text:
    William Bartlett v. Thomas Carnley, Sheriff of the City and County of New York.
    Goods were shipped aboard a vessel bound to California, and a bill of lading was executed by the master, which ultimately came into the hands of a party in San Francisco, who purchased the goods which it expressed to be shipped,
    Before the vessel sailed from Few York, the goods were taken by the sheriff under an attachment against the freighter, and against the protest of the master. Fo indemnity was given by the sheriff or his principals, though demanded. Freight, also, was required but not paid.
    The purchaser in San Francisco recovered a sum of money for the omission of the master to deliver the goods according to the bill of lading. The action, which was for the recovery of the goods, was brought by the master, and the goods had been delivered to him under the Code. The only question, therefore, was, whether he was entitled to have damages for their removal ?

      Held, that the freighter who removes goods once shipped with a bill of lading delivered, can only reclaim them upon payment of freight, necessary expenses of unloading, and indemnifying the party for any difference between the value of the goods at the port of lading, and what the master or shipowner may be obliged to pay at the port of destination under such bill of lading.
    The French and foreign authorities upon the subject were cited and commented upon.

      Held, that the act of 1841 (Oh. 242) carried out the principle of general commercial law, and the bond prescribed would cover the damage and loss which the shipowner might incur.
    (Before Oakley, Ch. J., Hoffman and Slosson, J.J.)
    Heard, October 31;
    decided, November 22, 1856.
    This action was commenced on the 10th of May, 1851, to recover possession of personal property, viz., of seven barrels.of oil and one iron safe, alleged to be held by the plaintiff as a common carrier or bailee, and which were seized by the defendant on or about the 18th of February, 1851. The complaint demands the return of the goods and payment of the damages for the detention.
    Under this complaint and the usual affidavit, the goods were delivered to the plaintiff.
    The sheriff set up in his answer, that one Lucius F. Reed, being indebted to Flanders & Wright, the latter procured an attachment on or about the 17th of February, 1851, from one of the Judges of the Superior Court, against the property of said Reed, directed to him as sheriff; by virtue of which, he attached the goods in question. He avers that such goods were the property of Reed'; that he was the owner thereof, or had a leviable interest therein. He therefore demanded a return thereof, or payment of the value with damages for taking and withholding the same. The warrant of attachment was annexed to the answer.
    The plaintiff replied on the 3d of June, denying that Reed was the owner of the goods, or had any leviable interest therein. He says that at the time of the taking he was and is master of the ship Alert, then lading in the port of New York, for a voyage to San Francisco ; that such goods were shipped on board such vessel on the 7th and 8th of February, 1851, and that he executed a bill of lading to the shipper thereof, whereby he undertook to deliver the goods, with other goods therein mentioned, at San Francisco, unto Schultz and Grriffen, or their assigns, they paying freight, etc.; that the bill of lading was issued before the issuing of the attachment, and before any claim or demand for such goods; that he is a common carrier for hire and reward, and has bestowed labor and expense about the receipt and custody thereof; that neither the defendant nor Flanders & Wright, have ever tendered to him or to the owners of such ship, any security for.the expenses of unloading such goods, and the detention of the ship for that purpose, as is required by the statute in such case provided, nor offered to pay the freight and primage due on such goods, nor offered any indemnity against the claims of the shippers or consignees of such goods.
    Prior to June, 1852, a trial had taken place, and a verdict was rendered for the plaintiff, subject to the opinion of the court at General Term. On the 26th of June, 1852, a new trial was ordered, and leave was given to the .plaintiff to serve a supplemental reply, and to the defendant to amend his answer, and a commission was allowed to issue to San Francisco, to take the testimony of E. M. Burr; but a condition was imposed in this order, that the plaintiff stipulate in writing, to admit on the trial that the property seized by the sheriff was the property of Lucius F. Reed at the time of the shipment thereof, and that the bill of lading which had been delivered to Reed, had not been transferred at the seizure; and; also, that the shipper and Reed were the same person.
    The issues raised by the pleadings were tried before Oakley, Oh. J., and a jury, on the' 18th of June, 1856, and a verdict wad taken for the plaintiff, subject to the opinion of the court at General Term, and with liberty to the court to fix the amount of damages that either party might be entitled to recover, and with liberty to order judgment for the defendant, or a dismissal of the complaint. The following are the material facts established by the evidence on the trial:
    Upon the trial, certain receipts for the goods were produced, signed by one J. L. Roberts in favor of John Brown. The stipulation meets this difference, by admitting that Brown and Reed were the same persons. The oil and safe were taken from the ship by the sheriff three or four days after the delivery of these receipts, which was on the 6th and 10th of February, 1851.
    The plaintiff was the master of the ship, and she sailed from New York in March, 1851. The receipts signed by Roberts were surrendered when the bills of lading were given. The one produced was signed by the plaintiff, and is dated the 11th of February, 1851. It was admitted that the oil and safe were taken on the 18th of February, and that they were worth $300.
    The witness Burr, examined under the order for a commission before stated, proved that his firm of Burr, Matson & Co., were possessed of a bill of lading, described in the interrogatory, as the same as that produced. They were possessed of it in the fall of 1851, and had purchased it from the firm of Reed & Castree. He supposes it to be in possession of his former partners. It was paid for in the fall of 1851. About $700 was paid. The articles enumerated were delivered except the oil and the safe. For that deficiency, a demand was made on the consignees of the ship, Gf. M. Shaw & Co., who paid them $350 or $400. The precise sum he cannot state. At the time of the purchase, his firm had no knowledge of the attachment upon the goods, or against Reid. The bill of lading was indorsed, as he believes, by Schultz and Griffen.
    This testimony was objected to by the defendant.
    Judgment was obtained against Reed in the attachment suit, on the 22d of May, 1851, for $163 damages and costs.
    It was proven that the captain refused to aid in the removal of the goods; that the sheriff’s officer, with the aid of persons employed by him, effected it; and that the safe and oil were in sight.
    It was also proven by the owner of the vessel, that upon the seizure, the captain claimed indemnity for expenses, and for what he should have to pay at San Francisco; also, that the goods had been shipped and freight earned, and claim was made for that. The ship was chartered to E. B. Sutton & Co., for the voyage, and they were entitled to the freight. They were to pay fifty cents a foot.

      Wm. S. Leonard, for the plaintiff, argued as follows:
    The goods in question being in possession of the plaintiff, as a common carrier or bailee, he had a special property in them, sufficient to maintain an action against any wrong-doer (Code, § 207; Story on Bailments, §§ 93, 94). The defendant was a wrong-doer, he had no right to levy the attachment upon the goods in question without executing a bond to the master or owners of the ship, in conformity to the provisions of the statute. (Laws, 1841, chap. 142, § 1.) The plaintiff is entitled to. judgment for a return of the goods and the damages which he has sustained.

      A. S. Vanderpool, for the defendant,
    insisted that the defendant was entitled to judgment upon the grounds inter alia, that it was his duty upon serving the attachment, to take possession of the goods, and that the statute of 1841 was not applicable to attachments issued under the provisions of the Code.
   By the Court. Hoffman, J.

We shall assume in this case, that the plaintiff represents every interest which could be affected by the seizure of the property in question, and may recover all the damages resulting from such seizure to any one whose title, or claim, he could possibly represent.

The case is then presented, of goods shipped on board a vessel about to sail, (but which had not yet broken ground,) being seized by a creditor of the shipper under lawful process, and re-landed under protest. What damages can the ship-owner legally demand?

He would be entitled, in the first place, to all the expenses attending the unlading of the goods. In the present instance this labor and expense were borne by the sheriff and his assistants. The master declined to render any service; and the plaintiff has not given any proof of a charge or expense incurred by him. The vessel was not detained in consequence of the defendant’s proceedings. By the ordinary rule, the freight to be paid includes the compensation for lading the goods. If freight, or its equivalent, can in this case be recovered, such expenses could not be recovered separately. (Cutting v. Lyons, 1 Bos. and Pull. 634.)

These observations dispose of the expenses attending the lading and unlading.

The next question is, whether the plaintiff is entitled to recover' the freight he would have earned, had the goods been transported and delivered ? It is urged that the shipper would not have been responsible for freight, had he voluntarily withdrawn the goods before the voyage was commenced. Freight is the price of carriage, not of receiving goods to be carried." (Smith’s Mercantile Law, p. 185.) Accordingly, in Blake v. Dixon, (2 Bos. and Pull. 321,) the Court of Common Pleas determined that, supposing an action would lie for money agreed to be paid beforehand for receiving on board goods to be transported, it could not be declared upon as an agreement to pay freight.

Still, this seems rather an objection to the nature of the demand, and form of the action, than to the existence of a right.

