author: By the Court. Monell, J. (concurring).

text:
    LOUISA D. WEHLE, Plaintiff and Respondent, v. HENRY L. BUTLER et al., Defendants and Appellants.
    In an action to recover damages for the unlawful conversion of goods, wares, and merchandise, evidence of the value of the same at retail is admissible, although by no means conclusive.
    Interest on the value of the property from the time of the conversion is as necessary part of complete indemnity as the value itself. (Andrews v. Durant, 18 IV. Y. 496.)
    Attachments set aside for irregularity afford no protection to creditors or parties who procured them to be issued, for the taking and detention of property under the same. Such protection extends only to the officer who acted under them in the discharge of his public duty. The moment they were vacated, the creditors or parties stood in the same position as if they had never issued, and they became trespassers ab initio. (Lyon v. Tates, 52 Barb. 237; Kerr v. Mount, 28 IV. Y. 659.)
    Where the evidence established that all the attaching parties participated actively in the seizure and removal of the goods, without in any manner separating their respective acts, they must be regarded as joint trespassers, and their liability is joint and several at plaintiff’s election. (Creed v. Hartmann, 29 IV Y. 591; Kasson v. The People, 44 Barb. 347.)
    A Vrong-doer cannot discharge himself by any act of his own without the assent of the injured party. An exception to this rule, or a distinction therefrom, may be made in a case where it appears that the property was taken from the trespasser without any agency, act, or connivance on

      7¿zs parí, and applied to the owner’s use, although without the latter’s consent, by the act of a third person and the operation of law. In this class of cases' the court or jury should take these facts into consideration and allowance in the estimation of plaintiff’s damages.
    Before Barbour, Ch. J., and Monell and Freedman, JJ.

      Decided March 2, 1872.
    This was an appeal from a judgment recovered Tby the plaintiff for the value of a stock of goods, taken Tby virtue of void attachments issued on application of the defendants out of the Marine Court.
    The answer of the defendants contained a general de nial.
    Upon.the trial it appeared that on the 8th day of December, 1889, six warrants of attachment were issued by one of the justices of the Marine Court, at the instance of the defendants, Butler, Broome & Clapp, as alleged creditors of the plaintiff, and seven other warrants in favor of Spelman & Sons and Haviland, Lindsley & Co., other alleged creditors of the plaintiff, against the property of the said plaintiff; that on the same day the thirteen warrants were received by the sheriff, that the latter, accompanied by the defendant Henry L. Butler, of defendants’ firm ; Mr. Haviland and Mr. Lindsley, of the firm -of Haviland, Lindsley & Co.; Mr. Holbrook, representing the firm of J. B. Spelman & Sons, and other parties proceeded to plaintiff’s store after ten o’clock in the evening of the same day, served all the attachments at the same time, seized the entire contents of plaintiff’s store, and caused them to be carted in the middle of the night to a stable in Thirty-first Street, whereby plaintiff’s business was completely broken up. In reply to plaintiff’s remonstrances against the removal of the goods, the sheriff assured her that he had plenty of bonds, and that the attachment creditors were responsible parties. All the parties named assisted in the removal of the goods to the stable, Butler, Holbrook, and Lindsley following* the carts to see that nothing got lost. The goods were subsequently taken from the stable to defendants’ store on Broadway, where they remained nominally in the custody of the sheriff for about six weeks.
    It also appeared that the sheriff made a separate return to each of the six attachments issued at the instance of the defendants, certifying upon the back of each of them that by virtue of the within attachment he did attach and take into his custody the goods and chattels of the said Wehle, and made an inventory of the same. The inventory reads as follows :

      ‘ ‘ Inventory of property attached December 8th, 1869.
    “Dress goods.
    “ Domestic goods.
    ‘1 Flannels.
    “Fixtures, etc.
    “ Value at about $1,000.”
    A similar return was made to each of the other attachments issued in favor of the other creditors.
    On the 13th day of December, 1869, on a motion to vacate founded on the attachments, the return of the sheriff thereon, and the affidavits on which the attachments were issued, the six attachments obtained by the defendants were vacated and set aside by order of the Marine Court, with costs to the defendant named therein (Wehle).
    At the same time the seven other attachments, in favor of the other creditors, were vacated, with costs for irregularity.
    Plaintiff therefore demanded a return of her goods, but defendants refused, and the goods were finally sold on the 28th of January, 1870, at sheriff’s sale, under some execution which the defendants issued.
    Defendants’ counsel offered to prove (it being assumed and agreed that the witness and the papers were in court), ‘ ‘ that after these actions had terminated in the 11 Marine Court, and before the commencement of this ‘ ‘ action, actions were commenced in the Court of Com“mon Pleas, between the same parties, and ag’ainst the “ property of said Louisa Douai Wehle, duly and regularly issued therein, on the ground that the defend- •“ ant in that suit (the plaintiff in this suit) had disposed “of property, to defraud creditors ; and that thereunder “the goods in question were seized by the sheriff; “that a motion was made to vacate those attachments “and denied; and that the said attachments stand to- “ daywhich was objected to, except the fact that the actions in the Marine Court had terminated, which was admitted by both sides.
    The court excluded the evidence, and defendants excepted.
    The value of the goods taken was variously estimated from $2,000 to $10,000, and on that point the testimony was highly contradictory. Defendants showed, among other things, that at the sheriff’s sale the goods brought $2,187.94. The plaintiff, in rebuttal, recalled a witness who had personal knowledge of the condition and value of the goods in question, and put the following question:
    Q. What would the goods that you have on this list (sheriff’s list) sell for, in your store, at retail ?
    The defendants objected, but the court admitted the question, and defendants excepted.
    At the close of the testimony on both sides, defendants’ counsel asked the court to direct a verdict for the defendants.
    The court declined, and defendants excepted.
    The court charged the jury, that the only question for them to consider was the value of the goods taken from the plaintiff under defendants’ attachments, and that should be the fair retail market value of the goods on the 8th day of December, 1869, with interest to the present day.
    Defendants excepted to that part of the charge wherein the court instructed the jury that the only question for them to consider was as to the value of the goods.
    The jury rendered a verdict for the plaintiff for $4,950.
    Defendants moved for a new trial upon the minutes of the court, which motion was denied, and defendants excepted.
    Judgment was entered upon the verdict, in favor of the plaintiff, for $5,387.44, and from that the appellants appealed.

      C. Bainbridge Smith, counsel for appellants.

      Charles Wehle, counsel for respondent.
   By the Court.

Freedmax, J.—The appeal being from the judgment merely, the only questions open for review are the questions of law arising upon the exceptions taken by the defendants upon the trial.

Under the issues raised by the pleadings and the testimony given on the trial on both sides, the evidence as to the retail value of the goods taken was properly admitted. It was, under the circumstances, competent, although by no means conclusive. A question of a more serious character would arise upon that part of the charge, in which the court laid down the rule that the value of the goods taken should be the fair retail market value of the goods on the 8th day of December, 1869, with interest thereon, if the defendants had taken a proper exception to it at the time. But as they acquiesced in it by excepting only to so much of the charge as instructed the jury that the only question "for them to consider was as to the value of the goods, they cannot now be permitted to urge for the first time that the court erred in that respect.

The same remarks apply to the attempt of defendants’ counsel to convince us upon the argument, that the court below erred in directing the jury to allow interest on the value of the goods, for the reason, that in all cases of this nature, interest constitutes an item of damage in the discretion of the jury. But independent of that consideration, it may be well to point to the fact that the proposition here contended for has been expressly repudiated in this State. “ Interest on the value at the time of the conversion,” says Johnson, 0. J., in delivering the opinion of the Court of Appeals in the case of Andrews n. Durant, 18 A7! Y. 496, “is as necessary a part of complete indemnity as the value itself. There is no sense in the idea that interest is any more in the discretion of the jury than the value.”

Two questions, therefore, remain to be considered:

1. The effect of the simultaneous levy under the thirteen attachments upon the separate liability of the defendants in this action, and,

2. The admissibility or non-admissibility of the evidence showing a subsequent seizure under process claimed to have been valid, which was offered by the defendants and rejected by the court.

As to the first: The action was one sounding in tort. It was trespass for wrongfully taking and carrying away plaintiff’s goods and breaking up her business. The attachments, under cover of which the goods were taken in the first instance, having been set aside for irregularity, they afford no shield or protection whatever for such taking to the creditors who procured them to be issued. Such protection extends only to the officer while acting under them in the discharge of his public duty. The moment they were set aside, the creditors stood as though no process had ever been issued, and became trespassers ab initio. (Lyon v. Yates, 52 Barb. 237; Kerr v. Mount, 28 N. Y. 659.) And as the evidence plainly establishes that all attaching creditors actively participated in the seizure and removal of plaintiff’s entire stock at one and the same time, without separating their respective proceedings, and there being no evidence from which the extent of the separate liability of any one of them can be ascertained, they must, in the aspect of the case in which the question is presented by the appellants, be deemed, for the purposes of this case at least, to have been joint tortfeasors, and as such their liability is joint and several and enforceable," accordingly at plaintiff’s election (Creed v. Hartmann, 29 N. Y. 591, affirming S. C., 8 Bosw. 123; Kasson v. The People, 44 Barb. 347).

In such cases, an answer pleading a former recovery against one, to be good, must also aver actual satisfaction (Phil, on Ev. 5th Ed., Vol. II., p. 114 [* 134]; Wies v. Fanning, 9 How. 546).

