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that he would sell the boat Dr. M. S. Kit- he disaffirmed the contract of sale, and relied tinger, her tackle, apparel, and furniture, at upon his title reserved by the contract. The public auction, at the same time, by virtue of plaintiff advertised that, by virtue of the conthe chattel mortgage. July 22, 1876, this tract and chattel mortgage, he would sell at action for the recovery of the possession of public auction, July 7, 1876, all of the property the two boats, their tackle, apparel, and fur- described in these instruments, and, again, niture, was begun, and on the 24th of July that he would sell the property at public aucthe sheriff seized the property, and, the de- tion, by virtue of the contract and mortgage, fendant not excepting to the plaintiff's sure- July 28, 1876, and on the day last named he ties, nor requiring the return of the chattels did sell all of the property, he having acpursuant to the Code of Procedure, the sheriff quireł possession of it through this action, delivered the chattels to the plaintiff. July except the mules and their harnesses. The 28, 1876, the plaintiff sold the Kittinger, pur- plaintiff called Mr. Davis as a witness, who suant to his notice of sale under the chattel testified that he attended the sale as attorney mortgage, for $800, and the Pettibone, pur- for the plaintiff, and that the plaintiff was suant to his notice of sale under the execu- present. He also testified: "Both boats were tory contract, for $1,500. This action was solů within half an hour. The Pettibone referred to the same referee who determined was sold first. I recall it because the Pettithe first action, and he found that on the 21st bone was the original security, and the Kitof July, 1876, the pliintiff was indebted to tinger was sort of a collateral. After the sale the defendant on account of the executory of the Pettibone I recall that I asked Mr. contract and 12 notes in the sum of $126.38. O'Rourke to give me the amount of his claim, He also found that the four mules and their and Mr. Anthony, who had kept the books for harnesses were, on July 21, 1876, of the value Mr. O'Rourke, gave me the amount of the of

$770 00 claim,-a statement. Then I directed the sale Deducting from this amount 126 38 of the Kittinger upon the information that the

Pettibone had not sold for enough to satisfy -the remainder due upon the

the claim. I gave that direction." note, from the value of the

parent that the plaintiff did not avail himself mules, left

$643 62 of his right to rescind the sale, and repossess

himself of the property described in the con-due from O'Rourke

tract, by virtue of his legal title, in case any to Hadcock. It was

part of the price was unpaid; but he elected found that the value

to collect the sum which he claimed to be due, of the Pettibone at the

and he thereby affirmed the sale. Had he time of the trial was $750 00

disaffirmed the sale he could not have legally That the value of her use

done more than to retake the property sold; and the damages for

but instead of doing only this, he enforced her detention was - 4,150 00

the chattel mortgage and the contract for the

$4,900 00 avowed purpose of collecting his debt. It is That the value of the

well settled that when a mortgagee, holding Kittinger at the time

a mortgage upon several chattels, continues of the trial was

650 00

to sell after he has realized enough to satisfy And the value of her use,

the debt and costs, he becomes a trespasser. and the damages for

So, when several distinct chattels are sold her detention was 3,350 00

upon condition that the title shall not pass $4,000 00 from the vendor to the vendee until the agreed

price is paid, and the vendor, in affirmance Total

$8,900 00 of the contract, seizes the chattels for the and judgment was directed for $8,500, the avowed purpose of selling them and collectvalue of the use, and the damages for de- ing the amount duie upon the contract, he has tention, of the two boats, and for the return no right to seize and sell, or seize and retain, of the two boats; 'but, in case a return could more than is sufficient to satisfy his demand not be had, for $1,400, their value. A judg- and expenses. The plaintiff asserted in his ment was entered in accordance with this re- notice of sale that he would sell the mules port, with costs. From this judgment the and their harnesses to satisfy his claim, and, plaintiff appealed to the general term, where though the title to them was not reserved by the judgment was affirmed, from which judg. the contract, we think he is now estopped ment he appeals to this court.

from saying that his act was not by virtue of James M. Humphrey, for appellant. the contract, and for the purpose of collecting George J, Sicard, for respondent.

