind of injury is the same as if done by making the contract originally in such manner as to be invalid, so as to deprive the plaintiff of the benefit which he would have derived from it had it been valid. If the defendants actually took a delivery of the stock on the 19th of November, there was no evidence of any ratification of it by the plaintiff, so as to adopt it as his election, and in consequence no change in the market price was at his risk. Evidence of am offer to give him the stock the next day after the sale by the defendants, was excluded, and yet he claims the stock delivered to them to have been his without any adoption of the act. Under such a state of facts, the only action which could be maintained against the defendants would be to consider them as unfaithful agents, who, although they made the contract directed, with a responsible vendor, made it in such a form as to enable them to deprive the plaintiff of the right of enforcing it, and then deprived him of it' by first taking the stock to themselves and then putting it out of his reach. The damages to him, therefore, could only be such as would arise from the loss of the benefit of the contract if faithfully executed; this, however, required some intimation from him that he desired the stock. The vendors might have transferred to and received back from the defendants the same number of shares of the same stock repeatedly, without injuring the plaintiff, until he desired and demanded the stock, or notified the defendants or vendors of his election, or ratified a transfer to them, of none of which is there any evidence in this case.

The plaintiff might have disregarded the transfer, if any, to the defendants, and called upon them to procure and deliver the stock to him at any time during the sixty days or after, on paying.the purchase-money; and if they did not deliver or procure it, might have held them liable for any loss occasioned thereby, to the extent of the highest market rate. I have not been able to see any reason for any right of the plaintiff to recover the difference of the value of •the stock on the 19th and on the 20th of November; because it does not appear by any demand, ratification, or notice of election, that he wanted the stock in the meantime, in other words, that he made his election to take it. On the contrary, the excluded evidence might have proved that it was offered to him as soon as he needed it.

In the absence of proof, therefore, of any delivery of the " stock to the defendants on the sale, so as to render them mere holders of it for the plaintiff’s benefit, subject to their lien for the purchase-money, and of proof of demand or notice, so as to determine the plaintiff’s election, I think the evidence of an offer to give the plaintiff the stock when he complained of the sale, at least, was material, even if proof of demand was unnecessary. But such demand or notice of an election to take the stock seems imperatively necessary to make it the plaintiff’s in any sense. If it did become his without such notice or demand, he would have had the advantage of owning the stock without making any election to take it, or paying, or tendering the purchase-money, and would have had' the benefit of a rise in the market without any risk, as he might have waited the whole sixty days to watch its fluctuations before he brought his action. Until the plaintiff needed his stock, and gave notice of it to the vendors or the defend-ants, no injury ensued to him by transferring or retransferring the same amount between them indefinitely, particularly if he actually refused it. Surely, by such a contract and such a sale by the defendants, the plaintiff cannot be relieved of all obligations to tender the purchase-money and demand the stock, leaving the defendants perpetually liable, without any responsibility on his part for all changes in the stock market as to the value of such stock.

I think, therefore, that the evidence of the defendants’ offer to replace the stock was improperly excluded, and if made before an election by the plaintiff to take the stock and pay the contract price, unless some specific injury to the plaintiff is proved, he ought not to recover more than nominal damages at most.

The judgment should therefore be reversed, and a new trial awarded, with costs of the defendants’ appeal to abide the event.

Judgment affirmed.


source: Caselaw Access Project

author: By the Court—Robertson, J.

license: Public Domain

text:
    George W. Allerton, and Margaret R., his wife, Plaintiffs, v. William B. Lang and Anson Willis, Executors, &c., of Charlotte Dobbin, deceased, Defendants.
    A woman owning bank stock delivered a cloth pocket such as is usually worn by women detached from any garment, with a pocket-book therein, containing a certificate of the ownership of such stock, to a stepdaughter residing with her on the most intimate and affectionate terms, with the declaration, “ Here, I give you this; I make you a present of’it; I have another, and want you to wear them they are so very handy.” Held, that this was a valid gift of the stock. Such declaration is not to be considered as confined to the mere pocket without its contents, especially as the donor had just previously taken out therefrom, and replaced therein such pocket-book, after taking out of it two treasury notes for'fifty dollars 'each, and directing their presentation to a niece, and expressing an intention in favor of such stepdaughter in regard to certain houses.
    (Before Robertson and Monell, J. J)
    Heard, March 2, 1863;
    decided, March 28, 1863.
    This case was a controversy submitted upon an agreed statement of facts, to be determined by the Court without action, pursuant to section 372 of the Code of Procedure.
    On or about the fifth day of April, 1862, Mrs. Charlotte Dobbin, of the City of Hew York, died in said city, leaving a will, whereby she appointed the defendants, William B. Lang and Anson Willis, her executors, and they afterward entered upon their duties as such.
    Margaret E. Allerton, one of the plaintiffs, was the stepdaughter of Mrs. Dobbin, being the daughter of Mrs. Dobbin’s husband, now deceased, by a former wife; she was also one of the legatees named in the will of Mrs. Dobbin.

