text:
    THE BOARD OF WATER COMMISSIONERS FOR THE CITY OF DETROIT, Plaintiff, v. HENRY A. BURR, and Another, Defendants.
    I. CONTRACT.—CONDITIONS PRECEDENT AND SUBSEQUENT.
    1. Machinery, Construction of, by the One Party, Building and Foundation for the Machinery to be prepared by the Other ‘ Party.
    1. Where the party of the first part agrees to construct and put up for the party of the second part certain machinery, and the party of the second part agrees to furnish the place, building, settings, and foundation in and on which the machinery is to be placed, the contract specifying the machinery only in very general terms, the particulars being designed to be shown by plans referred to in the contract, but which had not in fact been prepared at the time of the execution of the contract.
    1. Duty of party of first part.

      a. The question might arise, whether it was or was not his duty, at the request of the party of the second part (or even without request), to give information to the party of the second part, as to the weight, size, shape, etc., of the machinery, to enable him to prepare a proper building, settings, and foundations.
    BUT
    even if this question is answered in the affirmative, it would only'refer to the pa/rty of the second part obtaining in a proper wap the necessary information to enable him to perform his part of the contract.

    1. Such information may be given orally, in writing, by sketches, or plans, before as well as after the execution of the contract.

      2. It is not 7m duty to inspect the building as it is being constructed, or the plans for the same, and to point defects in
    either, as being calculated to prevent the successful working of the machinery.
    1. This is different from the duty of giving information as to the machinery, and also from that of not misleading the party of the second part in an unlawful manner, so as to make something in the nature of an estoppel.
    3. Duty of Party of Second Part.
    1. His duty, after having obtained the requisite information as to the machinery, is so to perform without reliance on the party of the first part, as that the work to be performed by him shall not be defective.

      a. The party of the first part is not bound to make any explicit requirement as to the mode in which the party of the second part shall perform his work.

      b. If by reason of the defectiveness of the work to be performed by the party of the second part, the machinery fails to produce the result contracted for, the party of the first part is not chargeable with such failure.
    2. Opinion of Party of Eirst Part.
    1. If the party of the second part seeks the opinion of the party of the first part (though at the request of the latter), if the latter gives it honestly but as an opinion, the former is not excused if following that opinion he failed to make a proper structure.
    3. Acquiescence.
    1. Where the party of the first part sends to the party of the second part a sketch indicating certain things to be done, he cannot, so long as he does not disaffirm the natural inference from the sketch, be deemed to have suffered or acquiesced in the construction of a building that does not substantially follow the sketch.
    4. Suggestions, Repetition of, Immaterial.
    1. Where a suggestion has once been made by the party of the first part, it is immaterial whether it was subsequently repeated or not, or whether subsequent ones of a similar kind were made or not.
    5. Agent of Party of Second Part, Interviews with, and Statements by. '
    1. Where the contract provided that the agent of the party of the second part should have access to the work of the party of the first part, and have power to reject inferior work, and cause good work to be substituted, and to condemn any material not of the best quality; interviews with, and letters from and to, and statements by such agent, which took place, passed, or were made after the contract, are admissible in evidence in behalf of the party of the first part.
    6. Experts, Evidence of, as to Machinery.

      1. Their evidence as to the capacity of the machinery is admissible. a. It has a bearing on the inquiry, whether the engines failed by reasons of defects in the work of the party of the first part, or defects in that of the party of the second part.
    II. Exceptions.—Charge.—Trial.
    1. When exception not sustainable.

      a. An exception to a part of a charge containing several propositions, some of which are correct, and others erroneous, cannot be sustained.
    III. Evidence.—Trial.
    1. improper a/nd incompetent midenee, when reception, of not ground for a new t/rial.

    1. Where the court can see that such evidence had no bearing on the issue presented to the jury, that it could not have tended to confuse their minds on the issue presented to them, and that the party against whom it was received could not have been harmed by it. a. Application of principle.
    Before Barbour, Ch. J., Curtis and Sedgwick, JJ.

      Decided April 7th, 1873.
    Exceptions of plaintiff ordered to be heard at General Term.
    The action was brought upon a bond, made by defendants conditioned, “that if Edward,IT. Dickerson and Frederick E. Sickels, who have executed the annexed contract for engines and machinery, shall in all respects well and faithfully execute and perform, live up to and abide by the same, according to the terms thereof, and shall perform and abide by any alterations which the parties may make therein, then the above obligation shall cease and become null and void, otherwise, etc.”
    The time for the performance of the contract referred to was extended with the consent of the defendants. They claimed that the extension was obtained under circumstances which relieved them from liability as sureties, but as the verdict was in their favor, it is not necessary to allude further to this.

      The contract was between Messrs. Dickerson and Sickels, as parties of the first part, and the plaintiffs, as parties of the second part. By the contract, the former agreed to build, furnish, and erect, as thereinafter specified, two square engines, with the pumps, boilers, and all fixtures and apparatus necessary to the engines and machinery, in order for the services thereinafter referred to. The work to be done by them was to conform to the proposal and specifications appended to the contract, and also to plans certified by them and the engineer of the plaintiffs, in whose keeping they were to remain. The boilers for the engines were to be of a ■specified construction and quality, and the contractors, as the agreement termed the parties of the first part, were to deliver the boilers and other machinery “at the ‘ locality selected by the engineer of the water commis- “ sioners for that purpose, and are to connect said boilers “with the engines ready to run, when the setting shall “ have been completed by the water commissioners,
    ‘c according to the drawing made for that purpose and “signed by the contractors and the engineer of the ‘ ‘ water commissioners. ’ ’
    The contractors agreed to furnish and erect everything agreed by them to be furnished, “at such place in the city of Detroit as may be furnished for that purpose” by the plaintiffs, for $50,000, in case said work should be completed, and successfully perform all that it should by the agreement perform, it being provided that the plans and specifications thereto attached shotild form a part of the contract."
    The terms and times of payment were particularly stated. The plaintiffs agreed not to delay the contractors in any of the work they were to do or furnish. The service required of the engines was to be performed according to a formula stated in the specification to the satisfaction of the plaintiffs’ engineers.
    By the specifications the engine and pumps were to be of sufficient power and capacity to elevate 3,000,000 imperial gallons through a pipe of 24 inches in diameter, and 650 feet in length, in 12 hours, to a height of 80 feet.
    All the necessary preparation of foundations and wood-work for the reception and erection of the machinery was to be done by the plaintiffs.
    Appended to the contract was the proposal of the contractors, who guaranteed that the engine should perform a regular duty, according to the formula stated in the specifications, the engine to be run not less than one hundred hours consecutively in making the trial.
    The complaint charged that the contractors had not executed and performed the contract, but had wholly failed to furnish the engines and machinery as they had agreed, and that what was furnished was useless to the plaintiffs, to their damage ; for which they demanded judgment against the defendants, under the bond first referred to.
    The defence was, that the contractors had done all on their part agreed to be done, but that the plaintiffs had omitted to do various things which they were bound to do, and that they were indebted to the contractors, under the agreement, in the sum of $26,000; that the engines and machinery which were delivered under the contract by the contractors to the plaintiffs, in all respects satisfied the contract, in capacity to perform the required service, excepting that the boilers used in them were not sufficient to raise and keep up the necessary pressure of steam, but that the plaintiffs had themselves undertaken and agreed to be and become responsible for the sufficiency of the boilers to satisfy the contract; that the building which the plaintiffs had furnished under the contract, as the place where the contractors were to erect the engines, and the foundations which they provided for the engines and machinery, were inadequate, unsafe, and insufficient for the proper working of the machinery, and that any failure of the engines and machinery delivered by the contractors, in any trial made, to perform anything required by the contract, was not owing to any breach of the contract on their part, or to the insufficiency of such engines and machinery, but to the failure of the plaintiffs in the particulars lastly referred to, as well as to the insufficiency of the boilers.
    On the trial the answer was amended by inserting averments that the plans referred to in the contract as made and certified, never were in fact made or certified, or in fact adopted, before the delivery of the contract, and that for such reason the contract was inchoate and incomplete. On the trial, it was objected by the defendants that they were not liable as sureties, because of this uncertainty and incompleteness of the contract.
    The contract was executed and delivered on August 12th, 1856, although dated July 19, 1856. Before these dates, the contractors and the plaintiffs’ engineer had frequent conversations and correspondence, in which the plans and views of each were discussed, in contemplation of the contractors being awarded by the plaintiffs the work. The exceptions and the facts which relate to them are sufficiently set out in the following opinion.
    The defendants had a verdict, and the plaintiffs’ exceptions were ordered to be heard in the first instance at General Term.

      Burrill, Davison & Burrill, attorneys, and John E. Burrill, of counsel for plaintiffs.