In the case at bar no such issue was raised by the pleadings, and if there had been, there was no evidence to support it. On the contrary, the evidence showed not only that the defendants were very active in enforcing the levy and removal of the goods in the unusual and oppressive manner, in which they were seized and removed, but, in addition, that all of plaintiff’s goods were taken to defendants’ store, kept there for weeks after the attachments had been" vacated and the return of the goods demanded, and finally sold for defendants’ exclusive benefit, under an execution subsequently procured by them in some way, which is not specified.

The bare fact of the existence and simultaneous but fruitless levy of the attachments issued by the other creditors, cannot, therefore, be made available to the defendants in this action in any aspect of the case.

As to the second: To properly determine this question it is necessary to inquire whether a tortfeasor, who has taken property by a wrongful act, can subsequently apply the same on legal process issued in his own favor and against the owner, and, if he cannot, under what circumstances and to what extent he may be permitted to show that the. same property was taken from him again by a third party.

In Hanmer v. Wilsey, 17 Wend. 91, it was held,- that a return of property illegally taken, though accepted by the owner, is no bar to an action, the return and acceptance being available only in mitigation of damages. But, even for that purpose, it is not admissible to show that property illegally taken was subsequently applied, without the assent of the owner, in satisfaction of a valid execution against him.

In Otis v. Jones, 21 Wend. 394, some horses taken under an attachment issued in an action, which the plaintiff found himself compelled to discontinue, were subsequently sold under an execution issued in another action for the benefit of the same party. The judge at the circuit ruled that the effect of the sale, which was legal, was to mitigate the damages, and prevented the plaintiff from recovering any more than nominal damages. But, on appeal, the court repudiated this doctrine, reaffirmed the principle enunciated in Hanmer v. Wilsey, 17 Wend. 91, and expressly held, that a wrongdoer cannot discharge himself by any act of his own, without the assent of the injured party. By procuring a subsequent sale on legal process, the defendant cannot be better off than he would be if he had offered to restore the property to the plaintiff. And yet no tender will, at the common law, either bar an action for a tort, or take away the right to full compensation in damages.

The decisions in Lyon v. Yates, 52 Barb. 237, and Peak v. Lemon, 1 Lansing, 295, are to precisely the same effect.

A distinction, however, was made whenever it appeared that the property was taken again from the trespasser, without any agency or connivance on his part, and applied to the owner’s use, although without the latter’s consent, hy the act of a third person aud the operation of law. In this class of cases the jury were permitted to take the taking of the goods by such third party, and their application to plaintiff’s use, into the account in estimating plaintiff’s damages. But at the same time it was deemed necessary in every instance that it should.appear that the subsequent taking by such third party was independent of any agency on the part of the defendant, and that there was in point of fact an application to plaintiff’s use (Higgins v. Whitney, 24 Wend. 379; Sherry v. Schuyler, 2 Hill, 204; Ball v, Liney, 44 Barb. 505; Ward v. Benson, 31 How. 411).

How, the offer made by the defendants to prove (“it “being assumed and agreed that the witness and the “papers are in court) that after these actions had ter - “minated in the Marine Court, and before the com“mencement of this action, actions were commenced in “the Court of Common Pleas, between the same par“ties, and against the property of said Louisa Bouai “ Wehle, duly and regularly issued therein, on the “ground that the defendant in that suit (the plaintiff in “this suit) had disposed of property, to defraud credi- “ tors ; and that thereunder the goods in question were “ seized by the sheriff; that a motion was made to va- “ cate those attachments and denied ; and that the said “ attachments stand to-day,” was rather vague. It may be questionable whether the words “between the same parties,” mean only the parties to this action, or all the creditors named in the first thirteen attachments and the plaintiff herein. Supposing the first to be the case, it is quite clear, upon the authorities already examined, that the defendants cannot be permitted to defend, either in whole or in part, the trespass committed by them by proof of a subsequent appropriation of the property to plaintiff’s use, but without her consent, under an execution procured in their own favor. And if the second is assumed to be the case, the same objection seems to apply with equal force to all the attaching creditors. Having been jointly concerned, for the purposes of this action at least, in the commission of a wrong, and being jointly and severally liable therefor at plaintiff’s election, they were all alike incapacitated from making a subsequent legal appropriation of plaintiff’s property, either for their joint account, or for account of any one of their number, without plaintiff’ s assent. To hold otherwise would be to hold, in effect, that one of a number of joint tort-feasors may escape liability by inducing any one of his confederates to do what he is not permitted to do. But inasmuch as the testimony given on behalf of the defendants shows that the defendants were, as already stated, the only ones that derived any benefit from the taking of plaintiff’ s property, and that there has been no appropriation of the same in point of fact to plaintiff’s use under legal process subsequently procured by the other creditors, and inasmuch as the court below charged the jury to consider the value of the goods taken from plaintiff under defendants’ attachments, and the jury must be presumed to have found in accordance with such instruction, it is unnecessary to pursue this line of inquiry any further.

Another grave objection to the receipt of the proposed evidence in this action is, that, even if its sufficiency as a subsequent legal appropriation to plaintiff’s use as well as its competency be assumed, it is not pertinent to any of the issues raised by the pleadings, because not pleaded. Defendants’ counsel, it is true, strenuously argued that it should have been received at least in mitigation of damages, and that for that purpose it did not require being pleaded. But on a critical examination this claim also will be found to be untenable. Mitigating circumstances do not, and never did, amount to a defence to any part of plaintiff’s claim. They may diminish the nominal claim made by him, but do not diminish the real claim, or reduce it below what it was originally.

A defence, as understood in law language on the other hand, is a full answer to the whole or some part of plaintiff’s demand.

Under the old practice, both were admissible under the general issue without being pleaded, and this fact led to a frequent confusion of the distinction, to some extent at least, between partial defences and circumstances of mitigation (Harter v. Crill, 33 Barb. 283).

How the evidence which was proposed and excluded in this case, did not in any wise tend to mitigate the trespass, nor to diminish plaintiff’s claim, whether nominally made too large or not, for in such case the law itself prescribes the true measure, and a certain definite measure, of damages; it did not consist of circumstances which existed at the time of the commission of the trespass, and possessed a mitigating or extenuating character; that as such could be considered in the estimation of plaintiff’s loss, which had then fully accrued; but it was offered for the purpose of bringing about, when received, a reduction, not of plaintiff’s claim, but of plaintiff s recovery. Whether it be considered, therefore, as a set-off, or as matter of avoidance or in bar, in full or pro tanto, it was equally new matter purporting to constitute at least a partial defence, and as such should have been set up in the answer (Code, %% 149, 150).

It is indeed somewhat remarkable, that no case can be found in the books in which this precise question has been determined. The cases of Higgins n. Whitney, and Sherry v. Schuyler, above cited, occurred before the Code. In Ball v. Liney, 44 Barb. 505, the answer did contain all necessary averments, showing a full and complete appropriation to plaintiff’s use, and that the pleader must have been equally careful and precise in Ward v. Benson, 31 How. 411, is apparent from the report of the whole case: But if any authority be needed, it will be found that the principle of the decision of the Court of Appeals in McKyring v. Bull, 16 N. Y. 297, is fully applicable to the present case. Seldeu, J., in delivering the opinion of the court in that case, in the course of which he extensively reviewed the decisions of the English courts upon this subject, as well as the qhanges effected by the Code, concludes as follows:

“My conclusion, therefore, is, that section 149 of the “ Code should be so construed as to require the defendants, in all cases, to plead any new matter con“stituting either an entire or partial defence, and to “prohibit them from giving such matter in evidence “ upon the assessment of damages, when not set up in the “ answer. Not only payment, therefore, in whole or in “part, but release, accord and satisfaction, arbitra“meet, etc., which may still, for aught I see, be made “ available in England, in mitigation of damages, with- “ out plea, must here be pleaded.

(See also, Foland v. Johnson, 16 Abb. 235; Beckett v. Lawrence, 7 Abb. N. S. 403; Bush v. Prosser, 11 N. Y. 347 [352], and Smith v. Reeves, 33 How. 183.)

The evidence embraced in defendants’ offer was properly excluded, therefore, as not pertinent to the issues raised by the pleadings.

It appearing, as the final result of this examination, that none of the exceptions taken by defendants can be sustained in law, the judgment appealed from must be affirmed with costs.

Monell, J. (concurring).

It does not appear, with any distinctness, that the execution, under which the sheriff subsequently levied upon and sold the property seized under the attachments, was issued upon a judgment in favor of these defendants in the action in which the attachments were granted. It does appear, however, that the subsequent levy and sale was under an execution which these defendants had issued, and it may, perhaps, be assumed that it was issued upon a judgment in their favor and against the plaintiff.

The amount of the judgment is not stated ; nor does it appear, from the papers before us, what was the amount of the defendants’ claim. If, therefore, the sum obtained by the sheriff on the sale was more than sufficient to satisfy the defendants’ execution, the surplus would be applicable to the claims' of the other attaching creditors. In that event, their attachments would hold to the extent of such surplus, and their existence would be available to the defendants in this action, in mitigation, pro tanto, of damages.

Upon such a state of facts, it would have been erroneous to have excluded the evidence and levy of such attachments, even although it was not set up in the defendants’ answer. Going merely in mitigation of damages, it need not have been pleaded (Travis v. Barger, 24 Barb. 614).

But the defendants had not furnished sufficient evidence to make their offer available. If the sale by the sheriff was under an execution in their favor, and their judgment was sufficient to exhaust the whole proceeds of sale, then the subsequent attachments were no lien upon any of the property ; and no part of the proceeds went to the plaintiff’s benefit, in satisfying the claims of other creditors.

Upon the proof, therefore, before the court, the offer to prove the attachments was properly overruled, and the case is brought directly within Lyons v. Yates, 52 Barb. 237, and Peak v. Lemon, 1 Lans. 295.