      Mrs. Allerton resided with Mrs. Dobbin at her residence, and they were on the most intimate and affectionate terms with each other.
    About three weeks prior to the death of the testatrix, and prior also to her last illness, Mrs. Dobbin, being then in good health, while sitting in her bedroom with Mrs. Allertou, called the latter to her and said, “ Hand me the cloth pocket that you will find in that drawer,” pointing to a drawer in a bureau in her bedroom. This Mrs. Allerton did, and Mrs. Dobbin took the cloth pocket, opened it, and from a pocket-book inside thereof took two United States Treasury notes for fifty dollars each, which she handed to Mrs. Allerton, saying, “ Give this to Jane Carman; the houses in Oliver street are all yours.” Jane Carman, so mentioned by Mrs. Dobbin, was her niece.
    After saying this, Mrs. Dobbin closed the pocket-book, and placing the same within the cloth pocket, said, “Here, I give you this; I make you a present of it; I have another, and want you to wear them, they are so very handy.”
    Thereupon Mrs. Allerton took the cloth pocket containing the pocket-book, and without opening the same, kept it in her possession until after the death of Mrs. Dobbin, which occurred about three weeks afterward.
    Mrs. Allerton was ignorant of the contents of the pocketbook ; she did not examine it, or the pocket containing it, until three days after the death of Mrs. Dobbin, when, on opening it, she found within the pocket-book a certificate for six shares of bank stock, standing in the name of Mrs. Dobbin.
    On these facts the questions submitted to this Court for its decision were:
    1. Did Mrs. Dobbin intend to make a gift to Mrs. Allerton of the six shares of stock, the certificate whereof was so found in the pocket-book hereinbefore mentioned, or did she intend merely to make a gift to her of the cloth pocket in which she had placed the said pocket-book ?

      2. Are the six shares,, of which the certificate was so found in the pocket-book, the property of the plaintiffs or of the defendants as executors ?
    It was agreed by the parties that should the Court adjudge the stock to be the property of the plaintiffs, a decree or order should be made, directing the executors to convey or assign it to Mrs. Allerton, and that the costs of the proceeding be paid, out of the estate.
    The case was submitted by Oscar Smedberg, without argument, upon the following points :
    Points for the plaintiff:
    I. Mrs. Dobbin and Mrs. Allerton were on the most intimate and affectionate terms. Mrs. Allerton was her stepdaughter, and lived with her, and Mrs. Dobbin would naturally be disposed to do her a kindness.
    II. Mrs. Dobbin knew what was in the pocket-book, and if she had not intended to give the stock, she would have taken out the certificate before the delivery of the pocket-book.
    III. Transfer from hand to hand, with such words, is a good delivery and assignment as between the parties, even of a chose in action, unless it be expressly shown that the donor was ignorant of the contents of the article delivered. {Heath v. Hull, 4 Taunt., 326; Boberts on Frauds, 275; Green v. Hart, 1 Johns., 580; Ganfielcl v. Monger, 12 Id., 346; Prescott v. Hull, 17 Id., 284; Langdon v. Buel, 9 Wend., 80.)
    IV. There can be no doubt that Mrs. Dobbin took this method of doing an unostentatious act of kindness. Her words may apply, and, no doubt, were intended to apply as well to the contents of the pocket as to the pocket itself. She, no doubt, thought a certificate of stock the same as a treasury note, as to the requisites of its legal transfer.
    Points for the defendants:
    I. There was no legal transfer. A chose in action is not transferable by mere manual delivery.

      II. There were no words used, to import a gift. The force of the words, “Here, I give you this,” &c., was expressly restricted by the words following, viz., “I have another, and want you to wear them; they are so very handy."

    III. Mrs. Dobbin had no intention to transfer the certificate of stock. She was evidently ignorant that it was in the pocket-book.
   By the Court—Robertson, J.

It appears by the ease submitted that Mrs. Allerton was the stepdaughter of the decedent, Mrs. Dobbin, resided and was on the most intimate and affectionate terms with her, when the transaction took place which is the subject of the controversy. It also appears that a Mrs. Carman was a niece of the decedent.