      Charles H. Woodruff attorney, and Charles F. Sanford and John K. Porter, of counsel for defendants.
   By the Court.—Sedgwick, J.

We are confined to an examination of the legal character of the exceptions taken on the trial.

There can be no doubt that the plaintiffs agreed to furnish the place, the settings and the foundation, where and on which the contractors were to erect the machinery. This agreement they were bound to perform, under the ordinary rules of law that relate to contracts. These had to be furnished before the contractors could perform their part of the contract (Young v. Hunter, N. Y. R. p. 206-7; Stewart v. Keteltas, 36 N. Y R. p. 390; Allamon v. Mayor, etc., of Albany, 43 Barb. p. 33; Goodwin v. Holbrook, 4 Wend. 377). As the settings, foundations, etc., would be built for the purposes of engines and machinery, the plaintiffs might perhaps require some previous information as to the weight, size, and shape of the engines, etc. It is conceivable that a party situated as the plaintiffs were might choose to take the risk of performing his part of the contract, so that it would be fit to bear the machinery and endure with safety its working, whatever its size, shape, or weight might turn out to be. Ordinarily, however, the preparation would be made so as to conform to the machinery as it was designed to be. In such case a question might arise in the construction of such a contract as to whether the plaintiffs were bound to ask from the contractors the necessary information as to the proposed character of the engines, or whether, as the character of the engines, within certain very general limits, was to be within the discretion of the contractors, they would be bound to give information of it (without request) to the contractors (Note to Lent v. Padelford, 2 Am. Leading Cases, 5th ed. p. 65). In this particular case the contract was drawn, as if plans of the proposed work had been made and certified by the contractors and plaintiffs’ engineers. These would have given what was necessary to be known for the erection of a suitable building. This perhaps involved an understanding that the contractors were without special request to give the required information, when, ns happened in this case, the plans were not made or at least certified to, and in the keeping of the plaintiffs’ engineers. Whatever question might arise on this subject, it would only refer, at the best for the plaintiffs, to their obtaining, in the proper way, necessary information to enable them to perform their part of the contract. Beyond that they were held to the performance of their part of the contract without assistance from the •contractors. This question was not raised upon any exception taken on the trial. As the evidence stood, it might have been of no practical use to the plaintiffs to make a specific issue as to it. There was a great •deal of testimony to show that the plaintiffs’ engineer and the contractors had frequent and full inter-change of views and designs as to the work each party proposed to do, and the mode of its accomplishment. If the plaintiffs had required a submission to •the jury as to whether, before the erection of the building, the contractors had truly conveyed enough information to the plaintiffs’ engineer to enable them to furnish =a proper building, it is impossible to say that the jury would have been bound to find for the plaintiffs.

So much has been said for the purpose of considering a request to charge made by the plaintiffs, which was refused by the court. It was “ that the alleged defects in the construction or bracing of the building constituted no default on plaintiffs’ part, unless the contractors notified the plaintiffs of such defects as being calculated to prevent the successful working of the machinery.” This the court properly refused to charge. If we suppose that (as to which we have seen the plaintiffs made no question) their engineer knew what the engines were meant to be by the contractors, or if we suppose even that the contractors, being bound to give information .as to the engines, failed so to do, the contractors were not at all bound to inspect the building as it was being -constructed, or the plans for the same, and to point out defects in either as being calculated to prevent the successful working of the machinery. The plaintiffs were bound so to perform without reliance on the contractors that there should not be such defects. As we have before intimated, this is a different duty from giving necessary information as to the character of the proposed engines. And it is a different duty from that of not misleading the plaintiffs’ engineer in an unlawful manner, so as to make something in the nature of an estoppel against the contractor, in favor of the plaintiffs. Even if the engineer sought the opinion of the contractors, at the request of the latter, if the latter gave it honestly, but as an opinion, the plaintiffs were not excused if their engineer, following that opinion, failed to make the proper structure. The testimony in the case does not exhibit anything which might, in reference to this request, be claimed to be an acquiescence of the contractors in the peculiar construction of the building, or an acceptance of the building, as fulfilling the contract, or a waiver of any other kind of performance in this regard. A controlling consideration in respect of this is, that when the plaintiffs’ engineer proposed to substitute iron columns for stone walls, under certain parts of the engine, one of the contractors, in response to the proposal, sent to the engineer a rough sketch of the building, with buttresses drafted in it as supports of the side walls. The alleged weakness of the building was due to the iron columns being placed there, and the contractors’ sketch put in the buttresses as a compensation for that weakness in their keeping firm and steady those side walls. So long as the contractors did not disaffirm the natural inference from such a sketch, it cannot be said that they suffered or acquiesced in the construction of a building that should have the iron columns, and yet be without the special strength derived from the buttresses, or some equivalent support.

It is said, however, that the letter containing this sketch, and the sketch itself, were sent some time before the execution and delivery of the contract, and cannot affect the contract afterwards made. It could not of course modify or vary that contract. It was, however, competent evidence to show the knowledge and information possessed by each party, after the contract was completed. This makes its only importance on this point.

I conclude, therefore, that the request involved an affirmance as a rule of law, that the contractors should notify the plaintiffs of the existence of defects, which the plaintiffs had covenanted should not exist, and that the court was right in refusing to charge it.

I think the request as made refers to the building after it was constructed and offered in performance for the erection of the machinery. In such case, it was-to be judged of, just as it then stood, and the contractors could not be bound to notify of any defects, inasmuch as the engineer of the plaintiffs was as capable of estimating its qualities as were the contractors. It is not entirely clear that such was the intended meaning of the request, because it was followed by a request now to be stated.

The plaintiffs further requested the court to charge,' “that any suggestions on this subject to the plaintiffs’ “ engineer, prior to the execution of the contract, did “not operate as such a notification, and must be disregarded by the jury.” I take this to have implied that if what was suggested before the contract would have operated as a notification on the subject if it had been given after, it was insufficient because not given after. This does not seem to be correct. The act of notification in such circumstances is only so to inform the mind of the person to be notified, that he may, intelligently and with understanding of the exigencies of the situation, do what he is called upon to do. It is therefore not necessary that he should .gain that information at any particular point of time, provided that he is possessed of it when he is called upon to act, in reference to that which in the first place was pointed out to him.

On this subject it is worth while to see how far the United States Courts have gone. In the case of The Distilled Spirits, 11 Wall, p. 356, Judge Bradley, delivering the opinion of the Supreme Court, said, “that “in England the doctrine seems to be established, that “if the agent, at the time of effecting a purchase, has “knowledge of any prior lien, trust or fraud affecting “the property, no matter whén he acquired such ‘6 knowledge, his principal is affected thereby. If he ac- ■“ quire the knowledge when he effects the purchase, no “ question can arise as to his having it, at that time ; if “ he acquired it previous to the purchase, the presump“tion that he still retains it, and has it present in his “mind, will depend on the lapse of time and other cir- “ cumstances. Knowledge communicated to the principal himself he is bound to recollect, but he is not “bound by knowledge communicated to his agent, “ unless it is present to the agent’s mind at the time of “effecting the purchase. Clear and satisfactory proof “that it was so present, seems to be the only restriction ‘£ required by the English rule as now understood. With “the qualification, that the agent is at liberty to com“municate his knowledge to his principal, it appears to “us to be a sound view of the subject.” I therefore think it would have been error to have charged that the suggestion, if given before the making of the contract, ■could not for that reason have operated as a notification .after the contract was made.

The contractors were not bound to prescribe a plan ■or method of the building. They could not be bound to explicitly require that a plan that they were not bound to make should be carried out. The request to charge that any suggestions during the progress of the work did not operate as a notification, unless they amounted to an explicit requirement that the building should be constructed or braced according to some plan or method prescribed by the contractors, was erroneous, and the court should not have charged it.

The plaintiff took exception to a part of the court’s charge in these words : “I do not think it material in “this case whether Dickerson and Sickels, after that “ suggestion of the column work, made any further suggestion as to the bracing of the walls, or whether they “made any complaints about their not being braced or “the bracing not being sufficient, except so far as these “matters tend to affect the credibility of the witnesses “upon that question.” The suggestion here referred to was the sketch which we have already noticed, and which contained buttresses, as a means of strengthening the side walls. There does not seem to be any doubt that this was an assertion by the contractors to the plaintiffs’ engineers, that in ca,se the iron columns were used, then special means should be used, to strengthen the side walls. The court was right in saying that it was not material whether other suggestions of the same kind were made. If made once, they were not bound to repeat, any more than in case of a repetition they would be bound to state them a third time.

