text:
    Nathaniel Buckmaster, Appellant, v. Simeon Ryder, Appellee.
    APPEAL FROM MADISON.
    Upon a bill to quiet title, if a decree is rendered which is binding upon a party, his assingee, who has notice of the decree, is bound by it, if the Court had. authority to adjudicate. Such a decree, though erroneous, cannot be questioned collaterally.

      A decree is conclusive on the parties while it remains in force, its errors can only be inquired into and corrected by a direct proceeding for that purpose.
    A party assigning a judgment, is not estopped from asserting title to land, against a purchaser under the judgment, where the lien of such judgment is divested by decree, especially if there was no express or implied covenant, that the judgment was a subsisting lien.
    This is a suit in chancery, wherein the said Simeon Ryder is complainant, who filed his bill against Buckmaster and others, to foreclose a mortgage assigned to him by the State Bank of Illinois ; in which bill he alleges, that one Sigerson & Harrison, in August, 1840, being indebted to the Bank $4,196 00, made four notes to secure that sum, payable in two, three, four and five years from date, and gave the mortgage sued on, to the Bank to secure these notes; that Sigerson & Harrison embraced in said mortgage, a lot in Middletown, and a lot in block 1, in Alton, of which property they pretended to be seized and possessed ; that in 1847, the State Bank assigned to Ryder said mortgage, and the three promissory notes first mentioned in the mortgage, excepting the lot in Middletown, from the effect of said assignment, which had been released by the Bank; that the said Buckmaster claims to have some title in the mortgaged premises, through a sale made to him on a judgment in favor of Ryder & Frost, against one John A. Halderman and Job Lawrence, obtained against them the 17th of January, 1838, in the Municipal Court of the City of Alton, and assigned by them to the said Buckmaster. The bill, however, charges the fact to be, that in a Chancery suit, by Sigerson & Harrison against Ryder & Frost, and others, to confirm the title of Sigerson & Harrison to the lot in block 1, in which suit, the judgment under which Buckmaster bought the property, came in question, it being charged in -said bill upon which said suit was brought, that Ryder & Frost were judgment creditors of John A. Halderman upon a judgment, obtained by them in January, 1838, in the Municipal Court of the city of Alton, against the said Halderman & Lawrence, for ■ $279 08, besides costs ; and it being averred in said bill, that Sigerson & Harrison were entitled to hold said lot, in block 1, as the legal and equitable owners thereof; and the prayer of said bill being, that the title to said.lot in block 1, should be confirmed and established in Sigerson & Harrison, it was decreed at the September term of the Madison Circuit Court, 1841, that they were entitled to hold the same, free of all lims and encumbrances, of any of the defend

      ants, and that the defendant should he barred of all claim upon the same, as will appear from a copy of the decree, &c. That the judgment was assigned to Buckmaster after the hen thereof was barred; that Buckmaster is preventing the tenants from paying Ryder rent, on the pretence that his claim, under the judgment, is better than the mortgage claim; and that he, Ryder, is entitled to a priority of lien over said judgment, by force of his assigned mortgage, praying, that he may have his money, due on the notes, in a strict foreclosure, and that the Master in Chancery may make a deed to complainant, &c.
    On the pleadings, and on the proofs which were in the cause, a decree was entered at the March term, 1856, of the Madison Circuit Court, Underwood, Judge, presiding, which decrees, that defendants pay to S. Ryder §3,839 34, within ninety days from the date of the decree, with interest; that in default to pay, the defendants be barred, &c.; and, that all interest which Buck-master has in the premises, by virtue of his sale on the execution, issued upon the judgment, assigned to him and Greathouse, by Ryder & Frost, and all certificates of purchase, and deed or deeds made to Buckmaster, by virtue of said sale, be cancelled and set aside, and for nothing esteemed, and that Buckmaster, and all persons claiming under him, be perpetually enjoined from proceeding under said judgment, to enforce any sale or lien against the said mortgaged premises; and, that the property, in case of non-payment of the money found due, shall be sold, &c., and deed made by the commissioner to the purchaser,.&c„; and, that the cross bill of the said Buckmaster be dismissed at his cost, &c. From which decree Buckmaster appeals, &c.
    Wsl Maetisc, for Appellant.
    The assignee of a mortgage takes the title which the mortgagee has in the mortgage; and is affected by all equities in favor of third persons. 2 Paige 0. R., 266.
    Sigerson & Harrison mortgaged property to the State Bank, which they bought on a. junior judgment against Halderman. Therefore, the mortgage to the Bank passed to them no better title to the property mortgaged, than Sigerson & Harrison had at the date of the mortgage in August, 1846. 4 Porter, 321-29.
    When the Bank mortgage was made, Ryder & Frost’s judgment was the oldest lien on the mortgaged property. This lien was matter of record. Hence, all persons dealing with the property, affected by the lien, were bound to take notice thereof and especially the State Bank, who took the mortgage. The Bank, also, had notice of Buckmaster’s claim.
    When the State Bank took the mortgage, they obtained all the title for which they bargained; and they took all the title which Sigerson & Harrison had to the property. In the absence of fraud, then, or misrepresentation, neither Sigerson & Harrison, nor the State Bank, can apply to Chancery, to deprive third persons of older and paramount legal liens which by law have been fixed upon the mortgaged property.
    The decree set up in this ease to defeat Buckmaster’s title, was rendered thirteen months after the property was mortgaged to the State Bank, and on a bill filed eight months after the date of said mortgage. The Bank under whom Byder claims, was not a party to said bill, or to the decree; the Bank neither authorized the filing of the bill, nor do they claim any thing under the decree: hence the Bank is neither a party to the decree, nor are they privy to the decree, the Bank not claiming title through Sigerson & Harrison, after the rendition of this decree.
    To affect Buckmaster, the bill must have been filed by the State Bank, or by some one for their benefit, wherein, such facts must appear as will show a superior equity in the State Bank over the legal lien of the oldest judgment. To overrule Byder & Frost’s judgment, the Bank must show that she contracted with Sigerson & Harrison for a better title than she obtained by the mortgage; and that Byder & Frost, or those claiming under them, induced the Bank to make such contract.
    This decree in favor of Sigerson & Harrison, can not be set up by Byder, to defeat Buckmaster, because Byder does not rlafm through them, but as assignee of the State Bank.
    Byder, having taken the consideration from Buckmaster & Greathouse, for the assigned judgment, under which he, Buck-master, purchased, will commit a fraud on Buckmaster by defeating his sale on the oldest judgment. This a Court of Equity will not permit.
    The sale by Buckmaster, overreaches the mortgaged title of the State Bank, and the Bank failing to redeem from Buckmaster’s sale within twelve months from its date, lost all their title to the land under their mortgage. To have given the Bank the legal title, they should have paid off the oldest judgment and tacked the sum paid to their mortgage. See 2 Cowen, 125; 11 Ills., 445.
    This bill, setting up a decree to bar Buckmaster, must show by averment that the lien of the Ryder & Frost judgment was put in issue in the case of Sigerson <& Harrison against Halderman. This not appearing, the decree should not have an influence with the Court, in deciding the rights of these parties. See Mitford’s Chancery Pleading, p. 237-8; Story’s Equity Pleading,, §791; 2 Madd. CL, 313-4.
    To conclude parties by a decree, it must be in a suit directly, between them or their privies, and upon the subject matter-directly involved in the controversy. The controversy here is; to foreclose a mortgage by an assignee, wherein he does not sex. connect himself or the mortgagee, &c., with the decree, as to» authorize the Court to consider it.
    To make a decree conclusive, it must appear that chancery-had jurisdiction. This is done by averment. If there be no. such averment the decree is a nullity. See Story’s Eq. Pl., §10, §12; also, §257, §290; Andrews v. Fenton, 1 Arkansas, 186; Baraitt v. Oliver, 7 Gill & Johnson, 193, 208; 4 Scam., 333; 4 Gilman, 354.
    Where judicial proceedings are brought collaterally in question, the authority of the Court whose proceedings are plead to-conclude a party, may be inquired into; they may also be inquired into when relied upon by a party claiming the benefit of such proceedings. See 1 Peters U. S. R., 329, 340, 341.
    A decree cannot be used in a suit in favor of new parties,. unless the same decree could have been used against the new parties had it been adverse. See 2 Peters’ Digest, 539, §51,;. Pain’s Cir. Court Rep., 196; 2 Stark, on Ev., 196, title Mutuality.
    Davis & Edwards, for Appellee.
   Treat, C. J.

In January, 1838, Simeon Ryder and Charles-; L. Frost recovered a judgment against John A. Halderman and Job Lawrence, in the municipal Court of the city of Alton,, for $279 08. In February, 1838, Krum, as executor of Emerson,c -obtained a judgment against Halderman, in the Madison Circuit •¡.Court, for $533 48. In March, 1838, Halderman conveyed to John Sigerson, Wallace Sigerson and Enos H. Harrison, by deed ■of mortgage, a part of block one, and lot four in block twenty-four, in the city of Alton, to secure the payment of certain promissory notes previously made by Halderman and Lawrence. In April, 1838, Fleming and others obtained a judgment against Halderman and Lawrence, in the Municipal Court of the city of Alton, for $1,23610 ; and, at the same time and before the same Court, Enos Litchfield obtained a judgment against Halderman and Lawrence, for $469 39. In July, 1838, Ryder and Frost recovered another judgment against Halderman and Lawrence, before ;the same Court, for $247 62. In October, 1838, Sigersons and Harrison recovered a judgment in the same Court against Halderman, for $4,624 98; and under an execution issued thereon, -.they became the purchasers of the mortgaged premises for $1,900, sand received a sheriff’s deed therefor, in October, 1840. In -August, 1840, Sigersons and Harrison conveyed to the State "Bank of Illinois, by deed of mortgage, with covenants of warranty. that part of block one embraced in the mortgage from Halderman, and purchased at the Sheriff’s sale, to secure the payment of $4,196, within five years.

