Conradt, supra.

The facts of this case are very similar to the cases cited. In Grant v. Johnson the con

ments when due without tendering a con- | We think the intent of the parties is plainly veyance. Paine v. Brown, 37 N. Y. 228; inferable from the language used, that Harrington v. Higgins, 17 Wend. 376. But this was a covenant on plaintiffs' part to conwhen, after the installments are all due, the vey at the time and under the circumstances vendor brings an action for the purchase mentioned. We have, therefore, an action to money, he is not entitled to recover without recover unpaid installments brought after the proving an offer before suit to convey the time stipulated for the delivery of the deed, land to the defendant on receiving the pur- and in such case, to entitle plaintiffs to rechase price. When the last installment falls cover, it was incumbent upon them to show due, the payment of the whole of the upaid an offer made before suit, to convey on repurchase money and the conveyance of the ceiving the stipulated part of the purchase land become dependent acts, (Beecher v. Con- money. Grant v. Johnson and Beecher v. radt, 13 N. Y. 108;) and the same rule applies when an action is brought for any installment payable at or after the term fixed for the delivery of the deed, (Grant v. John-tract was to sell the land for $950; $200 of son, 5 N. Y. 247; Pordage v. Cole, 1 Wms. which was payable in April, 1846, and $200 Saund. 3206, note;) so that if the fair inter- in April, 1847, and the balance in two anpretation of the contract is, as was held by nual payments thereafter. The seller was to the trial court, that there was no obligation give possession in November, 1845, and a on plaintiffs' part to deliver a deed until the deed in May, 1846. The action was for the whole of the purchase money was paid, ex-installment due in April, 1847, and this court cept in case of a demand therefor by defend-held that delivery of the deed was a condition ant after payment of $800, and tender of a precedent to the payment of the second inbond and mortgage for the balance of the pur- stallment, and, having made no tender, plainchase price, then the judgment was right, and tiff could not recover. In Beecher v. Conmust be affirmed. radt the purchase money was payable in five We come, therefore, to the consideration installments. None were paid, and after they of the question whether the learned trial were all due plaintiff brought an action for judge was right in his construction of the con- the whole purchase money. This court held tract that the provision for a delivery of the that, while the covenants as to the first four deed when $800 was paid was one for the installments were originally independent benefit of the defendant, enforceable only on when the last installment fell due, conveyhis demand, or whether it was a covenant on ance and payment were dependent acts, and the part of the plaintiffs to deliver the convey- that no part of the purchase money could be ance at the time named. We can find no recovered without tender of a conveyance besupport for the construction adopted by the fore commencement of the action. To the trial court in the agreement itself, and it is same effect are Hoag v. Parr, 13 Hun, 95; not based upon any finding of fact. The James v. Burchell, 82 N. Y. 108; Smith v. construction is harsh, unfair, and unneces-McCluskey, 45 Barb. 611. The determinasary. The parties appear to have provided tion of the question, what are and what are expressly for all matters between them. We not dependent covenants? is not one free expect naturally to find mutual obligations from difficulty, and many of the cases are so in the contract. The vendee agrees to pay irreconcilable that they are studied with little the purchase money, and we look for an profit or assistance to the judgment. Each agreement on the part of the vendor to con- case must be determined by the cardinal rule vey. If it is not contained in the clause of of interpreting all contracts, viz., to ascerthe contract under discussion, it does not ex-tain the intention of the parties to the agreeist in express terms, and we are forced to imply it from the nature of the instrument. In Robb v. Montgomery, 20 Johns. 15, cited by appellants, there was an express covenant to convey on payment of the purchase money, and a further provision that if, after the first payment was made, defendant wished to get a deed, and to give a bond and mortgage for securing the two last payments, plaintiff would give a deed. Thus the intent of the parties was clear that it was to be optional with the vendee whether he would take a deed on making the first payment. Here there is no express covenant to give a deed at all, unless it is in the provision cited. The language used in this part of the contract does not express an option, but is that of a positive undertaking. It is: "Parties of the first part agree, on receiving the sum of eight hundred dollars, * * *that they will execute and deliver * * a sufficient deed."

ment; and here we think there is no doubt that the intention was to deliver the deed of the property when $800 of the purchase money was paid. For all the installments falling due prior to that time plaintiffs might have brought their action and recovered without proof of offer to convey; but, having waited until after the time fixed for the delivery of the deed, payment and conveyance became dependent and concurrent acts, and tender of performance was essential on their part to an enforcement of defendant's obligations under the contract. The case seems to fall directly within the spirit of the second rule suggested by Sergeant WILLIAMS in his note to Pordage v. Cole, supra: "When a day is appointed for the payment of money, and the day is to happen after the thing which is the consideration is to be performed, no action for the money can be sustained without averring a performance;" and the rights of

(116 N. Y. 211) KINGSBURY v. BRADSTREET CO. (Court of Appeals of New York, Second Division. Oct. 8, 1889.)