There were other exceptions taken to the charge, which cannot be deemed valid, because they were general in their scope, and were applied to parts of the charge, containing several propositions, some of which were, in each instance of these exceptions, correct (Ayrault v. The Pacific Bank, 47 N. Y. R. p. 576). In such case, if we suppose the charge to be in part incorrect, the exception is likewise so, and cannot be sustained. But in the charge, or the parts here referred to, there was no misdirection of the jury in relation to the questions which were submitted to them..

The court instructed the jury in substance, that they should find for the plaintiff, unless they should come to the conclusion that the failure of the engine and machinery to accomplish the work or service contemplated by the agreement, was solely due to the walls of the building, provided by the plaintiffs, not being sufficiently firm and rigid. This was plainly beneficial to the plaintiff, so far as it took from the jury the other defences set up in the answer.

A great deal of testimony was given, under objection and exception by the plaintiffs, as to interviews, and arrangements between the contractors and the plaintiffs’ engineer concerning boilers, before the contract was made. The defendants sought to prove, by this testimony, that the'boilers were made at Detroit, at the request of plaintiffs’ engineer ; the latter assuming, in behalf of the plaintiffs, to guarantee that the boilers, when made, would satisfy the terms of the agreement in respect of them. It can hardly be debated, that it was within the scope (really or apparently) of the engineer’s authority as an agent for the purpose of attending to the execution of the contract in plaintiff’s behalf, to subvert an important part of the contract by such an arrangement. The evidence tending to show that was not admissible for such purpose. That it was admissible for any purpose does not clearly appear (Riley V; The City of Brooklyn, 47 N. Y. R. p. 446). The court, however, afterwards withdrew from the jury the issue made by the answer, in respect of the boilers, in effect determining it in. the plaintiffs’ favor. The admission of the testimony in regard to the boilers, had no bearing upon the issue of fact presented to the jury, as to whether the sole cause of the failure of the engines was the deficiency of the building. It could not have harmed the plaintiffs unless it tended to confuse the minds of the jury in passing on the issue as to the building, or unless it affected the credibility of some witness. Irrelevant or immaterial testimony might affect the mind of a juror, if it had a false semblance of competent testimony, or if the case were such that it appeared he was led to think it to be his duty to consider the immaterial or irrelevant testimony in reaching a verdict. But the testimony now referred to had no relation to the building, The two matters were disconnected, and no testimony was given that tended to connect them. The jury must be supposed to have known that when the controversy respecting the boilers was determined by the court in plaintiffs’ favor, that the testimony given in regard to that, had no longer any significance in the action.

Bor was the credibility of any witness affected by the testimony. It did not contradict any of plaintiffs’ witnesses. In fact, Mr. Houghton, the plaintiffs’ engineer was not examined as to interviews about the boilers before the making of the contract. The letter written by him, especially that of June 24, 1856, put in evidence by the plaintiffs, did not make a question as to the credibility of Mr. Houghton as a witness.

If these matters, so put in evidence, had been an impeachment of Mr. Houghton’s integrity, they might have improperly injured him with the jury. His good faith and honesty were not involved in those transactions. At most, it appeared he exceeded his power as plaintiffs’ agent, but not with an evil mind or a dishonest purpose.

Inasmuch as we can see that the testimony alluded to did not affect the verdict of the jury, its admission does mot call for a reversal (Rundle v. Allison, 34 N. Y. R. p. 183; Erben v. Lorillard, 19 N. Y. R. p. 302; 57 .Barb. p. 99).

The admission of Mr. Houghton’s declaration (at the time he procured the defendants’ consent to the extension of the time for the performance of the contract), that the plaintiff guaranteed the boilers, we think was admissable. If not, it did not injure the plaintiffs.

The specifications contained a provision that, during the construction and erection of the engine, the engineer of the plaintiffs’ was to have access at all times to the' work, and to have power to reject inferior work, and to cause good work to be substituted, and to condemn any material going into the machinery which should not be of the best quality. This made admissible all the testimony that was given of the engineer’s interviews, letters and statements in respect of the work,, which took place or were made after the contract.

The evidence given by experts on behalf of defendants as to the capacity of the engines, had a definite bearing upon the inquiry, whether the engines failed, because of the character of the building furnished by the plaintiffs. It was the proper basis of an argument, that the proof showed that everything was right so far as the engines themselves were concerned, and the failure could only be explained by relying on the testimony that the building was not suitable.

On the whole, it does not clearly appear that, there was any error in the rulings and charge excepted to, and judgment should be ordered for defendants on the verdict, with costs.


source: Caselaw Access Project

author: By the Court.—Sedgwick, J.

license: Public Domain

text:
    EDWARD WILLIS, Plaintiff and Appellant, v. JAMES O’BRIEN, Sheriff of the City and County of New York, Defendant and Respondent.
    I. CHATTEL MOETGAGE POE A CEETAIP SUM PAPAELE IN INSTAL-MEETS, CONTAINDTG CLAUSES that in case "default should be made in the payment of said sum above mentioned," then it should be lawful for the mortgagee to take the property mortgaged, and until "default be made in the payment of the said sum of money ” the mortgaged property
    should remain in the peaceable possession of the mortgagee.
    1. ’When does it become due so as to entffle the mortgagee to immediate possession.

      a. It will become so due on.default in the payment of the first instalment (Parker v. PrandaB, 5 Legal Observer, p. 418, overruled; Robinson v. Wilcox, % Leg. Obs. 160, approved).
    Held—That the mortgagee might recover the mortgaged property in an action of claim and dehvery from the sheriff, who had taken it on an attachment against the mortgagor after default in several instalments.
    Before Barbour, Ch. J., Curtis and Sedgwick, JJ.

      Decided April 7, 1873.
    Appeal from a judgment.
    The action is claim and delivery "brought to recover from the sheriff the possession of a certain coupé, and damages for its taking. The plaintiff claimed to recover under the chattel mortgage payable in instalments mentioned in the opinion, and the sheriff claimed under an attachment issued against the property of the mortgagor. The seizure by the sheriff was after the mortgagor had made default in the payment of several instalments.
    The court directed a verdict for defendant on the ground mentioned in the opinion of the General Term.
    From the judgment entered on this verdict plaintiff appeals:

      W. McDermott, attorney, and of counsel for appellant,
    urged:

      First Point. The language of the mortgage is, “ that until default be made in the payment of the said sum of money, I am to remain and continue in the quiet and peaceable possession of the said goods and chattels,” etc. The meaning of this is, that until a default shall be made in the payment of the mortgage, according to the terms of payment provided in the
      mortgage, the mortgagor should remain in possession. When any instalment remains unpaid there is clearly a default, and plaintiff is entitled to take possession until the amount due is paid (Robinson v. Wilcox, 2 Legal Obs. 160).

      Second Point. It is well established, that upon nonpayment of an instalment due upon a mortgage of real estate, the mortgagor may commence an action of foreclosure for the sum due. The same principle must apply to chattel mortgages; of course, the mortgagor can only retain possession until the amount due is paid, but he is nevertheless entitled to possession until it is paid.

      Third Point. There being no dispute as to the facts, the judgment should be reversed, and judgment ordered for plaintiff for $450, and interest.

      Brown, Hall & Vanderpoel, attorneys, and A. J. Vanderpoel, of counsel for respondent,
    urged :—

      First Point. The plaintiff was not entitled to the possession of the property in question under the first mortgage, at the time it was levied upon by the defendant j there had been no default in the payment of the mortgage debt, and, therefore, the mortgagor had a leviable interest in it under the attachment.
    1. By the terms of the mortgage the default, to entitle plaintiff to take possession, was to be in the payment of “said sum of money,” viz., $695, and not of any portion of that sum. At the time of the levy the whole sum had not become due. It has been expressly held that where the mortgage debt was to be paid by instalments, and the default provided for in words exactly similar to those in the mortgage under consideration, there was no default until the whole sum became due (Parker v. Prandall [N. Y. Com. Pleas, 1847], 5 N. Y. Leg. Obs. 418).
    2. The mortgage was intended solely as a security for the debt; by its terms the mortgagor was to have twelve months and one week within which to pay the notes secured by it, and the construction contended for by the appellant would enable the mortgagee to collect the whole amount before he could enforce payment of the notes, and this would be unjust towards the mortgagor.
    3. The form of this mortgage was not the usual one adopted in cases where the failure to pay any part of the mortgage debt as it becomes due, is to be considered a default (2 Keyes, 217). The intent of the parties is shown by the fact that it was not in the form adopted by them fifteen days later in their second mortgage. There the language is “ default in the payment of any one month of the said sum above mentioned.” If the parties had intended to have the same effect in each they would not have used language so different. There could have been no other object in executing the second mortgage than to avoid this very difficulty, and make it payable on default in payment of one of the portions.
    4. If the plaintiff was not entitled to take possession, i.e., if there was no default, the mortgagor had an interest liable to levy and sale (Hall v. Carnley, 1 Kern, 501; Fairbanks v. Bloomfield, 5 Duer, 434; Hall v. Samson, 23 How. Pr. 484).