In April, 1841, Sigersons and Harrison filed a bill in Chancery, in the Madison Circuit Court, against Halderman, Ryder, Frost and the other judgment creditors of Halderman and Lawrence, in which, after setting forth at large all the forgoing proceedings, but the mortgage to the State Bank of Illinois, they proceeded to state as follows: Tour orators under this state of facts, are informed and believe, that difficulties may arise in regard to the title of your orators to the said two pieces, parcels and lots of ground, so by youre orators purchased at Sheriff's sale aforesaid, which can only be remedied in a Court of ■ equity. Tour orators, therefore, believing that they are entitled to the possession and ownership of said lots or parcels of ground, free and discharged of all liens, claims, or incumbrances, which the said John A. Halderman, or either of the said judgment creditors, may claim or pretend to set up, pray of your Honor, that the said John A. Halderman, Simeon Ryder, Charles L. Frost, Thomas Fleming, Charles Mclntire, Jasper Corning, Sanderson Robert, Enos Litchfield, and John M. Krmn, executor of WilHam S. Emerson, deceased, may be required to make full, tr6ue and perfect answers to all and singular the charges above set forth, fully and particularly, according to the best of their knowledge, information and belief, as if the same were herein again repeated, and they interrogated thereto; and that the defendants above named, and all persons claiming and to claim the said described lots or parcels of ground in said mortgage mentioned and set forth, may be barred of and from all claims of, in and to the said premises, and every part and parcel thereof, with the appurtenances; and that your orator's title to the same may be confirmed.” Process was served on the defendants, and, at the September term, 1841, the bill was taken for confessed, and a decree entered, that the defendants be forever barred of all claim to the premises in controversy, and that the complainants’ title thereto be fully confirmed and established.

In September, 1842, Ryder and Frost assigned the judgment first recovered against Halderman and Lawrence to Buckmaster and Greathouse; and, in November, 1844, under an execution issued thereon, Buckmaster became the purchaser of that part of block one, included in the mortgage to Sigersons and Harrison, for $550, and afterwards obtained a Sheriff’s deed therefor. In May, 1847, the State Bank of Illinois assigned and transferred to Simeon Ryder the notes and mortgage executed to it by Sigersons and Harrison. Ryder had actual notice of the sale to Buckmaster, when he received the assignment of the mortgage; and Buckmaster was well aware of the decree rendered in favor of Sigersons and Harrison, when ho received the assignment of the judgment.

In January, 1S48, Ryder, as the assignee of the Bank, filed this bill in Chancery against Buckmaster and others, to forclose the mortgage executed by Sigersons and Harrison. The foregoing state of facts appeared from the pleadings and proofs in the case. On the hearing, the Court made a decree, providing for the foreclosure of the mortgage, and directing, in case of default in the payment of the amount found to be due on the mortgage, that Buckmaster be enjoined from asserting any claim to the mortgaged premises, by virtue of the purchase under the assigned judgment. To reverse that decree, Buckmaster has prosecuted an appeal to this Court.

The correctness of the decision made by the Court below, must depend upon the effect to be given to the decree rendered in 1841, in the case of Sigersons and Harrison against Halderman and others. If that decree was binding on Ryder and Frost, who were then the owners of the judgment, it must be held to have the same effect against Buckmaster, who subsequently received an assignment of the judgment, with express notice of the decree. Under such circumstances, he could succeed to no greater rights than Ryder and Frost had as judgment creditors. If the decree operated to discharge the lien of the judgment on the premises now in controversy, the lien could not be revived by a transfer of the judgment to a party fully aware of the previous proceedings. The sole purpose of that suit was to quiet and confirm the title of Sigersons and Harrison to the premises in question. It was peculiarly a matter of equitable cognizance. All of the parties interested in the property, except the State Bank of Illinois, were made defendants. The object of the proceeding was clearly set forth in the bill. The complainants claimed to hold the premises, free from all liens of the other judgment creditors of Halderman. The validity of their liens, as against the complainants, was directly drawn in question by the allegations of the bill. The defendants were fully apprised of the grounds on which the complainants relied, and were distinctly called on to meet and controvert their exclusive claim to the property. They were regularly brought before the Court, and an opportunity afforded them to set up and insist upon their rights. The Court thus acquired full jurisdiction of the subject matter of the suit, and of the persons of the parties; and it proceeded to enter a decree affirming the title of the complainants to the premises. The decree was undoubtedly erroneous as to Ryder and Frost, and, in a direct proceeding for the purpose, might have been reversed. But, it by no means follows, that it can be declared invalid in this collateral proceeding. The only inquiry now is, had the Court pronouncing the decree authority to adjudicate upon the rights of the parties in respect of the property ; not whether its decision was in accordance with the principles of equity. If the Court had such authority, and proceeded to exercise it, the decree, however inequitable or erroneous, must be held binding when drawn in question collaterally. This is an inflexible rule of the law, which has been repeatedly recognized by this Court. Buckmaster v. Carlin, 3 Scammon, 104; Swiggart v. Harber, 4 ibid, 364; Rigg v. Cook, 4 Gilman, 336; Young v. Lorain, 11 Illinois, 624.

There can be no doubt of the validity of the decree. It is conclusive on the parties, while it remains in force. Its errors can only be inquired into and corrected, in a direct proceeding instituted for the purpose. The complainants were entitled to the full benefit of the decree. The confirmation of their title, inured to the benefit of the State Bank of Illinois, to which they had previously mortgaged the property with covenants of title. The proceeding was not adverse to the Bank, but in furtherance of its interests. Although the Bank was a proper party, yet the fact that it was not made one, did not defeat the jurisdiction of the Court, nor prevent the decree from inuring to its benefit. From the rendition of the decree, the Bank held the premises discharged of the liens of the judgment creditors. It transferred all of its interests to the complainant in the present suit. He thereby succeeded to all of the rights derived by Sigersons and Harrison by the purchase at the Sheriff’s sale, and by the decree establishing their title under that purchase. Buckmaster acquired no title by his purchase under the judgment, because the lien of the judgment, as respects this property, was previously divested by the decree. There is no force in the position, that Ryder is estopped by the assignment of the judgment from asserting title against a purchaser under it. He did not, either expressly or by implication, covenant that the judgment was a subsisting lien on this particular property. He simply transferred whatever interest he then had as a judgment creditor. The decree already exempted this property from the operation of the judgment, but, in all other respects, it left the judgment in lull force against Halderman and Lawrence.

The decree of the Circuit Court is affirmed, with costs.

Decree Affirmed.


source: Caselaw Access Project

author: Caton, J.

license: Public Domain

text:
    Aaron Ray, Pltff in Error, v. Kinsey Virgin, Deft in Error.
    ERROR TO MASON.
    In an action on a note given for goods bought at an administrator’s side, the purchaser may show, in defence to the note, that the administrator, knowing the contrary, fraudulently represented the goods to be sound.
    The defendant, Kinsey Virgin, was administrator of an estate. At the sale of the personal property of said estate by said Virgin, the plaintiff in error bought two horses, and gave the note sued on. The suit was brought before a justice of the.peace, and a judgment rendered against Ray for the amount of the note, and he took an appeal to the Circuit Court.
    Upon the trial in that Court, the defendant below, proved that the sale of said horses was made by Ray in person, at a public, auction. That he represented, that said horses were sound and free from all diseases, except the horse distemper; when in truth, said horses had the glanders and were of no value whatever, and this was known to the administrator when he made those representations, and therefore, that the note was given without any consideration, and was procured by the fraud of said Virgin.
    All this testimony was rejected by the Judge of the Circuit Court, upon the ground, that the false and fraudulent statements of the administrator, whereby he obtained this note for the use of the estate, were not admissible to prove that the note was without consideration; and the only remedy the maker of the note has in such a case is, to pay the note to the estate, and sue the administrator in his own right, and make him personally liable for the consequences of his fraud. The jury in the Circuit Court then gave a verdict for the amount of the note, and a judgment was rendered thereon. To reverse this judgment, this ease is brought here, and the error assigned is the refusal of the Circuit Court to permit said evidence to go to the jury.
    M. McConnel, for Pltff in Error, submitted this cause to the Court ex parte.

   Caton, J.

The only question in this case is, whether a party who has given a note for goods purchased at an administrator’s sale, may show in his defence to the note, that the administrator fraudulently represented the goods to be sound, when he knew them to be unsound. This precise question was decided in the case of Rice v. Richardson, 3 Alabama, 438, where such a defence was held to be admissible. Of the correctness of that decision I entertain no doubt. It is sustained by every principle of reason, of justice, and of public policy. It would never do to allow administrators, and other fiduciary officers, to exert their ingenuity in perpetrating frauds, and by that means obtain the notes of individuals, and then allow them to say that they had committed the fraud, not for their own benefit, but for that of the estate. Such an end cannot sanctify such means. There is no merit in the estate to authorize the enforcement of a demand thus obtained, more than there would be, had the fraud been committed by, and the note given to, the intestate. It is not making the estate responsible for the fraud of the administrator, for it loses nothing as a penalty for that fraud, which originally belonged to it, but it is preventing the collection of a claim to which the estate has no just right. The contract is executory, and being founded in fraud, cannot he enforced. Had the contract been executed, it might be impracticable to allow the money received to be recovered back, and the injured party would have to seek redress against the administrator personally. But' the rule must be different where the contract is executory.

To put an extreme case, yet one precisely within the rule contended for by the administrator. Let an administrator take a quantity of saw-dust, found on the estate of his intestate, and put it up in chests, marked as a genuine article of tea imported from China, throw it into the market and sell it at auction for tea, as a part of the assets in bis hands, for ten thousand dollars, and take notes for the amount, could the administrator be allowed to collect those notes? In that case it would he hut poor consolation to the victims, while making them pay their notes, to satisfy the debts of others against an insolvent estate, to tell them that they may sue an irresponsible administrator, and make him answer personally for the fraud. Had this note been given to the intestate, under the same circumstances, no one would deny the admissibility of the defence, yet there would be just as much merit in the claim then as now. The law cannot sanction a fraud by enforcing a contract impregnated with it.