Another class of cases approaches nearer to the present question. Such cases relate to an action for the violation of a charter-party to load a ship, in whole or in part. Damages may be recovered, in estimating which, the benefit arising from taking goods of other persons may be deducted. (Abbott on Shipping, 277; Herscher v. McCrea, 24 Wendell, 206.)

In this last case the action was for dead freight. The party had stipulated to fill so many tons of measurement, at a particular price per ton, and failed to do so. The court held, not merely that the master could fill up the deficiency, and thus the price under the charter-party be reduced, but that he was bound to do so if goods were offered. ' The rule that the charterer was liable for deficient freight was admitted, but was thus qualified. The decision that it is the master’s duty to take the new freight has not escaped criticism. (Henderson’s Maritime Law, § 193.)

These authorities bear upon the present question, but do not decide it. The withdrawal of goods after they are shipped is a peculiar case.

The subject is governed by express provisions in the French and other foreign maritime codes.

The Rhodian Law condemned, without any distinction, the merchant who withdrew his goods from a ship, to the payment of the whole freight. The Guidon de la Mer directed, that if he could not agree with the master he should pay a moiety.

The ordinance of the Marine of France (Art. 6) is, that if a vessel is laden by different shippers, (a cuillette,) by the quintal or ton, and the shipper wishes to retire the goods before her departure, he may have them discharged at his own expense, upon paying a moiety of the freight. The 291st Article of the Code of Commerce is to the same effect.

But the hirer of a vessel by a charter-party, that is, of the vessel, pays the whole freight agreed upon, whatever quantity of goods he puts in the ship. This distinction has employed the critical acumen of the French commentators to explain and defend it. (Valin. Pothier. Boulay-Paty.)

The Code of Commerce also provides that the shipper shall bear the expense of lading, unlading, and also of relading.any other goods which it shall be found necessary to displace, as well as of the demurrage. (Art. 291. See Boulay-Paty Droit Commercial, tome 2, p. 380.)

We perceive in these regulations the effort to fix some reasonable rule of compromise and compensation where the service for which freight is strictly due has.never been performed, and the shipper, by breaking his engagement, deprives the ship-owner of a probable benefit.

But the English rule appears to be settled in accordance with the Rhodian Law, and makes the merchant responsible for the whole freight of the articles withdrawn. Mr. Abbott says: “ A merchant who has laden goods cannot have them relanded and delivered to him without paying the freight, and indemnifying the master against the consequences of any bill of lading signed by him.” (On Shipping, p. 531, 4th edition.)

The subject was fully examined in the late case of Tindall v. Taylor (28 L. & Eq. Rep. p. 216, Queen’s Bench, 1854). The declaration stated that certain goods had been received on board a vessel of the plaintiff’s, for conveyance from London to Port Phillip, upon the terms that two months after the sailing of the vessel, freight and primage should be paid in advance. There was an averment that two months had elapsed since the sailing of the vessel, of a demand of the freight and primage, and that the defendant had not paid the amount.

Plea. That after the receipt on board of the goods, and after a reasonable time for the vessel to have sailed, and a reasonable time before she sailed, the defendant demanded a return of the goods, and gave the plaintiff notice that he did not wish the same carried and transported, and required a re-delivery to him, but the plaintiff wholly omitted so to do, and afterwards sailed with the said goods, against the will of the defendant.

Explication. That before the defendant’s demand for the delivery of the said goods, two bills of lading had been signed and delivered by the master, engaging to deliver the goods to B. & Co. at Port Phillip, or their assigns, one of which parts was transmitted to the said B. & Co. by the defendant. That the defendant had not, at any time, paid or offered to pay the freight in the declaration mentioned, nor returned or offered to return the said part of the bill of lading, nor offered to indemnify the plaintiff against any claim or right which B. & Co., or any assignee of the bill of lading, might have.

Hejoinder. That B. & Co. were the agents of the defendant, and the said bill of lading was sent to them by the defendant to be held, and was held by them as such agents, and not otherwise; and that the defendant had always been and continued the legal owner of the goods.

Lord Campbell, in delivering the judgment of the court, said: “We entirely agree to the law as laid down by Lord Tenterden in his treatise,” quoting the passage above cited. . “ By the usage of trade, the merchant, if he re-demand the goods in a reasonable time before the ship sails, is entitled to have them delivered back to him, on paying the freight that might become due for the carriage of them, and on indemnifying the master against the consequences of any bill of lading signed for them; but these are conditions to be performed before the original contract can be affected by the demand of the goods.”

“ That if any doubt could be raised upon this question, irrespective of the bills of lading, we think the action would still be maintainable. After the master, at the request of the defendant, had signed bills of lading for the goods, making them deliverable to a consignee at the port of destination, one of which bills of lading they had transmitted to their consignee, it is quite clear that the defendants had no right to the re-delivery of the goods at the port of outfit, on merely demanding them. The consignee, though agent of the shipper, might have had authority to indorse the bill to a purchaser of the goods, who, as assignee of the bill of lading, for a valuable consideration, would have become their proprietor, and entitled to demand them from the master.”

Referring to Thompson v. Dening, (14 Meeson & Wels. 403,) Lord Campbell says: “ An action of contract on the bill of lading by the endorsee of the bill might not lie; but in respect of his property in the goods, he might have maintained an action against the master for detaining or converting them, and the master would be estopped from denying that he had the goods after the declaration in the bill of lading, on the faith of which the endorsee had bought and paid for them.”

Considering the law to be as stated by Mr. Abbott, and sustained by the case cited, we see no valid distinction between the case of an owner seeking to withdraw his goods after a shipment, and that of an attaching creditor taking them. As between the shipowner or master and such creditor, the rights and obligations must be the same.

In this view, then, the statute of 1841 (ch. 242, § 1) may be considered as carrying out the legal rule, and the bond therein prescribed to be given, will furnish security for what the law will oblige the creditor or sheriff to pay. Such bond is conditioned “ to pay the owner or master all expenses, damages, and charges, which may be incurred by such owner or master, or to which they may be subjected by unloading such goods from the vessel, and for all necessary detention of such vessel for that purpose.” It is also provided, that if such bond be not executed, the goods may be transported and delivered according to their destination, notwithstanding the attachment.

As, then, the liability insisted upon exists upon principles of general law, independently of the statute, we need not inquire whether the latter law remained in force since the Code; or if it has, whether the omission to give the security prescribed affects the attachment; or what other consequences might result from that neglect. The result of our opinion is, that the plaintiff is entitled to a judgment on the verdict for damages to be adjusted.

The admitted value of the goods in New York was $300, which was received by the plaintiff. He had to pay $350 or $400 in San Francisco for the non-delivery of the goods seized here. It is not stated in the case, whether the freight was deducted before such payment was made. The presumption is, that it was. If so, there would be no freight to be paid now; but if otherwise, it is to be allowed. The plaintiff insists upon his right to it, and we have therefore discussed the question.

The counsel agreed that the damages should be settled by one of the Judges who heard the appeal.

The judgment will, therefore, be for the plaintiff, the amount to be adjusted by one of the Judges, upon notice.


source: Caselaw Access Project

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

license: Public Domain

text:
    Thomas Flynn v. Mathew McKeon.
    Although a contract under seal fixes the time for its performance, that time may be extended by a parol agreement.
    Parol evidence of an agreement was introduced in the case, to prove a rescission of the sealed contract by mutual consent. When this is admissible, parol evividence to show re-instatement of the contract by like consent, is equally admissible ; and the evidence was to that effect.
    It is the duty of a vendor to prepare and tender a deed, if he insists upon a specific performance.
    When the vendor and vendee have fixed upon a time and place for performance, and the vendee attends, and is prepared to do all the contract requires of him, and the vendor neglects to attend, an action will lie by the vendee to recover the deposit-money paid by him.
    (Before Oakley, Ch. J., Hoffman and Slosson, J.J.)
    October 29;
    November 22, 1856.
    Appeal from a .judgment entered in favor of the plaintiffs, upon a verdict for the sum of $437.61.
    The action was brought upon the following contract:—
    “ Articles of agreement made and entered into the 27th day of October, one thousand eight hundred and fifty-four, between Mathew McKeon, of New Brighton, Richmond County, State of New York, of the first part, and Thomas Flynn, mason, of the second part, in manner following: the said party of the first part, in consideration of the sum of two hundred and fifty dollars to Kim duly paid, hereby agrees to sell unto the said party of the second part, all that certain piece or parcel of land, with the building thereon, situate and known as No. 115 East 22d street, in the city of New York, for the sum of three thousand two hundred dollars, which the said party of the second part hereby agrees to pay to the said party of the first part, as follows:
    The consideration above mentioned $250
    Upon the delivery of the deed 950
    And the balance by mortgage at seven per
    cent, interest, 2,000
    $3,200