      Second Point. The testimony showed that the plaintiff had sustained no damage by the seizure under the attachment.
    The property was returned to the mortgagor two weeks after the seizure by the sheriff, and there was no evidence that the mortgagee’s security was in the least impaired by any act of defendant.

      Third Point. The court properly directed the jury to find a verdict for the defendant.
    1. Plaintiff had shown no title to the property under the first mortgage, and therefore no cause of action.

      Fourth Point. The judgment should be affirmed.
   By the Court.—Sedgwick, J.

The counsel agree that the court "below directed a verdict for the defendant, on the ground that the plaintiff did not give testimony to show that he was entitled to possession of the property in question, which was a coupé. This depended upon whether, by the terms of a mortgage of that coupé (under which, as mortgagee, the plaintiff claimed), there had been a default which entitled him to take possession of the chattel.

The condition of the mortgage was, that if the mortgagor should pay the mortgagee (plaintiff) the “full sum of $695, lawful money of the United States, one note, $95, to be paid on the 14th of September, 1869, and twelve monthly notes at $50 per note, to be paid on the first day of each and every month, making the whole amount to be paid in twelve months and one week from date, then these presents shall be void.”

The mortgage further provided that in case “ default “shall be made in the payment of the said sum above “mentioned, then it” should be lawful for the plaintiff to take the property mortgaged, and until ‘ ‘ default be “made in the payment of the said sum of money,” the mortgaged property should remain in the peaceable possession of the mortgagor.

At the time of the taking of the coupé by the defendant under an attachment, nine of the notes specified in the condition of the mortgage had fallen due and were unpaid. If this was a default, according to the meaning of the mortgage, then the plaintiff was entitled to possession, otherwise he was not (48 N. Y. R. p. 550; 42 N. Y. R. p. 322; 35 N. Y. R. p. 274).

The defendant’s counsel argues that in the meaning of the mortgage there was not a default in the payment of the gross sum, until the date for the payment of the last instalment had passed without payment of the whole sum. That would be true if the contract had been that the whole sum was to be paid on that day. But the mortgagor had agreed that before that last day should come he would make payment of eleven instalments, on certain days. When the carriage was taken by the defendant, the mortgagor had failed on nine several days to pay the instalments due on those days. It cannot be questioned he made a default in something, and that •could be in nothing else than in the payment of the gross sum, as he had agreed to pay. What he did not pay was what, if paid, would have been parcel of the gross sum. I think it should have been held that there had been a default which authorized the plaintiff to take possession, and that he was entitled to the possession against the defendant.

The case cited by the defendant’s counsel (5 N. Y. Leg. Obs. p. 418) supports his position. The report, however, is but a syllabus of a case, and though later than Robinson v. Wilcox, 2 Leg. Obs. p. 160, is not of the same weight as that case. Robinson v. Wilcox is a fully reported case. The reasoning is satisfactory, and in my opinion should be followed.

The defendant’s counsel has urged, that inasmuch as the coupé was returned by the defendant to the mortgagee, from whose possession he took it, it is evident that the plaintiff can recover but nominal damages, and for that there should not be a new trial. I do not think that the printed case shows (with sufficient certainty to uphold this position) that the plaintiff was entitled to only nominal damages, and a new trial cannot be refused on that ground.

The only propositions discussed on the argument of the case have been considered. The conclusion is that there should be a new trial, with costs to appellant to abide the event.


author: By the Court.—Monell, J.

text:
    JOHN MURPHY, Plaintiff and Respondent, v. JOSEPH H. LIPPE, Defendant and Appellant.
    I. Lien, Waiter of.
    1. May he waived by any special agreement giving credit, or by taking security.
    n. Verdict.—Practice.
    1. Presumption.

      a. Where there are several disputed facts in the case, the jury in rendering a general verdict are presumed to have passed on them all, although one may not have been submitted to them as a distinctive question.

      2. Intendment.

      a. Every intendment must be in favor of the correctness of the verdict. HI. Promissory Note.
    1. What does not constitute afaiktre of consideration, a. The refusal to deliver an article for the purchase-money of which the note was given and received in payment.
    Before Barbour, Ch. J., Monell and Van Vorst, JJ.

      Decided May 3, 1873.
    Appeal from judgment, and order denying a motion for a new trial.
    The action was to recover the possession of a carriage, which it was alleged -the defendant had wrongfully detained from the plaintiff.
    The answer admitted the possession of the vehicle, and alleged that the defendant had made repairs to it at the request of the plaintiff, which he had not paid for, and for which the defendant had a lien upon the carriage.
    The plaintiff testified that it was agreed that credit should he given for the work, and that the hill for repairs should he arranged hy the plaintiff’s giving four promissory notes, three for $75 each, and one for $62.50 (said notes "being payable respectively in two, three, four, and five months), and a mortgage on the carriage. The plaintiff at that time held the note of the defendant for $62.50, which the plaintiff testified, he gave to and it was received by the defendant in lieu of plaintiff’s note of same amount, and as part payment for the work on the carriage. The three notes of plaintiff for $75 each,' and the defendant’s note for $62.50, covered the entire bill for repairs. The mortgage was to cover the four notes, and was executed by the plaintiff, and delivered to the defendant, as were also the three notes for $75 each, and which three notes were afterwards all paid, and the amounts received by the defendant.
    The defendant testified that he and the plaintiff came to “an agreement, and he accepted the bill, and he requested me to draw notes and the mortgage, and I drew three notes for $75 each, and one note for $62.50. When they were drawn up he signed the three notes for $75 each and the mortgage, and I said “there is another note for $62.50 ; you ought also to sign thathe said no, he would not, and he drew from his pocket a note which I had given him, and laid it before me, and said, “ There is a note which I hold against you, and I want you to take that.” I replied, “I cannot accept that note, for the simple reason that you have the goods for which I gave that note in your possession yet, and that note is not due, and I cannot give you credit for a thing that you have in your possession, and a note that is not due when you hold the goods ; ” I made the remark, “ do you sign this note, and I will return this note to you when you send me the phaeton and the note ; but I do not feel satisfied to give you your coupé and receipt my bill in full until.I see what I get for my note ; ” thereupon Mr. Murphy left the shop and returned with the sheriff and took possession of the coupé.”
    He also testified that he retained the mortgage, and three notes which were paid, and also afterwards received the phseton, the purchase of which from the plaintiff had formed the consideration for the note for $62.50.
    There was evidence tending to show that when the defendant sent for the phaeton, its delivery was refused until a lien for storage due to a warehouseman was paid.
    The phaeton had not been delivered when this action was commenced.
    All the evidence in relation to the refusal to deliver the phaeton and the claim for storage was conflicting, as was also the evidence of the defendant’s agreement to take Ms own note in part payment.
    The court submitted the case to the jury upon this conflicting evidence, charging them in substance that if the defendant agreed to accept, and did accept and receive the three notes of plaintiff, and a return of his own note, as payment for the repairs, it discharged the lien upon the carriage.
    The jury found for the plaintiff.
    The defendant moved for a new trial upon the judge’s minutes, wMch motion was denied.
    The defendant appealed from the judgment and order.

      George A. Black, attorney, and of counsel for appellant,
    urged:
    I. In replevin, in the deUnet, the rights of the parties are to be determined by the condition of things existing at the time of the demand and refusal.
    If the refusal was rightful, the defendant is entitled to succeed.
    “ Nothing that transpired after the commencement of “ the action can avail to give an action to the plaintiff” (Cook v. Gregg, 46 N. Y. 444).
    II. By the undisputed evidence, tlje defendant was right in refusing to give up the coupe (Mount v. Williams, 11 Wend. 77).

      His own note, offered him in payment, was based on the purchase of property which remained in possession of the plaintiff, and which he refused on defendant’s demand to deliver.
    This note was still held by the original parties, and the failure of consideration rendered it worthless, and defendant was right in refusing it.
    The defendant was entitled to a verdict, and the judgment and order denying motion for a new trial should be reversed, and a new trial granted.

      Henry Cooper;, attorney and of counsel for respondent,
    urged:—I. The plaintiff claimed on the trial that the hack was delivered to the defendant for repairs, the defendant agreeing to give the plaintiff credit therefor.

      (a) In the evidence, defendant expressly testifies that he agreed to gine plaintiff credit for the worJc.