If the administrator makes representations which he knows to be untrue, for the purpose of deceiving the purchaser, who is thereby deceived, without that degree of negligence on his part, which will throw the responsibility of the deception upon himself, wc hold that he may show that fraud in defence to the note. This does not dispense with the application of the rule, caveq| emptor, to such sales. I know of no case where that rule has ever been so applied as to excuse a fraud. The utmost vigilance may often be unable to guard against the practices of the fraudulent. As has been repeatedly decided by this Court, in the absence of fraud, the purchaser at such sales must not only look out for the title, but for the quality of the article which he purchases. Nor can the administrator bind the estate, by a warranty of either. If he assumes to do so, he would be personally responsible upon such warranty. This is carrying the doctrine of risk to the purchaser and immunity to the estate far enough. To go farther, and sanction the practice of a fraud, would tend to drive all prudent men from such sales, which would prove a serious detriment to estates. The evidence should have been admitted. The judgment is reversed and the cause remanded.

Judgment reversed.


text:
    Ira Stout, Pltff in Error, v. Edson Whitney, Deft in Error.

    ERROR TO ADAMS. .
    On demurrer to a declaration reciting a written contract and the circumstances under which it was made, the writing must be construed in the light presented by the declaration. The defendant cannot demur, and then suggest that other circumstances may exist, which, if true, would show that the parties intended ,to express a different meaning.
    In the construction to he given to written instruments, the intention of the parties must govern; and each part of the instrument must be viewed in the light of the other parts, in order to arrive at that intention.
    If demurrers are filed to each of several counts in a declaration, assigning different breaches of a contract, if there is one good assignment in a count, the demurrer must be overruled.
    This was an action of covenant brought on an agreement between the parties, which will be found in the following count, which was the fourth of the declaration. Demurrers were filed to each of the counts to which there was a joinder, and the Circuit Court of Adams County, Miushall, Judge, presiding, sustained the demurrers, whereupon the plaintiff in the Court below sued out this writ of error. The judgment in the Circuit Court was rendered at October term, 1850.
    And also for that, Whereas before the making of the articles of agreement hereinafter mentioned, to wit: on the 20th day of March, A. D. 1848, the said plaintiff of the one part, and the said defendant of the other part, made their certain other articles of agreement, under their respective hands and seals of that date, in substance as follows, to wit: Articles of agreement mad e and entered into this 20th day of March, 1848, between Ira Stout of the one part, and Edson Whitney of the other part, both of Hancock county, III. witnesseth, that the said Stout and Whitney have agreed and entered into the following arrangements in regard to carrying on their mercantile business in the town of Lima, Adams county, 111. to wit: The said Stout agrees to furnish a quantity of goods and groceries, &c., &c., to the said Whitney, in the town of Lima, all to his own expense, account, and usage, and pay the rent of the store room rented of Ketcham, also furnish said Whitney from time to time such goods as most suitable for sale, said Whitney on his part has to give his personal services to the establishment, manage, sell, and take good care of said goods, all to his own expense and discretion, and on the sale of said goods, the profits arising therefrom is to be equally divided between the parties. The said Whitney agrees to return to the said Stout ail the goods which are not sold at the expiration or close of this contract. It is agreed by the parties, that if any dissatisfaction should arise between the parties, either may withdraw on reasonable and proper terms, to be decided by three disinterested persons. It is agreed, that whatever articles the said Whitney may use for his own family, are to be charged at cost. The said Whitney agrees to take good care of said goods in every possible manner, but is not responsible for any unavoidable accidents to said goods. Neither of the ¡parties are to make use of the other’s name without their written consent. The terms of this agreement shall cease, and be at an end, at the expiration of one year from this date; which said articles of agreement were in full force, from the time of the making thereof, until the time of the making the said articles of agreement hereinafter mentioned, and are the same articles of agreement mentioned, in said articles of agreement hereinafter mentioned. And also for that, whereas, the said plaintiff at the time of the making the said articles of agreement, hereinafter set out, and for a long space of time thereafter, to wit: For the space of three months thereafter, was engaged in the mercantile business, and had a store near Stimpson’s Mill, in the county of Hancock, in said State. And also for that, whereas the said plaintiff, after the making of the said articles of agreement hereinbefore set out, and under, and in pursuance thereof, and before the making of the said articles of agreement hereinafter mentioned, furnished, and delivered to the said defendant, a certain lot of goods of the said plaintiff, out of his, the said plaintiff’s said store, to be disposed of, and accounted for, by the said defendant, according to the effect, true intent, and meaning of the said articles of agreement hereinbefore set out, and also furnished, and rendered to the said defendant, a bill of the same; which said lot of goods was the first lot of goods furnished, and delivered by the said plaintiff, to the said defendant, under and in pursuance of the said articles of agreement herein before set out, and are the same goods mentioned, in the said articles of agreement hereinafter mentioned, as having been furnished by the said Stout, out of. the former store near Stimpson’s Mill. And also for that, whereas, the said plaintiff after the making of the said articles of agreement hereinbefore sot out, and under, and in pursuance thereof, and also after the said lot of goods above mentioned, were furnished and delivered to the said defendant, as herein before stated, and before the making of the said articles of agreement hereinafter mentioned, purchased at his own proper cost and charges, divers and sundry goods in the city of St. Louis, for the said Lima store, which said goods last mentioned were, before the making of the said articles of agreement hereinafter mentioned, furnished and delivered to the said defendant, for the said Lima store, and are the same goods mentioned in the said articles of agreement hereinafter mentioned, as having been purchased in St. Louis, for the said Lima store, before the making of the said articles of agreement hereinafter mentioned, to be there disposed of and accounted for, by the said defendant, according to the effect, true intent, and meaning af the said articles of agreement herein before set oat. And also for that, Whereas, at the time of the making of the said articles of agreement hereinafter mentioned, divers and sundry of the said goods had been sold, by the said defendant, on credit, for which the said defendant, at the time of the making of the said articles of agreement hereinafter mentioned, held diverse and sundry hook accounts, notes, and claims on and against the purchasers thereof, which said notes, book accounts, and claims, are the same hook accounts, notes, and dues, mentioned in said articles of agreement, hereinafter mentioned, as having been contracted on account of said goods, or store in Lima. And also for that, whereas, at the time of the making of the said articles of agreement herein after mentioned, divers and sundry of the goods, herein before mentioned as having been furnished and delivered by the said plaintiff to the said defendant, remained unsold, and were then in the said store at Lima, which said goods so remaining unsold as above stated, and the same goods mentioned in the said articles of agreement hereinafter mentioned, as goods then, to wit: at tho time of the making of the said articles of agreement hereinafter mentioned, on hand, and the said plaintiff and the said defendant being so situated as hereinbefore stated, and shown with respect to each other, and with respect to the aforesaid matters and things heretofore, to wit, on the 18th day of December, A. D. 1818, to wit, at the said county of Adams, made and concluded their certain other articles of agreement of that date, sealed with their seals respectively, and now to the Court here shewn, in the words and figures following, to wit, whereas, that an article of an agreement is now existing between Ira Stout of St. Louis, of Missouri, and of Edson Whitney, of Adams county, Illinois, concerning the sale of goods in Lima, Illinois, wherein said Stout has furnished said Whitney, various kinds of goods, and said Stout, being desirous of selling to said Whitney all the goods now on hand, including all book accounts, notes, and all dues duo the concern, of every nature, contracted on account of said goods or store in Lima, have this day bargained and sold, and by these presents sell to said Whitney on the following terms, to wit, the said Whitney is to have the first" ■ lot of goods, furnished by said Stout, out of his former store near Stimpson’s Mill, at cost, after making reasonable deductions on articles overcharged in hill rendered, and on all goods laid in and purchased in St. Louis for the said Lima store, the said Whitney agrees to pay the said Stout the original cost and five per cent, on each dollar so purchased; the said Stout agrees to take in payment of said goods all kinds of merchantable produce delivered at Quincy or Warsaw at the market prices of said places, where such produce may be delivered as aforesaid, such as corn, wheat, oats, barley, dried hides, beeswax, bacon, lard, * furs and peltries. The said Stout agrees to furnish a good corn-sheller and sacks to put grain in, and pay all charges of storage, and whenever any such articles are delivered and stored, the said Stout agrees to run all risks, accidents or fall in prices; the prices is to be regulated according to the date delivered, the said Whitney agrees to deliver to the place or places aforesaid, all such articles of produce aforesaid as he can conveniently on or before the first day of June next; and on a final settlement of all just dues and demands now existing between the said Stout and the said Whitney, the said Stout agrees to give the said Whitney twelve months from the first day of March next, with six per cent, interest on the latter payment; the said Whitney agrees to pay four promissory notes signed by said Whitney as security for said Stout, amounting to three hundred and thirty four dollars and ninety-nine cents, given on account of judgment rendered in the Circuit Court of Hancock county, by arbitration, which sum is considered as part payment in consideration of said goods, said j ndgment was rendered in favor of Chester Stimpson, and against said Ira Stout.
    In testimony whereof, the said Ira Stout and Edson Whitney have hereunto set their hands and seal this 18th day of December, A. D. 1848.