The occasion of making the gift in question was evidently one in which the testatrix felt disposed to make gifts, as she took from the pocket-book in the pocket the treasury notes which she directed Mrs. Allerton to give to Mrs. Carman. It is also plain that she did not intend to confine her gift to the pocket, although she spoke of Mrs. Allerton’s wearing it and its being very handy, because she deliberately replaced the pocket-book in it, before presenting it. There is no evidence that she was ignorant of the presence of the certificates of stock in the pocketbook, and it is to be assumed she knew it. The fact of its being a repository of other similar valuable evidences of debt, would seem to imply that it was intentionally the place of safe keeping of such certificate. Besides this, she had just announced to Mrs. Allerton an intended gift of real estate to some amount. There appears to be no reasons for her giving the pocket-book with the pocket without the contents of the former. If useful to her before as a repository, it would have remained equally so, if she supposed she had the certificate elsewhere to put in it.

An evidence of debts may be transferred by delivery with intent to assign.. (Runyan v. Mersereau, 11 Johns., 534; Dawson v. Coles, 16 Id., 51; Prescott v. Hull, 17 Id., 284; Morange v. Edwards, 1 E. D. Smith, 414; Langdon v. Buel, 9 Wend., 80.) I think there is no doubt of Mrs. Dobbins’ intention in this case to give the stock to Mrs. Allerton.

There must, therefore, be judgment in favor of Mrs. Allerton, that the executors transfer to her the shares of stock in question on the books of the bank, and that the costs of Mrs. Allerton be paid out of Mrs. Dobbins’ estate by her executors. .


author: By the Court—Monell, J.

text:
    Carl Harbeck, Plaintiff, v. The Mayor, Aldermen and Commonalty of the City of New York, Defendants.
    1. The provision of the act of 1857, ch. 569, conferring the appointment of Court Clerics, in the judicial districts of the City and County of New York, upon the Metropolitan Board of Police, is unconstitutional and void, because it seeks to confer the power of appointment to a county or city office which was in existence when the Constitution of 1846 was adopted, upon other than the people or county or city authorities, in contravention of section 2 of art. 10 of that Constitution. Hence the power of appointment of-those clerks remains in the Mayor and Board of Aldermen, as provided by the act of 1855.
    2. Where some of the provisions of a statute are void for unconstitutionality, a general repealing clause in such statute, repealing all provisions of law in conflict with it, does not repeal provisions whigh conflict only with that part which is void.
    (Before Robertson and Monell, J. J.)
    Heard, March 5, 1863;
    decided, March 28, 1863.
    Exceptions ordered to be heard at the first instance at General Term.
    The plaintiff’s assignor, Edwin Benton, w’as appointed a Police Clerk by the Mayor and Board of Aldermen of a the City of Hew York, on the 31st of December, 1857 and continued in office for six months.
    This action was to recover two months’ salary, namely, for the months of January and February, 1858.

      The case was tried on the 19th of December, 1862, before Mr. Justice Mohell and a Jury, and, under the direction of the Court, the Jury rendered a verdict for the plaintiff . for 8326.15.
    The defendants excepted, and the exceptions were ordered to be heard, in the first instance, at the General Term, and the judgment in the meanwhile suspended.

      Felix Hart, for the plaintiff; —
    Cited Devoy v. The Mayor, &c., (35 Barb., 264; S. C., 22 How. Pr., 226.)

      W. G. Trull, for the defendants; —
    Insisted that the law of 1857 was valid, but even if it were not so in respect to conferring the power of appointment on the Police Board, that it repealed the law of 1855, under which the plaintiff claimed his appointment.
   By the Court—Monell, J.

This case turns upon the question, whether in December, 1857, the appointing power of Police Clerks was in the Mayor and Aldermen, or in the Board of Police. In April, 1855, the Legislature authorized the Mayor and Aldermen, or a majority of them, to meet in convention and appoint the Police Court Clerks, and it is under this statute that it is claimed that the appointment of Benton was legal. In 1857 it was provided by an act of the Legislature that “the Board of Police shall appoint all Court Clerks prescribed to the judicial districts in which Police Justices are elected,” &c. (Laws of 1857, chap. 569.) The 35th section of the act declares that “all statutes, parts of statutes, and provisions of law inconsistent with the provisions of this act are' hereby repealed.”

. The repealing clause in the act last referred to, if the act is a constitutional enactment, plainly and clearly repealed the act of 1855, and the power to appoint Police Clerks was taken from the Mayor and Aldermen, and conferred upon the Board of Police.

The 2d section of article 10 of the Constitution of this State provides that all county officers, whose election or appointment is not therein provided for, shall be elected by the people, or appointed by the county authorities, as the Legislature shall direct; and all city, town and village officers shall be elected, &c., or appointed by such authorities thereof as the Legislature shall direct.

The construction which has been given to this section of the Constitution limits its operation to such officers as existed at the adoption of the Constitution, pursuant to the laws then in force. (People v. Draper, 15 N. Y. R., 532; Same v. Police Board, 19 Id., 188.)

It follows, then, that if the offieevof Police Clerk existed; pursuant to laws in force at the adoption of the Constitution, and is a county or city office, the Legislature had no power to confer upon other than a county or city authority the power to make the appointment.