      “ And it is further agreed by and between the said parties that the possession of said premises is to be delivered on the first day of November, 1854, and the deed to be delivered on the 15th day of November, 1854, and also, that the mortgage is to bear interest from the first day of November as above, and the said party of the first part, on receiving such payment at the time and in the manner above mentioned, shall, at his own proper costs and expense, execute and deliver to the said party of the second part, or to his assigns, a proper deed for conveying and assuring to him or them the fee simple of the said premises, free from all incumbrances, which deed shall contain a general warranty, and the usual full covenants; and it is understood that the stipulations aforesaid are to apply to and bind the heirs, executors, administrators, and assigns of the respective parties.
    “ In witness whereof the parties to these presents have hereunto set their hands and seals, the day and year first above written.
    “Mathew McKeon, [l.s.]
    “Thomas.Elynn, [l.s.]
    “ Sealed and delivered in presence of
    The action came on to be tried before Mr. Justice Bósworth, and a jury, on the 6th of February, «1856. Upon the plaintiff’s resting, the defendant moved to dismiss the complaint, which motion was denied. The defendant then entered upon evidence.
    The cause being ended, the learned Judge charged as follows:
    There is no controversy in relation to the amount which the plaintiff is entitled to recover, if entitled to recover at all. It is conceded to be the principal sum of two hundred and fifty dollars, and interest, which together amounts to two hundred and eighty-nine dollars and thirty-seven cents. It is unnecessary, therefore, for you to determine the amount of plaintiff’s damages. I shall submit to you certain questions of fact in writing, to each of which you will answer “Yes” or “No,” according as upon the evidence you shall determine the truth to be. The first question is this:
    Did McKeon, on the 15th of November, 1854, tender to Flynn the deed shown to the witness Jarvis, and demand of Flynn the payment of nine hundred and fifty dollars, and a bond and mortgage for two thousand dollars ?
    ,If you believe the testimony of Jarvis, and that the deed produced in. court is the one which he says was tendered in his presence, this question should be answered affirmatively.
    The second question is this:
    If you answer “ Yes” to the above question, then state whether Elynn unconditionally refused to accept the deed, and pay nine hundred and fifty dollars, and give his bond and mortgage for two thousand dollars ?
    If Elynn stated no reason for refusing to accept the deed, and pay. the nine hundred and fifty dollars, and execute the bond and mortgage for two thousand dollars, your answer to this question should be “ Yes.” If he made no objections to accepting the deed, except that the lot was not as large as he supposed, but did make that objection, you should give the same answer, as there is no pretence that the deed does not embrace all the land covered by the contract. But if you believe, from the evidence, that he objected to accept the deed, on the ground that the property was encumbered, and was ready to accept and perform on his part, on receiving am unencumbered title, your answer to the question should be in the negative.
    The third question is this:
    Did either of the interviews at Mr. Dickinson’s office, testified to by him, when both him and McKeon were present, take place before the 15th of November, 1854?
    This question should be answered in the affirmative, if you believe that the interview took place before the 15th of November, 1854, between the plaintiff and defendant, in which Mr. Dickinson stated, that time beyond that date would be necessary to examine the title; and in which the plaintiff stated that he would not be ready to perform on that day. If that interview was after the 15th of November, you should answer the question in the negative.
    The fourth question is:
    Was Elynn at the office of Judah & Dickinson on the 4th of January, 1855, for the purpose of and prepared to pay McKeon nine hundred and fifty dollars, and give him a bond and mortgage for two thousand dollars, on receiving a deed of the premises which would convey a good title to them ?
    If Elynn was at the office of Judah & Dickinson on the 4th of January, 1855, having nine hundred and fifty dollars under his power and control to be paid to defendant, and for the purpose of paying it to him and accepting a deed, and executing a bond and mortgage for the two thousand dollars, on being offered a deed which would convey a good and unencumbered title to the premises, this question should be answered in the affirmative.
    There is no conflict of evidence as to any other matters of fact necessary to be known, in order to determine the rights of the parties in this action.
    On receiving your verdict the court will direct such a judgment to be entered as in its view the law—arising upon the facts, as you shall find them in respect to the questions submitted to you, and upon the undisputed facts of the case—may require.
    To each of the questions submitted, except to the second one, the jury, by their verdict in writing, answered “Yesand to the second question they answered “No.”
    And the said Justice thereupon ordered a judgment to be entered for the plaintiff, for the sum of two hundred and eighty-nine dollars and thirty-seven cents; to which decision and order the counsel of the defendant did then and there except.

      Mr. Hadcliff, for the appellant.

      Mr. Judah, for defendant.
   By the Court. Oakley, Ch. J.

The view we have taken of the case will dispense with any minute examination of many points made by the parties.

The written agreement between them provided that possession should be given on the 1st, and the deed delivered by McKeon, the defendant, on the 15th of November, 1854. It was dated the 27th of October of that year. Two hundred and fifty dollars were paid down by the plaintiff, and he was to pay $950 more upon the delivery of the deed.

In the first place, we consider it fully settled, that even upon a contract under seal fixing a period for performance, that period may be extended by a parol agreement. In the next place, the jury have found that an interview took place, prior to the 15th of November, at Dickinson’s office, and at that interview it was in substance agreed there, that the time would have to be extended.

We will then suppose, that the jury had answered the second question put to them by the Judge, without a word of qualification ; that is, that they had answered that Flynn unconditionally refused to accept the deed and pay the $950, and give his bond and mortgage. The defendant says, that they could find nothing else upon the evidence.

Upon that assumption, the case is presented of a parol agreement between the parties, that the agreemént should be treated as at an end, and each of them discharged. If parol evidence is competent to establish such a mutual rescission, the same evidence is competent to prove a subsequent re-instatement of the contract. Such evidence exists in the case, and is decisive.

The Judge stated that there was no conflict of evidence as to any other matter of fact necessary to be known, in order to determine the rights of the parties, than those he had submitted; and this leaves the testimony of Dickinson uncontroverted. That testimony proves that negotiations for fulfilment of the contract were resumed and carried on after the 15th of November; several days were fixed by the defendant for that purpose, and finally, the 4th of January, 1855, definitely agreed upon.

On that day, the plaintiff and his associate in the purchase, Fogarty, attended at Dickinson’s office, and the jury have found, that the plaintiff was there for the purpose of, and prepared to pay, McKeon $950, and give him a bond and mortgage for $2000 on receiving a deed of the premises, which should convey a good title. The defendant neglected to attend.

The question comes then to this, Whether the plaintiff was bound to do more than he has done or was prepared to do, as found by the jury. It is said he was to make an actual tender of a deed to be executed by the defendant, and an actual tender of his own bond and mortgage.

The English practice, requiring the vendee to tender a deed, has never prevailed in this state. It is naturally the duty and office of the vendor to have it prepared.

The cases are collected in “Sugden’s Law of Vendors,” p. 247, to which should be added Wells v. Smith (2 Ed. Ch. Rep. 78, and 7 Paige, 22, on appeal).

In our opinion, there is nothing in any of the cases in our own Court to interfere with the proposition, that where a vendor and vendee have expressly fixed upon a time and place to fulfil a contract, and the vendee attends and is prepared to do all that the contract calls upon him to perform, and the vendor does not attend, an action will lie by the vendee to recover the deposit-money paid by him.

Judgment affirmed, with costs.


author: By the Court. Hoffman, J.

text:
    Samuel P. Townsend v. The Empire Stone-Dressing Company, Charles Abenethy, and The Masterton, Smith, and Sinclair Stone-Dressing Company.
    An executed parol agreement, upon a sufficient consideration, may operate to discharge the stipulations of a sealed contract.

      Held, upon the evidence, that such a discharge or waiver was established, by which a claim for damages in supplying the stone for a building (which was provided for in the contract) was surrendered upon a new agreement.
    The plaintiff had delivered to a third party, a bond and mortgage in a specified sum, to be held as security for the payment of the contract price of stone to be supplied under a contract. The defendants subsequently supplied other stone, under a separate agreement, and the defendants alleged, that it was orally agreed, that the mortgage should stand as security for such further supplies. The amount was ascertained and reported by the referee.

      Held, that assuming the evidence satisfactory, parol evidence of such an extension of the mortgage was inadmissible.
    The English and American authorities bearing upon the point examined. The doctrine of tacking, in its less technical sense, and as between the debtor and creditor, not repugnant to justice.
    The English cases of various classes:—
    1. Of bills to redeem, where the forfeiture being absolute at law, the court has refused its interference, except upon payment of the demands justly due. This was held in the early cases, but it is doubtful whether it is now the law.
    2. Cases of mere equitable mortgages, where the whole principle rests upon the intention resulting from an advance of money, and deposit of title-deeds. This peculiar equity appears to be unknown in our state, probably from the operation of the registry acts.
    3d. In another class, the question arises between the heir or devisee, and the mortgagor ; then when there are legal assets, a bond creditor formerly, and a simple contract creditor of late, may unite his demands. The reason is, that the land has become subject to a lien in his favor.
    In our state .a mortgage for a definite sum may stand for the advances subsequently made up to the specific amount; but it cannot be held to secure that sum fully, and be subsequently extended by a parol agreement to a further additional sum.