      Attest, Daniel Ketchum. Iea Stout, [/SfeaZ.]
    Edson Whitney, ¡Weal]
    And the said plaintiff avers, that the cost of the aforesaid first lot of goods furnished by the said plaintiff to the said defendant, out of his, the said plaintiff’s, said former store near Stimpson’s Mill, amounted to a large sum of money, to wit: the sum of three thousand dollars, after making reasonable deductions on articles overcharged in bill rendered; and the said plaintiff further avers, that the said goods, laid in and purchased in St. Louis for the said Lima store, originally cost in St. Louis, a large sum of money, to wit: the sum of seven thousand dollars; and that five per cent, on each dollar of the said cost of the same amounted to a large sum of money, to wit: the sum of three hundred and fifty dollars; and so the said plaintiff says that the price covenanted to be paid by the said defendant to the said plaintiff, in and by the said last mentioned articles of agreement, for the goods, book accounts, notes and dues thereby sold by the said plaintiff to the said defendant, amounted to a large sum of money, to wit: the sum of ten thousand three hundred and fifty dollars, to wit: at the county of Adams aforesaid.
    And the said plaintiff further avers, that the said prices of the said goods, book accounts, notes and dues, last above mentioned, amounted to a large sum of money, to wit: the sum of ten thousand dollars, after deducting therefrom the amount of the said four promissory notes in the last mentioned articles of agreement mentioned, to wit: at the said county of Adams.
    And the said plaintiff avers, that he hath ever been ready and willing to perform and fulfill, and that he hath well and truly performed and fulfilled all and singular the covenants and agreements in the said articles of agreement last hereinbefore mentioned, contained on his part and behalf to be done and performed according to the effect, true intent and meaning thereof.
    Yet the said plaintiff in fact says, that the said defendant hath; not paid the residue of the said price of the said goods, book * accounts, notes and dues sold by the said plaintiff to the said defendant, by the said last mentioned articles of agreement, which remains after deducting from the said price, the amount of the said four promissory notes; and that he hath not delivered to the said plaintiff, either at said Quincy or Warsaw, any merchantable produce in payment thereof, although the time for the payment of the same hath long since elapsed.
    And for assigning a further breach in this behalf, the said plaintiff further avers, that the said price of the said goods, book accounts, notes and dues, sold by the said plaintiff to the said defendant, by the said last mentioned articles of agreement, after deducting therefrom the amount of the said four promissory notes, in the said last mentioned articles of agreement mentioned, ■and all just debts and demands in favor of the said defendant, and against the said plaintiff, existing at the time of the making of the said last mentioned articles of agreement, amounted to a large sum of money, to wit: the sum of ten thousand dollars. Yet the said plaintiff in fact says, that the said defendant hath not paid the residue of the said price of the said goods, book accounts, notes and dues, sold by the said plaintiff to the said defendant, by the said last mentioned articles of agreement, which remains after deducting therefrom the amount of the said four promissory notes, in the said last mentioned articles of agreement mentioned, and all just dues and demands in favor of the said defendant and against the said plaintiff, existing at the time of making the said last mentioned articles of agreement, and the said defendant hath not, since the making of the said last mentioned articles of agreement, hitherto delivered to the said plaintiff, either at said Quincy or Warsaw, or elsewhere, any merchantable produce in payment of the said residue, although the said residue long since became due and payable, to wit: at the said county of Adams.
    And the said plaintiff, for assigning a further breach in this behalf, further says, that the said defendant, before the making of the said articles of agreement in the introductory part of this count mentioned, to wit: at the said county of Adams, was justly indebted to the said plaintiff in the sum of five hundred dollars, for other goods before that time bargained and sold by the plaintiff, to the defendant at his request, and for other goods before that time sold and delivered by the plaintiff, to the defendant at his request; and for money, by the said plaintiff before that time, lent and advanced to, and paid, laid out, and expended for the said defendant at his like request; and for money before that time had and received, by the said defendant, to and for the use of the said plaintiff, and the said plaintiff further avers, that the said indebtedness continued and was a just demand from the said defendant to the said plaintiff, existing at the time of the making of the said articles of agreement last hereinbefore set out, to wit: at the said county of Adams. And the said plaintiff further avers, that the said indebtedness last above mentioned, together with the said price of said goods, book accounts, notes and dues, sold by the said plaintiff to the said defendant, by the said last mentioned articles of agreement, after deducting from the said price the amount of the said four promissory notes, in the said last mentioned articles of agreement mentioned, amounted to a large sum of money, to wit: the sum of ten thousand dollars, after deducting therefrom all just dues and demands in favor of the said defendant and against the said plaintiff, existing at the time of the making of the said last mentioned articles of agreement, to wit: at the said county of Adams,
    Yet the said plaintiff in fact says, that the said defendant hath not paid the said residue of the said indebtedness above named, and the said price of the said goods, book accounts, notes and dues,.sold by the said plaintiff to the said defendant, by the said last mentioned articles of agreement, which remains after deducting therefrom the amount of the said four promissory notes, in the said last mentioned articles of agreement mentioned, and all just dues and demands in favor of the said defendant and against the said plaintiff, existing at the time of the making of the said last mentioned articles of agreement, and that the said defendant hath not delivered to the said plaintiff, either at .said Quincjr or Warsaw, or elsewhere, any merchantable produce in payment thereof, although the time for the payment -of the same hath long since elapsed, to wit: at the said county of Adams.
    And for a further breach in this behalf, the said plaintiff further avers, that before the making of the said articles of agreement, in the introductory part of this .count mentioned, to wit: on the first day of March, 1848, to wit: at the said county of Adams, the said defendant was justly indebted to the said plaintiff in the sum of five hundred dollars for other goods, before that time, bargained and sold by the said plaintiff to the said defendant at his request: and for other goods before that time sold and delivered by the said plaintiff to the said defendant, at his request; and for money by the said plaintiff, before that time, lent and advanced to, and paid,, laid out, and expended for the said defendant, and at his like request; and for money before that time had and received to and for the use of the said plaintiff; and the said plaintiff further avers that the said indebtedness last above named, existed and was a just demand in favor of the said plaintiff and against the said defendant, at the time of the making of the said articles of agreement last heretofore set out, after deducting all just dues and demands in favor of the said defendant and against the said plaintiff, existing at the time of the making of the said last mentioned articles of agreement. Yet the said plaintiff in fact says, that the said defendant hath not paid the said indebtedness last above named, as by the said last mentioned articles of agreement he covenanted to do, although the time for the payment of the same hath long since elapsed, to wit: at the said county of Adams. And so the said plaintiff saith that the said defendant hath not kept with him the covenants so made between them as aforesaid, in the said several qounts of this declaration, but hath broken the same, and to keep the same with the said plaintiff the said defendant hath hitherto wholly refused, and still doth refuse, to the damage of the said plaintiff of ten thousand dollars.
    And therefore he sues, &c.
    A. Wheat, with whom was Warren and Edmunds, made the following points for the Pltff in Error.
    To constitute a partnership as between the parties themselves, it is necessary that there should be a community of property, or joint interest in the capital stock of the business, and a personal responsibility of each party, for the partnership engagements. 3 Kent’s Com., 24; Waugh v. Carroll et al., 2 H. Blackstone, 246.
    The agreement between the parties, of the 20th of March, 1848, did not create a partnership. Hosketh v. Blanchard et al., exrs of Blanchard, 4 East, 143; Rice v. Austin, 17 Mass., 197: Bailey v. Clark, 6 Pick., 372; Heran v. Hall, 1 B. Monroe, 159; Loomis v. Marshall et al., 12 Conn., 69.
    But if it did, this action would nevertheless lie. Glover v. Tuck et al., 24 Wend., 158; Lyon v. Malone, 4 Porter, 497; Gibson v. Moore, 6 N. H., 550; Duncan v. Lyon, 3 John. Ch., 362; Rockwell v. Wilder, 4 Met., 562; Rogers et al.. Ex., &c., v. Rogers, 1 Hall, 393; Frink et al., v. Ryan, 3 Scam., 322.
    The covenant by plaintiff in the agreement of the 18th of December, 1848, to furnish sacks and a corn sheller, was not a condition precedent. Bennett v. Executors of Pixley, 7 John., 249; Tompkins v. Elliott, 5 Wend., 496; McKee v. Ruth et al., 5 Gil., 315; 1 Ch. Pl., 320, 323. Nor was the covenant to settle. Frink et al., v. Ryan, 3 Scam., 322; Baits v. Peters, 9 Wheaton, 556. As to averments and assignment of breaches, see Potter v. Bacon, 2 Wend., 583; 1 Ch. Pl., 332, 370, 375, 664; Com. Dig. Pleader C., 45-6.
    Browning & Bushnell and Williams & Lawrence, for Deft in Error.
   Caton, J.

With, the view we are disposed to take of this case, it is a matter of no moment whether the parties were partners prior to the execution of the agreement of the 18th of December, 1848, or not. Whatever else may be said of that agreement, we think it clear that the partnership, admitting that one had existed, was by that agreement dissolved, and the interest of Stout in the assets of the concern, were transferred to Whitney. That agreement is far from being skilfully drawn, and objections may be raised to any construction which may be given t. This is another of the thousand instances, which are constantly occurring, where the parties, during a negotiation, probably arrive at a perfect understanding, and then, when they come to reduce their agreement to writing, only express some of the leading features of their understanding, and those only in an imperfect and inconsistant manner, not reflecting that others igno- ■ rant of the detail of the matters about which they are negotiating, would have difficulty in perceiving what, to their own minds, was ■ perfectly apparent. In such cases something must necessarily be intended, but above all it is indispensably necessary, in order • to arrive at their meaning, that we should place ourselves as far as possible in the position of the parties, when they made the contract, by possessing ourselves of the circumstances which they had in their view during the negotiation. When, as in this case,., the construction is to be given to the instrument, as it appears in the declaration, we must look .alone to those circumstances, as there recited or averred, for assistance in arriving at the meaning of the instrument. If those circumstances are improperly or imperfectly stated in the declaration, the other party cannot demur, and then suggest, that other circumstances may exist, which if true, would show that the parties had something else in view, and meant to express a different meaning from that which would be understood, in view of the facts stated in the declaration. It is for the defendant to show the existence of those circumstances, in contemplation of which, the parties made the contract, and which might serve to show what they meant. Here the question being raised by a demurrer, the contract must now be construed in the light presented in this declaration.

