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

text:
    Margaret E. Boniface, plaintiff and respondent, vs. Peter Relyea, defendant and appellant.
    1. The principle of respondeat superior applies only to the immediate employer of the servant or agent through whose negligence an injury occurs. There cannot be two superiors, and the difficulty, in all the cases, has been in determining whose servant the person was who did the injury. When that is determined, the principle of respondeat superior at once attaches, and renders the immediate master or employer liable.
    2. The mere hiring of a person is not always sufficient to create the relation of, master and servant. There must be, besides the hiring, some degree of actual control over the person hired, and some right to direct him, from time to time, as the master may see fit; for the responsibility of the master begins and ends with his control over and his right to direct his servant. Hence the master is held to a reasonable care and discretion in the choice of a servant.
    3. In an action against an undertaker who superintended a funeral, and furnished. the carriages on that occasion, to recover damages sustained by the plaintiff while riding in one of the carriages, through the carelessness of the driver, it is not enough to show that the carriage and driver were furnished by the defendant; without also showing some power over, or right to control, the driver, or some fact to indicate that he was in the defendant’s service.
    4. If it appears, in such a case, that the horses and carriage were owned by the driver, and were hired for the occasion, by the undertaker, the relation of master and servant does not exist between him and the driver; and no action will lie, against the undertaker, to recover damages for the injuries sustained . by the plaintiff.
    (Before Robertson, Ch. J., and Jones and Monell, JJ.)
    Heard —;
    decided November, 1868.
    This action was to recover damages for an injury alleged to have been occasioned by the negligent act of the defendant’s servant.
    The defendant was an undertaker, and was employed by one Darrow to superintend the funeral of his deceased father. Darrow testified that he made an arrangement with the defendant to superintend and have the whole and sole control of the burial of his deceased father. That the defendant was to furnish five carriages and horses, the coffin and shroud, and attend to the opening of the grave. He Was to send two carriages to the plaintiff’s sister and children, and one to the plaintiff, and was to bring them from their houses to the, place where the funeral was to take place, and afterwards to bring them back to New York. The defendant sent the agreed number of carriages, and presented a bill therefor to the witness, which was paid. In the bill the witness was charged for two coaches from Brooklyn, eleven dollars; and three coaches from New York, twenty dollars. The plaintiff testified that she rode to the cemetery in one of the coaches furnished by the defendant. That on leaving the cemetery the carriage came down and stopped at a hotel; the driver got off his box and went into the hotel. He had but shut the door of the hotel, when the horses started on a walk; they walked a few steps and then commenced to run away. • The carriage struck some obstacle, and the plaintiff was thrown out and injured. It was further proved that the defendant had said “ that seeing .the carriage stop, he drove up himself to the same hotel, and got off and spoke to the driver;” that he said to the driver, “ come inside and I will settle with„you,” and that he had hardly got the door closed before the horses-started. This evidence, however, was contradicted by the defendant.
    The defendant moved to dismiss the complaint, at the close of the plaintiff’s evidence, on the ground, amongst others, first, that there was no evidence that the driver of the carriage was in the employment or under thq control or direction of the defendant; and, second, that the plaintiff had not shown a cause of action against the defendant. The motion was denied, and the defendant excepted.
    It was proved on the part of the defendant, that he did not own or keep any carriages or horses; that the carriage and horses in question wére owned by the driver, and were hired for the occasion by one Moss, who was in the employment of the defendant.
    The court submitted it to the jury to determine whether the driver was in the employment and under the control of the defendant, charging them that if they found that the driver was in his service and under his control, the plaintiff could recover, if the driver was negligent and the plaintiff was free from negligence. The defendant’s counsel requested the court to charge the jury that if the defendant' was himself an agent, carrying out the directions of his principal, (Darrow,) he was not liable. The court refused so to charge, and the defendant excepted.
    The jury found for the plaintiff, assessing the damages at four hundred dollars. The defendant appealed from the judgment entered on the verdict.
    C. Bainbridge Smith, for the appellant, defendant.

      T. E. Thresher, for the respondent, plaintiff.
   By the Court, Monell, J.

The main questions in this case are presented by the denial of the motion to dismiss the complaint, on the ground that the plaintiff had furnished no evidence that the driver of the carriage was in the employment or under the control or direction of the defendant; and by the refusal to charge the jury that if the defendant was the agent of Darrow, who employed him, he was not liable. I do not think any question can properly be raised now on the -evidence subsequently furnished by the defendant, that the carriage and horses were owned by the driver.

The motion to dismiss the complaint was not renewed after such evidence had been given, nor was there any request to direct, upon such undisputed facts, a verdict for the defendant.

The gi’ound, therefore, upon which the motion to dismiss the complaint was made, coupled with the request to charge the jury, .present the only question for examination.

The evidence was that Darrow employed the defendant as undertaker, to superintend and to have the whole control of the burial of his (Darrow’s) deceased father. The defendant was to furnish five carriages and horses, one of which he was to send to the plaintiff" and carry her to'the cemetery and hack to New York. The carriages were furnished ; and the negligent act of the driver of the one sent to the plaintiff, and in which she was returning from the cemetery, caused the injury.

There was no evidence whatever that the driver of the carriage was the servant of the defendant, and such relation could he implied only from the engagement of the latter to furnish carriages for the funeral, and furnishing them in pursuance of such engagement. And in submitting the case to the jury, they were instructed that if they should find the driver of the carriage was the servant of the defendant, he was liable; under which instructions the jury were allowed to determine that the relation of master and servant existed from the mere fact of the defendant’s engagement with Harrow.

By their verdict they must have wholly rejected the undisputed fact that the driver of the carriage and horses was their owner, which fact necessarily, I think, established conclusively that the relation of master and servant did not exist.

The question of respondeat superior applies only to the immediate employer of the servant or agent through whose negligence an injury occurs.- There cannot be two superiors, and the difficulty in all the cases has been in determining whose servant the person was who did the injury; when that is determined, the principle of respondeat superior at once attaches, and renders the immediate master or employer liable.

It appears to me to be quite clear, that if it be conceded that the driver of the horses was their owner, and was merely employed by the defendant for the service specified in his engagement with Harrow, such employment alone would not make .the driver the servant of the defendant. The mere hiring.of a person is not always sufficient to create the relation of master and servant. There must be, besides the hiring, some degree of actual control over the person hired, and some right to direct him, from time to time, as the master may see fit; for the responsibility of the master begins and ends with his control over and his right to direct his servant; and therefore -the master is held to a reasonable care and discretion in the choice of a servant.

There was nothing in the contract with the driver for the use of the carriage, which created the relation of principal and agent or of master and servant. By the contract, the driver was left in the free and independent use of his own judgment, means and skill in the execution of it; and. the only power the defendant could exert was merely such as one party to a contract may always exercise, without incurring the danger of expressly or impliedly establishing a different relation than that of simply contracting parties.

If in this case, by any just implication, the driver could be regarded as the agent or servant of the defendant, within the rule respondeat superior, then in every case of hiring a hackney-coach from a public stand, or from a livery stable, or of a vessel to carry passengers on an excursion, or of a contract to do a specified work, the driver of the hackney or livery coach, or the officers and crew of the vessel, or the contractor, would be the servants of the employer, and the law would imply his sanction of all their acts. So that if I hire a hackn.ey-coach from one of the public stands to carry me to a given place, and the driver negligently injures another, I am responsible;' or if I hire of the owner, a vessel and crew to carry passengers on a pleasure excursion, I must insure their skill and competency, and be made liable for an injury to a passenger through the negligence of one of the crew. I am not aware of any principle of law which sanctions such a proposition. There would be neither reason nor justice in it. The foundation of the relation of master and servant being the right to select the servant and the right to control and direct him. The owner of the hackney-coach or of the vessel, in the cases stated, would be the superior, and alone responsible.

The leading English case is Laugher v. Pointer, (5 B. & C. 547,) where the owner of a carriage hired of a stable keeper a pair of horses to draw it for the day. The stable keeper furnished the driver, through whose negligent driving an injury was done to a horse belonging to a third person, and it was held that the owner of the carriage was not liable. And the case was not affected, though the owner of the carriage selected from many, the particular servant who drove the horses. The court said: “If the driver be the servant of the job master, we do not think he ceases to be so by reason of the owner of the carriage preferring to be diven by that particular servant, any more than a hack postboy ceases to be the servant of an innkeeper, where a traveler has a preference of -one over the rest, on account of his sobriety and carefulness.” _ -

And in Quarman v. Burnett, (6 M. & W. 508.) where the owner of a carriage hired the driver and provided him with a livery, which he left at their house at the end of each drive, and the injury in question was occasioned by leaving' his horses while so depositing the livery in their house, the court withopt hesitation relieved the owner from responsibility. But-they said that if the livery had been left under a general or special order to do so, without leaving any one at the horses’ heads, the owners would have been liable ; for a person who is not the general master of a servant, may make him his servant in' a particular transaction by specially directing him thereto, or by a subsequent adoption of what he has done.