      Although a judgment was recovered for the amount of extra supplies, in favor of the defendant in the action, held, that he could insist upon retaining the lien of the mortgage until it was paid, but was only entitled to the usual legal remedies of a judgment creditor.
    (Before Oakley, Cm J., Hoffman and Slosson, J.J.)
    October 2;
    November 22, 1856.
    Appeal from a judgment entered upon the decision of a referee, against the plaintiff, for the sum of $4097, in favor of the defendants, the Masterton’s Company, and for costs in favor of the other defendants.
    The plaintiff entered into an agreement under seal, with the Empire Stone-Dressing Company to furnish and deliver to him brown stone, cut and dressed as required by plans and specifications furnished by the plaintiff to them at the price of $26,000, said stone to be delivered at the corner of Fifth avenue and Thirty-fourth street, in the city of New York, and to be furnished as fast as the same should be required in the erection of the buildings about to be put up there by the said party of the second part, according to said plans and specifications. The contract contained the following clause:—“And the said party of the second part, in consideration of the foregoing agreement, hereby agrees to pay said party of the first part for said stone to be furnished and delivered, the sum of twenty-six thousand dollars in manner following; that is to say, the sum of sixteen thousand six hundred dollars in a warrantee deed of sixteen lots of ground, situate, lying, and being in the nineteenth ward of the city of New York, on the southerly side of Forty-sixth street, between Fifth and Sixth avenues; said lots to be estimated at the value of one thousand nine hundred and fifty dollars each, and being subject to a mortgage of fourteen thousand six hundred dollars, the payment whereof is to be assumed by the grantee; said deed to be executed by the said party of the second part and his wife, and to be delivered to said party of the first part, or to such person or persons as said party of first part shall designate and appoint simultaneously with the execution and delivery of this agreement.
    “ The further sum of nine thousand four hundred dollars, in an assignment of four bonds secured by mortgages upon property on Thirty-sixth street, in said city of New York, one bearing date the twentieth day of May, in the year one thousand eight hundred and fifty-two, and executed by John 0. Bunting of Newark, New Jersey, to the said party of the second part, for the sum of two thousand three hundred and fifty dollars; another bearing date the twentieth day of May, in the year one thousand eight hundred and fifty-two, and executed by John C. Bunting of Newark, New Jersey, to the said party of the second part for the sum of two thousand three hundred and fifty dollars; another bearing date the twentieth day of May, in the year one thousand eight hundred and fifty-two, and executed by John C. Bunting of Newark, New Jersey, to the said party of the second part for the sum of two thousand three hundred and fifty dollars; and another bearing date the twentieth day of May, in the year one thousand eight hundred and fifty-two, executed by John C. Bunting, of Newark, New Jersey, to the said party of the second part, or such person or persons as said party of the first part shall designate and appoint simultaneously with the execution and delivery of this agreement.
    “ And it is hereby further agreed by and between the parties to these presents, that the said party.of the first part shall have the option of selling the said sixteen lots of ground, or any or either of them at any time before the first day of March, one thousand eight hundred and fifty-four; and in case of such sale to appropriate the proceeds without regard to said estimated value, but the said party of the second part shall not be held responsible for any deficiency in such proceeds should said lots be sold at less than said estimated value.
    “ And it is hereby further agreed by and between the parties to these presents, that in case the said lots,' or any or either of them shall remain unsold on said first day of March, in the year one thousand eight hundred and fifty-four, that the said lots so remaining unsold, shall be reconveyed to said party of the second part for a sum equivalent to the said estimated value of nineteen hundred and fifty dollars each, with interest from the date hereof, and all taxes and assessments paid thereon in the mean time; and that said sum shall be paid by said party of the second part, either in cash or at his option, in his two promissory notes of equal amounts, bearing date on- the first day of March, one thousand eight hundred and fifty-four, and payable, respectively, with interest, in three and six months from date, to the order of said party of the first part, payment of said notes at maturity to be secured by a collateral bond and a mortgage on the premises so re-conveyed.
    “And the said party of the second part further agrees, that, in assigning the bonds and mortgages hereinbefore mentioned, he will guarantee the payment of the same at the time and in the manner expressed in the conditions of said bond, it being, however, understood, that interest on the amount of said bonds and mortgages shall be allowed to said party of the second part until the building to be erected by him, shall have been enclosed.
    The complaint sets forth the agreement, and states that none of the lots had been sold on the 1st of March, 1854; that the plaintiff executed his notes, to the number of fourteen, payable in three and six months, secured collaterally by a bond and mortgage on twelve lots of land on the northerly side of 45th street, which were duly received by the company in lieu of the mortgage on the sixteen lots; that such bond and mortgage were delivered to Charles Abenethy, selected to take and hold the same; that the whole of such notes had been paid at maturity, whereby the whole amount due on the original contract had been over-paid, and the plaintiff had become entitled to a full satisfaction and discharge of the mortgage; that he had requested Abenethy to execute such discharge, which he had refused to do.
    The complaint set forth, as another 'cause of action against the company, that stone had not been furnished as it was required by the contract, but the company had been grossly in default; and by their delay the plaintiff had been put to great expense, and suffered damages to the amount of $12,000. Also, that a portion of the stone supplied was not of the thickness required, and avers that damages had been sustained on that account to the amount of $4,000.
    The plaintiff demanded judgment that Abenethy be ordered to satisfy the mortgage, with damages for his refusal; and that the company pay the damages incurred.
    The defendants, The Masterton, etc., Stone-Dressing Company, as assignees of the contract, set up in their answer, first, that The Empire-Stone Dressing Company had furnished the stone in the manner, at the times, and of the quality prescribed by the contract. Second, that on or about the 6th of April, 1854, the plaintiff, for a good and valuable consideration waived and abandoned all his demand for damages sustained or to be sustained by reason of any neglect or default of the company in executing the contract. Third, that on the 1st of March, 1854, the plaintiff was justly indebted to the said company in the sum of $2,500, for work and supplies over and above the work provided for in the contract; and that the new bond and mortgage were given and received under an agreement that it should stand as security for this extra work as well as the other. They insist that such mortgage is a security for that amount, and also for certain other claims, being in the aggregate $5,593.90, for which they demand a judgment, as well as that the mortgage be adjudged to stand as security for such claims.
    The cause having been referred, the referee reported in substance, that the following appeared to be the material questions in the case, and upon the determination of which the account was to be stated between the parties. He then states the questions and his decision upon them, as follows:—
    1st. Was the stone, which was furnished by the plaintiff, of the thickness called for by the agreement?

      Answer. It was not; and the plaintiff is entitled, therefore, to a deduction from the amount to be paid by him under the contract.
    2d. Was the stone furnished as fast as required?

      A. The determination of'that question is to me difficult; I am inclined to believe it was not. In view moreover of the testimony of the witness Sandford, I have not deemed it necessary definitely to decide it.
    3d. Was the Empire Stone-Dressing Company, or its assignees, bound to set the stone ?

      A. I think not.
    4th. When was the building inclosed ?

      A. Hot earlier than September, 1854.
    5th. Did the plaintiff agree to waive, abandon, or discharge any claim against the Empire Stone-Dressing Company for any default to fulfil their contract ?

      A. In view of the testimony of the witness Sandford, although I am by no means clear as to its adroissibility, I believe that the plaintiff did waive any claim for damages arising from the delay to furnish the stone.

      6th. Were the bond and mortgage, which were executed and delivered to Abenethy, intended to secure payment for stone furnished and to be furnished ?

      A. Such I believe was the intention.
    He also stated the details of the extra stone supplied and work done, beside that properly under the contract. The total amount was $2686.94, without interest. The referee then stated the account according to these views, and concluded thus:—“I therefore find, that there is due by the plaintiff, to The Masterton, Smith, and Sinclair Stone-Dressing Company, the sum of $3647.20; and that upon payment thereof, he is entitled to have the said bond and mortgage discharged in full, and satisfied on record.”
    “ That there is nothing due by the plaintiff to either of the other defendants; and that the defendants are entitled to recover costs against the plaintiff.”
    To this finding, various exceptions were taken by both parties, and appeals brought. The points involved in such exceptions and appeals, are noticed in the opinion.
    Some of the testimony material to the finding of the referee, is also stated in the opinion.