■ According to the declaration, the circumstances in view of, and about which, this contract was made, are, that in the March previous, the parties had,—if you please,—entered into partnership, by the terms of which, the plaintiff was to furnish a store and a stock of goods, and the defendant was to sell the goods, and that the profits should be equally divided between them. In pursuance of that agreement the plaintiff furnished goods, some from his store near Stimpson’s Mills, and others purchased and forwarded from St. Louis. A portion of these goods had been sold by the defendant, for which, various notes, book accounts and demands were due the concern, and a remnant of the goods still remained unsold. Previous to the time when the contract was made, the defendant had become security with the plaintiff on certain notes which were yet unpaid. In view of these circumstances, the contract was made. And now, what was the character of that contract, and what its object ? Beyond all doubt, it was a contract of bargain and sale ; and if we can ascertain what was intended to be sold, what the measure of compensation, and how payment was to be made, we shall then have arrived at the intention of the parties.

This contract, in its recital, after alluding to the existence of the original agreement, states that Stout had furnished to Whitney various kinds of goods, and that Stout was “ desirous of selling to Whitney all the goods now on hand including all book accounts, notes, and all dues due the concern, of every nature and character, on account of said 'goods or store in Lima; have this day bargained and sold, and do by these presents sell to said Whitney on the following terms, to wit, &c.” Now what was sold, the granting part of the contract does not state, and yet we cannot doubt that Stout intended to sell what is attempted to be described in the previous recital. In that recital it is manifest that the parties did not understand the value and meaning of some of the words used, and but for the explanation which they have given, we should never have thought that the parties understood, that the word goods included choses in action. This very sentence shows how unsafe it would be to adhere to the literal meaning of the words of the contract, in order to ascertain the intentions of the parties, when it is manifest they did not understand the true value of the words they used. We must as far as possible, make the parties their own interpreters, and allow one part of the contract to explain another part, as far as possible. Here, by the subsequent words, we see the parties have attempted to explain what they meant by the use of the word goods, and yet I think it subsequently appears, that they were equally ignorant of the meaning of the words used in explanation. It was doubtless the intention of the parties to express in this recital the subject matter of the sale, but they have failed in doing so. I am of opinion that they intended to embrace in this sale, not only all of Stout’s present interest in all of the assets of the concern, but also all interest which he ever had in the goods or their proceeds. That they intended to place themselves and their relative rights and liabilities, in precisely the same condition that they then would have been in, had no partnership or mutual interests ever existed. That they intended to occupy the same position which they would have occupied, had Whitney originally purchased the goods of Stout. That they intended by the new contract to 'supercede the partnership arrangement—to set aside all that had been done under it, and to create new rights and liabilities, precisely of the character which would then have existed, had a contract of sale been made of the goods at the time they were delivered, with the amount to be paid for them, and mode of payment, precisely as is stipulated in this contract. This I think is manifest from what immediately succeeds the part above quoted, which is as follows: “The said Whitney is to have the first lot of goods furnished by said Stout out of his former store near Stimpson’s Mill, at cost, after making reasonable deduction on articles over charged in bill rendered; and on all goods laid in and purchased in St. Louis for said Lima store. And said Whitney agrees to pay said Stout the original cost, and five per cent, on each dollar so purchased.” How this, while it serves to fix the measure of compensation, to be paid for the purchase, also serves to show, more satifactorily than any other part of the contract, the nature of the transaction, and the character and extent of the sale. They say Whitney is to have the first lot of goods furnished from Stout’s store, on certain terms, and the goods purchased in St. Louis on certain other terms. It is true that he could not presently have those goods, for he had already had those goods, many of them had been disposed of, but still the mode of expression is not very inaccurate, and certainly not very uncommon, for the purpose of changing the terms of a transaction, which had originally been settled upon differently, or for the purpose of fixing the terms of a transaction, which had not previously been defined. Thus if one party furnishes goods to another, either with or without specified terms, when they subsequently come to negotiate and settle, nothing is more common than for the party to say, you shall have the first lot of goods on such terms, or for so much less than I agreed to take, and the second lot, for which no price was fixed, you shall have for so much. In the first instance, if the proposition were agreed to, it would supercede the original contract and create new rights and liabilities, growing out of the original transaction, precisely as was done in this case, and those rights and liabilities would, be determined precisely as if no original contract had ever been made, and would depend entirely upon the new agreement. Such must have been the intention of the parties here. The whole agreement must be taken together, in order to arrive at the intention of the parties. The expressions of one part must be taken in connection with those of another.

Then follows a provision in relation to the mode of payment, which, as no question is raised upon it, need not be particularly examined. A difficulty was however suggested, growing out of a subsequent clause providing for a postponement of a part of the payment. It is this: “and on a final settlement of all just dues and demands now existing between the said Stout and the said Whitney, the said Stout agrees to give the said Whitney twelve months from the first day of March next, with six per cent, interest on the latter payment.” It is true, as was urged, that this contemplates a future settlement, but it does not follow that that was to be a settlement of the partnership transactions, as they had originally existed. It does not follow because the parties did not account together and strike a balance, that they did not dissolve the partnership in such a way as to super-cede the necessity of taking an account of the profits and losses of the concern. The manifest object of the agreement was to avoid the necessity of such an accounting and to establish a new basis upon which their transactions were to be settled. Upon the basis thus established, a court of law is perfectly competent to determine the rights of the parties; as much so as if there had never been a community of interests in the business. The expression: “ All just dues and demands” is broad enough to include individual dealings, if any such had previously existed, as well as the rights created by the contract, and growing out of their mutual dealings. It is unnecessary to inquire what was meant by “ The latter payment,” because the twelve months had expired before this action was commenced.

Following the clause last quoted, is the provision that Whitney should pay the three notes, on which he was security for -Stout, and then, it is provided as follows: Which sum is considered as part payment in consideration of .said goods.” This provision is in harmony with the view already expressed, that it was the intention of the parties to make Whitney occupy the position of an original purchaser of the goods.

It is to no purpose to suggest, that Whitney may have remitted to Stout, a part of the proceeds of the goods sold, and then object that no provision is made for such a state of case. Mo .such fact is shown to exist. If it did, and that would in any wis e vary the construction of the instruments, it is for the party claiming a benefit from it to show it, But if such remittances were .shown, we do not think it would change our construction of the contract. If we are correct in the view that it was the intention of the parties to make Whitney occupy the position of an original purchaser of the goods, and that the rights and liabilities of the parties are to be determined upon that basis, then of course Whitney would have to be credited with such remittances as so much purchase money paid.

Although the construction which we give to the contract may perhaps differ somewhat, from that given in the first, second and fourth counts of the declaration, yet the difference is not of such .a character as to affect the validity of the declaration. Objections were made to some of the assignments of breaches, but as the demurrers are to each count entire, if there is one good assignment in the count, the demurrer must be overruled It may be proper to refer to one of the assignments, to which particular objection was made. In that assignment it is stated, that the defendant was, previous to the formation of the partnership, indebted to the plaintiff for goods sold, money lent, &c., which he had refused to pay, as by the covenant, he had agreed to do. This we think is a misapprehension of the covenant. The only clause of the contract, upon which any reliance can be placed to support this assignment, is the one last quoted. That clause, however, does not obligate the defendant to pay those old debts, but it postpones the right of the plaintiff, to demand the payment of those demands till March, 1850. It was inserted for the benefit of the defendant and not of the plaintiff.

The third count was abandoned on the argument, and it is unnecessary to examine it. To the other three counts the demurrer was improperly overruled.

The Judgment is reversed and the cause remanded, with leave to the defendant to plead to the merits.

Judgment reversed*


author: Treat, C. J.

text:
    Nicholas A. Garland, Pltff in Error, v. Isaac S. Britton, Deft in Error.
    ERROR TO SANGAMON.
    All process issuing from the Circuit Court, must he sealed with the judicial seal thereof, if there is any. If there is no seal, the clerk must affix his private seal, and certify that no public seal has been provided.
    The service of an unsealed writ is without vitality, and unless the defendant appears, a decree or judgment is unauthorized.
    This was a bill filed to foreclose a mortgage. The process served, was not attested by any seal. At the return term, the bill was taken for confessed, and a decree was entered by Treat, Justice, at November term, 1847. The plaintiff in error now seeks to reverse the judgment of the Circuit Court, and assigns for error, the want of a seal to the summons.
    Stuart and Edwards for'Pltff in Error.
    S. T. Logan for Deft in Error.
   Treat, C. J.

This was a suit in chancery to foreclose a mortgage. " The summons issued and served on the defendant, was not under the seal of the Court. The bill was taken for confessed, and a decree of foreclosure entered. The defendant sued out a writ of error. The statute declares that “ all process issuing from the said Circuit Courts, shall be sealed with the judicial seal which shall be provided for that purpose; but in case there shall not be a judicial seal, the clerk shall affix his private seal until a public one shall be provided.” R. S. ch. 29, §40. This statute is imperative- in its requirements. If a court has a judicial seal, it must be affixed to all of its process; if it has not, the clerk must use his private seal, but he ought in such case to certify that no public seal has been provided, for the presumption is that every court has a seal. The writ in this case did not purport to be under the seal of the court, nor the private S'al of the clerk. It was, therefore, without vitality, and the service of the same was .without effect. The defendant not being before the court, by the service of process, or by appearing in the case, the decree was unauthorised, and must be reversed. See Hannum v. Thompson, 1 Scammon, 238; and Anglin v. Nott, ibid, 395.