The decision in these cases was put upon the ground that the driver could not be the servant pf both the livery stable keeper and the person in the carriage; as Justice Littledale said, “ he was the servant of one or the other, but not the servant of one and the other.”

In the case of Powels v. Hudson, (36 Eng. L. & E. Rep. 162,) the distinctions are clearly drawn. The action was for failing to deliver baggage. The defendant was the-proprietor of a cab which he let for hire to a driver, through whose negligence the baggage was lost; and Lord Campbell, Ch. J., said if the cab and horses were let to the driver and he was to be considered the bailee, and entitled to make what use he pleased of them, the driver could not render the defendant liable on any contract into which he entered for the use of the cab; and the plaintiff being without remedy against the proprietor, could sue the driver. There were facts, however, in that case, which justified the remark, that it was “quite different from hiring a job carriage, or a carriage and horses to be driven by the hirer, or his servants, when the hirer be.comes bailee, and can in no sense be considered the servant of the proprietor.” Most of these decisions, as well as Milligan v. Wedge, (12 Adol. & Ell. 737,) and Allen v. Hayward, (7 id. [N. S.] 960;) Martin v. Temperley, (4 Q. B. 298;) Gayford v. Nichols, (9 Exch. 702,) are reviewed at length, and fully approved, in Blake v. Ferris, (5 N. Y. Rep. 48,) where Mullett, J., after stating several kinds of servants who, though actually employed by a third person, are in fact employed for and in the name and at the expense of the primary principal, and are continued subject to his control, says: “But. when a man is employed in doing a job, or piece of work, with his own means and his own men, and employs others to help him, or to execute the work for him and under his control, he is the superior who is responsible for their conduct, no matter who he is doing the work for.” To attempt to make the primary' principal or employer responsible in such cases, would be an attempt to push the doctrine of respondeat superior beyond-the reason on which it is founded.

I may also refer to Kelly v. The Mayor &c. of New York, (11 N. Y. Rep. 432;) Conrad v. Trustees of Ithaca, (16 id. 158;) Storrs v. City of Utica, (17 id. 104.) Applying the principles established by the cases referred to, to the one before us, it is apparent that the relation of master and servant did not .exist between the defendant and the driver; and as the defendant’s liability rests, in part at least, upon the existence of such relation, he is not responsible for the injury the plaintiff received through the negligence of the driver. •

It may be said, however, that although the relation of master and- servant did not exist, or could not fairly be presumed from the mere act of hiring the driver, yet that the defendant made the driver his servant by asking him to go into the hotel and he would settle with him. But I do not see how that fact alters the ease. It may be that the invitation to the driver contributed'to the accident, inasmuch as it might be said that the driver would not have left the horses had he not been solicited by the defendant to go into the hotel, But if the driver was his owner master, as I have endeavored to show he was, and not subject to the will of the defendant, then his accepting the invitation was a purely voluntary act. He could have declined it; and it cannot be pretended that the defendant could even have directed ' him to obey the request, or could have exercised any other power or control over him in the matter.

The driver being himself the superior, he could not become-the servant of the defendant, except under some contract, express or implied, creating him such—a mere tortious act, contributing to the accident, not being sufficient to authorize any such implication. As well might a stranger who had invited the driver into the hotel, be held to have made the driver his servant, as to imply any such relation from a like act of the defendant. If, therefore, the liability of the defendant rested upon the relation of master and servant, (Stevens v. Armstrong, 6 N. Y. Rep. 435,) it was necessary to establish such relation affirmatively by competent proof, which the plaintiff entirely failed to do in this ease.

It was not enough, in my judgment, to show that the carriage and driver were furnished by the defendant, without also showing some power over, or right to control the driver, or some fact to indicate that he was in the defendant’s service. Instead of furnishing some such evidence, the case went to the jury upon bare presumptions or conjectures, and they were left to imply the relation.of master and servant from the mere fact of employment.

It seems to me that the plaintiff wholly failed to establish that the driver of the carriage was the servant of the defendant, in any sense that would render the latter liable; and that therefore there was no question for the jury to pass upon.

But there is another reason, arising under the second ground of the motion to dismiss the complaint, which will, in some degree, illustrate the difficulties in the way of a recovery in this action.

The plaintiff was a passenger riding in the carriage upon the invitation of Darrow. As between her and any of the other persons, the service was entirely voluntary. There was neither contract nor privity of contract, and the well settled rule that the omission to do a voluntary act incurs no responsibility, (Thorne v. Deas, 4 John. 84,) applies, it seems to me, to this case. It is true, if one voluntarily0 undertakes to do a thing, and does it amiss, he is responsible for the misfeasance; but all the cases of' misfeasance are of failure to perform a contract, and there is not, that I am aware of, a case of misfeasance not founded on a contract.

If the defendant had undertaken with the plaintiff1 to carry her, and carried her so negligently as to cause her to be injured, he might be liable for the misfeasance, for the law would probably imply that the contract was to carry her safely, (Weed v. Panama R. R. Co., 17 N. Y. Rep. 362;) and such a contract might possibly be implied between the defendant and Darrow, but the plaintiff was neither a party nor privy to any such contract; and nothing can be implied from the transaction which would enable the' plaintiff to recover upon any such ground. (Nolton v. Western R. R. Co., 15 N. Y. Rep. 444.) But for an injury caused by negligence, carriers of persons may be liable, not upon any contract, express or implied, but for the violation of a duty which the law imposes upon them. This was so held in Nolton v. Western R. R. Co. (supra.) In that case, however, the defendants had contracted to carry the mails aud also the mail agent, and had received the plaintiff as such mail agent, and he was injured by their negligence. The court, in sustaining the action, put its decision upon the ground that the defendants had undertaken to transport the plaintiff, and, although a voluntary undertaking, they were liable.

The case of the plaintiff is no stronger than tlijs. If I engage a carriage of a stable keeper to carry a person from my house' to his own, and he is injured by'the driver’s negligence ; or, if I carry him in my own carriage, with ifiy hired servant, and he is injured, am I liable for the injury? I think not. In those cases I can, at most, be held to exercise ordinary care, and am not answerable for the want of care of the servant; so that, even assuming that the driver of the carriage was the servant of the defendant, the ’plaintiff, a mere passenger without hire, could not recover unless, as in the case stated, (of a person to whom I lend my carriage and horses,) I can be held responsible for the want of care of my servant.

The conclusion I have reached renders it unnecessary to examine the exception to the refusal to charge the jury that if the defendant was the agent of Darrow, and furnished the carriages as his agent, Darrow, and not the defendant,- was liable. The proposition, as matter of law, was correct, and it was an error to decline to charge it, if there was any evidence upon which it could operate. I think there was some evidence. Darrow engaged the defendant to furnish the carriagesthe defendant had none of his own, and procured others—acting, therefore, in the quasi capacity of agent for Darrow, and rendering him liable to the owners'for the same.

But for the first reason stated, I .am of opinion that the judgment should be reversed, and a new.trial granted, with costs to the appellant to abide the event.

Jones, J.,

concurred in reversing the judgment, on the first ground stated, i. e., that the evidence did not show the relation of master and servant between the defendant and the driver.


source: Caselaw Access Project

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

license: Public Domain

text:
    The East New York and Jamaica Railroad Company, plaintiff and appellant, vs. William A. Lighthall, defendant and respondent.
    1. Corporations can act only by and through their agents. Hence the acts of the officers and agents of a corporation, performed Within the scope of their general official duties, are binding upon the corporation.
    2. Receiving payment of subscriptions to the capital stock of a corporation ' is no more out of the line of the president’s duty, than receiving payment of any other debt.
    3. The president of a railroad corporation being authorized to receive payment of stock subscriptions, received stock in a coal company, in payment of a subscription ; Held that his act was binding on the corporation, unless the corporation itself was incapable of receiving any thing but money; and this, notwithstanding the authority given to him may have been limited, in terms, to collections in money only.
    4. Every corporation has, besides the powers expressly conferred by its charter, certain common law powers, which may be exercised in furtherance of the purposes of the corporation. Such common law powers are the same as those possessed by individuals, and may be employed in the same manner, unless restricted by some positive or clearly implied prohibition of law.
    6. Where there was nothing in the charter of a corporation, or in the provisions of the Revised Statutes to which the charter was subject, by way of limitation to the ordinary implied powers of all corporations; nor any provision which, either in express terms or by necessary implication, defined the things which the corporation should receive in payment for debts due to it; and the president received stock in another corporation, in payment of a subscription for stock; Held that such receipt was the receipt of the corporation, and could not be rejected by it, upon any plea of want of authority in the présidént.
    (Before Robertson, Ch. J., and Jones and Monell, JJ.)
    Heard —;
    decided December 31, 1868.
    The action was brought to recover the amount of a subscription made by the defendant to the capital stock of the plaintiff. The defense was payment.