      A. Thompson, for the plaintiff.

      H. D. Oram, for the defendants.
   By the Court. Hoffman, J.

The impressions of the referee may be treated as positive findings of facts. This case would then be presented—that the stone was not furnished as fast as the contract required; that the testimony of the witness Sandford is admissible, and that such testimony proves that the plaintiff did waive any claim for damages arising from such delay to suppiy it.

1st. The first question is, whether the evidence of Sandford, or any evidence short of a sealed instrument, is competent to prove a waiver of the covenant to furnish the stone ? The next, on the assumption of its admissibility, is, whether any waiver is proven ?

It was supposed in Barnard v. Darling, (11 Wendell, 30,) that it was yet unsettled whether an unexecuted parol agreement would have the effect of discharging a sealed instrument. But such an agreement, fully carried out, amounts to a discharge. This last proposition is sustained by several cases. (Lattimore v. Harsen, 11 John. Rep. 330; Dearborn v. Cross, 7 Cowen. 47, and authorities cited. See also Greenleaf on Evidence, § 303, and cases.)

In Delacroix v. Bulkly, (13 Wendell, 75,) the Chief-Justice says: “ The extent to which these cases have gone is this: that after the breach of a sealed contract, the parties may discharge any liability upon it by entering into a new agreement relating to the same subject matter, which new agreement is a valid contract, founded upon a sufficient consideration.” . . “ After breach of a sealed contract, a right of action may be waived or released by a new parol contract in relation to the same subject matter, or by any valid parol executed contract.”

2. Testimony to prove a waiver of the damages upon a new agreement on full consideration, being then admissible, the next question is, does the evidence make out such a case ?

[The testimony was then examined at length, and the court concluded that the instruments corroborated the evidence of Sand-ford, that the substitution of the new security offered by the plaintiff, was accepted by the company on the condition of the waiver of all claim for damages in consequence of the omission to perform the contract strictly.]

3. The next important question is; whether the defendants can claim that the bond and mortgage delivered to Abenethy, be retained as security for the extra stone supplied and work done by them?

For this extra work, the referee has allowed the sum of $3440.90 (2686.94+753.96) independently of interest. It seems that the sum of $2686.94 was for stone supplied and work done before the transaction of April, 1854. I consider that the other amount was for subsequent supplies.

The defendants, in the first "place, take the position that they cannot be compelled to surrender their security and cancel the mortgage, without payment for the extra stone furnished at the plaintiff's request; that -interpreting the agreement in the most limited sense, and assuming that the mortgage, in its terms and import, only covered stone provided for in the original contract, yet the security cannot be taken from them without payment of this new demand.

Next, that the parol -agreement is made out, is valid, and gives them the right.

It is urged by the plaintiff, and to a great extent with 'truth, that the doctrine of tacking is unknown to our law. When that doctrine is carried to the length of enabling a mortgagee to unite a third incumbrance to his own, to the prejudice of an intermediate mortgagee, of whose claim he is ignorant, our law condemns the rule. Other examples of the principle carried to an extremity clearly denounced in our tribunals, may be found in Mr. Powell’s elaborate treatise. (On Mortgages, vol. 2, p. 423, etc.)

But the question is different when the case is exclusively between a mortgagor and mortgagee, and especially when the mortgagor comes to ask for an assignment of his security.

In this simple form, the right of the creditor to require payment of a further subsequent claim was recognized by the Civil Law. (Code 8, 27, 1. Vide Digest Lib. 13, 7-8.)

In James v. Rogers (15 Mass. Rep. 3, § 9) Justice Jackson, in an able opinion states, as the result of his examination of the Roman law, that a pledge might be retained, not only for the amount loaned upon it, but for all other moneys due to the pledgee on any account whatever. He cites Huber, Prseleotiones, Heinecius, and the Code. Justice Wilde admits this to be the rule as to debts contracted after possession of the pledge, and so does Chief-Justice Parker.

Judge Story admits that the civil law authorizes a mortgagee to unite, as against his own debtor, a second loan without security to the first, when the debtor seeks to redeem. (Story’s Eq. § 415, n. 2; Ibid. 1010.) See also Domat, vol. 1, p. 348, Art. 4, and the note.

A somewhat similar doctrine is found in the French Code. A novation of the debt as a general rule, extinguishes the hypothecation. But when it operates solely between the creditor and debt- or, to whom the mortgaged property belongs, they can by contract, transfer the things mortgaged for the ancient debt to the new one. This works no prejudice to the other creditors, because it does not prevent them from seizing the property, and selling it precisely as they might have done before the translation. The new obligation cannot exceed the old in amount, and it must be made at the time of the novation, not subsequently. (Touillier Droit Civil Francaise, tome 7, Arts. 308, 310, and note to 312.)

In the earlier case, in England, it was explicitly laid down, that a mortgagee coming to redeem, must pay any moneys subsequently advanced, as well as the original mortgage money. In Demany v. Metcalf (Gilbert’s Rep. 104) this rule was stated in the analogous case of a pledge of jewels; and the Lord Chancellor stated his opinion to be that the rule would be applied to a mortgage of lands. In Baxter v. Manning (1 Vernon, 244) the point was decided in case of a bond given for moneys subsequently advanced, and without any special agreement. Halliday v. Kirtland, (2 Chan. Rep. 361,) and the anonymous case, (3 Salkeld, 84, fol. 7,) are to the same effect.

The case of Coleman v. Winch (1 P. Will. 775) is generally cited by the text writers, as reversing these decisions. But it is far from having that effect. An ancestor borrowed £100, and mortgaged lands to secure it; he afterwards borrowed £100 more upon bond; he died, and his heir conveyed the equity of redemption to trustees, to pay all his father’s bond and simple contract debts. The trustees brought a bill to redeem, and the defendant insisted upon the right of having both debts paid. This was denied. But Lord Macclesfield expressly admitted, that if the heir had come to redeem, he must have paid both demands. The difference was, that the rights of creditors intervened in consequence of the conveyance in trust by the heir. ,

The same principle is found in Lothian v. Hassel (3 Bro. Ch. Rep. 102). There shall be no tacking as against other specialty creditors, where the suit is for the administration of legal assets.

I have examined a large number of subsequent authorities down to Jones v. Smith, (2 Vesey Jr. 372, 1794,) in which case they are reviewed. Lord Alvanley states, as the result, that a bond may not be tacked to a previous mortgage, as against a mortgagor, nor against creditors, but may be as against the heir, to avoid circuity of action. That if there are two mortgages to the same person of different estates, and one is deficient in value, the party can only redeem by paying both: and why a bond should not be upon the same footing, he did not know. It was impossible to say why a bond should not be tacked as well as a mortgage.

The doctrine that two mortgages may be thus united upon a bill to redeem is also recognized in the case of Watts v. Symes (8 Eng. L. and Eq. Rep. 207).

There were several cases before Lord Elden bearing upon the point.

In ex parte Langston, (17 Vesey, 228,) in bankruptcy, he held, that an equitable mortgage by deposit of deeds should stand for future advances, upon proof of a distinct agreement, though by parol, to that effect. In ex parte Waner, (17 Vesey, 202,) ex parte Whitbread, (ibid. 209,) and ex parte Kensington, (2 V. and Bea. 79,) the same rule was declared. In the latter case he expressed his strong disapprobation of the doctrine.

Then in ex parte Hooper, (19 Vesey, 477; 1 Merivale, 7,) he expressly ruled, that where there was a legal mortgage, it could not be rendered a security by subsequent advances, upon parol evidence of an agreement to that effect. It would be a violation of the statute of frauds, requiring a writing to change lands.

In Diver v. McLaughlin, (2 Wendell, 599,) the law is stated in the same manner, as also in Walker v. Snediker, (1 Hoffman’s Rep. 147,) and Chancellor Kent treats it as the settled English rule. (Comm. vol. 4, p. 176.)

In Rolfe v. Chester, (25 L. J. Rep. p. 246, 1854,) the right of a mortgagee to have a simple contract debt tacked as against the heir, was admitted, simple contract debts now binding real estate.

In James v. Rice, (27 L. and Eq. Rep. 342; 5th De Gex and McNaughton, 461,) deeds had been placed in the hands of the plaintiff, as security for a promissory note, and upon a further advance, the party promised to execute to the lender a mortgage for the whole amount. This was held binding. See, also, Uppington, v.-, (2 Drury and Warren, 184.)

Some cases in our own state bear upon the question. Grant v. The United States Bank, (1 Caines Ca. in Error, 112,) and James v. Morey (6 John Ch. Rep. 420, and 2 Cowen, 247).

Justice Willard treats James v. Morey as establishing this proposition, “that if a deed, absolute in its terms, be intended as a mortgage, and it be shown by parol to be also intended as a security for further advances, it will, as between the parties, be treated as a mortgage for the subsequent advances as well as the original debt.” (Eq. Jur., 436.)

That this proposition is warranted by the opinion of Chancellor Kent, when the cause was before him, cannot be disputed.