That the office of Police Clerk was created before and existed at the adoption of the Constitution, and is a city office, I do not understand is disputed. (Laws of 1833, ch. 11, § 22.)

It is clear, I think, that the Legislature exceeded its powers when it undertook to give the appointment of Police Clerks to the Police Board, which is neither a county nor a city authority, and, hence, the act of 1855 was in force at the time Benton was appointed, and his appointment was, therefore, legal.

The repealing clause in the act of 1857 affected only such acts or parts of acts as were inconsistent with valid and constitutional provisions in the former, arid not such as were invalid and unconstitutional.

Hone of the exceptions were well taken, and must be overruled.

The plaintiff must have judgment in conformity with the verdict, with costs. '


text:
    Adam Van Allen, Receiver, &c., Plaintiff and Respondent, v. George Jones, Defendant and Appellant.
    1. An agreement between the maker and the holder of a note, which, by its terms, is payable on demand, with interest, that the maker will pay interest semi-annually, and shall not be required to pay the principal until he wishes to do so, is without consideration and void; as the restriction of the right of the holder to demand interest, to stated periods, makes the contract less rather than more beneficial to him.
    2. A subsequent agreement between the same parties, that in consideration of the maker’s relinquishing such first agreement, the holder will allow him. to pay the principal in periodical installments, with interest semi-annually on the amount remaining unpaid, instead of on demand, is equally without consideration and void.
    3. The payment and acceptance of the first installment under such latter agreement does not render it binding as an accord.
    (Before Robertson and Monell, J. J.)
    Heard, March 6, 1863;
    decided, March 28, 1863.
    This was an appeal by the defendant, from a judgment entered in favor of the plaintiff, upon a verdict recovered on a trial, on the 24th day of October, 1862, before Chief Justice Bosworth and a Jury.
    The action was upon a promissory note made by the defendant, and dated the 2d of August, 1853, payable to the Bank of Albany, .on demand. The complaint was in the usual form, but admitted that the defendant had paid $500 to apply as principal on the note, and had also paid the interest thereon to the first day of January, 1861.
    The defendant, in his answer, set up, and on the trial offered to prove, that at the time the note was made, it was agreed between him and the bank, by the cashier, that he should not be called upon to pay the note at any time until he, the defendant, should desire to do so; the defendant at the same time agreeing to pay up, and keep paid semi-annually, the interest; that he regularly paid the interest, semi-annually, up to the first of January, 1861, pursuant to that agreement, and that in January or February, 1861, the defendant, at the request of the Bank of
    Albany, made a new verbal agreement with the Bank, to wit, that they agreed to rescind the old agreement, and to receive from the defendant at the rate of |500 every three months thereafter, until the principal sum was paid; and that, in consideration thereof, the defendant agreed to pay interest semi-annually on the whole amount, the defendant having the right to pay the whole amount at anytime. :That when the last agreement was made, and at the same time, defendant paid $500 to the Bank of Albany, -according to the terms of last mentioned agreement, which they then and there accepted, and also the interest for six months, up to January 1st, 1861, on the whole amount of the principal debt, which the Bank accepted from the defendant.
    The counsel also offered to prove by computation that by the payment of this interest semi-annually on the note in suit, of $4,000, from the time of its date until January 1, 1861, the defendant had been injured, and the plaintiff and the Bank of Albany benefited, to the amount of $514.50 for compound interest, or interest paid on the interest money aforesaid, or, in other words, that the interest on the sums paid for interest to this time is $514.50. And he claimed that the amount of interest overpaid should be deducted from the amount of the recovery for the plaintiff in this action, if any should be had.
    , The Court thereupon decided that there was no overpayment of interest, and that the offer made by the defendant constituted no defense to the cause of action set out in the complaint, and overruled the offers of proof. To which rulings the defendant excepted.
    The Jury, under the direction of the Court, then found a verdict for the plaintiff for the amount claimed, and after the entry of judgment, the defendant appealed. -