      It was proved that the subscription was made in July, 1866. The defendant testified that, about the 1st of November, one Degrauw, the president of the plaintiff’s company, came on board the cars at Jamaica and asked the defendant if he would sell him coal stock. The defendant replied he would, upon one condition. That he owed the plaintiff $1000, and wanted to pay it for some time, and would sell the coal stock on that condition at the same price he paid for it—$30 a share. Degrauw told the defendant to come to his office. The next day the defendant called at Degrauw’s office, and transferred to Degrauw one hundred shares of the stock of the Mahony Coal Company, and received two acceptances of Degrauw of $1000 each, and the following written agreement:
    “New York, November 1, 1866.
    I hereby agree to deliver to William A: Lighthall, on the completion of the extension to Jamaica of the East New York and Jamaica Railroad Company, a certificate of stock of (20) twenty shares of the capital stock of said company. ' Aaron A. Degrauw.”
    A witness for the defendant testified that at the time the coal stock was transferred, the defendant said to Degrauw, “This pays my subscription for one thousand dollarsand Degrauw said, “Yes, that is all right; when the stock is issued, I will give it to you.”
    Degrauw contradicted all this evidence; and there was much other conflicting evidence, as to whether Degrauw agreed to take the coal stock as payment for the subscription. Degrauw also testified that he, Mr. Black, and the secretary, were authorized by the plaintiff' to collect the stock subscriptions, but were never authorized to accept, in payment of the defendant’s subscriptions, Mahony Coal Company stock; and the plaintiff’s secretary and treasurer testified that the plaintiff never authorized any thing but cash to be taken for subscriptions to their capital stock.
    The plaintiff’s counsel asked the court to direct the jury to find a verdict in its favor, on tfie grounds, among others, that the written agreement" did not show any permission to accept the coal stock for the subscriptions; and that Degrauw had no power to accept the coal stock in payment of the subscriptions.
    The court refused the request, and the plaintiff excepted.
    The court submitted the case to the jury, under instructions that if it was an agreement of Degrauw’s to receive the coal stock as payment of the defendant’s subscription to the capital stock of the plaintiff’s company, he had a right, as president of such company, to accept other things besides money in payment of the subscriptions to their stock. That if the jury found that Degrauw agreed to receive the coal stock as payment of the defendant’s subscription, they must discharge the defendant. To these instructions the plaintiff excepted.
    The jury found for the defendant.
    A motion for a new trial was .made upon the judge’s minutes, and denied. Judgment upon the verdict was thereupon entered.
    The plaintiff appealed from both judgment and order.

      J. E. Parsons, for the plaintiff, appellant.

      W. W. Goodrich, for the defendant, respondent.
   By the Court, Monell, J.

The question which was submitted to the jury in this case was, whether Degrauw agreed with the defendant to receive the coal stock in payment for his subscription; and they were instructed that .if they so found, the agreement was binding upon the plaintiff.

If it was proper to submit such question to the jury, their verdict cannot be disturbed. The evidence was conflicting, and therefore not open for review upon these appeals.

But it is claimed that, notwithstanding Degrauw’s agreement, the receipt of the coal stock by him was not payment to the plaintiff, for two reasons; first, because the plaintiff had no power to receive any thing other than money in payment of subscriptions to its capital stock ; and, second, because Degrauw had no authority to receive it, or to bind the plaintiff by any agreement that it should be received in payment of the defendant’s subscription.

Independently of the evidence furnished by 'the plaintiff, that Mr. Degrauw was expressly authorized by them to collect stock subscriptions, I think he had power to do so, by virtue of his office, as president of the company.

Corporations cap act only by and through their agents; for, although in' law a person, and capable of exercising all the functions conferred upon it by law, a corporation is yet, as a corporate aggregation, incapable of exercising such functions otherwise than through its officers and agents. Hence the acts of such officers and agents, performed within the scope of their general official duties, are binding upon the corporation. Ordinarily, corporations do not differ from persons in the effect which is to be given to the acts of their agents. If the corporation has power, it may delegate such power; and it is only when prohibited by law, or the act is not incidental to the purposes of its incorporation, that it is ultra vires, and void. (Sharp v. Mayor of New York, 40 Barb. 256.)

Receiving payment of subscriptions to its capital stock was no more out of the line of the president’s duty, than receiving payment of any other debt, and it cannot be pretended that such receipt, had it been in money, would not have bound the plaintiff, even although it never came to its possession. And the fact testified to by the secretary, that no one was authorized to receive any thing other than money, cannot impair the effect which must be*given to the payment made by the defendant.

In this case, however,- there was express authority given to the president of the company, and it therefore follows that his act is binding on the plaintiff, unless the plaintiff itself was incapable of receiving any thing but money; and that is so, notwithstanding the authority given to the president may have been limited, in terms, to collections in. money only. (Clark v. Metropolitan Bank, 3 Duer, 241.)

It is a familiar principle, that the act of the agent, although in abuse or excess of authority, if within the general scope of the business he was employed to transact,' is binding upon his principal, as respects third persons, who, believing in the power of the agent, would sustain a loss if the act was not considered that of the principal. Hope Mutual Life Insurance Company v. Taylor, 2 Rob. 278.)

It remains then to be seen, whether the plaintiff had power to receive payment otherwise than in money, for subscriptions to its capital stock.

Every corporation has, besides the powers expressly conferred by its charter, certain common law powers, which may be exercised in furtherance of the purposes of the corporation. Such common law powers are the same as those possessed by individuals, and may be employed in the same manner, unless restricted by some positive or clearly implied prohibition of law. (Barry v. Merch. Exch. Co., 1 Sandf. Ch. 280. DeGroff v. Am. Linen Thread Co., 21 N. Y. Rep. 124.) And the objection that an act of a corporation is ultra vires ‘rests upon the absence of either express or implied power, and not upon the wrong use of it, especially where such wrong use may work injury to innocent persons.

These common law or implied powers in a corporation were fully recognized in Curtis v. Leavitt, (15 N. Y. Rep. 9,) where it was held that a corporation had power to contract a debt, and give its time obligation for its payment. And in a later case, (City Bank of Columbus v. Bruce, 17 N. Y. Rep. 507,) the receipt by a corporation of its own stock in payment of a debt due to it was sustained, as being within the incidental powers of the corporation. The court there say, (Selden, J.,) “I am not aware of any common law principle which forbids it, nor is it known to have been in contravention of any provision of the charter of the company.” And in Magee v. Badger, (30 Barb. 246,) a railroad corporation took the promissory notes of a subscriber in payment of his subscription for stock, and it was upheld.

I have looked into the charter of the plaintiff’s company, and also at the provisions of the Revised Statutes to which the charter is subject, and do not find any limitation to the ordinary implied powers of all corporations,.'nor any provision which, either in express terms or by necessary implication, defines the thing which the plaintiff shall receive in payment for debts due to the corporation.

I do not think any question, whether receiving coal stock of another company was within the purposes of the plain- • tiff’s corporation, is involved in the present case. If this was an action upon an executory contract, to compel the plaintiff to receive the stock in payment for the defendant’s subscription, it might be said that dealing in such stock was foreign to the purposes of the company, and the contract therefore not within its implied p'owers. But in this case the contract was executed. The stock had been received by Degrauw in payment of the defendant’s subscription, and, as has been seen, such receipt was the receipt of the plaintiff, and cannot now be rejected upon any plea of want of authority.

And although the plaintiff has not reaped the fruits of the transaction, it must, nevertheless, be concluded by the act of its agent, and not seek to inflict a wrong upon an innocent person who, believing in the competency of the agent to act on behalf of his principal, had dealt with him accordingly.