But in the Court of Errors, Justice Woodworth, after examining various cases: says “ They show conclusively that the respondent cannot divert the securities taken, from the objects specified, when it formed no part of the original agreement, nor was ever assented to subsequently by Wattles, (the debtor,) and particularly when an objection is interposed by a Iona fide creditor, holding a judgment made valid by an amended specification.”

This question was considered as of so little moment in the decision of the cause, that neither of the other Judges or senators notice it in their opinions, or only to pass it over.

As to decisions in some other states, see Soupture v. Johnson, (3 Con. Rep., 211,) and Chamberlain v. Thompson, (10 Con., 251,) allowing the union of demands upon a bill to redeem. So in Maryland (Lee v. Stone, 5 Gill & Johnson, 22).

Another class of cases may usefully be adverted to. In Walker v. Snediker, (Hoffman Rep., 146,) I observed, that it appeared to be the better opinion, if not the settled law, that a mortgage which was to cover future advances ought to express the object on its face. In Craig v. Tappin, (2 Sand. Ch. Rep., 82,) Assistant Vice-Chancellor Sandford came to a different conclusion after examining the authorities, and held, that it was enough that the mortgage show upon its face the utmost amount which it was intended to secure; and up to that amount it would be valid for future advances, when such was part of the original agreement.

In The Bank of Utica v. Finch, (3 Barb. Ch. Rep., 294,) Chancellor Walworth declares the rule to be, that future advances may be covered by a mortgage to the extent of the sum mentioned in it. He says, “that parol evidence is.admissible, not to contradict the written instrument, but to show the purpose and extent for which it was executed. It was admissible to show that credit had been given to Einch upon the several discounts for him on the faith of the mortgage, and that it was treated by the complainants as a continuing security. Here is a mortgage, the record of which is a notice to all of an incumbrance to the extent of $30,000, and I suppose the holder of that mortgage may advance upon it up to that amount, and may be secure in his lien to the extent of his advance within that amount, such having been the agreement between himself and the mortgagor.

In such a state of the authorities we are at full liberty to determine the question untrammelled by peremptory decisions. We cannot but conclude that parol evidence of an agreement, by which a mortgage given to secure a definite sum, shall operate to secure a further sum subsequently advanced, contradicts the rule, that such evidence shall not be allowed to add to the terms of a written instrument, and would, in effect, charge lands without an instrument in writing, signed by á party competent to charge them. (2 R. S., 134, § 6.)

The English authorities are of various classes. One is of bills to redeem, where the forfeiture being perfect at law, the court has .refused its interference but upon payment of other demands justly due. This was held in the early cases, but it is very doubtful if it is now the law.

Another class is of mere equitable mortgages, where the whole principle is the intendment resulting from the advance and deposit of deeds. This peculiar equity is, perhaps, unknown in our state, probably from the operation of the registry acts.

A third class is, where the question is between the heir or devisee and mortgagor; then, when there are legal assets, a bond creditor heretofore, and lately a simple contract creditor, may unite his demands. The reason is, that the land has become subject to a lien in his favor.

The union of one mortgage debt to another mortgage debt, as against the mortgagor, rests upon the same principle of a charge on the land.

As to the decisions in our own state respecting the extension of a mortgage, so as to cover future advances, I understand it to be the law, that they never can exceed the sum stated in the mortgage, and I understand it not to be the law of any case, that if’ such sum was unpaid, the mortgage could, by parol, be extended to an additional sum.

Thus understood, there is a lien created for a definite sum, the advance of which may be made in different amounts at different times. This is a very different case from that of the original debt unpaid, and a parol agreement to charge the mortgaged land with another sum.

We have been much struck with the consideration, that in truth, there is here a judgment in favor of the defendants, for a definite sum, which may be made to bind the real estate; indeed, the equity of redemption of these very lands. And the 274th section of the Code enables the court to give judgment for or against one or more of several plaintiffs, and for or against one or more of several defendants. Why not allow the payment at once of this sum, which may be recovered ?

There are several answers to this view. The principle we have stated and adopted, is not carried out in its integrity by doing thus indirectly what could not be done directly. It does not appear that the judgment has been docketed, and until that is done, no lien is created. But chiefly, we should in this way deprive the plaintiff of the benefit of the redemption acts. His real estate will be held subject to the judgment, but in its regular order, and subject to those methods of enforcement and relief to him which the law has prescribed.

The result in our judgment is, that the defendants are not entitled to hold the mortgage as security for the amount of the subsequent extra supplies and labour.

There were some other points determined by the court, of no moment except to the parties, which it is not deemed necessary to repeat.


author: By the Court. Duer, J.

text:
    John H. Prentice, and others v. Henry A. Dike, and others.
    When an action is hronght for the breach of an implied warranty, the existence and terms of the warranty, as material traversable, facts must be alleged in the complaint.
    The sellers of wool knew that it was purchased by the plaintiffs for the purpose of being manufactured into hats, and that if there was any cotton in it, it would be unfit for the purpose intended, but they did not warrant that it was fit for that purpose, but only that the flocks sold contained no cotton.

      Held, that the jury had no right to infer from the evidence, that the defendants meant to warrant that the wool would be fit for the purpose for which they knew it was bought, the only warranty which it was proved that they gave, being restricted in terms to the fact that there was no cotton in the wool.

      Held, that the only damages which the plaintiffs were entitled to recover for the breach of this warranty, was the difference between the market value of the wool in its actual state, and what it would have been worth had it contained no cotton, with interest on that difference.
    Order denying a new trial affirmed, with costs.
    (Before Duer, Bosworth and Woodruff, J.J.)
    November, 1856.

      The action was brought to recover damages for the breach of a warranty on the sale of wool.
    The complaint alleged, that the defendants, in consideration that the plaintiffs would buy of them a lot of merchandise called flocks, for the sum of $200T£¡r; promised that the merchandise was free from any mixture of cotton; that the plaintiffs, in reliance upon this promise, bought the merchandise for the price demanded, and that at the time of the making of the promise by the defendants, the merchandise so bought, did contain a mixture of cotton, and was of no value to the plaintiffs; but on the contrary, by being manufactured with other materials in the course of the business of the plaintiffs, depreciated greatly the value of such materials and of the manufactured articles, and that by reason of the premises they the plaintiffs had sustained damages to the amount of $1000, for which sum judgment was demanded.
    The answer of the defendants denied the making of the promise stated in the complaint.
    The cause was tried upon these pleadings, before Woodruff, J., and a jury, in March, 1856.
    It was proved, upon the trial, that the plaintiffs were engaged as partners in the business of manufacturing wool and fur hats, and that the defendants were dealers in wool; that in May, 1855, two foremen in the service of the plaintiffs called at the store of the defendants, and asked the defendant Dike whether he had any flocks that would suit their purpose, and that he replied that he had some that he thought would suit them; that one of the foremen, on examining one of the bags containing the wool, said that there was cotton in it, and that Dike said no, and that he guaranteed that there was no cotton in it. The sale was then made for the price mentioned in the complaint.
    It was then proved, on the part of the plaintiffs, that the flocks of wool which they so purchased, did contain a mixture of cotton. The plaintiffs’ counsel then offered to prove that this fact was not, and could not have been discovered until the wool was used in the manufacture of hats, and he also offered to show the number of hats that were manufactured with a mixture of the cotton found in the wool, and averred that the plaintiffs were entitled to recover, as damages, the loss which they had sustained in the sale of these hats from that cause.

      The Judge excluded the evidence so offered, and the plaintiffs’ counsel excepted to the decision. Evidence was then given, on both sides, as to the value of the wool in its actual state, and what would have been its value had it contained no cotton.
    When the testimony was closed, and the case had been summed up by the counsel, the Judge charged the jury that the only damages that the plaintiff could recover against the defendants, for the breach of their warranty on the sale of the goods, was the difference between the market value of the article sold as it was, and what it would have been worth had it been of the description it was represented to be, with interest on that difference.
    To this instruction the counsel for the plaintiffs excepted.
    The jury found a verdict fór the plaintiffs for $63.14.
    The plaintiff moved, at Special Term, upon a bill of exceptions, for a new trial, and the motion was denied, with costs.
    The plaintiffs appealed from this decision, and it was upon this appeal that the case was now heard.

      E. Terry, for the plaintiffs, appellants.
    We contend that the rule “ caveat emptor” does not apply where an article is sold for a particular purpose. The seller then undertakes that the article shall be fit for that purpose, Jones v. Bright ( 536). The defendants were, therefore, hable on their implied warranty that the goods were suitable for the purpose for which they were bought. (Van Brachlin v. Fonda, 12 John. 468.) Even upon the supposition that such a warranty cannot be implied, the Judge upon the trial should have admitted the evidence offered as to the difference in value of the hats manufactured from a defective material, and what would have been their value if manufactured from the material as guaranteed; and he should have instructed the jury that the plaintiffs were entitled to recover that difference as damages. They were recoverable as consequential damages, immediately resulting from the breach of the warranty. (Sedgwick on Damages, 292; 2 Parsons on Contracts, 486; Eggleston v. Macauly, 1 McCord, 379.) The counsel referred to several other cases as analogous, and insisted that all the exceptions stated in the case were well taken, and, consequently, that a new trial ought to be granted.