      Samuel G. Courtney,, for defendant, appellant.
    I. The agreement, offered- to be proved on the part of the appellant,, was a valid contract, and was acted upon as such by the B'ank of Albany and the defendant, from August, 1853, until January or February, 1861, and should have been admitted by the Court as evidence. This is apparent from the circumstances that the note is made payable on demand, is dated August 2,1853, and remained in the possession of the bank from August, 1853, unacted upon; neither was it put in suit, nor attempted to be enforced, except as stated in the answer of the defendant, until the new agreement was made with the bank—a period of over seven years.
    The making of payment before it was legally demand-able, was a sufficient consideration for the agreement. (Bainbridge v. Firmstone, 8 Ad. & El., 743; 1 Serg. & Rawle, 241; Clark v. Dales, 20 Barb., 64; Miller v. Drake, 1 Caines, 45; Briggs v. Tillotson, 8 Johns., 304; Draper ads. Ferris, 5 N. Y. Leg. Obs., 227; Houghtaling v. Randen, 25 Barb., 21; 21 Id., 454.)
    II. The second agreement was solicited and made at the request of the bank, and was not executory, but on the contrary, ratified and executed at the time it was made, by the bank receiving from the defendant the installment of $500. There was a good consideration for this agreement.
    III. There was a mutual promise between the parties, for the agreement, and this is, of itself, a sufficient consideration. (8 Johns., 304. Case above cited on this point.)
    The note was due, and past due, and the parties had the legal right, at any time after the making and executing of the note, even without any money, or beneficial or detrimental consideration, to make the second agreement, and it is, therefore, binding upon both parties. (Dearborn v. Cross, 7 Cow., 48-50.)
    • The acts of both parties in regard to said second agreement, in connection with what was said at the time of making it by them, make it valid and binding upon both, and canceled the old agreement, and, consequently, the old note.
    IV. The note, being an instrument in writing, and a simple contract, can be canceled by parol. (7 Cow., 48-50,) and may be varied, also, by a parol enlargement of the time of performance. (Clark v. Dales, 20 Barb., 64; Erwin v. Saunders, 1 Cow., 250; Mayor, &c., v. Butler, 1 Barb., 338; Dearborn v. Cross, 7 Cow., 48; Batterman v. Pierce, 3 Hill, 171; Fleming v. Gilbert, 3 Johns., 528; Keating v. Price, 1 Johns. Cas., 22.) In the case at bar, there was a clear waiver of performance produced by the parol agreements between the parties, carried out and executed by them. (3 Johns., 528.)
    V. The verdict under the direction of the justice is against evidence.
    VI. The remedy of the plaintiff is upon the agreement last mentioned. When any default on the part of the defendant, under the agreement, occurs, the plaintiff can proceed against the defendant, and obtain judgment on failure to pay these installments. He has no legal or equitable demand under the original note.

      John N. Whiting, for plaintiff, respondent; —
    Cited Hunt v. Bloomer, (5 Duer, 202;) Gibson v. Renne, (19 Wend., 389;) Acker v. Phenix, (4 Paige, 305;) Tinker v. Geraghty, (1 E. D. Smith, 687;) Miller v. Holbrook, (1 Wend., 317.)
   By the Court—Robertson, J.

The Bank of Albany had the right, by virtue of the original note in this case, at any time to demand the principal of it, and interest to the time of demand, and, of course, until the payment of such principal, to demand interest. They might forbear to demand either for a reasonable time, or to call for the interest except at stated periods; but an agreement by them not to demand such interest except at such periods, might make the contract less, but could not render it more beneficial to them. So, also, the defendant had a right to pay the principal at any time; a mere supplemental agreement, therefore, that he should be allowed to do so, would neither prejudice the bank nor benefit him, beyond what the terms of such note did. An agreement by the defendant to abstain from paying off the principal before a certain .time, and in the meantime to pay interest at stated periods, as a substitute for the obligation of the note, might be a good consideration for a corresponding substituted agreement by the bank, not to demand the principal before a fixed time, or the interest except at the end of such period, but no such agreement is pretended in this case.

The first agreement stated in the answer, and offered to be proved is, that the defendant agreed to pay the interest semi-annually, and the principal when he pleased; in consideration of which the bank surrendered the right to demand at their pleasure both principal and interest. This was entirely destitute of any consideration.

The second agreement set up in the answer is, that the first one was canceled and a new one substituted in its place, and in consideration thereof, and of a promise by the defendant to pay $500.00 on account of the principal of such note every three months, and interest on what remained due of it every six months, the Bank of Albany agreed to receive such sums, until the whole amount was paid, whereupon the first agreement was canceled. If this last agreement had been made in discharge of the note, it would, equally with the first one, have been without a consideration. As, however, it was merely an agreement to cancel another which was legally inoperative, both are wholly immaterial. *

The compound interest, on the payments of interest every six months was not a gain to the plaintiff’s assignors. It might have been if the plaintiff, by force and upon the face of the note, could only have recovered, and was only entitled to interest at the time of the trial; but as the bank was equally entitled to demand interest at the end of every six months, if the defendant chose to pay it, instead of paying up principal and interest, the plaintiff would reap the benefit of that legal consequence without any new agreement.