. Decree reversed.


text:
    Henry McHenry, Pltff in Error, v. Thomas Watkins, Deft in Error.
    ERROR TO CASS.
    It is error, to overrule a motion to quash an execution issued, after the judgment on which it is based is satisfied.
    This was a proceeding by motion in the Cass Circuit Court, to set aside an execution issued upon a judgment in favor of Watkins, against McHenry and another, upon the ground that the judgment upon which the execution had been issued was satisfied. The record shows that a notice of the proposed motion to quash had been given, and an order to stay proceedings upon the execution, under the provision of section 4.6, of chapter 83, of the Revised Statutes, was granted by the Circuit Judge.
    The motion came on for hearing at November term, 1850, before Minshall, Judge, who denied the sam
    Lincoln & Herndon, for Pltff m Error
    Wm. Thomas, for Deft m Error.
   Treat, C. J.

On the 20th of May, 1845 Watkins recovered a judgment against McHenry and Perxapile, for §462 64. On the 18th of May, 1846, by virtue of an execution issued on this judgment, the sheriff sold to Watkins several tracts of land as the property of McHenry, for the aggregate amount of $350. On the 1st of March, 1847, Perkapile paid Watkins, on account of the judgment, $270 25. At the October term, 1848, Watkins entered a motion to set aside the sale of two of the tracts of land, which were bid off for the sum of $75 each, on the ground that McHenry had no title thereto; which motion the Court sustained in these words: “It is ordered, that the sale of said lands be set aside and held for naught, and that plaintiff have execution upon his judgment for the amount for which said lands were sold.” On the 26th of February, 1849, an execution issued on the judgment, on which the clerk endorsed as credits, $200 made by the sale of land, and $270 25 paid by Perkapile. The sheriff returned this execution satisfied in full. On the 9th of July, 1849, another execution issued, on which the clerk directed the sheriff to collect the sum of $150, and interest from the 18th of May, 1846. At the October term, 1849, McHenry entered a motion to quash this execution. During the same term, the sheriff, by leave of the Court, so amended his return on the execution of the 26th of February, 1849, as to show the receipt of $68 47, which sum he and McHenry at the time supposed to be the true amount due on the judgment. At the succeeding term, the Court overruled the motion made by McHenry to quash the execution; and that decision is assigned for error.

The Court erred in refusing to quash the execution. The judgment was fully satisfied by the payment made on the previous execution. The clerk seems to have construed the order of the Court setting aside the sale of the two tracts of land, as a specific direction that the plaintiff should have execution for $150. The order was not intended to have that effect. Allowing the sale of the two tracts to stand, the judgment was already overpaid; vacating the sale as to them, the amount actually due on the judgment was collected on the execution of the 26th of February, 1849. The order amounted to but this; that the sale of the two lots of land should be set aside, and the plaintiff should have execution for whatever balance might be due on the judgment, after crediting it with $200, made by the sale of McHenry’s land, to which there was no objection, and the further sum of $270 25, paid by the other judgment debtor This balance having been paid, the issuing of the execution in question was irregular and unauthorized.

The judgment of the Circuit Court must be reversed, with costs; and the cause will be remanded, with directions to that Court to quash the execution.

Judgment reversed.


author: Trumbull, J.

text:
    Ahijah Whitecraft, et al, Pltffs in Error, v. Horatio M. Vanderver, Deft in Error.
    ERROR TO CHRISTIAN.
    In an action of debt, brought under the 1st Sect, of the 104 ch. of the R S. for cutting, filling, áre., trees, it is necessary to allege in the declaration that the trees were felled without having first obtained permission so to do from the owner of the land, and the want of such an averment is fatal even after verdict. In order to make a party liable under this statute, all the facta upon which the statute creates the penalty must be alleged. It is not, however, necessary to allege in tire declarat on that the acts complained of, were done contrary to the form of the statute, provided that it clearly appears from the declai ation that the action is founded on the statute.
    In order to subject a party to tbe penalties of this statute, he must have committed the acts knowingly and wilfully.
    The declaration should also set out and distinguish the different classes to which the trees ielled belong, there being different penalties annexed to the felling of different trees.
    This was an action of debt brought in the Christian Circuit Court, to recover a penalty under the statute for cutting trees. The declaration contains but one count, which is as follows: that they (the defendants) render unto the plaintiff the sum of eleven hundred and sixty-six dollars, which" they owe to and unjustly detain from him;—For that whereas heretofore, to wit, on &c., and from thenceforward continually, until the bringing of this suit, at &c., the said plaintiff was the owmer of certain land (describing it) and that the said defendants, on, &c., and on divers other days and times, before the bringing of the suit, did fell sixty-eight elm trees, sixty-eight elm saplings, &c., &c., which said trees and. saplings theretofore and up to the times of felling the same, as aforesaid, were standing and growing upon the land aforesaid, belonging to the plaintiff) as aforesaid. By reason whereof, and by force of the statute in such case made and provided, an action hath accrued to the said plaintiff, to demand and have of and from the said defendants a large sum of money, to wit, the sum of eleven hundred and sixty-six dollars, above demanded, yet &e., to the damage of the plaintiff of two hundred dollars. To this declaration there was a demurrer and joinder, and a plea of nil debit and issue joined thereon. The declaration was amended, and the cause was submitted to a j ury, and a verdict was found for plaintiff for $476, Davis, Judge, presiding. The cause was tried at a special term in August, 1850.
    Motions for a new trial and arrest of judgment were made and overruled.
    W. J. Ferguson, for Pltff in Error.
    The judgment should have been arrested.
    The declaration does not allege either that the trees were cut vi et armis, or that they were cut without permission of the owner.
    That it was without permission of the owner is a material and essential averment, and its omission is fatal to the declaration.
    It is a general rule of pleading that, in declaring upon a penal statute, the offence must be brought within the1 statute description, and the rule is well settled. The want of the owner’s consent, forms a constituent part of the offence created by the statute. The declaration is fatally defective without the averment, and the omission is not cured by verdict. Little v. Thompson, 2 Greenl., 230; Williams v. Hingham, 4 Pick., 344, 347; Spencer v. Overton, 1 Days, 183.
    In an action upon statute for a penalty, the plaintiff must aver a case which brings the defendant within the act. He must negative the exceptions in the enacting clause, though he throw the burden of proof on the other side, and the omission is not cured by verdict. Spiers v. Parker, 1T. R., 141, Per Mansfield, C. J.; Bigelow v. Johnson, 13 Johns., 429; Morvel v. Fuller, 7 Johns., 403; Saper v. Harvard College; 1 Pick., 178; Drowne v. Stimpson, 2 Mass., 444; Williams v. Hingham, &c.; 4 Pick., 345; Wright v. Bennett, 3 Scam., 259; Whitesides et ux, v. Divers, 4 Scam., 336; Edwards v. Hill, 11 Ill., 24; Daggett v. Connecticut, 4 Conn., 60; Booth v. State, 4 Conn., 67; Leonard v. Bosworth, 4 Conn., 424; Eustis v. Kidder, 26 Maine, 98.

      The declaration does not aver that the offence was committed against the form of the statute.

    In penal actions upon statutes, the declaration must conclude ■“ against the form of the statute,” or contain that allegation in some part of it, and the omission of this averment is not cured by verdict.
    “Whereby, and by force of the statute in such case made and provided an action hath accrued, &c.,” is not sufficient. Fife v. Bonsfield, 51 Com. Law R, 100; Lee v. Clarke, 2 East, 333; Sears v. U. States, 1 Gal., 257; Smith v. U. States, 1 Gal., 261; Nichols v. Squire, 5 Pick., 169; Peabody v. Hayt, 10 Mass., 39; Wells v. Iggulden, 3 Barn. & Cresw., 186; the People v. Bartow, 6 Cowen., 291; Haskell v. Moody, 9 Pick, 162.
    Lincoln & Heendos", for Lefts in Error.
    1. The Statute of this State to ¡orevent trespassing upon and cutting timber is not a purely penal Statute, but a kind of remedial one—at least not penal. 13 Pick., 100; 6 Iredell, 352; 10 Missouri, 781; 1 Blackstone Com., 87 note.
    2. It is not necessary to prove that the defendants vÁlfvlly and maliciously trespassed upon the land and cut the timber. It was a defence once to a certain extent, but that extent was repealed in 1833. Revised Laws, 604, sec. 6, and the repealing clause following sec. 1; 6 Blackford, 258 ; 5 Mass., 341.
    3. It was a joint act; they were tenants in common of the land which they owned, and all were seen cutting upon the land. The acts of one, where a ¡Dre-concert has been proved, is the act of all; Greenleaf’s Evidence, Secs. 108—171; 10 Wendell, 654; 5 Mass., 266.
    4. The plaintiffs urge, -without cause, that there should have been a new trial, and that judgment should have been arrested. 12 Gill & Johnson, 484; 6 Iredell, 352; 13 Pickering, 100; 17 Wendell, 87; 1 Cowen, 584.
   Trumbull, J.

All the facts stated in the declaration may be true, and yet the defendants below have committed no act that would subject them to this action. It is not alleged that they felled the trees without having first obtained permission so to do from the owner of the land, nor even that they did the acts complained of with force and arms, or unlawfully.

The declaration, after setting forth the felling of the trees on the land of the plaintiff, alleges, that “by force of the statute in such case made and provided, an action hath accrued, &c.” There is no statute giving an action of debt in such a case as that stated. The words of the law. E, S. ch. 104, sec. 1, are: “Any person who shall cut, fell, box, bore, or destroy, or carry away any black walnut, black, white, yellow, or red oak, white wood, poplar, wild cherry, blue ash, yellow or black locust, chesnut, coffee or sugar tree, or sapling, standing or growing upon land belonging to any other person or persons, without having first obtained permission so to do, from the owner or owners of such lands, shall forfeit and pay for such tree or sapling, so cut, felled, boxed, bored or destroyed, the sum of eight dollars.” The subsequent part of the same sections prescribes a penalty of three dollars for cutting, &c., trees of anyother description than those before enumerated.