      (b) The evidence shows that plaintiff in pursuance of such agreement gave his promissory notes secured by mortgage on the property in question, as security for his indebtedness to defendant.
    (c) The evidence shows that these notes were all paid by plaintiff as they matured.
    Defendant also admits the payment; and that he kept the mortgage as security until the notes were all paid.
    II. If defendant did not at the time of the execution and delivery of the mortgage and notes intend to accept his own note of $62. «50 in payment, he should have returned it, together with the other notes and the mortgage plaintiff gave as security. Plaintiff testifies that he gave this note in payment, and that defendant agreed to receive it in payment ;■ and defendant admits that he received the phaeton from plaintiff, thus receiving the consideration of the note of $62.50, and making the full amount due him as stated in the mortgage.

      The notes and mortgage were executed and delivered by plaintiff, and accepted by defendant in payment, and such acceptance and credit divested defendant’s lien for work performed, and plaintiff’s right of action was complete.
    III. The jury by their verdict found, as a matter of fact, that a credit was given to plaintiff, and that the note of 362.50 was given in part payment of his indebtedness, and having so found, their verdict is final.
    The rule of damages was correctly stated by the court (Sedgwick on the Measure of Damages, 5th ed. p. 577, and cases cited, p. 581).
    The judgment should therefore be affirmed.
   By the Court.—Monell, J.

The questions in dispute in this case were given to the jury upon very conflicting evidence, and I can see no reason for disturbing their verdict.

The alleged agreement that the defendant should receive and did receive the three notes of the plaintiff, and his own note held by the plaintiff as payment, has been found by the jury, and as, found was sufficient to operate as a discharge of the defendant’s lien upon the carriage. A mechanic may waive a lien for work done by any special agreement giving credit (Baily v. Adams, 14 Wend. 201), or by taking security (Cowell v. Simpson, 16 Ves. 275).

Taking, therefore, the finding of the jury as to the agreement as settling the facts, the lien of the defendant had ceased when the demand was made for the carriage, unless, as was claimed by the appellant, the note of the defendant was invalid for want of consideration. It was ' given for the price of a phaeton which had been sold by the plaintiff to the defendant, but which the defendant claimed had not been delivered to him, delivery having been refused until certain charges for storage had been paid.

The evidence in respect to the refusal to deliver was conflicting, and although the learned judge does not appear to have submitted that as a distinctive question to the jury, it was nevertheless in the case, and it must be presumed was passed upon by the jury. And as the verdict was a general verdict for the plaintiff, it must be presumed that the jury found there had not been any refusal by the plaintiff to deliver the phaeton. There was no exception to the charge, or any request made to submit any specific question of fact to the jury, and every intendment must be in favor of the correctness of their verdict.

But the refusal to deliver the carriage, even if it had been so found, would not have been such a failure of consideration as would have invalidated the note after it came back to the defendant. It had when given operated as a payment for the phaeton, and the defendant could at any time afterwards have recovered the possession of the vehicle. It was at most a mere failure to receive the benefit of the sale, and not a failure of the consideration for the sale.

I think the judgment and order should be affirmed, With costs.


text:
    ELIAS BACH, Plaintiff and Respondent, v. FRANZ EMERICH, Defendant and Appellant.
    I. Broker in Real Estate.
    1. Sight to commissions, Try what not affected.

    1. Having on the employment of the vendor obtained a purchaser on the vendor’s terms, his right to commissions will not be aSected by—
    1. Non-performance of the contract.
    OR,
    2. That on the purchaser’s failure to perform, the broker procured another purchaser, and stated that he expected no commission on the other sale.
    OR,
    3. That the vendor did not understand the contract as written, provided the broker himself was not guilty of fraud or deception.
    2. By what it will he affected.

    1. By complicity between the broker and the person claimed to be procured by him, as a purchaser, such person being a mere pretended purchaser, who, by arrangement with the broker, had no intention of fulfilling the contract. In such case the broker cannot recover.
    1. Proof of complicity, a. "What not sufficient.
    See statement of case and opinion.
    Before Barbour, Ch. J., Monell and Van Vorst, JJ.

      Decided May 3, 1873.
    Appeal from judgment.
    The action was to recover compensation or commission for procuring a purchaser for certain real estate of the defendant.
    The complaint alleged that the plaintiff had performed service in procuring the sale of certain real estate at the instance and request of the defendant, for which service the defendant had promised to pay the plaintiff.
    The answer was a general denial.
    The plaintiff proved that he procured a purchaser for the property, at a price and on terms agreed to Tby the defendant, and that a written contract was entered into "between the purchaser and the defendant.
    The contract "between the defendant and the purchaser was introduced, and the defendant, upon his examination as a witness, was asked,
    Did you know what was in it %

    The question was objected to by the plaintiff’s counsel.
    The defendant’s counsel stated that he proposed to connect the broker with the evidence. The court excluded the evidence, and the counsel for the defendant excepted.
    The defendant further testified that the contract was brought to him already signed by the purchaser, and was read to him by the plaintiff, and then he, the defendant, signed it. He received a promissory note for $200 for the cash payment mentioned in the contract, and was asked whether the purchaser was present at the time the contract was brought to him. The question was objected to by the plaintiff.
    The court required the defendant’s counsel to state the facts which he intended to prove, which occurred subsequently to the delivery of this note to Emerich, and which were relied upon to show fraud on the part of the broker.
    The counsel for the defendant then stated that he proposed to prove, in connection with the facts already proved, that the plaintiff brought this contract already executed by Oberle (the purchaser), whom the defendant had never seen; that the plaintiff was present when the contract was signed by defendant; that it was tendered to defendant either by plaintiff or Miller, the subscribing witness to the contract; that in pursuance of that contract a note purporting to be the note of Oberle for.$200, payable in ten days, and which had no internal-revenue stamp on it, was given; that in the presence of the broker who subsequently came with Oberle on the day when the contract was by its terms to be performed, this note was tendered back and was accepted by Oberle, and that subsequently plaintiff came to defendant and proposed another contract with some other person and Oberle, for a different purchase of this property, and in the presence of Oberle and the other purchaser distinctly stated to defendant that he expected no commission on the other sale, or what he now claims to be a sale.
    We offer this for the purpose of proving complicity between the broker and the pretended purchaser.
    The court excluded the question and the evidence offered by the defendant, and the counsel for the defendant duly excepted.
    The Cotibt—The defendant may show any acts on the part of the broker anterior to the execution of the contract, by which it may be made to appear that the contract, as made was not a bona-fide contract between Mr. Emerich and the purchaser named therein. Do you desire to give any evidence of acts by the broker anterior to the making of the contract?
    The Defendant’s Counsel—No, sir; I have proposed to prove all the facts which go to constitute the chain of evidence which wé claim ought to be presented to the jury to show the connection of the broker with the fraud, and then of what the fraud consisted—that these parties never owned or controlled any such property as they proposed to convey to the defendant, and that if it had succeeded, it was the design to defraud the defendant out of his lots.
    The Coubt—You give that as your theory, not as an offer of proof.
    The court then asked the defendant’s counsel whether he had any other evidence of facts or circumstances which he could specifically name in support of his theory.
    The counsel for the defendant stated, none but what he had already detailed.

      The court thereupon excluded the evidence offered, and defendant’s counsel excepted.
    Plaintiff’s counsel requested the court to direct a verdict in the plaintiff’s favor.
    Defendant’s counsel asked leave to go to the jury upon the testimony in this case.
    The court refused to permit the counsel for the defendant to address the jury, and directed the jury to find a verdict for the plaintiff for $241.95, to which refusal and direction the counsel for the defendant excepted.
    The defendant appealed.

      Mr. Woodward, for appellant.

      Messrs. Lawrence & Wachner, for respondent.
   By the Court.—Monell, J.

The evidence on the part of the plaintiff was sufficient to show, prima facie, that he procured a purchaser for the defendant’s property. It was not disputed that the plaintiff was employed by the defendant, or that the latter promised and agreed to pay the commissions. The parties were brought together, the price and terms agreed upon, and the contract signed. All was done, therefore, that was required to entitle the plaintiff to payment (Jewett v. Emson, 2 Robt. 165; Stillman n. Mitchell, Id. 523; Barnard v. Monnot, 3 Keyes, 203). The circumstance that the contract was not performed, did not affect the plaintiff’s right to compensation (Smith v. Smith, 1 Sweeny, 552).

There was no conflict in the evidence establishing these facts. The defendant upon his examination did not deny the employment or the agreement to pay commissions. There was a faint attempt to show that he did not fully understand the written contract. He says he read it in part, or attempted to read it, and then the plaintiff read it to him. He did not say that the plaintiff did not read it correctly, but he said that afterwards he found there was something wrong. In. what the “ wrong” consisted, he did not say.

The offered evidence having been excluded, there was no question for the jury ; and the direction to find for the plaintiff was correct.