But as the supposed accord was entirely executory, the defendant must be left, in any event, to his remedy by action; any damages accruing to him by reason of nonperformance of the agreements in the answer, not being set up by way of set-off or recoupment. (Billings v. Vanderbeck, 23 Barb., 546; Tilton v. Alcott, 16 Barb., 598; Day v. Roth, 18 N. Y. R., 448; Mitchell v. Hawley, 4 Den., 414; 3 Bing. (N. C.,) 915.) The payment of the first installment was not a performance of the whole agreement, so as to ..make it.an executed one; such performance could take place when the whole principal was paid.

There was no over payment of interest in this case. The bank or the plaintiff having only received that to which they were entitled. x

The judgment must be affirmed with costs.


text:
    Abraham Fowler, Plaintiff and Appellant, v. Peter Moller, Defendant and Respondent.
    1. The delivery of chattels to a creditor of a third person, and his acceptance of them in satisfaction of the indebtedness to him of such third person, without the latter being a party to the transaction, satisfies both such debt and any liability for the price of such chattels, and prevents the party so delivering them from recovering their value upon an implied agreement for goods sold and delivered, upon the ground that the special agreement upon which they were delivered was a parol promise to pay the debt of another, which was void by the statute of frauds. One so delivering the goods and inducing the creditor to accept them in payment, is estopped from alleging the contract to be void and recovering their price.
    2. Upon all the testimony in this case as to whether the chattels in question were delivered in satisfaction of such a debt, pursuant to a previous agreement to that effect; Held, that there was such a conflict of evidence that the verdict of a Jury should not be set aside.
    (Before Robertson and Monell, J. J.)
    Heard, March 16, 1803;
    decided, March 28, 1863.
    Appeal by the plaintiff, from a judgment in his favor, and from an order denying a new trial.
    This was an action to recover the value of certain furni ture delivered by the plaintiff to the defendant, and alleged in the complaint to have been sold to the latter.
    The defendant’s original answer set up, as a counterclaim, a demand for rent against the plaintiff for about $150.

      On a trial of the issues the Beferee sustained the counterclaim, but the judgment entered upon his report was reversed upon appeal, upon the ground that a large part of the rent which he had allowed to the defendant was due, not from the plaintiff but from his son, and that the plaintiff’s promise to pay it was void- for not being in writing, under the statute of frauds. The decision is reported in 4 Bosw., 149.
    The defendant then put in an amended answer, by which 'he set up as a defense, that a son of the plaintiff was indebted to the defendant for the residue of the rent of certain premises let by the latter to him, after crediting to the former a certain sum for goods furnished by him to the latter; that the plaintiff subsequently occupied such premises under his son, and it was agreed between the parties to this action that the plaintiff should continue to occupy such premises until he could sell a stock of goods then upon them, and that the defendant should take no proceedings to dispossess him, and that the plaintiff should pay therefor the same rate of rent as was reserved in the lease to the son, and should also discharge the indebtedness for arrears of rent of the latter, and that lie should do this by delivering the goods mentioned in the complaint, which were to be received by the defendant at a fixed value, and as soon as the amount of such rent to become due from himself should be determined, the balance on either side should be paid by the party from whom it was due, to the other. The answer alleged the performance of this agreement by the defendant, and the delivery of the goods mentioned in the complaint, in pursuance thereof. It also alleged that the amount due to the defendant under the agreement, exceeded that due to the plaintiff for the value of the goods delivered by him. The rent of such premises, due from the plaintiff to the defendant, was also set up as a counterclaim, or by way of recoupment.
    A reply put in by the plaiutiff admitted the lease of the premises mentioned in the answer by the defendant to the son of the former, and the indebtedness of such son to the defendant, hut denied everything else alleged in the answer.
    The cause was tried on October 27th and 28th, 1859, before Mr. Justice Slosson and a Jury.
    The defendant, being introduced as a witness for himself, testified that about the 1st of February, 1856, he called on the plaintiff and asked who was to pay the back rent due him. The plaintiff said he would not, but, upon being told he would then have to leave the store, he finally promised to pay such back rent if the defendant would let him stay to sell out, for a mouth or two. To which the latter said, he would make it easy for him as long as he did that, and that he would take furniture. The plaintiff assented, and the pieces of furniture were selected, at certain prices, amounting to $140; they were not quite finished, and it was agreed that the balance either way should be paid. The defendant retook possession of the store in March, after the plaintiff had occupied it about a month and a half. In May following, the defendant gave directions for finishing the pieces of furniture selected, and delivering it to him. Hothing was said at that time about the agreement. He received the furniture in the early part of June. A bill was subsequently rendered for such furniture by the plaintiff, in which he charged more for one piece than, as the defendant testified, had been agreed on. In September following, he called on the plaintiff and complained of the charge, when the latter said that, as the bill was disputed, he would then not pay the back rent, as the defendant did not have it in writing, and could not hold him responsible.
    Another witness (Dean) testified that he called on the plaintiff to see about a bill due by his son to a sugar refining company, when the plaintiff said they could not look to him for their bill, “ that he had already agreed with “ Mr. Moller to pay the back rent due by his son, and also “ for the time he was in possession, and that he should pay ‘‘nothing more.” The same witness afterwards called on him, on behalf of the defendant, to try and settle the accounts ; but the plaintiff refused to talk about the matter, and referred him to a lawyer. On another occasion, during the pendency of this action, upon the same witness informing the plaintiff that the defendant said he owed him for the back rent, the former asked if he had it in writing, and said if he had not he could not hold him. The plaintiff subsequently met the witness and reproached him for disclosing such conversation in his testimony.
    The plaintiff testified that the defendant came in June, 1856, and bought the articles of furniture in controversy; that on the prior occasion when he called, he went away angry, because the plaintiff refused to pay the back rent; and that he told him the prices of the articles were certain amounts, which he afterwards put in his bill; and that nothing was then said about the rent of the premises.
    The defendant testified that the plaintiff’s son was present when the agreement was made. That son testified that he heard the conversation; that the defendant wanted the plaintiff to pay the back rent of the store, which the latter refused; that nothing was said about furniture ; that the defendant did not go up stairs where it was; arid that when the goods were ordered he was also present, but heard no conversation.
    The charge of the Judge, to which the plaintiff excepted, is stated in the opinion of the Court.
    The Jury found a verdict for the plaintiff for the difference between the amount of the rent due the defendant and the value of the furniture, as testified to by the plaintiff.
    A motion was made for a new trial at Special Term, which was denied, and an appeal was taken from the order denying such motion, as well as from the judgment.