Every intendment is in favor of sustaining the judgment ; and it was incumbent on the defendants to show clearly a state of facts, leaving nothing to inference or implication, which would have made the evidence they offered proper.

Having failed to show such facts, it was proper for the learned justice at the trial to assume that the whole proceeds of the sale were applied to the defendants’ execution, leaving nothing for the other creditors to attach.

Upon such assumption, the attachments could furnish no proof in mitigation of damages.

The judgment should he affirmed.

Note by Reporters. —The foregoing case was partially yet imperfectly reported in the 34th Superior Court Reports, page 315, owing to the fact of a mistake in the abstract of the case furnished to the reporters. This mistake is now corrected, and the opinions fully reported.


source: Caselaw Access Project

author: By the Court.—Monell, J.

license: Public Domain

text:
    ADELIA SICKLES and Another, Plaintiffs and Respondents, v. WRIGHT GILLIES and Another, Defendants and Appellants.
    Written tosTRUMENTS. —Promissory Notes.
    I. Contradicting or varying by pa/rol evidence, exceptions to general rule. 1. Total failure of consideration may be shown by parol.
    3. Payee of promissory note may, as between the original parties, be shown to be merely agent for another by parol evidence.
    3. Payment to, or according to the direction of, the principal, will discharge the maker from all obligation or liability to the payee of the note.
    II. Application of above p'inciples, holding that certain facts may be proved by parol evidence in support of, and that such facts would be prima facie sufficient to establish that the payee named in a promissory note is the agent of another, payment of the note to such principal, as total failure of consideration.
    Before Monell, Curtis, and Sedgwick, .JJ.

      Decided June 29, 1872.
    Appeal from a judgment and order.
    The action was upon a promissory note for three hundred and twenty dollars, made by the defendants and payable to the plaintiffs.
    The defendants, after alleging payment, further alleged that the note was signed and delivered for the purposes following, as a mere memorandum and not otherwise, to wit: one John Sickles, about the date of said memorandum, then being in the employ of the defendants, deposited with the defendants the sum of three hundred and twenty dollars therein mentioned, to be paid to the plaintiffs if they should require and demand the same during his expected absence from the city of Hew York, and if not required and demanded, to he returned to said John Bieldes. That during his said absence from the city of Hew York, the plaintiffs never asked, claimed, or demanded from the defendants any further sum than the sum of one hundred dollars, which was duly paid to them ; that soon thereafter, and upon the return of said John Sickles to the city of Hew York, and after the expiration of the time for which said money had been deposited as aforesaid, said John Sickles demanded from the defendants the return of the balance of two hundred and twenty dollars, so as aforesaid deposited, which was duly paid by the defendants, and defendants allege that no other or further consideration was had or received for the said promissory note.
    On the trial before Mr. Justice Freedman and a jury, the defendants offered to prove the facts alleged in their answer, but the evidence was excluded by the court, and the defendants excepted. Ho further evidence being offered by the defendants, the court directed a verdict for the plaintiffs.
    A motion was made for a new trial upon the judge’s minutes, and denied.
    The defendants appealed from the order and judgment.

      8. B. Brague, attorney, and of counsel for appellants, urged : ¡Notes may he explained.
    A note was given, 1 ‘ because plaintiff did not receive as much of her father’s estate as her brother, the maker.” The defendant was allowed to prove this, and held to be no. consideration (Hill v. Buckminster, 5 Piole. 391).
    “ It may be shown that an instrument, though it has the form of a promissory note, was never given or taken and received as such. That it was put in the hands of a third person to be delivered upon a contingency which has not taken place; that although it was suffered to go into the hands of the payee, it was to have no validity until after the happening of a certain event” (G-oddard t>. Cutts, 2 Fairfield)s JR. 440).
    The circumstances here were allowed to be given in evidence. Defendant was accused of burning plaintiff’s barn; the parties met, and a note was drawn and handed to witness ; a verdict was ordered for plaintiff, and, on appeal, a new trial was ordered. The competency of the evidence to avoid the note is passed upon, by deciding on this evidence that the note was void for. want of consideration (Pearson v. Pearson, 7 Johns. JR. 26).
    The consideration of any negotiable paper is examinable as between the original parties to that paper (Kent, Oh. J., in People v. Howell, 4 Johns. 301).
    A father gave his son a note, expressing that it was for value received; evidence of the fact that it was a gift allowed, and note held void (Spencer, Oh. J. [citing Pearson •». Pearson, and Schoonmaker v. ¡Roosa], Fink v. Cox, 18 Johns. 146).
    Fraud alleged in the sale of hats, for which note was given, but held in this case that it could not be proved under the general issue without notice, as it only went to part of the consideration (The People v. Niagara G. P., 12 Wend. 246).

      A note was given for land, and afterwards the land was sold under a judgment against the grantor. Held, that plaintiff could not recover. (Numerous cases are cited in note, some above cited, showing that all the circumstances can be inquired into; Frisbee v. Hoffnagle, 11 Johns. 51).
    A note at sixty days for'value received was made and delivered.
    Defendants were allowed to prove that the note was made for discount, to be payable at three different times, different from the time expressed upon its face, and how the proceeds were to be applied. In fact, the whole circumstances of the transaction (Denniston v. Bacon, 10 Johns. 198).
    Point II.—The money deposited was the money of John Sickles, or it was the money of the plaintiffs.
    If it was the money of John Sickles, deposited, as defendants offered to prove, for a specified purpose and object, then, after that was accomplished, defendants were bound to pay to the depositor.
    1. The justice erred in excluding the question asked of one of the plaintiffs, “If this was her money,” for if it was not, there was no consideration for the note.

      2. If the money belonged to the plaintiffs, and it was delivered to John Sickles, their brother, to deposit, he was their agent for that purpose, and it wás within the scope of his authority to make a special deposit. The custody of the money was the strongest evidence
    of authority, and plaintiffs trusted him. If he attempted to cheat one party or the other, the party trusting him should be at the loss, and not an innocent party (.Dunlap's Paley's Agency, p. 271, and cases cited. Fairlie v. Hastings, 10 Vesey, Jun. 123; North River Bank v. Aymar, 3 Hill, 262).

      Clark Bell, attorney, and Edward J. Bartlett, of counsel for respondents,
    urged: Point First. To constitute a payment, the money or other value delivered by the debtor to the creditor to extinguish the debt, must be accepted by the creditor for that purpose. Unless the creditor consents to receive it in payment, there is no payment (Kingston Bank v. Gay, 19 Barb. 459).
    A payment of a bank, to one of several persons who have jointly made a deposit, will not discharge the bank from the claim of the other depositors, unless they authorized the payment (Stone v. March, Ryan & Moody, 370; Innes v. Stephenson, 1 Moody & Robinson, 145).
    Payment to a creditor’s wife will not be a good payment, unless she was his agent, either by express authority, or the usual course of business (Offly v. Clay, 2 Manning & Grangers, 172; Spencer v. Tissue, Addison's [Penn.] 316; Seaborne v. Blackston, 2 Freeman's, 178; Thrasher v. Tuttle, 33 Maine, 335).
    Point Second. There is no allegation in the complaint that John Sickles was the agent of the plaintiffs, nor any attempt on the trial to show he acted as their agent in receiving payment as alleged.

    To justify a jury in finding a person an agent, the evidence must show, if not a succession of cases, at least several in which the agent had done acts similar to those for which authority is claimed, and the subsequent acquiescence of the principal therein, upon their coming to his knowledge (Bunten v. Orient Mutual Ins. Co., 4 Bosw. 354).
    Point Third. The matter contained in the third subdivision of the answer is clearly no defence, as it contradicts a written instrument by oral evidence.

    A note which has been executed and delivered, cannot be contradicted, nor can its legal effect be controlled by oral evidence (Erwin v. Saunders, 1 Cowen, 249 ; Payne v. Ladue, 1 Hill, 116; Stackpole v. Arnold, 11 Mass. 37; Hunt v. Adams, 7 Mass. 518; Thompson v. Ketchum, 8 Johns. 189; Wells v. Baldwin, 18 Johns. 45).

      For example, parol evidence has been held inadmissible in the following cases, viz.:

      1st. To show that there was a mistake in the time of payment mentioned in a note (Fitzhugh v. Runyon, 8 Johns. 292).
    In the above case, the action was on the note, and not to reform the instrument.

      2d. To show that another man, and not the maker, was to pay it (Shoe & Leather Bank v. Camp, 21 How. 443).

      3d. To show that an absolute agreement for the payment of money was to be performed only in a certain event (Wells v. Baldwin, 18 Johns. 45; Adams v. Wilson, 12 Met. 138-275).

      4th. To show payment at a different place from that specified (Potter v. Tallman, 35 Barb. 182).

      5th. To show that a party endorsing a note, did so on condition that it should be renewed (Hoare v. Graham, 3 Campbell, 57).

      Qth. To vary the terms of an acceptance (Mason v,. Graff, 35 Penn. 448; Clark v. Flint, 22 Pick. 231).
    It is perfectly clear that a note when given must.be regarded as expressing the contract of the parties (Pratt v. Gulick, 13 Barb. 297; Bank of Albion v. Smith, 27 Barb. 489 ; Kelley v. Brown, 5 Gray, 108).
    The defence proposed to be established under the pleadings of this action, was not fraud, or want of, or entire failure of, consideration, but an effort to show that the note was to be paid only in a certain event, and to parties other than those named in the note.

    The matter alleged in the third subdivision of the defendants’ answer, contradicts the note, and is entirely inconsistent with it.
    The ruling of the learned justice, that it was inadmissible, is fully sustained by the foregoing authorities.
   By the Court.—Monell, J.