his debt, but was wholly wrongful. But it

is said that the case does not show that the FOLLETT, C. J., (after stating the facts mules and their harnesses were sold. The as above.) The referee, by his decision, in only evidence upon this subject was given by effect finds that the plaintiff elected to affirm Davis, who testified: “The mules were not the contract of sale, and collect the amount due sold at this time, [July 28, 1876,] nor were upon it. The plaintiff's conduct was entirely the harnesses. The trial of this case was consistent with this theory, and utterly incon- not concluded until March 3, 1884, more than sistent with the plaintiff's present theory, that seven years after the plaintiff took the mules

and their harnesses. He was examined, but| Ballard v. Burgett, 40 N. Y. 314; Austin v. did not explain what he had done with this Dye, 46 N. Y. 500;) and, unless the defendproperty, and the evidence justified the ref- ant was in some manner relieved from the eree in finding either that the property had effect of such condition, he acquired no title been sold, or its condition so changed that he to the boat. His default in payment would was liable to account for its value by way of permit the plaintiff to lawfully take the propapplication as a payment upon the very debt erty from the possession of the defendant. which he sought to collect by taking the prop It is contended on the part of the defenderty, and by this action arising out of the ant that the instrument was or became in its very contract by virtue of which they were nature a chattel mortgage, because it was taken. When an executory contract for the treated as such in the use made of it by the sale of chattels provides that title shall not plaintiff in liling and refiling it, and in subpass until the agreed price is fully paid, sequently advertising the boat for sale on which is payable in installments, and the taking it from the defendant. It is difficult vendor permits the vendee to retain posses- to see in this any such effect upon the charsion, and make other payments, after the acter of the agreement, as its terms clearly whole contract price is due, the vendor can- and unequivocally characterize it as an execnot seize the property and terminate the con- utory agreement of sale, and the payment of tract for non-payment until he has demanded the purchase price as a condition precedent payment of the vendee. Hutchings v. Mun to the change of title. It is also urged that ger, 41 N. Y. 155. There is no evidence in such condition was waived by the plaintiff this case that the plaintiff demanded payment because he did not avail himself of the deof the defendant. Davis testified that he de- fault in payment of the last note when it bemanded the boats and property covered by came due in November, 1875, but received “these mortgages,” which the defendant de payments of the defendant from time to time nied. The referee did not find whether pos- thereafter, and did not seek to take the boat session of the boats and their furniture was until in July following, when this action was demanded, but he did find that the plaintiff commenced. While that was a waiver of the took the mules and their harnesses without a forfeiture so far as to permit the defendant previous demand.

to complete his payments and perfect title to The judgment roll in the first action be- the boat, it did not have the effect to take the tween these parties was evidence of the condition from the agreement, or to change amount due from the defendant to the plain- its character, but by such waiver that right tiff. This amount was the subject litigated of the defendant was continued until demand in the action. The record shows that the and refusal. Hutchings v. Munger, 41 N. judgment was rendered on the merits, and so Y. 155. The doctrine of the cases which go it became conclusive between the parties. to support the proposition of waiver of a Code Civil Proc. § 1209. The judgment condition in the transfer of property has reshould be affirmed, with costs. All concur, lation to the condition upon which delivery except BRADLEY, J., who reads dissenting of possession is made dependent. Henneopinion.

quin v. Sands, 25 Wend. 640; Osborn v.