I am of opinion that the judgment and order appealed • from should be affirmed.

Garvin, J.,

concurred.


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

text:
    S. Shuster Smith and others, plaintiffs and respondents, vs. Abraham D. A. Miller and others, defendants and appellants.
    1. The acceptance of a negotiable instrument, for a debt, is not a payment of it, without a separate agreement to that effect distinctly proved. Hence a debt due, for merchandise sold, is not paid by the mere remittance of a draft, unless it is agreed to be received as payment.
    2. The doctrine established in Johnson v. Banh of North America, (5 Bob. 664,) that if a check of the drawees of a draft, given in exchange for the draft, be not paid on presentation, the next day after it is given, the liability of the drawer qf the draft still remains) on due notice to him of such demand and non-payment, reasserted.
    (Before Robertson, Ch. J., and Garvin and Barbour, JJ.)
    Heard —, 1868;
    decided October, 1868.
    Motion by the defendant Miller for a re-argument of this case, on the ground of a misapprehension by the court, of the facts and decision in the case of Turner v. The Bank of Fox Lake, in the Court of Appeals, (3 Keyes, 425,) upon the-authority of which case this court had refused to interfere with a verdict and judgment therein, in favor of the plaintiffs. The facts and decision appear in the previous report of the case, 6 Rob. 157.

      J. H. Choate, for the appellants.

      E. T. Gerry, for the respondents.
   Robertson, Ch. J.

One distinction between this case and the cases of Johnson v. Bank of North America, (5 Rob. 554,) in this court, and Turner v. Bank of Fox Lake, (3 Keyes, 425,) is rather in favor of the plaintiffs in this case. This action is for the price of merchandise sold, and not on any draft. The defense set up was a remittance of a draft by the defendants in payment of the “ balance ” due to the plaintiff upon such sale, and the payment and satisfaction of such draft by the drawees, its surrender, and the acknowledgment by the plaintiffs to the defendants that it had been paid. The various authorities referred to in the opinion of the court in the first case, (Johnson v. Bank of North America, 5 Rob. 554, 590,) as well as in the second case, fully show that the acceptance of a negotiable instrument for a debt is not a payment of it, without a separate agreement to that effect, distinctly proved. The debt due for the merchandise sold in this case was not, therefore, paid by the mere remittance of the draft in question, unless it was agreed to be received as payment. That is neither alleged in the answer, nor was there any evidence in the case of any such separate agreement. For I do not regard.the request contained in the letter of’the plaintiffs, dated Eovember 16, 1867, to the defendants, to remit “ the balance on their lot,” the announcement in the answer of the defendants-, two days afterwards, (Eovember IE,) that they inclosed their draft for a certain sum, ($2968.69,) “being balance due them on last invoice and the reply, dated next day, (Eovember 19,) acknowledging the receipt of such draft, and stating that it had been paid, as making out such an agreement. Consequently it was not by the mere receipt of the draft that it became a payment and satisfaction of the original claim, and the plaintiffs were to be confined to a right of action upon it. If its receipt operated in any way to discharge the defendants from their original cause of action, it must have been in consequence of the plaintiffs’ subsequent mode of dealing with such draft. If not a payment, such draft became mere collateral security for the original debt; and the plaintiffs could only become liable therefor by a violation of some undertaking on their part to collect the draft, implied from the mere fact of taking it as such security. It was also a sight draft, and it does not appear when it was received by the plaintiffs; but if not received until the 19th, a presentment on the 20th might have been in time; for the receipt of the check on the former draft, (if not an absolute payment,) and its presentation on the latter day, might have operated as a good demand on the last day of payment" of the draft. For if a check is to be considered as a mere means of obtaining the money, as was held by Clerke, J., in Bradford v. Fox, (39 Barb. 205,) and according to the ordinary rule sfe between drawer and payee, the former is not discharged if it be presented next day after it is given; such an interpretation might have been put on the conduct of the plaintiffs.

There was, however, a piece of evidence in the case, which might have warranted the submission to the jury of the question whether the check of the drawees was agreed to be received in payment of the draft or not; and that • was their letter of November 19, acknowledging that the latter had “been paid;” but the defendants did not ask to .have it submitted, and a-re-argument is not asked on that point.

' But assuming that the plaintiffs were bound to present the draft in question on November 19, and that it being presented on that day, and a check received for it, such receipt made the latter a payment thereof, either absolute or conditional, I think this case clearly within the'first cited cases, (Johnson v. Bank of North America, and Turner v. Bank of Fox Lake, ubi sup.,) to wit, that if a check of the drawees of a draft received in exchange for it, be not paid on presentation to the person on whom it was drawn, the next day after it is given, the liability of the drawer still remains, on due notice of such demand and non-payment to him.

I am aware of the strong argument which may be built upon the assumption that it is the duty of a holder of a draft, in order to retain the liability of the drawer, to insist on its payment in money, when presented for payment, and in case of a refusal to give that, to notify such drawer of such demand and non-payment in money; and I am also aware of the other inference that may be naturally drawn from such assumption, that the surrender of the draft and an acceptance of the check of the drawee therefor, must "be construed to be a payment in law, because the holder thereby shows an intention not to insist on absolute payment in cash, but to take the chances of the goodness of the check, and look for payment to the drawee’s responsibility on it alone.

The case of Kobbe v. Clark, (4 Seld. Notes, 11,) cited as authority for the freedom of the defendants from liability, evidently did not" proceed upon any such doctrine as" that the holder of a draft was bound, in all eases, to demand the payment of it in money, when, presented for that purpose, and that if he gave time for it's payment until next day, by taking a check therefor, and waiting until that time to present it, he thereby made such check his own, and its receipt a payment of the draft. For the learned justice of this court before whom that case was tried, in his charge to the jury, made the exemption from liability of the defendant to depend upon two contingencies :

First. Whether the drawers of the • draft in question would have paid cash for it if their check had been refused; and •

Second. Whether the check would have been paid if presented the day it was given; one of which questions, of course, must have be.en found by the jury in favor of the defendant, to warrant the verdict.

The first question so submitted evidently concedes that the taking of a check is justifiable, and the liability of the drawers is retained, although the drawers would not pay the money upon demand; and the second assumes the effect of taking the check, in discharging the drawers, to have depended on the diligence or want of it exhibited in attempting to collect it. Both imply that the mere taking of the check and surrender of the draft did not in themselves discharge the drawers.

That case, however, evidently impliedly acknowledges that if neither of such contingencies (on which the jury were allowed to speculate) would have happened, the presentation of the check for payment on the day after it was given, was in time, and retained the liability of the drawers of the draft, and that very doctrine is admitted in this case. The case of Caldwell v. Sanderson, however, cited on the argument from 8 Bank. Mag. N. S. 962, (which can hardly be considered as a professional work,) meets the point fully, for in that case it was contended that the taking of the check and surrender of the draft was a payment of the latter, and the court so held. It is not so remarkable that the Court of Appe'als should have overlooked the first case of Kobbe v. Clark, as it was not reported in any regular book of reports, or if they had it in view, should have intended to overrule a case, which left the liability of a drawer to depend on the mere speculations of a jury on probabilities as to what a drawee would be likely to have done if the check had been refused, or whether the latter was likely to have been paid if presented oh the day it was drawn, and rather made such liability to depend upon the presentment of the check, its refusal, and notice of non-payment of the draft within the time necessary to have notified the drawer, if no check had been taken, and payment of the draft had been refused. And so I understand the court to have done in the recent case, before cited, (Turner v. Bank of Fox Lake, ubi supra.)

It is not necessary to comment on those cases in which a collecting agent has been made liable, for want of due diligence, in not presenting a check received by him for a draft placed in his hands for collection; such as Nunnemaker v. Lanier, (48 Barb. 234;) Commercial Bank of Pennsylvania v. Union Bank of New York, (11 N. Y. Rep. [1 Kern.) 214.) They depend upon an entirely different relation of the parties, and different duties, and are wholly inapplicable.