It is understood that the evidence offered "by the defendants was excluded on the ground, that, as it tended to contradict or vary the legal effect of the written contract, it was incompetent; and the respondents’ counsel seeks to sustain the judgment on that ground alone.

The general principle that parol evidence is incompetent to alter a written contract, has, however, a few exceptions ; and among the exceptions, is the right of a party to the contract to inquire into its consideration. Hence it may always "be shown, as between the parties, that there was no original consideration, or that the original consideration has since wholly failed. This exception more especially embraces promissory notes and other commercial paper.

The facts alleged in the answer, therefore, may be regarded as averring a total failure of the consideration of the note, and the evidence offered to establish such facts was competent.

But I think the evidence was also competent to sustain the defence of payment.

The transaction seems to have been this: Sickles deposited the money with the defendants, with directions to pay it to the plaintiffs, if they required and demanded it; and if not by them demanded, to pay the same to him, Sickles, on his return from a contemplated absence. Only a small portion of the money was demanded by the plaintiffs, and the balance was paid to Sickles, upon his return.

This arrangement, at most, constituted the plaintiffs the authorized receivers of the money, and as such, the agents of the depositor, Sickles. But such agency was revocable at pleasure. The taking of the defendants’ note as a voucher for the loan, and having it drawn payable to the plaintiffs, did not change the legal effect of the transaction, or confer upon them any other or further right to the money than to receive it as the agents of Sickles. Had they received it, the defendants would have "been discharged from their obligation ; but not having received it, it was competent for Sickles to revoke the authority, and payment to him was payment of the note.

It does not now appear that the plaintiffs sustained any other relation to the note, than that of mere agents. No cpnsideration whatever moved from them, and unless either as a gift inter vivor, or in some other way, they got a title to the note, so as not to be affected by the prior agreement of Sickles, they cannot avoid the payment to him.

For these reasons we think the evidence should have been let in. There must, therefore, be a new trial.

Judgment and order reversed, and a new trial ordered with costs to the appellants to abide the event.


text:
    McCULLOUGH’S LEAD COMPANY, Plaintiff and Appellant, v. JOSEPH M. STRONG, Defendant and Respondent.
    1. Bailee.—Trustee.—Depositary.—Custodian.
    1. Duty of. One who is made the custodian of money or securities, under an agreement entered into by several parties ; under which the several parties are to place in the hands of the 'custodian an equal sum of money, or securities amounting in value to the sum to be deposited, to be held by the custodian for the purposes of the agreement; and under which agreement the custodian is required to deposit the money and securities received by them, in certain companies, and to keep them so deposited until the happening of certain events; is bound to comply with said requirement as to deposit.

      2. Remedy against, for a failure to comply. If he fail to deposit and keep deposited the money or securities received from any one of the parties, such party, after a demand on the custodian for, and a refusal by him to deliver, such money or securities, may bring an action against him to recover damages for a conversion of the property; or, at his election, if the property consist of securities, an action of claim and delivery.
      And this, although none of the events have happened which, under the agreement, authorized the custodian to part with the possession of the property.
    II. Agreement between several.—Provision for Termination of, by Notice.
    1. Notice by one. Bffect of.

      a. It determines the agreement as to all.
    2. Construction.

      a. Notice, determination by.
    Peculiar clauses under which it was held, that an agreement was terminated by notice.
    Before Monell, Curtis, and Sedgwick, JJ.

      Decided June 29, 1872.
    Appeal from judgment.
    The action was to recover the possession of a one thousand dollar U. S. "bond, alleged to have "been wrongfully detained from the plaintiff "by the defendant.
    The plaintiff and several others, dealers in lead, agreed, for their mutual protection, to certain terms in respect to the sale, etc., of articles manufactured of lead; and for the purpose of providing a fund to pay damages for a "breach of the agreement "by either party, they each deposited with the defendant the sum of $1,000, either in money or a TJ. S. "bond of that amount.
    The agreement concerning the deposit was as follows :—“ To deposit the said sum of one thousand dollars (either in money or in a United States bond or Treasury note, payable to bearer) with Joseph M. Strong, custodian, who shall retain and dispose of the same as follows : All money so received by him he shall deposit in the United States Trust Company, and all securities in the Safe Deposit Company, and keep them so deposited as long as this agreement shall be faithfully observed and kept by the parties thereto, and shall remain in force, and shall not withdraw the same from such places of deposit during the continuance of this agreement, except as herein provided.”

      It was further provided that the agreement should be binding for five years, or until ten days’ notice in writing shall be given by any party, of his or their desire to withdraw from the same. But the money or security which such party may have deposited with Joseph M. Strong, custodian, shall remain in his possession, or continue until the expiration of this agreement, in order to give full opportunity for the inquiry as to the faithful observance of the provisions of this agreement, or otherwise by the party thus withdrawing, prior to the expiration of the notice which he or they may give, according to the provisions of this agreement.
    At the trial, the plaintiff, having given evidence tending to show a termination of the agreement by a notice from one of the parties to the defendant, offered, among other things, to prove that the defendant had not, as required by the agreement, deposited the bond in question in the Safe Deposit Company. The evidence was excluded, and the plaintiff excepted.
    The complaint was dismissed.
    The plaintiff appealed.

      Mr. J. K. Porter, for appellant.

      Mr. Philo Chase, for respondent.
   By the Court.—Monell, J.

It is not necessary to determine whether the defendant’s relation to the deposit made by the parties, was that of trustee or bailee. In either mase, it was his duty to place the securities as required by the agreement. His omission to ! do so was a breach of duty for which he became responsible to the cestui qui trusts or bailors.

He was the “ custodian” of the fund which gave to him the attributes, and imposed upon him the duties of either trustee or bailee.

The defendant, having failed to deposit the bond in the Safe Deposit Company, as required by the trust or bailment, became immediately liable to the several parties for his breach of duty ; and if such breach, coupled with a demand and refusal, was a conversion by the defendant of the security, so as to lay a foundation for this action, 'then it was error to exclude the evidence offered by the plaintiff.

It is a general rule, that a violation by one party to an agreement, authorizes the other party to rescind, and to claim to be restored to all his rights of property under the contract. So if a bailee of property neglects or omits to preserve or 'dispose of it, in accordance with his duty, it would be a conversion of the property (Bristol v. Bent, 7 J. R. 258 ; King v. Geib, 4 N. Y. Leg. Ob. 343). And if a trustee of an express trust fail to execute the trust, it is such a violation of duty as renders him responsible to the cestui gui trust; and, therefore, where, as in this case, the custodian of the securities refuses or neglects to deposit them as required by the agreement, he loses all right to retain them, and his refusal to deliver them to the depositors was a conversion, and sufficiently laid the foundation for a recovery of the possession of the security.

I am also of the opinion that the agreement under - which the defendant held the securities was terminated, as to all the parties, prior to the demand for the return of the bond in suit. Any one party could terminate the agreement as to all, by giving ten days’ notice ; and the provision that the money or securities should remain in the possession of the defendant, until the expiration of the agreement, had reference to its termination by the ten days’ notice, and not to the period of five years limited for its continuance, if not sooner terminated by the parties.

Upon the termination of the agreement by the notice of Leroy & Co., it was the duty of the defendant to return the bond to the plaintiff, and his refusal to do so made him liable in this action.

For these reasons the judgment should he reversed, and a new trial granted, with costs to the appellants, to abide the event.


author: By the Court.—Curtis, J.

text:
    JACOB STAPENHORST, Plaintiff and Respondent, v. JULIUS WOLFF, Defendant and Appellant.
    I. Instruments, Written. Construction of.
    1. What facts mo/y be consider ed in construing a clause the meaning of which is obscure.

      a. Acts of the parties leading to, or done at the time of the execution of the agreement, or done in reference thereto, and those facts in view of the existence of which the agreement was entered into, may be considered.
    2. Application of the principle.

      a. Upon the dissolution of a partnership existing between A and B., they entered into a written agreement, whereby A. sold to B. the factory of the firm, with all articles therein both movable and otherwise, together with a wagon belonging to the firm, and B. agreed to pay therefor §2,500 in ninety days, and which agreement contained the following separate clause : “B. assumes to collect all debts due said firm, and therewith to pay all debts of said firm, and to pay the balance to A. in thirty days.” For the purpose of determining whether B. by this clause undertook absolutely to pay the difference between the debts due by and to the firm, or only the difference between the debts due by, and the amount of the collections from the debts due to, the firm; it is admissible to consider the following matters:

      a. That at the time of the execution of the agreement, the parties had before them schedules showing the amount of the debts due by and owing to the firm, and that there was §2,433.46 in favor of the firm.

      b. That the action commenced by A. was commenced by a summons for relief, and the relief prayed for by the complaint was in part that B. might be decreed to pay over the balance of the debts in his hands collected by him, or which could have been
    - with due diligence collected by him after deducting the debts
    | • due by the firm.

      Held, that considering these facts the clause in question must be construed as only requiring B. to pay the difference between the sum total of the debts due by the firm and the sum total .of the collections made, and which could with proper diligence have been made by him from the debts owing to the firm.
    Before Monell, Curtis, and Sedgwick, J.J.