      S. Jones, for plaintiff, appellant;—
    Insisted that the verdict was against evidence.

      Robert Benner, for defendant, respondent.
    I. The agreement between the parties for the payment of the back rent, if invalid, was not illegal, and they having executed it by the delivery and receipt of the goods in performance thereof, as determined by the Jury,, the statute of frauds has no further application to it. (Abbott v. Draper, 4 Denio, 51; Allen v. Aguirre, 3 Seld., 543.) The reference to the back rent was only-' for the purpose of fixing the amount the plaintiff was to pay for his privilege. (Trustees First Baptist Society, &c., v. Robinson, 21 N. Y. R., 234; Rhodes v. Rhodes, 3 Sandf. Ch., 279; Stone v. Dennison, 13 Pick., 1; Pomeroy v. Winship, 12 Mass. R., 514; Parsons on Contracts, vol. 2, pp. 319, 338.)
    II. Under any aspect of this case, the verdict under the Judge’s charge determines conclusively that the articles in question were delivered and received in performance of the agreement; and the plaintiff having chosen to execute an agreement originally invalid, cannot afterwards rescind • his own contract, and. recover what he voluntarily paid and delivered in performance of it. These articles became the defendant’s absolutely, the moment he thus received them. (Abbott v. Draper, 4 Denio, 51; Dowdle v. Camp, 12 Johns, 451; McKnight v. Dunlop, 1 Seld., 537; Westfall v. Parsons, 16 Barb., 645.)
    III. Even should we admit that the plaintiff, under the circumstances stated in the last proposition, could repudiate his agreement,- it will still follow, upon every principle of law and of fair dealing, that he could not be permitted to recover back the articles thus delivered until after demand, and notice of his intention to abandon his contract. (Dowdle v. Camp, 12 Johns, 451; Abbott v. Draper, 4 Denio, 51.)
    IV. The plaintiff’s claim is unconscionable, and from the circumstances of the case, and his own statements, incredible.
    V. A verdict will not be set aside as against evidence, unless it appears that the Jury clearly and palpably decided against the weight of evidence. (Erben v. Lorillard, 23 Barb., 82; Mackey v. New York Central Railroad Company, 27 Barb., 528; Williams v. Vanderbilt, 29 Barb., 491.) Hew trials as against evidence can only be granted on payment of costs. (Ward v. Woodburn, 27 Barb., 346,; Vandeventer v. N. Y. & N. H. R. R. Co., 27 Barb., 244.)
   By the Court—Robertson, J.

The only question of law arising in this case is, whether the part of the charge of the presiding Judge excepted to, —viz.: that the plaintiff was “ entitled to recover the value of the arti- “ cles sold, without any deduction on account of the back “ rent, unless the agreement was fully executed by delivery “ of the articles, and receipt of the same in .performance “ thereof; but if it had been so fully executed in such manner, then the defendant was entitled to be allowed “ the amount of the back rent,”—was correct. He had previously charged the Jury that the original agreement to pay such back rent was void, and wqs hot sufficient to support an agreement so¿! to pay it: This raises the question whether the delivery of chattels to a creditor of a third person, in satisfaction of the debt of such third person, without his being a party thereto, satisfies such debt, and prevents the party delivering them from recovering their value, as for goods sold and delivered, because they were delivered in performance of a void contract. I do not regard any of the cases arising out of other provisions of the statute of frauds, such as the sale and delivery of merchandise, as throwing any light upon this question. Unquestionably the delivery of any goods may be made the consideration of any promise not within the statute.