The only report of the case of Turner v. Bank of Fox Lake published has several typographical errors, consisting principally of the substitution of the words “ drawers” for “ drawees,” in nearly every place where the latter should have occurred, and it therefore may have misled the counsel in this case. It clearly holds that the taking of a check for a draft was only “ equivalent to the taking, by a creditor from his debtor, of an obligation of a third person,” and that the presentment of such check next day, through the New York clearing-house, was in time to discharge any obligation assumed by the holder in regard to it, so as to leave the drawer of the draft, still liable. Apparently, the only reason given in such case for holding a presentment of the check the next day to be in time, was that it was according to the regular course of business for presenting checks on banks of New York. That has already been held to be the legal time in all cases when the check is drawn upon a drawee in a place where both parties reside, (Mohawk Bank v. Broderick, 13 Wend. 133,) and to this may be added the consideration that notice of non-payment of the draft on demand of it, is in time if given on that day. Of course we are bound by the decision in that case, even if we saw good reason for departing from- that of Johnson v. Bank of North America, (ubi supra,) and as the inapplicability of the former is the sole reason for asking a re-argument, it must be denied, since two of the judges of this court so read that case, in their opinions, even supposing the other judges who joined with them in their decisions in both cases to have misunderstood it. One of the justices who dissented in Johnson v. Bank of North America, (Monell, J.,) concurred in the former decision of this case, as I understand, so that more than a majority of the court have joined in the same -view of Turner v. Bank of Fox Lake, and it would be hopeless to expect to do away with that view.

I have gone, perhaps, more fully into the merits of the case than was necessary to decide the motion, which was founded upon a mere supposed misconstruction by the court of a recent decision, and does not come within the principles laid down in Newell v. Wheeler, (4 Rob. 190,) and Rector &c. of Trinity Church v. Higgins, (Id. 372,) but I deemed it proper to reassert the doctrine established in Johnson v. Bank of North America, on the strength of the case in the Court of Appeals.

The motion must be denied, with $10 costs.

G-arvin, J., concurred.

Barbour, J.

Without expressing .an opinion upon any of the questions presented upon the argument of the appeal, or decided by the court, and now discussed in the opinion of the learned chief justice on this motion, I concur with him in thinking that the motion for a re-argument ought to be denied. This conclusion, however, is based solely upon the ground that the case appears to have been fully and ably argued at general term, and no sufficient reason is shown for a reconsideration here of any important questions involved in the controversy.

Motion denied,


author:
Jones, J.
      Robertson, Ch. J.

text:
    William F. Heins, plaintiff and respondent, vs. Charles A. Peine, defendant and appellant.
    Although the accounts between consignor and consignee are adjusted, up to a certain period, and a specified sum is agreed to be paid by the former to the latter, tor commissions and advances, the consignee is entitled to a lien upon the goods, not only for that sum, but for interest upon advances subsequently made by him. Hence a tender of the sum so agreed to be paid, without including such interest, will not entitle the consignor to recover possession of 'the goods.
    (Before Robertson, Ch. J., and Jones, J.)
    Heard and decided June, 1868.
    The defendant’s business is that of selling goods on com-.. mission. In January, 1865, one Zingsen consigned certain goods to the defendant. The terms upon which the goods were consigned were, according to Zingsen, that if the defendant sold the goods at as great a profit as he represented that he had sold one case, he (Zingsen) would give him $500; but according to the defendant they were that he, the defendant, was to have a commission of five per "cent on the sales, and Zingsen guarantied that the commission would amount to at least $500 in the first year.
    Between January, 1865, and April 21, 1865, the defendant sold, at auction, a small bill of the goods, amounting to $300, and made advances to Zingsen, upon the goods, as follows: February 6, $500; March 30, $500; April 5, $700; April 21, $400. On the 21st April, Zingsen and the defendant having each become dissatisfied, they, stated the account between them, and the defendant agreed to take $250 for his commissions, disbursements and interest on his advances. The account thus stated showed a balance of $2050 in favor of the defendant, due May 21, 1865.
    The defendant swears that he agreed to take the $250 only on condition that it was paid that'day, and stated that if he waited until the next day he should charge $500. The plaintiff, who negotiated the settlement between Zing-sen and the defendant, swears that the defendant, in order to settle the matter, agreed to make up his account due on the 21st of May at so much, and put it down in pencil. The stated account was put in evidence, and omitting the heading, except the date, was as follows:
    1865. “April 21st, 1865. Feb. 6. To cash advanced on consignment, $500 Mar. 30. 66 66 66 500 April 5. 66 66 66 700 “ 21. 66 66 66 400 To rent and salary,...... . 500 $2600 April 4. By cash T. E. Halsey & Co. . . , 300 #2300 (In pencil) ......... . 250 (In pencil) (In pencil) Due May 21st, 1865.” $2050
    Both the plaintiff and Zingsen swear that they saw the defendant write in pencil the words and figures, “ Due May 21st, 1865.” The defendant swears that the date is not his handwriting.
    The only other evidence bearing on this settlement is the testimony of Zingsen/ who swears, “Mr. Heins said to Mr. Peine, we will give you one half (that is, of the $500,) if you give us the goods and a specified account of what you have done, and Mr. Peine said he would do it.”
    At the time of making this settlement, Zingsen transferred the balance of the goods remaining unsold, to the plaintiff, who thereupon consigned the same to the defendant to be sold to the best advantage for cash, but not forced. No express agreement was made between the plaintiff and defendant as to commissions, compensation or interest on advances. Under this consignment the defendant proceeded until the 12th of August to make sales at private sale and also at auction, under the plaintiff’s directions, and received the proceeds of the sales, and made an advance of $230 to the plaintiff.
    On the 12th of August the defendant made out the following account:
    1865. Eeb. 6. To cash loan . . ........ . $500' 00 Mar. 30: “ .......... 500 00 April 5. “ .......... 700 00' “21. “ .......’. . .■ 400 00 Rent, salary and interest ..... 500 00 1865. Apl. 4. “ 26. ■May 12. ' “ 19. 66 66 June 1. “ 12. “ 16. July 19. Aug. 4. “ 12. $2,600 00 By cash from T. E. Halsey & Co. $300 00 “ Curtis & Co. . . 206 58 “' Same .... 64 08 “ Same .... 43 65 “ T. E. Halsey & Co. 102 94 “ 63 doz. spectacles 78 75 “ T. E. Halsey & Go. 230 03 “ ' Hallgarten&Herzfeld . . . . 718 51 “ T. E. Halsey & Co. 357 36 “ Same .... 202 94 “ Same . . . . 148 80 2,453 64 •$146 36 June 30.- Paid W. F. Heins .... 230 00 Aug. 12. Paid cartage and laboP ... 3 64 233 64 To balance New York, Aug. 12th, 1865. $380 00 C. A. Peine.
    Between the 12th and 28th of August, the plaintiff tendered to the defendant .$130, and demanded the goods remaining unsold. The defendant refused to deliver them unless he was paid $380. Thereupon the plaintiff brought this action of claim and delivery. The defendant, after several denials of the allegations in the complaint, sets up a lien on the goods, to the amount of $380 and interest from August 12, 1865.
    The judge charged the jury, among other things, “If you find that $250 (referring to that sum in the stated account) was full compensation, the plaintiff is entitled to recover.” To which the defendant excepted. He also charged: “ If you find the agreement was that $250 should be received as full compensation, and also find that the' plaintiff demanded an account of the defendant, and offered to pay him all he was entitled to, that is sufficient.” To which the defendant excepted.
    The jury rendered a verdict for the plaintiff, and assessed the value of the property at $3500. A motion for a new trial was made, and denied, and judgment was then entered, on the verdict.
    The defendant appealed from the order denying his motion for a new trial, and also from the judgment.