The want of permission from the owner is a necessary ingredient to constitute the offence, and he who would make a party liable under the statute, must allege all the facts upon which the statute creates the penalty. The rule is well settled, that when an action is given by statute which contains an exception in the same clause which gives the right of action, the plaintiff must negative such exception in his declaration, but if there be a subsequent exemption, that is a matter of defence, and the other party must show it to protect himself against the penalty. 1 Ch. Pl. 223; Teel v. Fonda, 4 John., 304.

Here the qualification of the right of action, is contained in the very same section and clause of the statute which gives the right, and should, therefore, have been negatived in the declaration; nor is the defect aided by verdict. It is not like the case of a title defectively set forth; but there is an omission to allege a fact material to the title or right to recover which is in no way connected with, and cannot be implied from any fact that is alleged. In such a case it is error to refuse a motion in arrest of judgment. Little v. Thompson, 2 Greenleaf R. 228; Williams v. Hingham, 4 Pick., 341.

The declaration is also objected to, because it does not allege that the acts complained of, were done contrary to the form of the statute. This particular allegation we deem unnecessary, provided it clearly appears from the declaration that the action is founded on a statute; Cook v. Scott, 1 Gil., 333.

The declaration before us is very general, and although the penalty for cutting part of the trees therein mentioned, is eight dollars, and for cutting others, three dollars per tree, yet in the declaration, a gross sum is claimed for felling he whole, without distinguishing to which class any of the trees belong. Mo advantage can probably be taken of this generality in a motion in arrest of judgment after verdict; but it would certainly be more in accordance with the rules of pleading, for the declaration to show distinctly, that under and by virtue of the statute the defendants had forfeited and become liable to pay eight dollars per tree, for each and every tree felled of certain kinds—naming them—and three dollars for others.

The question of intention or knowledge on the part of the defendants that they were trespassing upon the land of the plaintiff, as necessary to render them liable to this action, was raised in the court below, has been argued here and will probably arise again upon another trial. It beeomes therefore necessary to settle it now. Notwithstanding the statute, a party may still sue in trespass for an inj ury to his timber in the same manner as if the statute had never been enacted.

The object of the statute is to furnish an additional remedy to the owner of the land, and also to punish the wrong doer.

To subject a party to such punishment, he must have committed the wrong knowingly and wilfully, or under such circumstances as show him guilty of criminal negligence. It could never have been the intention of the Legislature to impose a penalty upon a person, who, supposing in good faith that he was cutting upon his own land after having taken reasonable pains to ascertain its boundaries, should, inadvertently and by mistake, cut trees upon the land of another. Cushing v. Dill., 2 Scam., 461; Batchelder v. Kelly, 10 N. H. 436. For an injury committed under such circumstances, the party is left to his common law remedy by action of trespass.

The judgment of the Circuit Court is reversed, and the cause remanded, with leave to the plaintiff below to amend his declaration.

Judgment reversed.


text:
    James Bloomer, Appellant, v. Matthias B. Denman, Appellee.
    APPEAL FROM ADAMS.
    If the court can see, that the jury in the court below were warranted by the evidence, in inferring a state of case that would sustain the action, it is bound to uphold the judgment, even though there should seem to be a slight preponderance of evidence to the contrary, and the successful party is entitled to all the inferences legitimately arising from such finding.
    The principal is liable for the acts of his duly authorized agent in the business entrusted to him, and is not permitted to deny the truth of the representations of such agent, about the subject matter of such agency, on the faith of which another has acted.
    If an agent rescind a sale by him made, the principal becomes liable to refund any money which has been paid upon it.
    To authorize a recovery in an action for money had and received, a privity of contract must exist between the parties.
    This was an action of assumpsit, brought by Denman against Bloomer, in the Adams Circuit Court. The cause was tried at October term, 1850, before Minshall, Judge, and a jury, and resulted in a verdict and judgment for the plaintiff, of $391 39, with costs. The facts necessary to a full understanding of this controversy, will be found in the opinion of the Court; and by reference to the 11th Ills., 177, where the same case is reported.
    The instructions referred to as asked by the plaintiff, are as follows:

      1st Instruction. If the jury believe from the evidence, that Johnson was the agent of Bloomer to receive the purchase money 'on said raft, and that after having sold the raft to Denman, and received a part of the purchase money, the contract of sale was rescinded, and the raft again taken into the possession of "Johnson, and re-sold by him, and that Bloomer received the benefit of the purchase money paid by Denman, and also of that paid to Johnson on the subsequent sale of the raft, then Bloomer is liable to Denman for the amount paid by Denman, and the jury must find a verdict for the plaintiff.

      2d Instruction. If the jury believe from the evidence, that Bloomer, with a knowledge of all that had occurred between Johnson and Denman concerning said raft, received from Johnson the money that had been paid Mm, Johnson, on said raft, then Bloomer, by receiving said money from Johnson, ratified the arrangement made between Denman and Johnson in regard to whatever moneys had been received by Johnson on said raft; and if Johnson, as the agent of Bloomer, in regard to said purchase money, agreed with Denman that Denman should be paid the $345 advanced by Denman, then the jury must find for the plaintiff and assess his damage.
    3c£ Instruction. If the jury believe from the evidence, that Johnson was the duly authorized agent of Bloomer, that as such agent he had the control of said raft, that he represented to Denman that Bloomer was the owner of said raft, that Denman; relying on his representations, dealt with Johnson in relation to said raft, under the belief that Bloomer was the owner thereof, that belief having been induced by the representation of Johnson, then Bloomer is not permitted, in this suit, to deny that he was the owner of said raft.

      4dh Instruction. If the jury believe from the evidence, the-facts upon which the third instruction is predicated in regard to-the agency and representations of Johnson, and if they further-believe from the evidence, that after said raft broke from its fastenings, Johnson took charge of said raft on behalf of his principal, and on a settlement with plaintiff, promised, in behalf of' the defendant, to repay said plaintiff whatever money had been* expended by said plaintiff about said raft, then no question: arises in the case about the delivery of said raft to the plaintiff" before it broke away; and the jury will find for the plaintiff a verdict for the amount paid by the plaintiff, with interest from-the time said money should have been repaid.

      1th Instruction. The Court will instruct the jury, that if they believe from the evidence, that the raft belonged to Clinton, and* that it was sold and delivered by his agent to Denman, and that the sale to Denman has not been rescinded, then Denman is liable to Clinton, on his contract of purchase, for the price he agreed to pay for the raft, and he, Denman, is entitled to the money received by Bloomer for said raft.
    The instructions referred to, as asked by the defendant, are as follows:
    1st Instruction. The Court is asked to instruct the jury for-the defendant, that if they believe from the evidence that the raft was the property of Clinton, and that Johnson, in selling the raft, and disposing of the money, was acting as Clinton’s agent, that then they will find a verdict for the defendant.