Gantz, 60 N. Y. 542. The defendant alleges BRADLEY, J., (dissenting.) The action is payment of the notes. The referee has found replevin, brought to recover the possession that on the 7th day of July, 1876, the amount of two canal-boats, known as “Jay Pettibone, reinaining due from the defendant to the of Buffalo” and “Dr. M. S. Kittinger, of plaintiff was $126.38, and on the 21st day of Lockport,” and their tackle and furniture. that month the plaintiff took from the deThe Pettibone was the subject of an agree- fendant, without the consent of the latter, ment of May 31, 1873, by which the plaintiff four mules and harnesses of the value of agreed to sell it to the defendant upon pay- $770, and appropriated them to his own use. ment of a sum represented by 12 promissory This action was commenced the next day, notes, made by the defendant to the plaintiff, and the property in question taken upon the the last one of which was payable November requisition on two days after, and the referee 1, 1875, and until full payment title was re- further finds that the notes had been fully served to the plaintiff, with the right on de- paid, and that the plaintiff was then indebted fault to retake the boat. As a further se- to the defendant $613.38, the difference becurity for the payment of the notes the de-tween the value of the mules and harness fendant gave to the plaintiff a chattel mort- and the amount due the plaintiff when he gage on the boat Kittinger. This action is took them from the defendant. The plaintiff founded upon the alleged default in payment claims, and evidence on his part was given of the moneys so secured. The agreement tending to prove, that there was due him gave to the defendant the right to take pos- upon the notes upwards of $3,000 at the time session of the boat Pettibone and use it. of the commenceinent of the action. The This he did. But the sale was conditional. fact, as found by the referee in that respect, The right of the defendant was to complete was based solely upon a record of judgment in the purchase and take title by payment, and an action between the same parties, brought until then the title remained in the plaintiff. by Hadcock against O'Rourke on or about This was the situation produced by force of July 7, 1876, wherein the former alleged paythe agreement, (Strong v. Taylor, 2 Hill, 326;' ment of the notes, sought an accounting with

O'Rourke, and the relief that the accounts | paid and unpaid upon the notes, as well as to between them be stated, and that the latter the alleged fact of payment. In this respect be restrained from taking the property. The the present action may be distinguished from issues were referred, and the referee found Campbell v. Consalus, 25 N. Y. 613, where that on July 7, 1876, there was due from the only question for determination within Hadcock to O'Rourke on the notes $126.38, the issues was whether the mortgage sought and as conclusion of law determined that the to be canceled had been paid. The considlatter was entitled to judgment dismissing erations of economy as well as policy require the complaint. The judgment thereupon en- that repose be given to controversies betered in terms adjudged that the report between parties as to matters within issues confirmed; that the sum so found was due which have been once litigated and legitithe defendant therein from the plaintiff upon mately determined upon the merits, while the such notes; and that the complaint be dis- adjudication remains unreversed and unvamissed, with costs. By that record there cated; otherwise, parties might be subjected seems to have been a determination upon the to hardship and embarrassment. The docmerits of the issues presented by the plead-trine of res adjudicata is not, however, apings, in which was directly involved the in- plicable to matters merely collateral or inciquiry into the state of the accounts between dental to the questions presented by the the parties, with a view to relief or redemp- pleadings, and litigated, although they are tion of the property from the alleged right the subject of controversy on the trial. Peoand claim of the defendant therein, founded ple v. Johnson, 38 N. Y. 63. The plaintiff upon the agreement of sale and mortgage in the former action having alleged bis readiAs a rule the consequence of a litigation be- ness to pay any sum found remaining due tween the same parties is that, when deter- the defendant therein, the referee could propmined upon the merits, it is conclusive as to erly have directed judgment, giving leave to all matters within the issues, and that such the former to pay the amount so found unis the effect of the adjudication upon the paid in satisfaction of the notes. But his same questions in a subsequent action be- omission to do so, inasmuch as the complaint tween them, although the form or purpose of was dismissed on the merits, did not deny it may differ from the former action. Jor- legitimate and conclusive effect to the finddan v. Van Epps, 85 N. Y. 427; Pray v. ing of fact within the issues, and declared by Hegeman, 98 N. Y. 351; Castle v. Noyes, •14 the judgment, (People v. Smith, 51 Barb. N. Y. 329; Smith v. Smith, 79 N. Y. 634; 360; Steinbach v. Insurance Co., 77 N. Y. Leavitt v. Wolcott, 95 N. Y. 212.