      Decided June 29, 1872.
    Appeal from judgment entered on a referee’s report.
    The parties were copartners in business. On the 12th of July, 1869, the plaintiff sold his interest in the business to the defendant. The agreement of sale provides that the defendant assumes all outstanding claims of the firm of Jacob Stapenhorst & Co. for collection; also to pay with the same all that they owe, and agrees to pay the remaining balance to Jacob Stapenhorst forthwith within thirty days.
    The plaintiff claims that at the time of the sale, the debts due by the firm amounted to $1,610.99, and that the debts due and owing to the firm amounted to $4,044.05, and seeks to recover under this provision of the agreement the sum of $2,433.46, being the difference between the two accounts.
    The defendant claimed that that was not the true meaning of the instrument. That it does not show, by any proper construction that may be given it, that, thereby Wolff, the defendant, agreed to pay Stapenhorst, the plaintiff, the difference between the debts due to, and the debts owing by, the firm, on the 12th of July, 1868, and which differences amounted to $2,433.46, but that on the contrary the real meaning and interpretation of it, was simply to constitute the defendant the agent of the firm, and of Stapenhorst, to collect the debts due to it, and to pay those owing by it, and entitling Stapenhorst to any balance which, on an accounting, would be shown to be in the defendant’s hands, after paying all the debts of the firm out of his collection of debts due to the firm. The action was commenced by a summons for relief. The relief demanded by the complaint was in part “that defendant may be ‘ ‘ decreed and compelled to pay over the balance of the “debts in his hands, collected by him, or which could “have been with due diligence collected by him, and “ which amount, after the deduction of said debts due “by the firm, to the sum of $2,433.46, and that he be “ decreed to pay said amount to the plaintiff, with interest thereon from August 12, 1869, the time when the “ same should have been paid according to said agree“ment, besides the costs.”
    Upon the trial, the referee held, that under the agreement the plaintiff was entitled to recover the difference, $2,433.46, between the amount of debts owing by the firm on the 12th of July, 1869, and the amount due to it, it having been proved that on that day the firm owed $1,610.59, and that there was due to it the sum of $4,044.05. Upon this evidence the plaintiff rested. The defendant moved to dismiss the complaint on the ground of failure of proof. This motion was denied, and an exception taken.
    The appellant offered no evidence, and appeals from the judgment.

      Robert H. Strahan, for appellant.

      G. Storms Carpenter, for respondent.
   By the Court.—Curtis, J.

The contract contain- • ing the provision in question is drawn in the German language, and this portion of it is rather obscure in the expression of its meaning.

The summons is for relief, and taken in connection with the prayer of the complaint, which is partly for equitable relief, it would seem as if the plaintiff was at some loss as to what construction he should place on this clause of the agreement of July 12, 1868, when he commenced this action in June, 1870. The evidence shows that previous to the execution of this agreement schedules were made out by the parties, showing the amount of the debts due and owing by the firm, and that the difference between them was this sum of $2,433.46 in favor of the firm.

If it had been the intention of the parties that the defendant should pay this sum to the plaintiff, it would have been the most simple and natural course to have had it so expressed in the instrument, and as becoming due within thirty days.

Upon reading this provision as it exists in the instrument, and as the parties seem to have themselves at first viewed it, and looking at the surrounding circumstances, it appears to me, that it really means nothing more than that the defendant, Wolff, should collect the debts of the firm, pay its obligations, and then pay over whatever surplus might remain in his hands to the plaintiff, Stapenhorst. Any other interpretation of it is forced and improbable, and not, as it seems to me, warranted by the language employed.

I think the construction given to it by the referee is incorrect, and that there should be a reversal of the judgment, with a new trial, and with costs to the defendant to abide the event of the suit. Order of reference also vacated.


text:
    SIGISMUND H. HORSTMAN and others, Plaintiffs, v. JOHN MILLER and others, Defendants.
    Composition Deed.
    I, Covenants by creditors in severalty, effect of.

    1. A covenant whereby the creditors “ severally and each for himself agree ” to release and discharge, etc., does not render the deed void.
    " Before Monell, Curtis, and Sedgwick, JJ.

      Decided June 29, 1872.
    Exceptions ordered to be heard at General Term.
    The action was upon a promissory note made by the defendants, payable to the plaintiffs, dated September 10, 1868.
    The defendants gave in evidence a composition deed as follows:
    “ Know all men by these presents, that we, the subscribers, creditors of the firm of Miller & Company (composed of John Miller and Albert F. Miller, copartners), do hereby severally and each, for himself agree with the said firm of Miller & Company, that whereas they are unable to pay and satisfy in full our respective just debts, demands, and claims, we will take twenty cents for every dollar of our respective just debts, demands, and claims, and on receiving the said twenty per cent, we will thereupon and in consideration thereof, fully release and discharge the said firm, and each of the partners thereof from the same, in like manner as if the whole amount should be paid; provided, however, that unless the said twenty per cent, shall be paid on or before the first day of March, one thousand eight hundred and sixty-nine (1869), then this agreement shall be of no effect, and we shall be entitled to claim as if it had never been made.”
    The deed was under seal, and signed by the creditors of the defendants, including the plaintiffs.
    The defendants proved a tender to the plaintiffs of twenty per cent, of the plaintiffs’ claim prior to the time limited in the deed, which was refused.
    The tender was renewed at the trial, and again refused. i
    There was no evidence of any payment having been made upon the composition deed to any of the creditors, and no evidence of any tender having been to any creditor other than the plaintiffs, and the amount due plaintiffs had not been paid into court.
    The judge directed a verdict for the plaintiff for the amount claimed.
    The defendants excepted, and the court sent the exceptions to the General Term.
    Mr. H. Tompkins, attorney, and James Clark, of counsel for plaintiffs,
    urged: I. The language of the composition agreement, “ We, the subscribers, creditors “ of the firm of Miller & Co., do hereby severally and ‘1 each for himself agree with the said firm of Miller “ & Co.,” etc., excludes the idea of any agreement between the subscribing creditors for the relinquishment, by each, of a portion of his claim, in consideration of a like relinquishment by the others. The effect of the agreement, as to each creditor, is the same as if it had been signed by him alone.
    1. If the composition agreement be construed as the separate contract of plaintiffs with defendants, even acceptance by the former of the 20 per cent, stipulated for would constitute no defence. Acceptance of a less sum in lieu of a greater, admitted to be due, does not amount to a valid accord and satisfaction (Cumber v. Wane, 1 Strange, 426; Harrison v. Close, 2 Johns.
      448; Seymour v. Minturn, 17 Id. 169; Dederick v. Leman, 9 Id. 333 ; Mechanics’ Bank v. Hazard, 13 Id. 353; Bunge v. Koop, 5 Bob. 1; 1 Smith’s Lead. Cases, 550).
    2. But there was no acceptance of the smaller sum agreed to lye paid. The most that can "be claimed is an accord with tender of satisfaction, which is no defence (3 Black. Comm. 15 ; Heathcote v. Crookshank, 2 T. R. 24; Com. Dig. Accord, b; Russell v. Lytle, 6 Wend. 391; Brooklyn Bank v. Degrauw, 23 Id. 342 ; Tilton Alcott, 16 Barb. 598; Day v. Roth, 18 N. Y. 448; Fellows v. Stevens, 24 Wend. 294).
    3. The objection is not avoided by the fact that the agreement is under seal. The composition deed, so far from merging the original debt, expressly excludes the idea of such merger- by the stipulation, in futuro, to release the original indebtedness when the condition of the agreement shall have been performed (Hicks v. Clark, 41 Vermont, 183, 186; U. S. Lyman, 1 Mason, 482, 505; Van Vliet v. Jones, Spencer, 341; Yates v. Aston, 4 Q. B. 182, 196; Bell v. Banks, 3 M. & Gr. 258, 265; Wallace v. Fairman, 4 Walts, 378; Charles v. Scott, 1 Serg. & Rawle, 294; Bank of Columbia v. Patterson’s Admr. 7 Cranch, 299 ; Montgomery v. St. Stephen’s Church, 4 Watts & Sergeant, 542, 546).
    4. In Heathcote v. Crookshank, 2 T. B. 24, where all the creditors were made parties to a general composition, and the composition money was actually tendered to the plaintiff, the defence was held incomplete because it was not expressly pleaded that the plaintiff’s agreement was in consideration of all the creditors coming in. In the case at bar, not only is no such consideration pleaded, but its existence is negatived by the language of the agreement.

      a. The creditors agree “ severally and each for himself.”

      b. The expressed and only consideration of each creditor’s agreement is the 20 per cent, stipulated to be paid on his claim.
    5. A contract to do an act, in futuro, in satisfaction of a past breach of contract, is revocable and inoperative until performance (Lynn r. Bruce, 2 H. Bl. 317; Graham r. Gibson, 4 Exch. 768).
    II. If it be implied, notwithstanding its express terms, that the agreement is between the creditors as well as with the debtors, still the defence must fail.
    1. Although it is averred in the answer that ‘ ‘ defendants have paid the several other creditors who “executed said deed the various amounts contracted “to be paid thereby,” no evidence of such payment, or tender of it, was offered. That such evidence was necessary becomes manifest when we reflect that, in composition agreements, the consideration for each creditor’s relinquishment of part of his demand, is a similar relinquishment by the others. But the failure to pay any one creditor, by operation of law (see authorities cited below), and, in this case, by the terms of the agreement, remits such creditor, and, as a necessary consequence, each of the others, to his original rights. The creditors, not paid, it is plain, are let in to claim the entire amount of their respective demands. In other words, they are absolved from their agreement to relinquish part of what was due them; but it was that very agreement which constituted the consideration of the agreement to relinquish by the others. In the present case, if it be claimed that the plaintiffs have relinquished a portion of their demand in consideration of a similar relinquishment by the other creditors, I answer, that unless the contract has been so performed, either by payment or tender, as to render the relinquishment by the others effectual, the consideration of plaintiffs’ agreement has failed (3 Chitty on Plead. 931; 36 Eng. Law & Eq. 193 ; Penniman v. Elliott, 27 Barb. 315; Reay v. Richardson, 2 C. M. & R. 422).