      A. Underhill, for the defendants, respondents.
    The only proper rule of damages for a breach of warranty on the sale of personal property, is the difference between the market value of the article if sound and the market value in its unsound state. (2 Hill, 288; 4 Hill; 5 Hill, 492, S. C. affirmed; 3 Denio, 406.) The rule is in fact elementary. (Sedgwick on Damages, 290; Parsons, on Contracts, 486; 2 Kent’s Commentaries, 480, n. a.) In all the cases where larger damages are allowed, there was not a mere warranty, but some other express stipulation was connected with it. This distinction is clearly stated by Justice Cowen in the opinion which he delivered in Blanchard v. Ely, (21 Wend. 342,) and is sustained by the authorities to which he refers.
    There was, therefore, no error in the exclusion of evidence by the Judge on the trial, nor in his charge to the jury, and the order appealed from should be affirmed.
   By the Court. Duer, J.

It would be a conclusive answer to the position upon which the counsel for the plaintiffs seemed disposed to lay the stress of his argument, namely, that there was an implied warranty that the goods purchased should be fit for the purpose for which it was known they were bought, that no such warranty, nor any facts from which it could arise, are alleged in the complaint. We cannot doubt, however, that the existence and terms- of an implied warranty, as material and traversable facts, are just as necessary to be alleged in the complaint, as those of an express warranty, where in each case the breach of the warranty is the cause of action, but as this objection to the argument, on the part of the plaintiffs, was not urged by the counsel upon the -trial, nor upon the hearing before us, we must presume that it was meant to be waived, and shall, therefore, place our decision upon other grounds.

Although, when goods are ordered and manufactured for a particular purpose, there is an implied warranty that they shall be fit for the purpose specified, we know of no adjudged case in which such a warranty has been implied where the contract was merely for the sale of. goods in their actual state, and certainly no such doctrine is to be found in any of the cases to which we were referred. We are satisfied, that, if there is any such decision, it will be found, upon examination, that the facts in the case were widely different from those in the case before us. We are satisfied that such a warranty cannot be implied, either by the court or jury, merely from the facts that the purpose for which the goods were bought was known to the seller, and that he said at the time that, in his opinion, they were suitable for the purpose intended; still less can the warranty be implied, when an express warranty is proved to have been given, limited by its terms to a distinct and independent fact. We think that such an express warranty excludes the supposition that any larger one was intended than its •terms embrace.

Hence, if the plaintiffs, or their agents, in the present case, desired a larger warranty than the terms of the express warranty embraced, they should have required it to be given as a condition of their purchase: they had no right to rely upon a larger warranty as implied.

Hor can we assent to the second proposition, upon which the counsel for the plaintiffs insisted, namely, that the plaintiffs were entitled to recover the loss which they sustained in the sale of the hats containing a mixture of cotton, as consequential damages immediately and necessarily resulting from a breach of the express warranty as proved. These damages were not in any legal sense a necessary consequence of a breach of the terms of the warranty, they resulted solely from the use of the goods in the manufacture of hats, but this was a use to which the plaintiffs were under no necessity of applying the goods; they were at perfect liberty to apply them to a different purpose, or to sell them in their actual state. It is true that the damages which the plaintiffs claimed necessarily resulted from the unfitness of the goods for the purpose for which they were bought, but we have already shown that there was no warranty on the part of the defendants that the goods should be fit for the purpose intended. To hold that the defendants were liable for the damages claimed, would be to contradict ourselves by saying either that the terms of the express warranty embraced the fitness of the goods, or that there was an implied warranty of the same purport. Satisfied that there was no such warranty, express or implied, we cannot hold the defendants liable for damages resulting from its alleged breach. In truth, the second proposition of the learned counsel, although different in words, was in substance the same as Ms first. It asserted in a different form the existence of an implied warranty.

It follows, from these observations, that the true and only rule of damages applicable to the case was exactly that wMch the Judge upon the trial instructed the jury to follow, and as there was no error in his charge there was certainly none in Ms exclusion of the evidence that had been offered to prove that the plaintiffs had in fact sustained the whole loss wMch they claimed as damages to recover; tMs evidence, if there was no error in the charge, was properly excluded as irrelevant, since it had no bearing upon any question that the jury could have been required to determine.

As none of the exceptions taken on the trial can be allowed, the order denying a new trial must be affirmed, and the appeal be dismissed, with costs.


author: By the Court. Slosson, J.

text:
    Sarah S. Smith, administratrix, etc., of Timothy S. Smith v. New York and Harlem R. R. Co.
    The deceased was an engineer in the employ of the Hew Haven E. E. Co., and was killed by the accident of the cars which he was running being thrown off the track of the road; the action was brought by his widow, as his administratrix, for the recovery of damages, under the statute, and was founded on the allegations that the accident was caused, partly by the negligence of a switch-tender in the employ of the defendants, and partly by the insufficiency of the switch itself. Both these questions of fact were submitted to the jury, and were found by them in favor of the plaintiff.
    The Judge, upon the trial, charged the jury that, although the deceased was in the employ of the Hew York and Hew Haven E. E. Co., yet if he was running their train upon the defendant’s railroad, and by reason of the negligence of the switch-tender employed by the defendants, that train was thrown from the track, and his death thus caused without any negligence on his part concurring to produce the accident, the defendants were responsible in the action.
    To this portion of the charge the counsel for the defendants excepted.
    The Judge also charged the jury, that if there was on the part of the defendants a want of reasonable skill and prudence in the construction of their road at the place of the accident, or a neglect on their part to adopt a useful improvement in the construction of the switch, by which the danger of the accident would have been materially reduced, and which improvement was known to the defendants, and they had it in their power to apply it, the defendants were liable if their omission to adopt the improvement caused the accident, unless there was negligence on the part of the deceased that concurred to produce the result.
    To this part of the charge the counsel for the defendants also excepted.

      Held, that the exceptions were not well taken, the charge of the Judge being, in point of law, entirely correct, and being directly applicable to the questions of fact raised by the evidence.

      Held, further, that the finding of the jury upon the questions tif fact, specially submitted to them, was fully sustained by the evidence.
    Judgment for plaintfif affirmed, and new trial denied, with costs.
    (Before Duer, Slosson and Woodruff, J.J.)
    Heard, November;
    decided, December, 1856.
    Appeal from a judgment in favor of the plaintiff, and from an order denying a new trial.
    The cause was before the court upon a case containing the proceedings and exceptions on the trial, all of which, together with the issues raised by the pleadings, are folly stated in the opinion of the court.

      G. W. Sandford, for the defendants, appellants, moyed for a reversal of the judgment.
    He cited 6 English R. R. cases, 580.

      E. Seely, for the plaintiff, contra,
    cited Coon v. Syracuse and Utica R. R. Co., (1 Seld., 492, and 33 Eng. L. & Eq. R., 1; 4 Metcalf, 49.)
   By the Court. Slosson, J.

The action is brought by the - widow, as administratrix of Timothy St. John Smith, an engineer in the employ of the Hew York and Hew Haven R. R. Co., to recover, under the statute, damages to the widow and two infant children, occasioned by his death, in consequence of the alleged. negligence of the defendants in not providing a proper switch at a point of their road at the Melrose station, in Westchester "county, between Hew York city and Williams’ Bridge, the road between which points was used by the Hew Haven Co. for the running of theip cars with the consent of the defendants, and for a compensation paid by the latter company to the defendants; and the plaintiff alleges, that on the 9th of October, 1854, a locomotive with passenger train, under the management and guidance of the deceased, as engineer as aforesaid, was thrown from the track at Melrose aforesaid, and the said Smith was killed; the cause of the catastrophe being that the defendants “ carelessly, negligently, and _ improperly suffered and permitted a switch of an insufficient, unfit, and improper character and construction to be used at that place, and by their negligence, unskilfulness, want of care, etc., through their servants in that behalf, so carelessly, negligently, and wrongfully placed and turned the said switch, and left the same so carelessly, etc., turned, and made their signal of safety so carelessly,” etc., that the train was thrown from the track, and the engineer killed.