But it was urged by the defendant that the evidence offered was competent, and stiould have been,admitted.

I do not understand that the offer embraced the evidence of any fact anterior to the making of the' contract, which could have in any way affected the plaintiff s action. To that time, and including the signing of the contract, the evidence offered was substantially the same as had already been introduced. But it was attempted to prove that svbseguently to making of the contract, and on the day mentioned for its performance, the plaintiff brought another purchaser, and then stated that he expected no commissions on the other sale.

The evidence was offered to prove complicity between the plaintiff and the purchaser.

I do not think the evidence offered would have constituted a defence to the action.

As has already been observed, the plaintiff, prima facie, was entitled to compensation for procuring the purchaser; and his right was not to be affected by a failure of the purchaser to perform the contract.

Therefore, whatever occurred afterwards, unless it could operate as a release or discharge of the cause of action, would not prevent a recovery.

That the plaintiff brought to the defendant another purchaser, and stated that he expected no commissions on the other sale, did not amount to a release.

But th,e evidence was not offered for such purpose, but, as averred, for the purpose of showing some complicity on the part of the plaintiff.

Ho doubt it was proper to show such complicity. But the offer fell short of establishing it. If it was intended to show that the person who made the contract with the defendant was a mere pretended purchaser, and was brought into the transaction so that the plaintiff might claim that he had procured a purchaser, but without any intention that he should perform the contract, then proof in support of such a design would be competent and sufficient to defeat a recovery. But the evidence given, as well as the evidence offered, did not even tend to establish any such defence, and was, therefore, properly excluded. It went, if anything, to show that the first purchaser having failed to perform, the plaintiff had procured another. It did not show any fraud or trick on the part of the plaintiff. For the failure of the purchaser to perform, the plaintiff does not appear to have been in any way responsible, and it furnishes no reason for defeating a recovery.

The question concerning the plaintiff’s knowledge of the contents of the contract was properly excluded. Independently of the defendant’s testimony, that the contract was read to him, and that he had “looked it over” before signing, the evidence was immaterial. The plaintiff had procured the purchaser, which of itself entitled him to' the commissions. Even if the defendant did not understand the contract as written, the plaintiff could, nevertheless, demand his compensation, unless he had himself practised some fraud or deception, of which there was no proof, upon the defendant.

The judgment should be affirmed.


text:
    JOHN S. SIMMONS and Another, Plaintiffs and Respondents, v. CHARLES V. LYONS, Defendant and Appellant.
    I. CLAIM AND DELIVERY—REPLEVIN.
    1. Complaint.
    1. Avei'ment of ownership.—■ What sufficient.

      a. An averment that the goods, etc., were “the goods of the plaintiff,” is (Scofield ti. Whittelegge, 33 N. T. Sup. Ot. Rep. p. 179 distinguished.)
    2. Averment of demand and refusal.

      a. Not necessary where the action is for a wrongful taking as well as a wrongful detention.

      b. What is a sufficient amerment of.

    1. An averment that the property is wrongfully detained is.
    II. Amendment on Trial.
    1. An amendment to a complaint in an action of claim and delivery which avers that “ defendant became possessed of and wrongfully detains,” etc., by inserting between the words “possessed of” and the words “and wrongfully," the words “by forcibly taking from the plaintiffs,” is within the power and discretion of the court, and ERROR cannot be assigned for the allowance of such an amendment.
    HI. Reopening Case—Trial.
    The reopening of a. case to let in additional, proof in support of the plaintiff’s case, rests wholly in the discretion of the court, and is not the subject of an exception.

    Before Barbour, Ch. J., Monell and Van Vorst, JJ.

      Decided May 3, 1873.
    Appeal from judgment and order denying motion for a new trial.
    The action was to recover the possession of personal property. The complaint alleged that the defendant had become possessed of, and wrongfully detained, the following goods and chattels “ of the plaintiff s,” that is to say, etc. The answer denied the plaintiffs’ ownership of the property, and alleged that they were taken Tby the defendant, as one of the marshals of the city of Mew York, under an execution issued upon a judgment against one W. H. Snyder, who, it was alleged, was the owner of the goods.
    The action was tried "by the court and a jury. The plaintiffs moved to amend the complaint Tby adding after the words £‘had "become possessed of,” the words “by forcibly talcing from the plaintiffs.” The motion was granted, and the defendant excepted.
    The defendant’s counsel moved to dismiss the complaint, upon the ground that the complaint stated no cause of action, and that the complaint was defective, there being no allegation of ownership or possession, or right of possession, in the plaintiffs, or that the property claimed in the complaint had been wrongfully taken, or that the same had been demanded from the defendant before suit.
    The motion was denied, and the defendant excepted.
    It was proved that Snyder had sold and delivered the property, which consisted of the stock and fixtures of a retail liquor store, to Sanger & Co., on the 30th of December, 1871, who on the 11th of January, 1873, had sold the same property to the plaintiffs.
    It was claimed that the sale was fraudulent as to the creditors of Snyder.
    The plaintiffs gave some evidence of the value of the property, showing it to be about $900. It brought at the marshal’s auction sale only $400.
    When the plaintiffs rested, the defendant moved to strike out the evidence of value, on the ground that the witness, on his cross-examination, had testified that he knew nothing of his own knowledge of the value, but only from information from others.
    The motion was denied, and the defendant excepted.
    There was an objection made to reopening the case after the defendant had rested, to let in further proof by the plaintiffs of value; and also upon the question of fraud. These objections were overruled, and the defendant excepted.
    The jury found for the plaintiffs.
    A motion was made at Special Term for a new trial, and denied.
    The defendant appealed from the judgment and order.
    The appeals were submitted to the General Term on printed points, without oral argument.

      Charles S. Spencer, attorney, and of counsel for appellant,
    urged:
    I. The motion to dismiss plaintiffs’ complaint, made by defendant’s attorney, should have been granted.
    The omission to allege ownership or possession was fatal (Clark v. Skinner, 20 Johns. 465; McCurdy v. Brown, 1 Duer, 101; Dodworth v. Jones, 4 Duer, 201).
    A demand was necessary and should have ‘been averred. This property was seized by the defendant, as marshal, and therefore in good faith, all of which plaintiff well knew.

      Albert Roberts, attorney, and of counsel for respondents,
    urged:
    I. The motion to dismiss the complaint was properly denied.
    1. The allegation that the goods were the goods of the plaintiffs is a sufficient allegation of ownership (Childs v. Hart, 7 Barb. 370).
    2. The defendant, by making the motion, admitted all the allegations of the complaint; therefore, he admitted that he “ unjustly detained” the property.

      a. Such an allegation is an allegation of fact (Covell v. Hill, 6 N. Y. 381; Decker v. Matthews, 12 Id. 324).
    3. The allowance of the motion to amend the complaint was discretionary with the court, and is not the subject of exception nor appeal (Code, section 173; Hendricks v. Decker, 35 Barb. 298; Brown v. McCune, 5 Sand. 224).

      a. The insertion of the words: “"by forcibly taking from the plaintiffs,” simply made the complaint more definite and certain.

      b. The allegation that defendant has taken the property of plaintiffs, is equivalent to an allegation of a wrongful taking (Childs v. Hart, supra).

    4. But any defect in the complaint was supplied by the proofs on the trial of a wrongful taking and a wrongful detention ; the evidence being that the defendant was notified when he levied that it was plaintiffs'1 property, also a demand was proved. Loundsbury v. Purdy, 18 N. Y. 520; Emery v. Pease, 20 Id. 62).
   By the Court.—Monell, J.

The complaint was sufficient in the allegation of ownership of the property. It was averred that they were the goods “ of the plaintiff,” which was in legal effect an averment that the goods were owned by the plaintiff. It followed the form of averment in the late declaration in replevin, where it was merely alleged to be the property of the plaintiff (3 Burrill Pr. 296), or the goods of the plaintiff (Chit. Pl.). This case differs from Scofield v. Whitelegge (33 N. Y. Supr. Ct. R. p. 179). In that case there was no averment whatever of ownership. But the Court of Appeals, in affirming Scofield v. Whitelegge (49 N. Y. R. 259; S. C. 12 Abb. [N. S.] 320), approving of Patterson v. Adams (7 Hill. 126), fully establishes the sufficiency of a pleading which alleges the goods to be “ of the plaintiff” (p. 324). This question has been more fully examined in Van der Minden v. Elsas, decided at the present term, where the question arose on demurrer to a complaint averring that the goods were “the goods of the plaintiff,” as in this case, and the complaint was held to be sufficient.

This action was for the wrongful detention of the goods, and the original complaint alleged only a wrongful detention, "but the court allowed it to "be amended by the insertion of an averment that the taking was also tortious. It is insisted, however, that there should also have been an averment of a demand before suit.