      2. It rested on defendants to show complete performance of the composition agreement (Cranley v. Hillary, Maule & Sel. 120 ; Oughton v. Trotter, 2 Nev. & Man. 71; Fellows v. Stephens, 24 Wend. 302).
    3. The tender pleaded is ineffectual.

      a. The money was not paid into court, and notice given to the plaintiffs (Simpson v. French, 25 How. Pr. R. 464.

      b. It was not shown that the money produced and tendered on the trial, was the same previously tendered [fols. 40, 41] (Roosevelt v. Bull’s Head Bank, 45 Barb. 579; Brooklyn Bank v. De Grauw, 23 Wend. 345).
    III. Defendants’ exceptions should be overruled, and judgment entered for plaintiffs on the verdict with costs.

      Messrs. Goodrich & Wheeler, attorneys, and Mr. Thomas M. Wheeler, of counsel for defendants, urged : First. The instrument, being under seal, imports a consideration.

      Second. The consideration in this deed is the payment of the twenty per cent., and a tender being equivalent to payment, the defendants were released from the debt.

      Third. Other creditors besides the plaintiffs having signed the deed, the relinquishment of a part of their demands, and the surrender of their right to enforce them in full, is a sufficient consideration to uphold it (Hull v. Merrill, 5 Bosw., 266; Renard v. Tuller, 4 Bosw. 107).

      Fourth. The insertion of the words “ severally and each for himself,” does not render the deed invalid. The law infers that the creditors agree “severally and each for himself,” and the insertion of what the law infers would not invalidate it. The law infers a separate agreement between each creditor and the debtors, and also an agreement between each of the creditors (see Hall v. Merrill, 5 Bosw. 273 ; Brick v. Cole, 4 Sand. 83).

      Fifth. The verdict should be set aside, and judgment given for the defendants.
   By the Court.—Monell, J.

It is understood that the learned justice at the trial held, that the composition deed being a several, and not a joint, agreement, it did not operate as a release of the original debt, for want of a sufficient consideration to uphold it.

The ground on which these composition deeds are sustained is, that the relinquishment to the debtor by others who sign of a part of their claims, or the concession of some modification of the right to enforce them, constitutes a sufficient consideration. The agreement must be mutual, and mutually binding upon all who sign it.

I am unable to distinguish this case from Hall v. Merrill, 5 Bosw. 266. In that case, the agreement was joint. In this case, it was several. Whatever may be the nature of the obligation in terms, it must, necessarily, in all cases be several. Bach creditor must agree for himself with the debtor, and his several agreement is joint, or his joint agreement is several, only so far as it is mutual with the others signing.

It is not necessary that the agreement should express the mutuaEty of all the signers. It is sufficiently implied by the nature of the agreement.

This cannot, therefore, be regarded as the mere separate contract of the defendants, and as such having the effect only of an accord. But it must be regarded as a mutual agreement, among all who signed it, to relinquish a part of their respective debts to the debtor, and binding upon all.

I think the exceptions should be sustained, the vérdict set aside, and a new trial ordered, with costs to the defendants to abide the event.


text:
    CHARLES H. HEIMBURG, Plaintiff, v. JOSEPH ISMAY, Defendant.
    I. Real Estate, sale of.
    1. Contract for, breach of by vendor, what constitutes.

    1. Where a vendor covenants to convey, free from encumbrances, a tender of a deed without a tender of a release of his wife’s dower, either by her joining in the deed or otherwise, is not a performance of the covenant, and by the non-tender of a release of the dower the contract is broken.
    2. Measure of damages in such case.

    1. It is the difference between the contract price and the value of the property at the time of the breach.
    II. Dowse. Outstanding inchoate right of, effect of.
    1. It does not constitute, nor does it produce, a defect of title. It is merely an encumbrance.
    Before Monell, Curtis, and Sedgwick, JJ.

      Decided June 29, 1872.
    Exceptions heard at General Term.
    The action was to recover for the breach of a contract to convey real estate.
    The defendant had agreed to sell and convey certain real property to the plaintiff. Five hundred dollars of the purchase-money was paid on the execution of the contract; and the balance was to be paid or secured on a day and hour and at a place named in the contract, when the deed was to be delivered. The contract provided that the premises were to be conveyed in fee simple, and free from all éncumbranees, and the deed to contain the usual full covenants.
    Upon the day, at the hour and place specified in the contract, the plaintiff was present, prepared to perform; but the defendant was not present, and no offer or tender of performance on his part or behalf was made.

      Subsequently, the defendant tendered a deed to the plaintiff, executed by himself alone, his wife being then living ; which deed the plaintiff refused to receive, on the ground of its non-execution by the defendant’s wife.
    It was proved that, between the date of the contract and the bringing the action, the property had increased in value, or that it was worth more than the contract price.
    The court instructed the jury that, excepting for the cash payment, and some expenses incurred, there could be no recovery beyond nominal damages.
    To which instructions the plaintiff excepted.
    The plaintiff had a verdict, and the exceptions were sent to the G-eneral Term, to be there heard in the first instance.

      Mr. J. Fettrech, attorney, and of counsel for plaintiff,
    urged : 1st. The court erred in the rule of damages and the law governing this case, and confounded the case at bar with the case of one who, believing he had a good title, contracted to sell, and was then unable to perform by reason of a defect unknown to him at the time of making the contract (Pumpelly v. Phelps, 40 New York, 66). (a.) The justice failed to draw the distinction between the case of a man honestly believing he has a good title and having none, and one having a good title neglecting to convey (Brinckerhoff v. Phelps, 43 Barb. 473; Pumpelly v. Phelps, 40 New York, 59).
    2d. In the case at bar, the defendants title was good, and therefore it differs from every case holding only nominal damages recoverable, (a.) In every case holding nominal damages only recoverable, the defendant believed he had a good title at the time of making the contract (Baldwin v. Munn, 2 Wend. 399; Peters v. McKeon, 4 Denio, 546; Conger v. Weaver, 20 New York 140). (b.) The plaintiff had no objection to make to the title, and was ready to accept the conveyance thereof.

      3d. The exception brought into the law by Flureau v. Thornhill, 2 Wm. Blackstone, 1098, was, “that when a vendor discovers after the contract of sale that his title is defective, and is on that account unable to complete the bargain, he shall not be held liable to the vendee for the loss of such bargain (Pumpelly v. Phelps, 40 New York, 59; Drake v. Baker, 35 New Jersey [5 Vroom], 358). (a.) It is clear that the present circumstances are unlike those of the leading cases above cited. In that case the defect of the title at the time of making the contract was unknown; but in this case the defendant was fully cognizant of it (same authorities).
    4th. The defendant in this suit knew, when he agreed to make a perfect title to this property, that it was altogether uncertain whether he would be unable to do so, for his ability to discharge his contract was dependent upon the consent of his wife (Pumpelly v. Phelps, 40 New York, 59 ; Drake v. Baker, 35 New Jersey [5 Vroom], 358). (a). With full knowledge of his power to convey being contingent, the defendant entered into the absolute agreement set forth in the complaint, and this circumstance takes the case out of Flureau v. Thornhill (see cases above cited), (b). A party should not be allowed, even where there is no fraud, to escape liability for an engagement to do that which he knew it was altogether uncertain that he could perform (Hopkins v. Grazebrook, 6 Barn, and Cres. 31; Pumpelly v. Phelps; Drake v. Baker; cited above).
    5th. It may be reasonable that a vendor should not be liable for secret flaws in the title of his property, ' but there seems no rational ground for the hypothesis that a similar relaxation of the general law exists in those cases in which a man agrees, in an absolute form, to do some act which he knows he has not the power to do without the assent of a third party (Hopkins v. Grazebrook, 6 Barn, and Cres. 31; Brinkerhoff v. Phelps, 43 Barb. 473; Pumpelly v. Phelps, 40 New

      York, 59 ; Drake v. Baker, 34 New Jersey [5 Vroom], 358).

      There is neither sense nor law for such relaxation (Drake v. Baker. Ibid.).

    6th. The immunity of the vendor does not extend beyond his inability to perform his contract by reason of a defect in his title which was unknown to him at the time he contracted to sell (Hopkins v. Grazebrook, 6 Barn, and Cres. 31; Brinckerhoff v. Phelps, 43 Barb. 469 ; Pumpelly v. Phelps, 40 New York, 59 ; Drake v. Baker, 34 New Jersey [5 Vroom], 358). (a). This rule will exclude all defaults which are wilful or which arise from contingencies known to the vendor, and of which he consciously assumed the risk (see cases above cited). (b). The rule should not be extended to cases other than those where secret defects in title are discovered, after making contract of sale, which were unknown to the vendor at the making of the contract (Brinckerhoff v. Phelps, 24 Barb. 100, and cases cited above).
    7th. The defendant knew his exact position, and ventured to make the contract, and he must be responsible for the damage sustained by a breach of the contract (Brinckerhoff v. Phelps, 24 Barb. 100, and cases cited under last point), (a). He either made a contract which he had no right to make, or he arbitrarily refused to fulfil, finding the premises were worth more. Either reason rendered him liable for substantial damages (see case above cited).
    8th. The question of good f aith cannot arise in such a case (Brinckerhoff v. Phelps, 43 Barb. 469; Hopkins v. Grazebrook, 6 Barn, and Cres. 31 ; Drake v. Baker, 34 New Jersey [5 Vroom], 358).
    9th. Brinckerhoff v. Phelps, 24 Barb. 100, is easily reconcilable with Conger v. Weaver, 20 New York, 140; Peters v. McKeon, 4 Denio; and Baldwin v. Munn, 2 Wend. 399 (Brinckerhoff v. Phelps, 43 Barb. 469).
    10th. The plaintiff in this case was entitled to substantial damages for the loss of his "bargain (Hopkins v. Grazebrook, 6 Barn, and Cres. 31; Brinckerkoff v. Phelps, 43 Barb. 469 ; Pumpelly v. Phelps, 40 New York, 59; Drake v. Baker, 34 New Jersey [5 Vroom], 358).