      John J. Townsend, for the appellant.
    I. The verdict is wrong, because the defendant was entitled to more than $130, which was tendered after August 12, 1865.
    II. Upon the evidence, a verdict for the defendant was possible. Under the charge, a verdict for the defendant was impossible. At folio 78 it was charged,' “ if the agreement was to take $250 as compensation, you will say so.” At folio 82, “ if you find the agreement was that $250 should be received as full compensation, that is sufficient.” At folio 84, “ if you find there was an agreement to receive $250 as full compensation, that ends it.” As the agreement to accept $250, 21st May, 1865, is an undisputed fact, and consistent with the defendant’s claim for compensation afterwards earned, and to interest afterwards accruing, the charge in the particulars here excepted to is equivalent to a direction to the jury to find for the plaintiff.
    IH. The statement of facts presents the evidence in regard to the original agreement between Peine and" Zingsen. Peine claimed that he was to have at the least $500 per annum, Zingsen claiming that he said, “ I could give you that if you go on in that way.” Neither claims that the right to receive $500 depends on a sale of all the goods. It was so charged. The defendant was entitled to have the original agreement properly submitted to the jury, for all his rights depend upon subsequent modifications of that agreement. It could aid the jury in estimating the value of his subsequent services.
    IV. The defendant was entitled to have the value of his services, and of the use of his money after 21st April, 1865,
    . estimated. He made that request. The charge refused this and fixed a limit not to be passed, to wit, 21st April, 1865. This was in effect directing a verdict for the plaintiff.
    V. The charge from folio 79-to 81, it is claimed, was even more injurious to the defendant. At folio 79, the court stated, “there is no evidence of any services after 21st of April, 1865.” A juror interposed: “ I understand that the $250 was for services up to that time—and Mr. Heins, after he took a transfer, &e., left the goods in possession of Mr. Peine.” The court: “Not at all,” &c., and proceeded to state, in effect, that in April the defendant agreed to retain the goods until August, to send them to auction from time to time,' (without compensation,) pay himself and hand over the balance to the plaintiff; at all events, that he did nothing for which he would be entitled to charge. It will be vain to look for any evidence of such an agreement. It was to accept a certain sum on 21st May, 1865. An indefinite future was not then provided for. The juror was right.
    ■ VI. To this very emphatic limitation of time, 21st April, 1865, is the submission to the jury of the value of the defendant’s services to be referred. As at folio 82—“ What is a fair compensation to the defendant,” &c. And at folio 84— “It is simply-a question what'his services and advances are worth.”
    VH. The charge at folio 83, “ that nothing was earned by the defendant by way of commission, except on the $78.75,” must have misled the jury, and made them believe that the defendant’s claims to any important sum were without foundation. &
    Yin. The charge that, “ under the agreement the goods ought to have been sold without sending them to auction,” must have misled the jury. • As the agreement is the entire compact, the jury must have been induced to think that the defendant violated it when he sold goods at auction. But he was directed to sell at auction, in writing, May 3, 1865, and all those sales wer'e authorized by the plaintiff.'
    IX. The charge, “Nor is the defendant entitled to $500 by virtue of carrying out the original agreement;” and at folio 77—“I understand the condition of that agreement to be that the goods were sold in the ordinary way by the defendent,” is wrong, because it was not claimed by either party that there was any such condition, and whether or not the plaintiff is entitled to the sum specified, he is entitled to have the agreement properly presented to the jury, as a part of the history of the case—as an agreement modified but not violated—and useful at least to aid in forming an estimate of the value of his services.
    X. The case was presented to the jury as if the defendant had agreed on 21st April, 1865, to make no charge in any event in the future. This is very plainly a misconception of the case, and very injurious to him. There could be no motive in making such an agreement; if he were not paid on 21st May, 1865, it was uncertain when he would be, or how much the single item of interest would amount to, irrespective of commissions, labor, storage, &e.

      0. Bairibridge Smith, for the respondent.
   Jones, J.

There is not the slightest evidence upon which a verdict finding either that the $250 was full compensation or was agreed to be received as such, could be based. On-the contrary it is clear that the $250 was adjusted and agreed upon as full compensation for all disbursements and commissions made and earned up to April 21, and for interest on advances up to a period not extending beyond May 21st, only. Upon this there is no conflict of testimony. Therefore the instructions excepted to were erroneous. They were instructions that the jury might find certain facts to be established, to support which there was not only no evidence, but which were controverted by all the evidence in the case, and that upon the finding and facts they should render a verdict for the plaintiff.

'But although these instructions are erroneous, still they • would not call for a new trial if the court clearly saw that they could not by any possibility have prejudiced.the defendant.

If the evidence fails to show that the defendant has a lien for disbursements made, or commissions earned, since the 21st of April, or for interest on advances, accruing since May 21st, for an amount exceeding the sum tendered, he is not prejudiced. The evidence shows that since the 21st of April some sales were made upon which a commission would be chargeable. True there is no proof either of what the customary rate of commission is, or of any express agreement as to commissions or compensation, or of the value of the service. I do not, however, consider it necessary that such proof should have been given, since any commission on these sales, no matter how small, would increase the amount for which the defendant had a lien, beyond the sum of $130 tendered. It is not, however, necessary to decide this point, for the interest accruing on the advances. subsequent to May 21st, in whatever way the same maybe calculated, with reference to the application of moneys received from sales of goods, increases the amount for which the defendant has a lien, considerably above the sum tendered.

The judgment should be reversed, and a new trial ordered, with costs to the appellant to abide the event.

Robertson, Ch. J.

The jury were permitted on the trial of this action to speculate on the value of the defendant’s services in making advances upon the goods placed in his hands for sale; storing and bestowing labor upon them, without any evidence on which to act; for the defendant furnished no evidence of the value of such services rendered, either to Zingsen'or the plaintiff; preferring to rest his claim solely on the special contract made between himself and the former, when the goods were originally placed in his hands, as having been carried out by him fully.

There was no conflict between Zingsen and the defendant, in their testimony, as to the terms of such original understanding between them. The latter testified that the former agreed “ to guaranty him $500 the first year, which” “he was to pay if the defendant did not make that amount at jive per cent commission.”

The former did not deny this, but on the contrary admitted that he told the defendant that if he could sell all the goods as he had sold one case, he “ could afford to give him $500.” This clearly did not make the defendant’s compensation depend upon the amount of his actual sales, for under such an arrangement, if he sold any article, however insignificant, he was to be entitled to his $500, provided he continued his exertions to sell; nor did it restrict him as to the mode of effecting the sale, or require him personally to make the sales, provided they were effected through his instrumentality. Such an understanding amounted, therefore, to an undertaking by the defendant to use his best efforts to sell such goods as Zingsen should consign to him for sale during a year, and a promise by Zingsen, if he did so, to pay him $500, and as much more as five per cent on the amount of goods actually sold by him should exceed that sum. Five per cent on the value of the goods first delivered to him would only have been $325. Such an agreement did not deprive the defendant of the lien to which he was entitled upon the goods in his hands, for the amount of such compensation, the moment he entered upon his duties as Zingsen’s factor. . It is true such an agreement made with a clerk or salesman in the employ of Zingsen, while he retained possession of the goods, would create no lien; but he parted with the possession to.the defendant, as his factor, to employ all the facilities he possessed for making a sale, and subsequently procured advances from him thereon. There was no pretext on the trial that the defendant did not perform his part of the contract, nor was his testimony contradicted in regard to the unsaleability of the goods being the cause óf his inability to perform it. No reason, therefore, is presented why he should not, and did not, retain such lien for his $500 until the 21st of April, 1865.

On the last mentioned day, the defendant gave Zingsen a statement of the amount due him, in which was included an item of $500 for “rent and salary.” Zingsen did not object to this upon the ground that no goods had been sold, but immediately went to the plaintiff, who told the defendant they would give one-half of such sum if the defendant would give them “ the goods and a specified account of what he had done.” „ The defendant replied (as he testified without contradiction) that he would do so provided the amount due him was paid that day. It was not so paid, and the goods remained in his hands, to be sold under special instructions from' the plaintiff instead of Zingsen. Many were sold before the 12th of August, when, after many requests, the defendant sent the plaintiff an account of the amount due; in which an item of $500 was again charged for “ rent, salary and interest.” Up to that time the defendant had received no interest on any of his advances, amounting to $2200, beginning in February previous, although it continued to run on after, the 12th of April. From the testimony of the plaintiff it would seem, that the. defendant’s claim for one-half of the $500 had not been adjusted but was still in dispute, and the plaintiff repudiated all connection with it. He acknowledged the justice of the defendant’s claim for the other $250, by admitting that he owed a balance on the account, of $130. He must have so acknowledged it, as being the sum agreed to be allowed on the 12th of April previous for “ rent and salary” alone, and, at most, for interest to that date, and not as including subsequent interest, of which nothing was said. The defendant was entitled to that interest, which was considerable, and the plaintiff did not tender the amount, or offer to pay it. The defendant’s lien for that, at all events, therefore, still remained unimpaired. There is no evidence before us to show any modification of the original contract, or any agreement by the defendant to accept $250 in full satisfaction of his claim unconditionally. The mere memorandum in pencil on the defendant’s statement of the 12th April of due 12th May,” which he testified was not in his handwriting, but which the plaintiff' and Zingsen testified they saw him write, amounts to nothing, without some evidence that it was the understanding of the parties; at all events, if it even established that the condition was that the amount should be paid at that date, neither of the other parties then paid it, and the defendant went on endeavor-? ing to. make sales, as he was bound to do, under his original agreement, in order to earn the stipulated compensation.