498;) and the fact that the dismissal was on It is contended by the plaintiff's counsel the merits is not dependent upon an express that the only question legitimately involved declaration to that effect by the referee. It in the issue for determination in the former is sufficient that it so appears by the judgment action was whether the notes had been paid, record. Code Civil Proc. § 1209; Van Derlip and the property thus relieved from the claim v. Keyser, 68 N. Y. 443. of O'Rourke upon it, and that when Had Treating, as we do, the former adjudicacock failed to establish such payment it was tion as determining the amount due the plainthe only fact for the referee to find, and the tiff herein, the inquiry arises whether such conclusion of law that the complaint be dis- amount was paid. The report of the referee missed necessarily followed. But we think indicates that he treated the taking and apthe issues presented by the pleadings, and propriating by the plaintiff of the mules and the purpose of the former action, may be harnesses as a satisfaction of the plaintiff's deemed to have been broader than that, and claim. It is not seen how the taking and to have embraced the inquiry which was liti- appropriation of that property, as represented gated as to the situation of the claim and by the evidence, could be given such effect. amount unpaid upon it. The plaintiff in If the defendant's right to take title to the that action at the time of its commencement, mules and harness was subject to the same so far as appears, had the right to pay what-condition as that relating to the boat Pettiever remained due, and perfect his title to bone, the plaintiff may, by reason of the dethe boat Pettibone, and redeem the other fault, have had the right to reclaim them as from the operation of the mortgage. If he his property. But it is by no means clear had tendered to O'Rourke a sum equal to the that he had, by the agreement, réserved the amount so found due, and the fact had so ap- title to that property in himself, or that he peared on the trial of that action, the referee had the right to take it. The agreement could properly have directed judgment for does not, in terms, apply the condition to the him, and, if the situation had been such as sale of the mules and harness, and, assuming to render it practicable for Hadcock to do so, that it was not applicable to them, the title and relieve the property from the claim, we to that property passed on delivery of it to think he might, for the purpose of payınent, the defendant. Upon that assumption the have treated the adjudication founded upon plaintiff became liable for the conversion of such report of the referee as effectually fix that property when he took and appropriated ing the amount required to perfect and re- it to his own use without the consent of the store his title to the property. This was defendant; but, as it does not appear that he within the purpose expressed in the com- disposed of the property, or changed its conplaint. The issues related to the amount dition, no opportunity seems to have been

furnished the defendant to waive the tort, redemption, (Mattison v. Baucus, 1 N. Y. and make any claim against the plaintiff in 295;) and the right of the plaintiff was to the nature of assumpsit, on account of the take it on the mortgage, and publicly sell it property so taken. That right arises out of on notice by way of foreclosure of the equity the disposition of the property tortiously of redemption, or not sell it, as he pleased. taken or converted, and then the party thus In case of such sale he could account for the deprived of his property may charge the net proceeds, and, if he did not sell it, the wrong-doer as for money had and received to taking and appropriation would operate to his use. Sturtevant v. Waterbury, 2 Hall, satisfy the claim, if its value was sufficient 449; Cobb v. Dows, 9 Barb. 230; Berly v. for the purpose. Case v. Boughton, 11 Wend. Taylor, 5 Hill, 577; Osborn v. Bell, 5 Denio, 106; Charter v. Stevens, 3 Denio, 33; Coe v. 370; Jones v. Hoar, 5 Pick. 285; Cushman v. Cassidy, 72 N. Y. 133, 138; Bragelman v. Jewell, 7 Hun, 525; Stearns v. Dillingham, Daue, 69 N. Y 69; West v. Crary, 47 N. Y. 22 Vt. 624; Balchy. Patten, 45 Me. 41. It 423. is not unreasonable to suppose that the doc When the plaintiff, by the action and requitrine may be so extended as to permit the sition, sought to obtain, and did take, the waiver of the tort, and the maintenance of an boat Pettibone, he was denied the right to the action as for goods sold and delivered, when possession of the other boat for the reason the wrong-doer has, by using the property before given. I should be inclined to give for his own benefit, changed its condition and the defendant the benefit of the recovery of character, as held in Abbott v. Blossom, 66 the Pettibone, and damages for its retention, Barb. 353. But that question does not arise, as that produced the larger amount, if that and is not considered here.