      Lastly. The verdict in this case should be set aside, and a new trial ordered with costs.

      Mr. E. McCahill, attorney, and of counsel for defendant,
    urged : First. On an executory contract for the sale of lands which the vendor believes to be his own, and where there is no fraud on his part, if the sale falls through in consequence of a defect of title, the measure of damages is substantially the same as it is in the case of an executed sale. If the vendee has paid any part of the consideration, he may recover back the money with interest; but he can recover nothing for the loss of a good bargain (Peters v. McKeon, 4 Denio, 550; Thureau v. Thornhill, 2 W. Black. 1078; Baldwin v. Mann, 2 Wend. 399; Gillet, admr. of Clemins, v. Maynard, 5 Johnson, 85; Pitcher v. Livingston, 4 Johnson, 1; Bennet v. Jenkins et al., 3 Johnson, 50).
    Only nominal damages are recoverable for the failure by a vendor to perform an executory contract for the conveyance of land made in good faith, and broken without fraud by reason of his inability to make a good title (Conger v. Weaver, 20 N. Y. 140).
    Bad faith cannot be charged to the defendant in this action. He tendered as good a conveyance as he was able, as soon after the time for the completion of the contract as it was possible for him to do.
    There is no evidence of any collusion between the defendant and his wife, nor is it claimed that there was any. He made an honest effort to induce her to execute a conveyance to the plaintiff of her inchoate right of dower; and having failed in his efforts, he at once tendered to the plaintiff a conveyance properly executed by himself.

      The cases of Pumpelly v. Phelps, 40 N. Y. 66; Brinckerhoff v. Phelps, 43 Barb. 469 ; and Hopkins v. Grazebrook, 6 B. & C. 31, which are relied upon by the appellant to establish the fact that the court erred in its decision on the rule of damages and law affecting this case, will, on examination, be found to sustain the decision of the justice on the trial.

      Second. An inchoate right of dower is not an encumbrance. The right to dower does not become an encumbrance upon the property of a married man until after his death (the wife surviving him), because until then it is not such a right as could be enforced. Prior to the happening of that event, it is merely a vague, contingent interest, and nothing more.
    An encumbrance is a subsisting positive right in some person that can be asserted and enforced at once against the premises.
    The defendant tendered to the plaintiff a full covenant warrantee deed, and the plaintiff would have been protected under the covenants contained therein, if dower in the premises were ever thereafter assigned to defendant’ s wife.
    By tendering to the plaintiff such warrantee deed, he performed all he had agreed to do, when he covenanted to convey the premises to him free from encumbrances.
   By the Court.—Monell, J.

The instruction of the learned judge at the trial was upon the principle, that when a vendor contracts to sell and convey in good faith, believing he has a good title, and afterwards discovers his title is defective, he is to be held liable to nominal damages only. But the principle has no application to this case. The inchoate right of dower of the defendant’s wife was not, nor did it produce, a defect in the title. It was in the nature of an encumbrance upon the property; and unless extinguished by a release, the defendant could not convey “free from all encumbrances.’ ’

In the case of Holmes v. Holmes (12 Barb. 137), the vendor, as in this case, agreed to convey free of encumbrances ; and it was alleged that there was an outstanding inchoate right of dower. This was held to be an encumbrance ; and an inability to procure its release was a breach of the contract to convey.

The case of Pumpelly v. Phelps (40 N. Y. Rep. 59), relied upon by the defendant, merely refers to the general principle, which I have before stated ; but holds, what is applicable to the present case, that when a vendor contracts to sell lands, in which he knows, at the time, he has .not title, or the power of conveying, he is bound to make good to the vendee the loss of the bargain through his default (Brinckerhoff v. Phelps, 43 Barb. 469).

It is very clear, I think, that this case presents no exception to the general class of cases, where the actual damage sustained should be the measure of recovery; and it was, therefore, erroneous to restrict the verdict to the purchase money and expenses.

The measure of damage is the difference, if there be any, between the contract price and the proved value of the property at the time of the breach (Pumpelly v. Phelps, supra, p. 66; Barb. v. Cole 28, N. Y. Rep. 261; Brinckerhoff v. Phelps, supra.

The exception must be sustained, the verdict set aside, and a new trial granted, with costs to the plaintiff to abide the event.


text:
    JOSEPH COHEN, Plaintiff and Respondent, v. JOHN KELLY, Sheriff, Defendant and Appellant.
    I. Charge.—Refusal to, whe$t error.—Trial.
    1. Action to recover damages for an alleged wrongful seizure under attachment.—Defence, fraudulent sale and transfer to plaintiff.

    1. A refusal to charge “ that if the object and purpose of the transfer by the parties to it was to hinder, delay, or defraud the creditors of the transferror, the transfer was void, and the plaintiff cannot recover,” and a refusal to charge that “if the purpose and object of the parties in the transfer to the plaintiff was to hinder, delay, or defraud the other creditors of the transferror, then the fact that there may home been an indebtedness to the plaintiff, and a payment of money by him on account of the purchase, will not enable the plaintiff to hold the goods as against the sheriff acting under attachments,” constitute error if there is sufficient evidence to justify the jury in finding that the intent of the parties to the transfer was to hinder, delay, or defraud the creditors of the transferror, or the creditors other than the plaintiff.

      a. Charging the jury that if the plaintiff was the owner of the goods at the time the levy was made, or if the goods had prior to that time been sold to plaintiff, he would be entitled to a verdict, to which charge exceptions were taken, will not cure the error, although the general bearing of the charge is to submit to the jury the question as to whether there had been a boná-jide sale to the plaintiff, and as to whether he was the bond-fide owner.

    Before Monell, Curtis, and Sedgwick, JJ.

      Decided June 29, 1872.
    Appeal from judgment and order denying a motion for a new trial.
    On the 7th of December, 1866, the plaintiff sued to recover damages for the taking and conversion of seven cases of merchandise, of the alleged value of $14,000. The respondent put in issue the title and the value, and justified under two warrants of attachment against the property of Lewis Piser, one issued in November, and the other in October previous. The plaintiff claimed to havé purchased the property of Lewis Piser, at Columbia, S. C., November 10 and 12, 1866. The goods were sent to New York, and levied upon by the defendant, as the property of Lewis Piser, under the two warrants of attachment. The defendant claims that the alleged sale by Lewis Piser to the plaintiff was fraudulent and void as against Lewis Piser’s creditors, and that no title passed to the plaintiff.
    The evidence showed that in October, 1866, Lewis Piser, who dealt in dry goods at Columbia, S. C., came to New York and bough a large amount of goods of these attaching .creditors and other merchants. That October 30,1866, he confessed a judgment in New York to the plaintiff, who was his brother-in-law, for $16,273, and then returned to Columbia.
    The plaintiff also went to Columbia, and November 8, 1866, Lewis Piser confessed a judgment to him for $16,306.13, in South Carolina. November 10 and 12 • following, the goods in question were delivered to the plaintiff, and sent back to New York. The plaintiff also arranged to have the net proceeds of the sales in Lewis Piser’s store paid to him, and the South Carolina execution was endorsed “wait orders.” Under it, in June, 1866, a levy was made, and Lewis Piser’s remaining stock sold.
    There was evidence that Lewis Piser paid the freight and insurance on the shipments of the goods back to New York, and that they were sent for at his store at an unusnal hour of the morning, and also other testimony bearing upon the question of bad faith towards his creditors.
    Evidence was offered on the trial to show that Lewis Piser obtained the goods from the attaching creditors, in October, 1866, by false and fraudulent representations, which was excluded, and the defendant excepted.

      The judge charged the jury as follows :
    “ If you find from the evidence that the plaintiff was the owner of the goods in question at the time the levy was made by the sheriff, he will be entitled to your verdict ; the amount of the verdict I will speak of hereafter.
    “In considering the question as to his ownership at that time, look at all the circumstances as detailed by him; he is the principal witness for himself; he says that some time in 1864 he had $8,00.0 in money by him, which he was desirous of investing; that he spoke with a young lawyer, who was on the stand here, and advised with him as to whether it was best to buy real estate ; that at the same time he had an application from his relative, Mr. Piser, for the loan of this same $8,000 ; he says Mr. Piser had lost money (I am not sure whether he said he was absolutely insolvent, but he had lost money); that he was out of business, but wanted to go into business, and for that purpose required this $8,000; the plaintiff says that after consulting this young lawyer, he lent the $8,000 to Mr. Piser; see whether that- is probable under the circumstances ; you have a right to consider that in connection with all the testimony of the witness.
    ‘1 The plaintiff had before that time been engaged in the business of selling goods of a description like a portion of these in suit, but was then, or about that time, engaged in another kind of business—the business of an optician ; after the loan of that money, he continued in that new business, and continued to peddle thro'ugh the Southern country with a stock of some $2,000, and accumulated, as he says, more money. In the summer of 1866, he was in South Carolina, as he says, and was told by Mr. Piser that he had not made much money ; that he had not made (if I remember right) anything ; that he had no means to pay him anything, but that he wanted another loan of $7,000. He says he made him the further loan of $7,000 on that statement.