I do not see from the evidence, therefore, how the defendant lost his lien for his compensation of $500, or how his claim could only be a quantum meruit, without any evidence of what his services were worth, except the original agreement between the defendant and Zingsen. Nor do the sales at auction appear to have been a breach by the defendant of his agreement; he rendered his account to both Zingsen and the plaintiff of such sales, without objection, and the latter, by letter, on the 3d of May, 1868, even requested him to send some of the goods to the same auctioneer to sell, which he did, and their proceeds were included in his statement to the plaintiff in August.

The learned justice, however, before whom such action was tried, charged the jury, among other things, that the defendant “ was to receive $500 on a sale of all the goods, as ■■a consideration for their sale and his services in the matter also ‘that after the transfer of the goods to the plaintiff there was “ no evidence that there was any thing further done” by the defendant to the goods “fór which he would be entitled to charge;” also that “nothing was earned by” the defendant “by way of commissions, except on” a small amount of goods ($78.75) sold before such transfer; also that it was “simply a question of what” the defendant’s “services and advances were worth, unless they found there was an agreement that he should receive $250 as full compensation,” which, if they did, “that ended it;” also that “ if they found $250 was full compensation, the plaintiff was entitled to recover;” that the defendant was “ not entitled to $500 by virtue of carrying out of the original agreement. He was entitled * * to what his services were worth;” also that he understood that the condition of the first agreement between Zingsen and the defendant was “ that the goods were to be sold in the ordinary way by the defendant,” and that “ under the original agreement the goods ought to have been sold without sending them to auction.” To each of which instructions separate exceptions were taken by the counsel for the defendant.

These views of my learned associate are so diametrically opposite to those which I have before expressed that I am compelled, reluctantly, to differ from him. I cannot consider that an actual sale of all the goods was necessary to entitle the defendant to his compensation; or that under the "original agreement he was bound to sell the goods himself; or that it was a mere question of what the defendant’s services and advances were worth; or that an agreement to receive $250 as full compensation, ended the controversy; or that the plaintiff, without a tender of the interest due, was entitled to recover, if $250 was a full compensation. On the other hand, I cannot hut think that there was evidence in the case that something was done by the defendant after the transfer to the plaintiff, for which the former was entitled to charge; that something was earned by him besides five per cent on $78.75, and that he was entitled to $500 if he carried out the original agreement and did not agree to accept a less sum. I cannot, therefore, help coming to the conclusion that such instructions were erroneous, and that a new trial should therefore be had.

I therefore concur with my associate in thinking that the judgment should be reversed and a new trial had.


author: By the Court, Jones, J.

text:
    John Patten, plaintiff and appellant, vs. William J. Stitt et al., defendants and respondents.
    1. In construing the description of the premises, contained in a deed, what is most material and certain governs that which is less so. Upon this principle a known stream, marked tree, or monument, governs both course and distance ; and in such case the call for course and distance is disregarded.
    2. A grant is to be taken most strongly against the grantor; and where a deed may enure in different ways, the grantee shall have his election which way to take it.
    3. Where the property to be described and conveyed by a grantor owning land extending from Greenwich to Washington street, was a portion fronting on Greenwich, and not on Washington street; and the description commenced at a fixed point on Greenwich street, and the deed then called for seven courses, each course running a certain definite distance; these courses and definite distances leading to a certain, definite fixed point; Held that when the deed said that that point was distant 86 feet 6 inches, or thereabouts, from Washington street, the indefinite and uncertain point indicated by the word “ thereabouts ” must give way to the more definite and certain point fixed by the courses and distances from Greenwich street.
    4. Held, also, that under both of the above principles, the southern line of the property intended to be conveyed must be regarded as terminating at this definite point; and under the second of those principles, the northerly line at the point to which the distance from Greenwich street would carry it, as that was the more favorable to the grantee.
    6. If the boundaries of the land intended to be conveyed can be easily and definitely settled by construing the description in the deed in accordance with established principles of construction, evidence of declarations or user is inadmissible to aid in such construction.
    6. The doctrine appertaining to actual location of a boundary only applies where it is shown that both parties, or those -under whom they claim, agreed on the location qi the boundary; or where the party claiming the location to be incorrect, or those through whom he claims, himself or themselves made the location.
    7. The doctrine respecting the settlement of a disputed boundary only applies when there has been a dispute as to the boundary, and that dispute has been adjusted by running the line according to the agreement for its adjustment.
    (Before McCunn and Jones, JJ.)
    Heard December 14, 1867;
    decided December, 1868.
    Appeal from a judgment entered upon the report of a referee.
    On the 2d day of July, 1835, Eli Hart, being the owner of a certain plot of ground extending from Greenwich to Washington street, sold and conveyed to William J. Bunker a portion thereof, fronting on Greenwich street. The description of the property conveyed to Bunker, as contained in the deed to him, was as follows:
    “ Beginning at a point on the westerly side of Greenwich street, distant fifty-six feet and three inches or thereabouts from the northerly side of Courtlandt street, and funning thence westerly along ground’ now or formerly of the heirs or devisees of George Marshall, and along ground now or formerly of the heirs of Michael Price, and along ground now or formerly of the heirs of John Rogers, ninety-five feet; thence northerly along ground now or late of George P. Rogers, • four feet six inches; thence westerly along ground now or late of the said George P. Rogers, thirteen feet nine inches ; thence southerly along ground now or late of said George P. Rogers, four feet six inches; thence westerly along ground now or late of the said George P. Rogers, ten feet four inches; thence northerly along ground now or late of Daniel B. Dash, thirteen feet; thence westerly' along ground now or late of said Dash, fifteen feet six inches, to a point distant eighty-six feet six inches or thereabouts from Washington street, being to the middle of a certain brick wall or fence, running across the rear of the lots hereby conveyed; thence northerly along the middle of said fence or wall forty feet five inches, or thereabouts, to ground now of formerly of John L. Van Kleeck, at a point distant ninety-eight feet six inches, or thereabouts, from Washington street; thence easterly along ground now or formerly of said Van Kleeek, one hundred and eight feet and nine inches, or thereabouts, to Greenwich street; thence southerly along the westerly side of Greenwich street fifty-two feet six inches, more or less, to the place of beginning.”
    The plaintiff is now the owner of the portion conveyed to Bunker, claiming through several mesne conveyances. Eli Hart never sold the remaining portion fronting on Washington street, and it still belongs to his estate. The defendants, however, are lessees thereof from his estate.
    The dispute in this case is as to where the westerly line of the property sold to Bunker is. The plaintiff claims it is line A B on the annexed diagram; the defendant that it is line C D.
    The action is brought to restrain the defendants from using the rear wall of the building fronting on Greenwich street, which is erected on line C D, and also from occupying or using the space between lines A B and G D.
    The action was referred. The referee reported that the plaintiff’s westerly boundary line was G D, and therefore the defendants had a right to use the triangular space. He also reported that the plaintiff’s wall, built on line C D, was out of plumb and encroached on the defendants’ property by leaning over it, and that the defendants had a right to use it, to the extent of such encroachment. He therefore gave judgment for the defendants, on the whole, case, and the plaintiff appealed.

      Charles Jones, for-the plaintiff, appellant.

      8. H. Lyon, for the defendants, respondents.

       See diagram, next page.

   By the Court, Jones, J.

Were it not for the words “being to the middle of a certain brick wall or fence running across the rear of the lots hereby conveyed,” contained in the 7th course, and the words “ along the middle of said wall or fence ” in the 8th course, there would be no difficulty in determining this case adversely to the report of the referee. For, in that case, under the proper construction of the deed, the land intended to be conveyed would be described by such certain and unambiguous courses and distances as to exclude any proof of acts, user or declarations to alter any of the boundaries given by the deed, unless such acts and user amounted to proving adverse possession or an estoppel, which is not pretended in this case.

I am perfectly well aware that the distance from Washington street, given in the 7th course, would, if adopted, make the 7th course stop at a point 12 feet 3 inches short of the point to which the distance from Greenwich street, given in the same course, would carry it; and also that the distance from Washington street, given in the 8th course, would make the 9th course stop 2 feet 7 inches short of the point to which the distance from Greenwich street, given in the 9th course, would carry it; also that the line of the 8th course, if drawn between'the two points, fixed by the distances from Washington street, contained in the 7th and 8th courses, would be but 6 inches longer than as called for in the 8th course; whereas that line, if drawn between the two points fixed by the distances from Greenwich street, contained in the 7th and 9th courses, would be one foot four inches longer than as called for in the 8th course.