were practicable; and, as the defendant did. There is no evidence that the plaintiff did not answer the complaint until after the sale anything with the mules and harness further of the Kittinger, it may be that it could have than to take them into his possession, which been done on the ground of satisfaction of he did without the consent of the defendant. the debt by such sale, if the time of payment, Whatever claim the latter appears to have as alleged in the answer as a defense, found had against the plaintiff for taking the prop- by the referee had not been confined to that erty was in tort, as for trespass or conver- before the action was commenced. Bendit v. sion. It is difficult to see that, for the pur- Annesley, 42 Barb. 192; Rice v. Childs, 28 pose of the question here, the effect before Hun, 303; Willis v. Chipp, 9 How. Pr. 568; stated of taking the mules and harness by Carpenter v. Bell, 19 Abb. Pr. 258; Beebe v. the plaintiff was modified by the fact that Dowd, 22 Barb. 255. These views lead to they, with the boat Pettibone, were covered the conclusion that the plaintiff was entitled by the notice of sale. The taking of them to the possession of the boat Pettibone, and cannot be treated as payment upon the debt that the defendant had the right to that of unless they were or may be deemed taken as the boat Kittinger, and to recover it, with such. There is nothing indicating such pur- damages for detention. The value of the pose on the part of the plaintiff, and, assum- property was properly determined as of the ing that his purpose when he caused the no- time of the trial, (Brewster v. Silliman, 38 tice of sale to be posted was to sell them, N. Y. 423; Indemnity Co. v. Flynn, 55 N. Y. the unaccomplished design to do so did not 653;) and the value of the use of the boat, give to the taking of them the effect of pay- adopted as the measure of the damages for ment. These views lead to the conclusion for its detention, was in accordance with the that it could not be treated as payment or rule in that respect announced in Allen v. satisfaction of the balance remaining due up- Fox, 51 N. Y. 562. The judgment, there'on the notes. It follows that, in view of fore, should be reversed, and a new trial the default in payment, the plaintiff, upon granted, costs to abide the event, unless the demand and refusal, had the right, at the defendant stipulate that the judgment entime of the commencement of this action, to tered upon the report of the referee be moditake the boat Pettibone by force of the condi- fied by striking from it so much as awards tion in such agreement of sale, or to take the the return to the defendant of the boat Pettiother boat by virtue of the chattel mortgage; bone, and damages for its detention, and by but he had no right to take both, because the inserting a recovery by the plaintiff of the taking of the former by the plaintiff, as own- possession of that boat. And, in case the deer, would have the effect to rescind the con- fendant so stipulates, the judgment, in other tract of sale, or put an end to it, and this respects, and so modified, be affirmed, withwould terminate his right to seek payment, out costs of this appeal to either party. or to avail himself of the security given for it. The plaintiff did at the same time pro

(114 N. Y. 558) ceed to take both boats. They were taken

CARR & HOBSON, Limited, 0. STERLING.1 together, upon his requisition in this action, (Court of Appeals of New York, Second DivisJuly 24th, and delivered to him July 27th.

ion. June 18, 1889.) On July 22, 1876, he advertised them for sale BAIL-PRINCIPAL, AND SURETY-LACHES -- PLEADby separate notices, and sold both of them on

ING-AMENDMENT. the 28th day of that month. The plaintiff

1. In an action on an undertaking given to sehad the legal title to the boat Kittinger, sub- cure the release of one H. from arrest in a civil acject to such right as the defendant had of Reversing 53 N. Y. Super. Ct. 255.

tion, plaintiff alleged that the undertaking was Upon the trial the court dismissed the comunder an agreement that H. should be released, de plaint, and ordered the exceptions to be heard fendant agreeing to perform the conditions of the in the first instance at the general term, and undertaking; and that H. was, in consideration in the mean time suspended judgment. The thereof, released. It appeared that when H. was complaint in this action alleges that the unarrested the sheriff told him the amount of bail re dertaking was executed by the defendant, her if she would go on his bond. She said she and accepted by the plaintiff, under an agreewould if she could be of any use. H. and the sher- ment that Holt should be released and disiff then went to plaintiff's attorney, who, after charged from the arrest,—the defendant returned to defendant, who signed the bond, ask- agreeing to duly perform and abide by the ing if she would be sufficient. She was told that terms and conditions of the undertaking; the attorney said, “Yes.” The bond was taken to that pursuant to such agreement, and in conthe attorney, and upon his acceptance of it the sideration thereof, the plaintiff did discharge sheriff discharged H. Held, that an agreement was sufficiently shown.

and release Holt from custody under the or2. As the plaintiff claimed to recover on the un- der of arrest. The undertaking had but one dertaking only as an agreement good at common law, the fact that it was entitled in a court other surety,

and did not conform to the provisions than the one in which the order of arrest was is- of the Code, and the plaintiff does not claim sued is immaterial; it being unnecessary that it the right to recover on it as a statutory unshould be entitled at all.