However necessary the proof of a demand and refusal before suit may be to establish a wrongful detention, it is not necessary to allege it when the action is also for a wrongful taking. In Hunter v. Hudson R. R. R. Co. (20 Barb. 493), the court went even further, and held that the averment of wrongful detention was sufficient as a pleading, and an allegation of demand and refusal was not necessary. Some earlier cases are substantially to the same effect (Fonda v. Van Horne, 15 Wend. 631; Acker v. Campbell, 23 Id. 872; Barrett v. Warren, 3 Hill, 848), the rule as stated being, that an action to recover possession of personal property lies, where formerly trespass de bonis asportatis, could be maintained (Sharp v. Whittenhall, 576). The sufficiency of the complaint in this case is also upheld by the Court of Appeals in Levin v. Bussell (42 N. Y. R. 251), where there was an allegation that the goods were “ wrongfully withheld,” etc.

In any event, however, the amendment which the court allowed by inserting in the complaint the allegation that the goods were “forcibly tabeen from the plaintiff,” would render it unnecessary to even prove a demand and refusal. Where the talcing is unlawful, an averment of demand and refusal is not required (Scofield v. Whitelegge, supra). The motion to dismiss the complaint was properly refused.

The amendment of the complaint being within the power, was also within the discretion of the court, and cannot be reviewed on appeal from the judgment (N. Y. Ice Co. v. N. W. Ins. Co., 23 N. Y. R. 357).

The motion to strike out the testimony of the plaintiff on the question of value was correctly disposed of. There was enough in the evidence to go to the jury, and of its sufficiency or weight they were the exclusive judges. The witness testified to some knowledge of the value of the property, and it would have been error, I think, to have taken it from the jury.

The reopening the case to let' in more proof was a matter wholly in the discretion of the court, and, therefore, not the subject of an exception. It is always competent, and sometimes quite proper, for the judge at the trial to relax the general rale which requires a party to exhaust his evidence before resting. The rule is most salutary, and should be departed from sparingly. But its enforcement or relinquishment may be safely left with the judge at the trial.

The charge of the judge is not printed in the case, but we must assume that all the questions of fact were given to the jury. And as upon these questions the evidence was sufficiently conflicting to bring the verdict within the established rule, we cannot disturb it.

The judgment and order should be affirmed, with costs.


text:
    JANE PECHIN, Plaintiff and Respondent, v. THOMAS COLUMB, Defendant and Appellant.
    Before Monell, Curtis, and Sedgwick, JJ.

      Decided June 29, 1872.
    Appeal from a judgment entered on the report of a referee, in favor of the plaintiff in an action brought to reform a lease, and for a construction of the same.

      Jacob F. Miller, for appellant.

      Samuel Jones, for respondent.
    Judgment reversed.
   Opinion by Cuetis, J., Monell and Sedgwick, JJ., concurring.


text:
    JAMES E. WARD et al., Plaintiffs and Appellants, v. JOHN TURL et al., Defendants and Respondents.
    Before Monell, Curtis, and Sedgwick, JJ.

      Decided June 29, 1872.
    Appeal from a judgment dismissing complaint. .

      Joseph S. Ridgway, for appellants.

      David McAdam, for respondents.
   Judgment reversed, and new trial ordered, with costs.

Opinion by Curtis, J., Monell and Sedgwick, JJ., concurring.


text:
    JOHN McGUIRE, Plaintiff, v. JOHN SINCLAIR et al., Defendants.
    Before Monell, Curtis, and Sedgwick, JJ.

      Decided June 29, 1872.
    Case and exceptions heard at General Term in first instance.
    Complaint dismissed at the trial.

      Edwards & Odell, for plaintiff.

      Edward Patterson, for defendants.
   Exceptions overruled, and judgment ordered dismissing the complaint, with costs.

Opinion by Monell, J., Curtis and Sedgwick, JJ., concurring.


text:
    MARY A. ROBINSON, Plaintiff and Appellant, v. ANTHONY ROBINSON, Defendant and Respondent.
    Before Monell, Curtis, and Sedgwick, JJ.

      Decided June 29, 1872.
    Appeal from a judgment of Special Term, dismissing the complaint in an action brought to obtain a separation from bed and board, for alleged cruel treatment of plaintiff by defendant.

      C. H. Truax, for appellant.

      Charles Matthews, for respondent.
   Judgment reversed, and new trial ordered, with costs.

Opinion "by Sedgwick, J.


text:
    JOHN STUART, Plaintiff and Appellant, v. ELBERT STANNARD et al., Defendants and Respondents.
    Before Monell, Curtis, and Sedgwick, JJ.

      Decided June 29, 1872.
    Appeal from a judgment in favor of defendants in an action to recover commissions for the sale of a steamship "belonging to defendants.

      John H. White, for appellant.

      A. R. Dyett, for respondents.
    Judgment affirmed.
   Opinion by Curtis, J., Monell and Sedgwick, JJ., concurring.


text:
    MAGDALENA DOSCHER et al.; Plaintiffs and Respondents, v. JOHN J. SHAW et al., Defendants and Appellants.
    Before Monell, Curtis, and Sedgwick, JJ.

      Decided June 29, 1872.
    Appeal from a judgment in favor of plaintiffs upon an agreement of defendants as sureties upon a lease. Sterling <& Walden, for appellants.

      Man & Parsons, for respondents.
    Judgment affirmed, with costs.
   No opinion delivered.


text:
    THE HOPE MUTUAL LIFE INSURANCE COMPANY, Plaintiff and Respondent, v. JAMES F. SOULTER, Defendant and Appellant.
    Before Monell, Curtis and Sedgwick, JJ.

      Decided June 29, 1872.
    Appeal from a judgment in favor of plaintiff upon a promissory note.

      F. E. Dana, for appellant.

      Cephas Brainerd, for respondent.
    Judgment affirmed, with costs.
   No opinion delivered.


text:
    HERMAN O. ARMOUR et al., Plaintiffs and Appellants, v. THE MICHIGAN CENTRAL RAILROAD COMPANY, Defendant and Respondent.
    Before Monell, Curtis, and Sedgwick, JJ.

      Decided June 29, 1872.
    Appeal from judgment entered on report of referee, in favor of plaintiffs, on a contract of defendants as common carriers.

      Cotterrill Brothers, for appellants.

      C. A. Arthur, for respondent.
    Judgment affirmed.
   No opinion delivered.


text:
    WILLIAM J. GESSNER, Plaintiff and Respondent, v. EDWARD GUTMAN, Defendant and Appellant.
    Before Monell, Curtis, and Sedgwick, JJ.

      Decided June 29, 1872.
    Appeal from a judgment, entered in favor of the plaintiff on a report of the referee, upon a contract of the parties for work and labor performed and materials furnished, 'for defendant by plaintiff.

      Cornelius A. Runkle, for appellant.

      Wm. W. Niles, for respondent.
    Judgment affirmed.
   No opinion delivered.


text:
    JEREMIAH J. COLMAN et al., Plaintiffs and Respondents, v. ISAAC DIXON, Defendant and Appellant.
    Before Monell, Curtis, and Sedgwick, JJ.

      Decided June 29, 1872.
    Appeal from an order denying motion of defendant to have the issues of fact tried by a jury.

      Arnoux, Ritch & Woodford, for appellant.

      Andrew Boardman, for respondents.
    Order affirmed.
   No opinion delivered.


text:
    ROBERT GOELET et al., Plaintiffs and Respondents, v. PAUL N. SPOFFORD et al., Defendants and Appellants.
    Before Freedman and Curtis, JJ.

      Decided Nov. 2, 1872.
    Appeal from judgment entered upon report of a referee in favor of plaintiffs in an action for rent due upon a lease.

      Dexter A. Hawkins, for appellants.

      Charles Jones, for respondents.
    Judgment affirmed.
   Opinion by Freedman, J., concurred in by Curtis, J.


text:
    GEORGE S. ST. JOHN, Plaintiff and Respondent, v. SALMON SKINNER, Defendant and Appellant.
    Before Freedman and Curtis, JJ.

      Decided November 2, 1872.
    Appeal from a judgment in favor of plaintiff in an action to recover money loaned to defendant.

      A. H. Reavy, for appellant.

      W. H. Van Cott, for respondent.
    Judgment affirmed.
   Opinion by Freedman, J., concurred in by Curtis, J.


text:
    THE LOANERS BANK, Plaintiff and Respondent, v. SAMUEL G. REED, Defendant and Appellant.
    Before Freedman and Curtis, JJ.

      Decided November 2, 1872.
    Appeal from a judgment in favor of plaintiff in an action to recover the amount of a promissory note.