But I think, upon the principles relating to the construction qf deeds, the distances from Washington street should be disregarded.

There are two well known principles ; ope is, that what is most material and certain governs that which is. less so. TJpon this principle a known stream, marked tree, or monument, governs both course and distance, and in such case the call for course and distance is disregarded. (Jackson v. Camp. 1 Cowen, 605.) The other is, that a grant is to be taken most strongly against the grantor, and that where a deed may enure in different ways, the grantee shall have his election which way to take it. (Doe ex dem. Webb v. Dixon, 9 East, 15. Jackson v. Hudson, 3 John., cited from-p. 387.)

In this case the property to be described and conveyed by a grantor owning land extending from Greenwich to Washington street, is a portion fronting on Greenwich, and not on Washington. The description commences at a fixed point on Greenwich street -; the deed then calls for seven courses, each course running a certain, definite distance. These courses and definite distances bring us to a certain, definite fixed point. 'When, then, the deed says that that point is distant 86 feet 6 inches or thereabouts from Washington street, the indefinite and uncertain point indicated by the thereabouts, must give way to the more definite and certain point fixed by the courses and distances from Greenwich street.

Under, then, both of the above principles, the southerly line of the property intended to be conveyed must be regarded as terminating at this definite point; and under the last of the above two principles, the northerly line at the point to which the distance from Greenwich street would carry it, as this is the more favorable to the grantee. These two points being thus ascertained, the 8th course is necessarily determined, as it.is only a connection between them.

It is, however, suggested that this construction requires three changes in the distances given by the deed, while the defendants’ view requires but one. I do not understand, from the case, precisely what the defendants’ view is. If it is that the distance from Washington street was to be taken, then it requires two changes in the distances from Greenwich street, and one in the 8th course. If it is that the distance from Washington street in the 7th course, and the distance to Greenwich street in the 9th course, is to be taken, then an alteration in the distance from Greenwich street, as given in the 1st, 2d, 3d, 4th, 5th and 7th courses, and the distance from Washington street, in the 8th course, requires alteration. The length of the 8th course in this case may require no alteration; but as that is merely to connect two points, a slight alteration in it is not very material. 6

The suggestion, therefore, is not founded on fact, and its force, whatever it may have been, fails. As the boundaries of the land intended to he conveyed can be easily and definitely settled by construing the description in the deed in accordance with established principles of construction, it follows that evidence of declaration or user is inadmissible to aid in such construction.

Were it not, then, that the deed runs the 8th course through the middle of a brick wall, the above considerations would call for a reversal. Evidence was, however, admissible to prove the location of this brick wall, and considerable testimony was adduced on this point.

The referee has found adversely to the plaintiff on this point.' I think he is in error, and that the testimony locates this wall in accord with my view of the proper construction of the description in the deed. The question then is, whether the finding of the referee on the question of the location of this wall is conclusive.

In examining this-1 will give the defendant the full benefit of the principle that the verdict of a jury on a question of fact will not be disturbed, unless the evidence is such that the judge at the trial should have directed a finding the other way; not stopping now to consider whether that rule should be applied in all its strictness to trials before a referee, or to trials in actions in the nature of actions of ejectment. »

The defendant undertook to establish the location of the brick wall, by showing that prior to the building of the extension oñ the Greenwich street premises there was a cooper -shop on the Washington street premises, which rested against a wall dividing the two premises, and that after the extension Was built, the same shop rested against the rear wall of the extension, and by showing that there were privies, the eastern walls of which were in close contact with the western wall of the extension. According to the defendants’ testimony, all these privies, .except one old one in the north-east corner of the disputed tract, were built at a time when there was no wall other than.the rear one of the extension separating the two premises. The contact of these privies to that wall, therefore, does not tend to prove that there had not previously been another wall further to the west. As to the privy in the north-east corner, there is but one witness on the part of the'defense, to wit, Mr. Seholt, who undertakes to say it was there before the extension was built. As to this hereafter.

So, also, none of the defendants’ witnesses except Seholt saw this cooper shop prior to the building of the extension; therefore they cannot say whether it was there or not prior to that time, or if there prior to that time, and rested against a wall, whether when the wall was taken down it was not moved back, or extended to meet the wall of the extension. Thus the defendants’ case rests on the testimony of the witness Seholt. This witness, at the time the occurrences happened of which he testified, was four years old; he had no particular interest in them, and there was nothing to impress his- mind with them; yet after the lapse of thirty years he undertakes to distinctly remember that when the extension was built the old wall crossing the yard was pulled, down, and the extension built on its site. I think it too hazardous to base a judgment upon the powei’s of observation and retentiveness of memory of one of such tender years, upon such a subject as this.

Unless the plaintiff's evidence helps out the defendant, the judgment must be reversed. The evidence on behalf of the plaintiff, so far from assisting the defendant is antagonisfcie to him. Leaving out the testimony of Hart, Fitzsimmons and Cooney, who all testify that subsequent to 1837 there was a wall between the Greenwich and Washington street premises, west of the rear of the extension of the Greenwich street premises, which I will assume to be contradicted by Fiedler, Scholt, Crook and Bennett, who all swear that after 1837 there was no such wall there, still we have the testimony of Frost, the mason, and.Kemp, his foreman, who built the extension, and Bunker, the owner, who caused it to be built, in the spring of 1835, all swearing positively that the rear wall of the extension was not built on the site of the old partition wall, and that such old wall was left standing. These witnesses give the dimensions of the triangular piece between the rear wall of the extension and the old partition wall. True, they do not agree with each other as'to the dimensions, although they do as to the general shape of the space. It is not surprising that they should not carry for a great number of years in their minds distances which it was not important for their work that they should ascertain. Even if they had been examined shortly after the performance of the. work they would probably have differed, as a measurement of these distances was not necessary for their work, and they would only have obtained an idea of them from casual observation by the eye. The one accustomed so to measure distances would be inore likely .to be correct than the others. The mason, who was accustomed to measuring distances by the eye, gives dimensions which, although they do not fully accord with the space covered by the distances given in the deed, from Greenwich street, yet do so very nearly, and are utterly opposed to the idea that the rear wall of the . extension was built on the line of the old brick wall.

These three witnesses were engaged in a work -which necessarily called for. an examination and observation of the position of the walls, and the nature of their employment was such as to impress on their minds that position. To rebut this we have only the testimony of Fiedler, (regarding the testimony of the boy of four years as of no moment,) who at this period but cursorily observed the premises, and who might, upon a mere cursory glance, have easily been led astray by the relative height of the two walls, considering the small space between them, and the obstructions upon the partition wall. Assuming the testimony of the other witnesses for the defendants to be true, it does not controvert that of these three for the plaintiff. They swear there was no such partition wall after 1837, nearly two years after the extension was built and occupied. It may well be that during these two years this partition was demolished, and the cooper shop either built or extended to the rear wall of the extension. This, of course, is assuming the testimony of Hart, Fitzsimmons and Cooney to be incorrect; if their testimony is to be regarded as correct, the case is stronger for the plaintiff. Some reliance' may be placed by the defendants on the acts and declarations of the plaintiff. Assuming these to have been done and made as testified to by the defendants’ witnesses, they undoubtedly show that the plaintiff was under the impression that he had no right beyond the rear wall of the extension, but they cannot be used as admissions to affect his actual rights, unless it be shown that at the time he made them he knew the extent of his rights. The evidence shows that he did not.

I am of opinion there was not sufficient evidence, if the cause had been tried before a jury, to authorize a submission to them of the question of fact whether this old partition wall ran along the present site of the rear wall of the extension, or along the line claimed by the plaintiff; but on the contrary, the jury should have been instructed to find, on the evidence, for the plaintiff. The judgment must, therefore, be reversed, unless the doctrine appertaining to actual location of a boundary, or that appertaining to the settlement of a disputed boundary, are applicable, in which events a further examination might be requisite. I apprehend neither of them are applicable. The first only applies where it is shown that both parties, or those under whom they claim, agreed on'the location of the boundary, or where the party claiming the location to be incorrect, or those through whom he claims, himself or themselves made the location. Neither of these matters appear in this case. The second only applies when there has been a dispute as to the boundary, and that dispute has been adjusted by running the line according to the agreement for its adjustment.

In this case it does not appear that there ever was a dispute until this controversy, and clearly no agreement was ever made to settle such dispute.

Judgment reversed, order of reference vacated, and a new trial ordered, with costs to the appellant to abide the event.