      5 th Instruction. That, although they may believe from the evidence, that Johnson agreed to rescind the contract by which-the raft was sold to Denman, still they will find for the defendant, if they also believe from the evidence, that Johnson, in selling said raft, and in rescinding said contract of sale, was acting as the agent of Clinton, and that Clinton was the owner of the property.
    A motion for a new trial was made and overruled. Bloomer brings the cause to this Court by appeal.
    R. S. Blackwell, for Appellant.
    The 3d and 4th instructions given on the part of the plaintiff below, were erroneous in this: it lays down the proposition that Bloomer is estopped to deny ownership of the raft, and agency of. Johnson, by the representations of one assuming to be an agent, without any regard to proof of the fact of agency. 1 Greenleaf’s Ev., 137 §113; 2 ibid., 46, §59, 60; Story’s Agency, §135; 2 Starkie on Ev., 34-5.
    Denman was bound to know the extent of Johnson’s authority. Mechanics’ Bank v. Bank Columbia, 4 U. S. Cond., 671; Atwood v. Mannings, 14 Eng. C. L. Rep., 43-4. No estoppel in such cases. Story’s Agency, 128, §136 and note.
    The giving of the 1st, 2d, and 7th instructions of plaintiff, and the refusal of the Court to give defendant’s instructions 1st and 5th, present the merits of the action. To maintain this action the plaintiff is bound to show privity of contract between himself and the defendant.
    Privity need not necessarily be founded upon an express contract between the parties. Sometimes, the law, operating upon the act of the parties, creates the duty, establishes the privity, and implies the promise upon which the action is founded. But the privity must exist, either by the express assent of the parties, or by construction of law. Whenever the party sought to be charged upon an implied promise, refuses to be bound, the presumption of privity is rebutted. No one can be made the debtor of another without his consent.
    In this case Bloomer refused to purchase the raft of Clinton, but agreed to make advances upon it, to secure a debt due hfm from Clinton, and also reimburse his advances out of the proceeds of the raft. The expenses of sending the raft to market were to be. borne by Clinton, and the raft was at his risk. The money received, by Johnson of the plaintiff, was paid into Clinton’s hands. The proceeds of the raft did not secure Bloomer’s claim against Clinton, and Bloomer refused to accept and pay the draft drawn by Johnson upon him.
    The facts that Bloomer, 1st, refused to purchase the raft; 2d, that his object was to secure his debt and advances; 3d, that he stipulated with Clinton against the risk and expense; 4th, that the money of the plaintiff never came to Bloomer’s hands; 5th, that Bloomer refused to pay the draft of Johnson, clearly evince an intention on the part of Bloomer, not to make himself liable for and on account of the raft, further than to the extent of the advances he had already made upon it, rebut the implied promise sought to be established against him, and contradict in the most unequivocal manner, all idea of privity between the plaintiff and himself. These principles are clearly laid down in the following cases: Williams v. Everett, 14 East, 582; Stewart v. Fry, 2 Eng. C. L. Rep., 129; Stephens v. Babcock, 23 ibid, 93; Sims v. Brittain, 24 ibid, 78; Young v. Dibrell, 7 Humph., 270; Wilson v. Greer, 7 ibid, 513; Grant v. Austin, 1 Eng. Ex. Rep., 284; Tiernan v. Jackson, 5 Pet., 599; Seaman v. Whitney, 24 Wend., 260; England v. Clark, 4 Scam. 486; Trumbull v. Campbell, 3 Gil., 502.
    Privity, as required in this action, is founded on the maxim, that no man can be made a debtor without his consent. The distinction between privity, as respects the proceeds of property wrongfully taken from the owner and converted into money without his consent, and privity of contracts, is often confounded. In the first case, the owner may treat the tort feasor as a purchaser, an agent, or bailee, .whose disposal of the goods is thereby sanctioned and confirmed by the owner, and in this way a privity, in law, is established between the parties. Jones v. Hoar, 5 Pick., 285 and note.
    In this action of assumpsit for money had and received, the plaintiff must show, 1st, the receipt of the money by defendant; 2d, the receipt of if for the use of the plaintiff. In this case, Johnson was the agent of Clinton to sell the raft, pay off the hands, and the residue of the proceeds, after paying Bloomer, to Clinton. He was the agent of Bloomer for the single purpose of receiving and paying over Bloomer’s debt and advances out of the proceeds. When Johnson sold the raft and received the advance of $300 from Denman, he acted as Clinton’s agent, and paid the money out to Clinton’s hands. The money then was received by Clinton and not by Bloomer. Sumner v. Hamlet, 12 Pick., 82.
    This .is an equitable action, and plaintiff must have a better right ex ceqüo et bono to recover, than Bloomer has to retain the money. Buel v. Boughton, 2 Denio, 91. If Johnson had no authority to draw upon Bloomer, any promise by Bloomer to accept and pay the draft is a nudum pactum. Fenn v. Harrison, 3 T. R., 754, (3 & 4 Cond., 412;) May v. Coffin, 4 Mass., 341.
    Williams & Lawrence, for Appellee.
    Wherever one man has in his hands money belonging to another,, “ex cequo et bono," an action for money had and received lies. The cases relied upon by the counsel for the defendant in regard to privity of contract, are all cases in which the plaintiff has brought his suit for money deposited by a third person, and the cases have been decided upon the ground that the third person depositing the money had a right to recall it. But in this case we are pursuing our own money, which has passed into the possession of Bloomer, through the hands of his agent, with a knowledge, on Bloomer’s part, of all the circumstances. The cases, then, cited by the defendant’s counsel, do not apply to the case at bar; and moreover, the authority of those cases has been overturned in this country, and is shaken by contrary authorities in England. We rely upon the following authorities: Hall v. Marston, 17 Mass., 563; Mason v. Waite, ibid, 579; Eagle Bank v. Smith, 5 Conn., 71; Hitchcock v. Lukens, 8 Porter, 338; Wiseman v. Lyman, 7 Mass., 288; Eddy v. Smith, 13 Wend., 488; Hudson v. Robison, 2 Maul. & Sel., 478; 2 Burrow, 1012; Cowper, 200; 31 Eng. Com. Law Rep., 396; Camp v. Tompkins, 9 Conn., 555.
    But this record does not present the question of “privity,” which the counsel for the plaintiff in error attempt to raise. The instructions asked for the defendant below, and refused, (numbered 1 and 5,) merely direct the jury to find for the defendant, if they believe Johnson was Clinton’s agent, and the raft belonged to Clinton. But there was evidence showing Johnson to have been also Bloomer’s agent, and if he was
      Bloomer’s agent, then no question of “ privity” could arise, and it would have been error in the Court to have directed the jury to find for the defendant, simply because they might believe Johnson was Clinton’s agent, without amending the instruction by requiring the jury to believe also that Johnson was not Bloomer’s agent. If he was Bloomer’s agent, then no question of “privity” could arise, and it would have been palpably wrong to have required the jury to find for the defendant because Johnson was Clinton's agent, when the jury might at the same time believe that he was also Bloomer’s agent, and that being admitted, the plaintiff was confessedly entitled to recover,
   Trumbull, J.

The facts of this case are briefly these. One Clinton had a raft of lumber at the mouth of Fever River, which he proposed to sell to Bloomer, of Galena, whom he was owing. Bloomer declined purchasing, but made advances upon the raft under an arrangement with Clinton that it was to be sent down the Mississippi river and sold. Out of the proceeds of the sale, the expenses of taking the raft to market were first to be paid, then the sum. due Bloomer including his advances, and the balance was to be paid over to Clinton. Johnson, a clerk in the employ of Bloomer, went down the river, and at Quincy made sale of the raft to Denman, who advanced to him part of the purchase money rvhich was used by Johnson in paying off the hands upon the raft. Subsequently the sale to Denman was rescinded, and Johnson gave Denman a draft upon Bloomer for the amount he had received from Denman, and for certain expenses that had been incurred by the latter in taking charge of the raft. The raft was subsequently sold by Johnson, and the proceeds paid over to Bloomer, but he refused to accept the draft drawn on him by Johnson, and this action was brought by Den-man to recover the amount. The jury found in Denman’s favor and he had judgment.

It is asserted here, that no such privity of contract existed between Denman and Bloomer, as would authorize the former to maintain this suit.

In determining this question, Denman is entitled to all the inferences legitimately arising from the finding of the jury, and if the Court can see that they were warranted by the evidence in inferring a state of case .that would sustain the action, it is bound to uphold the judgment, even though it should he of opinion, that there was a slight preponderance of evidence against the finding.

Clinton, who was introduced as a witness on the part of Bloomer, testified; “ that he made an arrangement with Bloomer to send the raft down the Mississippi river for sale on witness’ account, that Bloomer agreed to advance in contemplation of a sale, that the raft was to be sent down the river at the risk and cost of witness, that the proceeds were to be applied first to pay the expenses of the raft, the amount of defendant’s debt and advances were to be paid out of the proceeds and the remainder to be paid over to witness,” that the hands on the raft were in witness’ employ, “that he was informed by Bloomer that he would send Johnson, the clerk, down the river with the raft for the purpose of 2naking the sale, that witness assented to this arrangement and agreed to pay Johnson $25, for his trouble, &e.” This evidence taken by itself, clearly shows that Bloomer had control of the raft, and that Johnson was his agent to make sale of the same. Bloomer was “ to send the raft down the Mississippi river for sale” on Clinton’s account, and the very fact, that the balance was stipulated to a he paid over” to Clinton, shows that the proceeds of the raft were not to he received by him. Mo man in possession of his own money, after agreeing to pay certain claims out of the same, would further stipulate with the claimants, that the balance should be paid over to himself. It is true that in another part of his evidence, Clinton says that Johnson was acting for him in the sale of the raft. In one sense it is true that both Johnson and Bloomer were acting for Clinton. He had put the 3'aft into Bloomer's hands to he sold on his account, and he might, therefore, well say that both Bloomer and his clerk were acting for him in making the sale; but if he meant to be understood as saying that Johnson was acting for him, otherwise than as the clerk of Bloomer, he was evidently mistaken, as such a statement would contradict the substance of' the transaction, as he had previously stated it. Johnson testified “that he considered himself as the agent of Clinton in selling the raft, paying off and discharging the hands, and accounting for the a-esidue of the proceeds after paying Bloomer’s debt and advances, and that he was Bloomer’s agent only to secure his debt and advances out of the proceeds of the raft.” What Johnson may have eonsidered cannot alter the real character of the transaction as shown by the other evidence in the cause. In a previous part of his testimony he had stated an agreement between Clinton and Bloomer that he should go down the river and make sale of the raft, and Clinton states that Bloomer informed him that he, Bloomer, would send Johnson to make the sale. By what process he was transformed from Bloomer’s clerk, into Clinton’s agent, is not very apparent from the record. At all events a verdict that the raft was placed under Bloomer’s control to be sold, and that Johnson was his agent to make the sale, is not so manifestly against the evidence, as to call upon the Court to set it aside.

Assuming then, in accordance with the finding of the jury, that Johnson was Bloomer’s agent, and as such authorized to sell the raft, it is clear that his principal is liable for his acts in and about such sale.

It was decided when this case was here before, 11 Ills., 177, that if Johnson had authority to make the sale to Denman, he had authority to rescind it, and it follows as a necessary consesequencc, that when such sale was rescinded, his principal became liable to refund the money which had been paid upon it, in an action for money had and received; 1 Ch. Pl., 356; Towers v. Barrett, 1 Term R. 133; Gillet v. Maynard, 5 John., 85.

The 1, 2, 3, 4 and 7, instructions given to the jury in behalf of the plaintiff below, have also been objected to.

The principles of law involved in the first and second instructions, have been substantially settled in disposing of the main question in the case. The third lays down the proposition, that a party is not permitted to deny the truth of the representations of his duly authorized agent about the subject matter of his agency, upon the faith of which another has acted. Of the correctness of this proposition there can be no question. Story on Agency, sec. 134.

The fourth instruction asserts no principle of law not recognized by the previous ones.

The seventh instruction, although it contains a correct proposition of law, was inapplicable to the case, and ought for that reason, to have been refused; but we do not thinkthe jrrcould have been misled by it, particularly when considered in connection with the fourth instruction, given on behalf of the defendant.

The refusal to give the first and fifth instructions asked by defendant, is also alleged as error. These instructions contain correct propositions of law so far as they go, and yet we can readily perceive how they might have misled the jury if given. Clinton may have been, and was in fact the general owner of the property, and Johnson might be regarded in one sense as his agent in selling the raft, although Bloomer may at the same time have had a special property in the raft, authorizing him "to sell and control it, and Johnson may have been his clerk for that purpose.

Had these instructions excluded the idea that Bloomer had a special property in the raft, and that Johnson was also his agent in making the sale, it would clearly have been error to have refused them. The authorities referred to by appellant’s counsel clearly show, that in a case of such a character, to authorize a recovery in an action for money had and received, a privity of contract must exist between the parties, and .there would be none in the case supposed.

Judgment affirmed.