The defendants deny the unfitness of the switch, and allege that tjie engine was thrown from the track “ in consequence of the accidental misplacement of a switch by a switchman employed by the defendants, and the carelessness and negligence of the deceased,” but they aver, “that the said switchman was a suitable and proper person to be employed by the defendants, and had always maintained, until the accident, the reputation of a sober, honest, and capable person for such an employment,” And they further allege, that the deceased entered upon and continued in his said employment “with full knowledge of the construction of the road, and the mode and manner in which the switches and turn-outs upon the road were conducted and managed, and that he took the risk of his employment, and of the character and capacity of the various persons employed thereon,” and they deny negligence on their part.

The evidence as to the good character and qualifications of ¡Lawless, the switch-tender, was uncontradicted.

The switch was out of place; in respect to this there is no dispute. As the trffifi approached, the white flag, signal of safety, was held out by the switch-tender, and one witness says he saw it a quarter of a mile off. The witnesses differ as to the rate of speed at which -the train was moving, varying in their estimates from twelve to eighteen and twenty miles ar£ hour.

The men employed on the road between the city and Williams’ Bridge, are all employed by the defendants, the Harlem Company.

There were six switches at this station, three long and three short. The question as to the sufficiency of the switch in question, which was a short switch, turns on the point, whether it is or not inferior to what is called the “ frog and' guard rail.” On this subject the evidence on the part of the plaintiff is very conclusive.

Schuyler, a railroad engineer, swears that the frog and guard rail require no switchman, and that the shut switch is not now used to his knowledge, in consequence of the superiority of the frog and guard, though he does not mean to say they are not used on any road, as he has seen them in various places.

He says the frog and guard rail is superior to the shut switch, and is uniformly deemed better by engineers, but he says there is no difficulty in the shut switch, if it is in its proper place.

Sanborn, the conductor, who had been five years on railroads, swears that shut switches ai’e not as safe as frog and guard rails; the weight of the engine is calculated to displace a shut switch. He says that if this had been a frog and guard rail they would have gone safe. He says that the shut switch is not used on the Erie road, and the Eastern roads, but the frog and guard.

Mather, a civil engineer, says the best method of construction is to use the frog and guard rail, and it is always used now; and he says the advantage it has is this, it is a fixture, and always right, whereas the shut switch is movable and liable to be out of place. The frog and guard, he says, are altogether safer than the switch, and the latter is not now used on any railroad that he knows of except one in South Carolina. Most railroads, he says, have changed from the shut switch to the frog and guard rail, “ The frog and guard rail are now universally used as far as I know.”

One witness swears that the switches at that station were in a very bad -condition, while the witnesses for the defence swear that they were all in good condition.

On the part of the defence, one witness swears that if he was riding over the road, and was sure it was in its place, he would prefer the shut switch. Another swears this was as good a switch as any of its kind could be.

One witness swears that he should not think the frog and guard rail were used because they are safe; he says that in,the course of time they are cheaper, because the shut switch requires a man to be in constant attendance. It thus appears that the difference between the two is, that the frog and guard rail is always in its place, and requires no switch-man to attend it, while the shut switch absolutely requires the attendance of a switch-man in order to safely.

When the plaintiff rested, the defendants moved for a dismissal of the complaint, on the ground that the accident was occasioned by the negligence of a fellow-servant engaged in the .same business, and was one of the risks assumed by the deceased by virtue of his employment. The motion was denied, and the defendants excepted.

The Judge charged that defendants were liable for the carelessness of the switch-tender employed by them, supposing no negligence on the part of the deceased, notwithstanding he was an employee of the New Haven Company; and to this there was an exception. He also charged that it was negligence on the part of the defendants not to adopt a useful improvement in the construction of the switch, by which improvement the danger of accident would be materially reduced, if the improvement was known to them, and they had it in their power to apply it; and for which negligence they would be liable, provided the accident was caused by such omission on their part, the deceased himself not being guilty of negligence. The proposition was stated with this qualification, however, to wit., that the improvement had been proved,- and found to be valuable as a means of promoting safety, and was known to the defendants, and was within their power so as to be reasonably practicable. To this charge, also, the defendants excepted.

Two questions were then left to the jury.

1. Whether the death was caused by the negligence of the switch-tender, without any negligence on the part of the deceased concurring to cause the result?

2. Whether negligence, on the part of the defendants, in not providing a proper switch also caused the accident, without any negligence on the part of the deceased ?

Both which questions were answered affirmatively by the jury, and a general exception was taken to the charge.

The jury found a verdict for the plaintiff for $5000, the full amount allowed by the statute.

We find no fault with the finding of the jury on the questions submitted to them, as the evidence clearly justifies it in both particulars, a,nd the only questions are, whether they were properly instructed as to the law, and whether the court erred in refusing a'nonsuit ?

The motion for a nonsuit was made on the ground that the switchman and the engineer, (the deceased,) though employed the one by the Harlem and the other by the Few Haven Company, were to be considered, in consequence of the peculiar arrangement between the companies for the use of the same track in common, as engaged in a common service, and that the defendants were, therefore, not responsible, the death being caused by the negligence of a fellow-servant. Had the relation between the two been such, there is no doubt, assuming that the disaster was wholly attributable to the negligence of the switch-tender, without any fault on the part of the deceased, that such would be the rule. (Coon. v. Syrac. and New Haven Railroad Co., 1 Seld. 492.)

But it would be difficult to maintain this position, and the Judge who tried the cause, clearly took a different view of the case, or he would not have instructed the jury that the defendants were responsible for the negligence of the switch-tender, if the deceased himself was not guilty of negligence.

In this, we think, he was right. If the Few Haven Company were running their cars on the defendant’s road, by no higher authority than the mere permission of the latter, still the defendants would be hable to a passenger in, or to a person employed upon, said cars, for any negligence on their part, or on the part of their employees, by which injury should be caused. The act of March 29,1848, authorizes the Few Haven Company to run their cars upon this section of the defendant’s road, upon such terms as may be agreed upon between the two companies. What these are the court is not informed, no evidence thereof having been given, and it is not reasonable to suppose that they are of such a character as to make the servants of the two companies, whilé on this part of the route, agents or employees in a common sense.

But if this question were doubtful, which we do not consider it, or were even clearly the other way, still, the verdict must be sustained under the finding on the second question submitted to the jury, since the rule exempting the principal from liability in such a case has this qualification, that the principal himself is not in fault.

Judge Ruggles in delivering the opinion of the Court of Appeals in Keegan v. The Western Railroad Co., (4 Seld. 175,) which was an action by a fireman, in the employ of the company, for damages occasioned by a defective boiler, thus clearly defines the rules: “ The cases in which it has been held that a principal is not liable to one agent or servant, for an injury sustained by him in consequence of the misfeasance or negligence of another agent or servant of the same principal, while engaged in the same general business, are applicable only where the injury complained of happened without any actual fault or misconduct of the principal, either in the act which caused the injury or in the selection and employment of the agent by whose fault it did happen. Whenever the injury results from the actual negligence or misfeasance of the principal, he is liable as well in the case of one of his servants as in any other.”

The Judge instructed the jury, in substance, that it was neglect in the defendants not to adopt the improvement of the frog and guard rail in the construction of their switches, if the jury should find it was known to the defendants, and they had it in their power to apply it, and that by it the danger of accident would be materially reduced; and in this we think he was clearly right. No rule could be more reasonable, and nothing less should be required of the railroad company; the safety of passengers and employees requires it.

In the case of Hegeman v. The Western R. R. Co., (16 Barb. S. C. R. 353; 3 Kernan, 1,) the court held, that it was negligence in the defendants not to have adopted a safety-beam in connection with the axles of the cars, an invention well known and in extensive use, and by which the danger of accident was greatly diminished. The rule does not, as the Judge in the case at bar instructed the jury, “ require the defendants to adopt or apply every new invention, nor any invention, the utility of which is in doubt; the obligation to use a new invention only arises when such improvement has been proved, and found to be valuable as a means of promoting safety, and that is known to the defendants, and the improvement is within their power, so as to be reasonably practicable.”

The rule, as thus explained and qualified, is free from every objection, and of great practical utility and importance, and one which the courts should rigidly adhere to.

The jury have found that the accident in question was attributable to this cause; as well as to the neglect of the switch-tender, and we think this must settle the question of the defendants’ liability.

It may be proper to add that the position taken by the defendants’ counsel, that the deceased, knowing the condition of the road, took the risk of it, is, we think, unsound. A servant may be held to take the risk of the common and usual hazards of his employment, but certainly not of those hazards which are induced or aggravated by the omission of his employer to use precautions and means, the very existence of which may not bfe in the servant’s knowledge, and which the nature of his service does not require him to know, but which it is the duty of the employer, from his peculiar position, both to know and apply; and much less can he be said to take the risk of the omissions and negligence of those who are not his employers, but who, by the Relation in which they stand to his employers, are bound, in respect to the latter, and all employed by them, to the exercise of the like rule of prudence.

The judgment must be affirmed, with costs.