      ‘ ‘ Two or three months afterwards, in October, 1866, the plaintiff and Mr. Piser met again in Few York; the plaintiff wanted his money ; Mr. Piser could not pay it, and it was then agreed that judgment should be taken for the amount, and a judgment was taken here for the alleged loan of $15,000, with interest. A short time after that, the plaintiff went to Columbia, S. C., and there required. the payment of this judgment; Mr. Piser was unable to pay it; and the plaintiff states that thereupon he purchased from Mr. Piser goods to the amount of $10,500 to apply upon the debt, with the exception of $800, which he says was advanced to Piser in cash at that time. It is in evidence that they were the same goods that were sold by the sheriff; they were sent on here ; he sent on three boxes at that time, and shortly after the other three were sent.
    “How see, taking all his evidence into consideration, whether that story is probable, whether it is true. Would such a man lend to a relative by marriage, whom he had not known but a short time, as he states, and who was poor, $8,000 without security, for the purpose of going into trade? Would he be likely to lend him $7,000 more, when he was satisfied from the statement of the borrower that he was not making money in his business. Without any additional inducement, would he be likely to take the goods instead of taking some other course to get his money in South Carolina ? Consider that. Fow there is a maxim in the law, 1 Falsus in uno, falsus in omnibus’ If a witness upon the stand tells a manifest falsehood in regard to material matter, the jury have a right to assume that he lies in everything. There are some statements of the plaintiff as a witness, which you have a right to consider. For instance, he stated upon the stand, that when he took the first goods to the express office, he insured them for one-half their value ; that is, he valued them to the express company, for insurance, at half their value; they

      were valued in the receipts at $3,00.0 ; the statement of the plaintiff himself, and the bills, show that the goods were really valued at $2,700 only, less than the amount at which they were insured. Consider that. There are other statements of his which I will not comment upon. If you come to the conclusion that his statements are not to be relied upon, you will find for the defendant.
    “You have, in relation to the loaning of the $8,000, the testimony of this young lawyer, which I have no doubt is wholly true so far as he knows and states. He says he was present, and saw the $8,000 loaned ; that he wrote the note himself and saw it executed—saw all the transactions. All that may be ; yet it may not have been a loan at all. He saw certain things done, he saw money handed over, and saw the note given. He could not know what was in the hearts of the parties. If you disbelieve the plaintiff himself wholly, you are at liberty to disbelieve that there was any loan.
    “ So in regard to the next transa ction, the loan of $7,000 in South Carolina, that rests upon the testimony of the plaintiff himself, supported by corroborative testimony of other men, who state what they saw done. If you do not believe the plaintiff* you may assume with perfect propriety that the witnesses simply intended to state, 'as they undoubtedly did, that they saw certain things done. One, of them states that he saw $4,000 paid over, and a draft for $3,000 more delivered. These are transactions which do not of themselves absolutely prove that there was a loan then made. I mean to say that if you disbelieve the testimony of the plaintiff, you are at liberty to believe that there was no loan absolutely made at that time. It is a matter of common-sense and judgment, no mystery of law about it.
    “ Again, in regard to the sale of the goods, what I have already said applies there. The main or principal witness is the plaintiff himself. Other witnesses state the details of the transaction, the facts that they saw. But if you do not credit the statement of the plaintiff, you may also disbelieve that there was an absolute sale. You may believe it to be a simulated sale, a mere formal transaction, not legally transferring the goods. If you find that these goods were sold to the plaintiff at that • time, he will be entitled to your verdict.
    “You are to determine, in the first place,- whether the alleged sale to the plaintiff was made or not; and, in the second place, in regard to the value, the testimony is with you.”
    • The court was asked in due time by defendant’s counsel to charge the jury.
    1st. If the object and purpose of the transfer by the parties to it was to hinder or delay or defraud the creditors of Lewis Piser, that transfer was void, and the plaintiff cannot recover.
    The court refused so to charge, and the exception was noted.
    2d. If the purpose and object of the parties in the transfer to the plaintiff was to hinder or delay or defraud the other creditors of Lewis Piser, then the fact that there may have been an indebtedness to the plaintiff, and a payment of money by him on account of the purchase, will not enable the plaintiff to hold the goods as against the defendant in the case acting under the attachments.
    The court refused so to charge ; to which refusal an exception was noted.
    The counsel for the defendant excepted to that portion of the charge in which it is stated “that if the jury find from the evidence that the plaintiff was the owner of the goods in question at the time the levy was made by the sheriff, he will be entitled to your verdict.”
    The counsel also excepted to that portion of the charge in which the .court instructed the jury that if they found that these goods were sold to the plaintiff at that time, he will be entitled to your verdict.

      There was a verdict for the plaintiff of $7,000, on which judgment was entered. A motion was made for a new trial, which was denied.
    Defendant appealed from this judgment and this order denying this motion for a new trial.
    A. J. Vanderpoel, for appellant,
    urged: First Point. The court erred in refusing to submit to the jury the question whether the transaction between the plaintiff and the debtor, Piser, was made with intent to hinder, delay, or defraud the creditors of Piser.
    1. The propositions were correct in form and substance, if there was any evidence, or any evidence of circumstances from which an intent to hinder or delay creditors could be inferred.
    The propositions not only involved the intent of the seller, but of the purchaser in the transaction.

      2. Surely no proposition can be more elementary than that if two parties enter upon a contract of sale and purchase of property, with the intention of defrauding the creditors of the vendor, the transaction cannot stand.
    3. The purpose being iniquitous, the corrupt motive being present, the circumstance of its being for a valuable consideration, or for a full consideration, or that the parties resorted to the machinery of a judgment, and a levy by a sheriff, or maintained the forms of law, will not avail the fraudulent purchaser as against the vendor’s creditors (Beals v. Guernsey, 8 Johns. 446; Metropolitan Bank v. Durant, 22 New Jer. Eq. 35; Doughton v. Gray, 2 Stoclcton, 323 ; Cowper, 434 ; Hartshorn v. Earnes, 31 Maine, 95; Kirtland v. Snow, 20 Conn. 27 ; Ashmead v. Hean, 13 Penn. 587; 7 B. Mon. 365).
    The evidence established facts and circumstances which strongly supported the defendant’s theory that the sale was a scheme or device between two brothers-in-law to cover up the property of one of them from his creditors.

      Second Point. The court treated the whole transaction as though confined in its effects to the plaintiff and Piser, and on the trial, and in charging the jury, ignored entirely the question of the intent with which they acted.
    By refusing to charge as requested, the court, in effect, instructed the jury that the validity of the sale did not depend upon the intent with which it was made by the parties thereto.
    The court had charged the jury that if “ the plaintiff “ was the owner of the goods in question at the time the “levy was made by the sheriff, he was entitled to a “verdict.” In commenting upon the evidence of ownership, the court confined itself to the question of indebtedness, leaving the impression that if Piser was owing the plaintiff, the sale was valid. The refusal to charge the second request confirmed this impression.

      John H. Anthon, of counsel for respondent,
    urged: If goods are sold and delivered, a complete title is vested. The question with what intent the goods aré delivered is for the jury, and the burden of proof is on the vendor, and the bona-flde purchaser from the vendee gets a perfect title (Smith v. Lynes, 5 N. Y. 41; Lacke v. Rhoades, 45 Barb. 499; Anderson v. Roberts, 18 Johns. 515 ; McCarty v. Vickery, 12 Id. 348; Farsett v. Smith, 23 N. Y. 252 ; Paddon v. Taylor, 44 N. Y. 371).
   By the Court.—Curtis, J.

When transactions in another State come before the court for consideration, in the absence of evidence as to what is the law in the State where they occurred, the court will assume that the law affecting them is the same in the State where they occurred, as it would be had they occurred in this State.

Consequently we must assume that the law touching this alleged sale to the plaintiff, by Lewis Piser, in Columbia, S. C., is the same as our own law would be in respect to a similar transaction here. If the sale was made in Columbia with a fraudulent purpose as to the creditors, the same rules are to be applied to its consideration that would govern here.

When we consider the relationship, and the intimacy between Piser and the plaintiff; the order of the transactions and their dates ; the confession of the judgment to the plaintiff in Hew York, October 30th, just as he had completed his purchase in Hew York ; the confession of the judgment in Columbia to the plaintiff, Hovember 8, just as the goods had fairly arrived there ; .the alleged sale of them to the plaintiff, Hovember 10 and 12 ; the removal of them, at Piser’s request, at an unusual hour in the morning from Piser’s store, Piser paying the freight and insurance back to Hew York; the inadequacy of price paid for them by plaintiff; the variance between plaintiff’s statements and the express receipt; the concealment of three of the cases in Bayard Street on their arrival here; it is impossible to say that the plaintiff’s case is not one where the jury might have reasonably arrive at the conclusion that the sale was made with intent to defraud creditors, that the plaintiff had knowledge of it, and that no title passed to him by the sale.

The charge seems to indicate that the learned judge believed the alleged sale never had been made as stated. He instructs the jury that if the plaintiff was the owner of the goods in question at the time the levy was made by the sheriff, that if they found the goods were sold to him at that time, he was entitled to their verdict. But he refused to charge that, if the object and purpose of this transfer by the parties to it was to hinder or delay or defraud the creditors of Lewis Piser, the transfer was void, and the plaintiff could not recover. He also refused to charge that if the purpose and object of the parties in the transfer to the plaintiff was to hinder or delay or defraud the other creditors of Lewis Piser, then the fact that there may have been an indebtedness to the plaintiff, as a payment of money by him on account of the purchase, would not enable the plaintiff to hold the goods as against the defendant in this case acting under the attachments.

It is quite possible the jury may have been misled, by the refusal of the learned judge so to charge, under the circumstances of the case, and supposed that his refusal so to charge was in effect an instruction to them to the contrary.

If they have been misled, it is but just to the defendant that there should be a new trial.

I think the judgment and order appealed from should be reversed, and a new trial granted, with costs to defendant to abide the event.