      Wm. D. Booth, for appellant.

      Sewell & Pierce, for respondents.
    Judgment affirmed.
   Opinion by Curtis, J., concurred in by Freedman, J.


text:
    GEORGE MITCHELL, Plaintiff and Respondent, v. CHARLES W. WEST, Defendant and Appellant.
    Before Barbour, Ch. J., Monell and Freedman, JJ.

      Decided November 30, 1872.
    Appeal from a judgment in favor of plaintiff in an action "brought for damages for the conversion of personal property.

      Albert Roberts, for appellant.

      F. F. Cornell, Jr., for respondent.
    Judgment affirmed.
   Opinion by Freedman, J. Barbour, Ch. J., and Monell, J., concurred.


text:
    CHARLES B. HOFFMAN, Plaintiff and Appellant, v. ALFRED L. SEATON, Defendant and Respondent.
    Before Barbour, Ch. J., Freedman and Sedgwick, JJ.

      Decided November 30, 1872.

      S. E. Lyon & W. H. Peckham, for appellant.

      John E. Burrill, for respondent.
    Appeal from a judgment in favor of defendant in an action brought by plaintiff for an accounting in regard to the purchase and sale of gold by defendant for plaintiff.
    Judgment affirmed.
   Opinion by Barbour, Ch. J., Freedman and Sedgwick, JJ., concurring.


text:
    THE NEW YORK AND HARLEM RAILROAD COMPANY, Plaintiff, v. GEORGE HAWS et al., Defendants.
    Before Freedman and Curtis, JJ.

      Decided November 30, 1872.
    Motion for a re-argument óf appeal at General Term. Re-argument ordered.
   No opinion delivered.


text:
    WILLIAM BUTLER DUNCAN et al., Plaintiffs, v. JACOB BERLIN et al., Defendants.
    Motion for judgment on a verdict directed for plaintiffs, subject to the opinion of the court at General Term, in an action brought to recover money paid to the sheriff on execution, in favor of defendants, by mistake.

    Before Monell, Curtis, and Sedgwick, JJ.

      Decided January 4, 1873.

      Wm. D. White, for plaintiffs.

      F. C. Cantine, for defendants.
   Verdict set aside, and another trial ordered.

Opinion by Monell, J., Curtis and Sedgwick, JJ., concurring.


text:
    ADAM BROWN, Plaintiff and Appellant, v. SIGMUND P. WINDMULLER et al., Defendants and Respondents.
    Before Barbour, Ch. J., Monell and Van Vorst, JJ.

      Decided January 4, 1873.
    Appeal from an order of Special Term denying motion to set aside referee’s report.

      Andrew H. H. Dawson, for appellant.

      James Taylor, for respondent.
    Order affirmed.
   No opinion rendered.


text:
    WILLIAM F. HEINS, Plaintiff and Appellant, v. CHARLES A. PEINE, Defendant and Respondent.
    Before Monell, Sedgwick, and Van Vorst, JJ.

      Decided February 1, 1873.

      C. Bainbridge Smith, for appellant.

      John J. Townsend, for respondent.
    Appeal from a judgment in favor of defendant for a return of personal property.
    Judgment affirmed.
   Opinion by Sedgwick, J. Monell and Van Vorst, JJ., concurred.


text:
    THE RECTOR, ETC., OF THE CHURCH OF THE REDEEMER, Plaintiff, v. JAMES T. CRAWFORD, Defendant.
    Upon a verdict directed for the plaintiff, and case and exceptions ordered to Tbe heard in the first instance at G-eneral Term.
    Before Monell, Sedgwick, and Van Vorst, JJ.

      Decided February 1, 1873.

      Charles M. Marsh, for plaintiff.

      James H. Hill, for defendant.
    Judgment ordered on the verdict.
   Opinion by Sedgwick, J. Monell and Van Vorst, JJ., concurred.


text:
    CHRISTOHPER I. BUSH, Plaintiff and Appellant, v. RICHARD FIELD et al., Defendants and Respondents.
    Appeal from a judgment entered in favor of the defendant.

      Before Monell, Sedgwick, and Van Vorst, JJ.

      Decided February 1, 1873.

      S. C. Conable, for appellant.

      F. Smyth, for respondents.
    Judgment reversed.
   Opinion by Monell, J. Sedgwick and Van Vorst, JJ., concurred.


text:
    ALBERT B. COREY, Plaintiff, v. WALTER P. LONG, Defendant.
    Appeal from an order of Special Term, confirming report of a referee appointed to take and pass the accounts of a receiver.
    Before Monell, Sedgwick, and Van Vorst, JJ.

      Decided February 1, 1873.

      C. W. Bangs, for plaintiff’s assignee.

      M. V. B. Bachman, for receiver.
    Order affirmed.
   No opinion rendered.


text:
    JOHN H. PULESTON et at., Plaintiffs and Appellants, v. FRANCIS B. WALLACE, et al., Defendants and Respondents.
    Appeal from a judgment entered upon the report of a referee in favor of defendants, dismissing the complaint.
    Before Monell and Van Vorst, JJ.

      Decided February 1, 1873.

      W. F. Church, for appellants.

      William Fullerton, for respondents.
    Judgment affirmed.
   No opinion rendered.


text:
    HENRY STUBBEN, Plaintiff and Appellant, v. VALENTINE ROOS, Executor, etc., Defendant and Respondent.
    Appeal from a judgment in favor of defendant.
    Before Monell, Freedman, and Curtis, JJ.

      Decided April 5, 1873.

      D. & T. McMahon for appellant.

      Henry Wehle, for respondent.
    Judgment affirmed.
   Opinion by Van Vorst, J. Monell and Freedman, JJ., concurred.


text:
    ADELIA SICKELS et al., Plaintiffs and Respondents, v. WRIGHT GILLIES et al., Defendants and Appellants.
    Appeal from a judgment in favor of plaintiffs in an action to recover the amount of a promissory note. ■
    Before Monell, Freedman, and Curtis, JJ.

      Decided April 5, 1873.

      S. B. Brague, for appellants.

      Edward T. Bartlett, for respondents.
    Judgment affirmed.
   Opinion by Freedman, J. Monell and Curtis, JJ., concurred.


text:
    I. FREDERICK BADENHOP, Plaintiff and Appellant, v. THOMAS J. CAHILL et al., Defendants and Respondents.
    Appeal, from a judgment in favor of the defendants entered by the court.

      Before Barbour, Ch. J., Curtis and Sedgwick, JJ,

      Decided April 5, 1873.

      C. C. Egan, for appellant.

      B. F. M. Cahill, for respondents.
    Judgment reversed, and new trial ordered.
   Opinion by Curtis, J. Barbour, Ch. J., and Sedgwick, J., concurred.


text:
    THE GAYLORD MANUFACTURING COMPANY, Plaintiff and Respondent, v. SARAH O. ALLEN, Administratrix, etc., Defendant and Appellant.
    Before Barbour, Ch. J., Curtis, and Sedgwick, JJ.

      Decided April 5, 1873.
    Appeal from a judgment entered on the report of a referee, in favor of plaintiff, in an action on an account of merchandise sold and delivered.

      John L. Cadwalader, for appellant.

      John L. Hill, for respondent.
    Judgment affirmed.
   Opinion "by Barbour, Ch. J. Curtis and Sedgwick, JJ., concurred.


text:
    ALBERT GILBERT, Plaintiff and Respondent, v. EDWARD B. WESLEY, Defendant and Appellant.
    Appeal from a judgment entered upon the report of a referee, in favor of plaintiff in an action "brought to recover $10,000, for the services of plaintiff in procuring and effecting the sale of the Brick Church property in New York.

      Before Barbour, Ch. J., Curtis and Sedgwick, JJ.

      Decided April 5, 1873.

      Henry B. Knox, for appellant.

      E. C. Benedict, for respondent.
    Judgment affirmed.
   Opinion by Barbour, Ch. J. Curtis and Sedgwick, JJ., concurred.


text:
    WILLIAM KNOWLTON et al., Plaintiffs and Appellants, v. THE PROVIDENCE AND NEW YORK S. S. COMPANY, Defendant and Respondent.
    Appeal from an order of Special Term, granting a stay of proceedings, on the ground that it is a case within the Act of Congress of March 3d, 1851, limiting the liability of ship owners ; and defendant having complied with the 4th Section of the Act, as directed by the rules of the Supreme Court of the United States, is entitled to the stay.
    Before Barbour, Ch. J. Monell and Freedman, JJ.

      Decided April 5, 1873.

      Edward H. McCarthy, for appellants.

      Joseph H. Choate, for respondents.
    ■ Order affirmed.
   No opinion rendered.