3. Judgment was entered against H. in the action dertaking, but does claim the right to recover in which

he was arrested, but an execution against upon it as an agreement, which is good at his body did not issue until more than a year and a common law. half thereafter, during most of which time H. re The action in which the order of arrest mained in the vicinity, but when it did issue he was issued was brought in the superior court could not be found. Plaintiff's attorney testified that, after judgment was entered, defendant asked of the city of New York. The undertaking him not to press H., and to use his influence in aid - was entitled in the supreme court. It is ing H. to regain his position with plaintiff, and that now claimed that it is void because it is not for this reason he had delayed issuing execution. entitled in the court in which the action was Held, that the laches in issuing execution were excused.

brought. Without stopping to consider the 4. Code Civil Proc. N. Y. $ 1207, which provides effect that this would have upon a statutory that “where there is no answer the judgment shall undertaking, we are of the opinion that in. not be more favorable to the plaintiff than that demanded in the complaint,” does not prevent the asmuch as it is founded upon an agreement, plaintiff, after service of summons and complaint, and is sought to be maintained by virtue of from amending his complaint, so as to demand a the agreement, the defect, if such it be, in a larger sum, without notice to the defendant, who statutory undertaking, is not available in has not appeared, and recovering judgment for the amount claimed in the amended complaint. If the this action. There is no obscurity in the defendant were entitled to notice, the failure to agreement in reference to the order of arrest give it would be but an irregularity, which would that Holt was to be released from, or the obnot render the judgment void.

ligation that the defendant undertook upon Appeal from superior court of New York his being discharged.

being discharged. Treating it as an city, general term.

agreement between the parties, no particular Action by Carr & Hobson, Limited, against form was necessary. It was sufficient if the Anna J. A. Sterling, upon an undertaking minds of the parties met, and assented to its executed by defendant. From a judgment terms. As an agreement, it was not necesoverruling exceptions taken upon the trial sary that it should be entitled, and the words and dismissing the complaint plaintiff ap- “Supreme Court,” at the head thereof, have peals.

no significance, and may be properly treated Norman T. Melliss, for appellant. L. as surplusage. Laftin Kellogg, for respondent.

The original complaint in the action in

which the order of arrest was issued demandHAIGHT, J. This action was brought up- ed judgment for $7,000 and interest. The deon an undertaking executed by the defend- fendant did not appear in the action. Subseant, to secure the release of one William W. quently, on an application to the special term, Holt from an order of arrest issued in a civil the complaint was amended ex parte, so as action. The undertaking was in the sum of to demand judgment.for $13,618.66, with in$7,500, and provided that Holt “shall at all terest from April 3, 1882, with costs, etc. times render himself amenable to any man- Thereafter judgment was entered for that date which may be issued to enforce final amount. It is claimed that this was in viojudgment against him in the action.” Final lation of section 1207 of the Code of Civil judgment was entered therein on the 27th Procedure, which provides that, “where there day of May, 1882, and thereafter, and on the is no answer, the judgment shall not be more 29th day of November, 1882, an execution was favorable to the plaintiff than that demanded issued against the property of the judgment in the complaint.” If the judgment is void, debtor. Such execution having been returned then it would not be within the provisions of unsatisfied, an execution against the body of the agreement, under the terms of which the said judgment debtor was issued on the 7th Holt was to render himself amenable to any day of December, 1883, and was returned by mandate which may be issued to enforce a the sheriff, with the indorsement thereon, final judgment against him in the action. “Defendant not found." Thereafter this ac- Mittnacht v. Kellermann, 105 N. Y. 468, 12 tion was brought upon the undertaking. N. E. Rep. 28. But is it a void judgment?

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