Most of the cases in which the interpretation of that part of the statute of frauds which avoids promises to answer for the debt of another (2 E. S., 135, § 2, subd., 2) is involved, have arisen on an attempt to enforce the promise. They leave the question undetermined how far the actual delivery of goods, or even money, in payment of the debt of another, without a written agreement to that effect, satisfies such debt and discharges the recipient of the goods or money from incurring any liability for them. It would seem that the evil the statute was* intended to guard against might arise as well from the conversion, by parol evidence, of a sale of goods, or loan of money, into the mere payment of the debt of a third person, as from the proof, by like evidence only, of a prior executory promise to pay such debt. By the provision of the statute just referred to, the law presumes either that it is so rare for one man to assume to pay another’s debt, particularly without some inducement, or else that there is such danger that doubtful expressions may be converted, by inattentive or biassed witnesses, into positive promises, as to render it necessary to require the contract to be in writing, expressing the consideration. And it has been even held that partial performance of an agreement, or delivery of property, as a consideration for the promise, is not sufficient to uphold it. Thus, in Lord Lexington v. Clark, (2 Vent., 223,) the payment of the debt of another, a promise to pay which constituted part of the consideration of a-contract, it was held would not sustain a promise to pay another sum as a consideration for the occupation of certain premises. But this was modified in Wood v. Benson, (2 Crompt. & Jer., 94,) and Rand v. Mather, (11 Cush., 1,) where the legal part of a contract, so far as it was separable from a part that was void, was upheld. In Mallory v. Gillett, (21 N. Y. R., 412; S. C., 23 Barb., 610,) a promise to pay the debt of a third person, in consideration of the creditor delivering up to his debtor goods on which he had a lien for such debt, was held to be within the statute, and void, overruling Gardiner v. Hopkins (5 Wend., 23,) Mercein v. Andrus, (10 Wend., 461,) Singerland v. Morse, (7 Johns., 463,) and various other cases. The same principle was held in this Court, on a prior occasion, in Doolittle v. Naylor, (2 Bosw., 206.) Aone of these cases, however, affect the question of an executed contract to satisfy the debt of another. In such case, of course, the chattels or money are proved to be delivered, and the only question is, on what terms. An absolute gift«of them could be proved by parol, and there seems to be no reason why their application in payment of a debt may not be equally so. Of course, probabilities and circumstances could be brought to bear on the fact of the agreement in either case. A third party, delivering chattels in satisfaction of a debt, as in this case, after inducing the creditor to accept them in payment of a debt., is estopped from alleging the voidability of the contract and claiming the price of the goods, as if they had been sold.

The only remaining question in the cause is one of fact, whether the chattels, the price of which is sued for, were delivered in satisfaction of the defendant’s claims for rent against the plaintiff and his son, pursuant to a previous agreement to that effect. To establish this we have the testimony of the defendant, corroborated by that of Dean, as to the promise to pay the back rent, while the testimony of the plaintiff and his son is directly against it. I do not see that Dean’s statement discredits the defendant’s as to the agreement, because the plaintiff might well have used the term “pay” in regard to the back rent, without meaning payment in money. Hor does he contradict himself by saying that the plaintiff said “he would pay the rent while he was there, or something to that effect,” because both may have been said, as he testified on his direct examination. The Jury had a right to consider whether the omission to state, in the answer first put in, the special agreement, was made because no such agreement existed, or because the counsel for the, defendant deemed it was sufficient to allege an indebtedness for rent generally. The Keferee found in his favor, on a former trial, on that ground, and the amendment was made after this Court, at General Term, reversed the judgment on the opposite ground. The case then rested on the defendant’s testimony, corroborated by Dean, and the testimony of the plaintiff and his son on the other. The account of the defendant was not improbable in itself. He allowed the plaintiff to stay in the store after he had threatened to dispossess him. The debt was due from a son of the latter, who had transferred to his father all his means of payment. The value of the furniture was near that of the debt due and to be received. But it was impossible to reconcile the testimony. The plaintiff and his son swore that nothing was said about furniture in the interview in which the defendant claims that the agreement was made and the furniture selected. It might have been a circumstance of some value in disproving the defendant’s statements, that the furniture was not made or had not been covered in February, when the supposed agreement was made. As the testimony stands, it was a pure conflict of evidence, in which the weight of it is not so clearly one way as to justify setting aside the verdict.

The judgment and order denying a new trial must be affirmed with costs.