LIBEL

MERCANTILE AGENCY.

the parties under such circumstances as exist | plaintiffs were not able to make a valid offer in this case are clearly stated by Judge GARDI- of performance, and hence not entitled to reNER in Beecher v. Conradt as follows: "The cover the unpaid purchase money. defendant has lost his right to pay the install- The order of the general term was right, ments separately, and the plaintiff his right and should be affirmed, and judgment abto enforce collection by separate suits. There solute rendered for the defendant on the is but a single cause of action, one and in-stipulation, with costs. All concur. divisible. The defendant, if he would obtain his deed, must pay all, and the plaintiff, if he would recover, must show such a performance on his part as would entitle him to all the unpaid consideration." None of the cases cited by the appellant are in conflict with the rule stated, under the construction we have given the contract. Robb v. Montgomery, 20 Johns. 15, in one respect, I think,lication by defendant, a mercantile reporting must be erroneously reported. The case a sheet containing, among other business men's agency, for the information of its subscribers, of states that the declaration averred non-pay-names, that of plaintiff, followed by asterisks, ment of all the installments. If we are to with no proof of any meaning attached thereto, understand by this that the action was brought to recover the whole purchase money, and to regard the court as holding that no tender of conveyance was necessary, then the case is in conflict with all the later authorities; but if the action was to recover the first installment only, then the decision is intelligible. I think the action must have been for the

Where an alleged libel consists in the pub

ent, who testifies that they referred only to a except the testimony of defendant's superintendmarginal note directing persons, desirous of further information concerning the person in connection with whose name they occurred, to call at dedirected, as the characters are not libelous per se, fendant's office, a verdict for defendant should be and are not shown to have any libelous significance as used.1

first installment. The case, as reported, arose term of the supreme court in the fifth judiAppeal from a judgment of the general upon a demurrer by defendant to a replica- cial department denying a motion for a new tion to a plea in the answer, and involved the trial, and directing judgment for the defendsingle question whether the assignment of ant upon a verdict rendered at circuit under the contract and the conveyance of the land direction of the court. The plaintiff alleged to Bemus by the vendor before the first in- in his complaint that he was a commission stallment was due, Bemus being ready and and grocery merchant, doing a large busiwilling, and having the capacity, to convey to defendant, was a bar to the recovery. The ness, and enjoying good credit as a business man, when the defendant, a corporation encourt held that it was not, and in so deciding gaged in conducting a mercantile agency, is in harmony with later decisions, which maliciously published, printed, and circulated hold that in an action by a vendor for an inamong its customers a circular containing stallment of purchase money falling due prior the following false and defamatory matter, to the time limited for the delivery of the referring to the plaintiff: "Canandaigua, deed, want of title in the vendor is not a deKingsbury, Sherman,-Gro.-**;" that the fense. Harrington v. Higgins, 17 Wend. defendant thereby meant that its customers 376. These and ali kindred, cases will be should understand that he "in some way or found, I think, to have arisen on independent manner had become financially embarrassed covenants in contracts, and the rule estab-in his business, and that his credit and good lished by them has no application in an action by a vendor for purchase money, brought subsequent to the day stipulated for the delivery of the deed.

name as a merchant had become affected or impaired, and especially *** that he had failed in business, or had made a general assignment for the benefit of his creditors;" The appeilants make the point that the that his business depended on his good repuagreement to keep open the right of way was tation and credit; that he had not failed, nor a personal covenant, having no relation to made an assignment; and that by means of the title, and its violation furnished no ex- the premises he was injured in his reputacuse for refusal to pay the purchase money. tion, good name, and credit. The defendThe appellants are not in a position to raise ant, in its answer, admitted its corporate such a question, being concluded by the find- character, the nature of its business, and that ing of the trial court that such right of way it did publish, print, and send to its subscribwas necessary to the proper enjoyment of the store, and that the parties intended that de-ers in certain counties, but to no one else, a fendant should have such way, and that it should be conveyed to him with the store; and we think a right of way which the trial judge found to constitute in value one-half of the property agreed to be sold cannot be regarded as an immaterial part of the consideration of the defendant's obligation. Having put it out of their power to convey the property which they had agreed to sell, the

Corrections," wherein, referring to the plaincircular known as its "Sheet of Changes and tiff, occurred the alleged libelous matter set forth in the complaint; but it denied that such publication was falsely or maliciously made, or that it thereby intended to do any

Woodruff v. Bradstreet Co., (N. Y.) ante, 354, and 1 As to what language is libelous per se, see note.

Henry M. Field, for appellant. John H. Bird, for respondent.

injury to the plaintiff. The answer also contained a general denial of allegations not admitted, and alleged that said publication was sent ir. confidence to subscribers only, pursu- VANN, J., (after stating the facts as ant to written contracts with them requiring above.) The cireular in question, on its the defendant to seek for and furnish any face, is not a libel upon the plaintiff. It report of change in the financial standing, or cannot be presumed from the nature of the otherwise, of merchants; that at the bottom words used, and it has not been proved as a of said circular was an explanation of what consequence directly resulting from their the characters in question meant, in these use, that the reputation of the plaintiff has words: "** For explanation, please call at been injured, either as a man or as a merour office;" that all the meaning that it in- chant. When construed according to their tended to convey to its subscribers, or that natural meaning they are innocent and harmthey understood it to convey, was that it had less; and, as thus construed, they were not certain confidential information concerning shown to be false. The use of characters in the plaintiff which it would confidentially, the body of the page to direct the attention and by word of mouth, convey to such of of the reader to the margin or bottom therethem as were directly interested in him, pro- of is common in many publications, and of viding they would call at its office. and make itself can excite neither suspicion nor surpersonal inquiry therefor. The publication prise. The plaintiff proved that such was in question, as read in evidence upon the the sole intention of the defendant in making trial, was headed "Improved Mercantile use of the double stars in the publication Agency, The Bradstreet Company, Proprie- complained of. The only innuendo alleged tors. Sheet of Changes and Corrections. Rochester, November 12, 1881. This information is furnished you in confidence, for your exclusive use and benefit, and subject to the conditions of your subscription to our agency. Then followed various lists of names of persons, with their residences and business appended, classified by states, and opposite each name were certain figures or characters. Those under the head of "New York" were as follows:

by the plaintiff states simply what the defendant meant; not what its subscribers or the public understood. There is no apparent ambiguity as to the meaning or application of the words. Without proof of extrinsic facts, the language of the publication, including the characters used, is capable of an innocent construction only. Standing by themselves, they are incapable of a defamatory meaning. If there was a latent injurious meaning arising from facts, known both to the defendant and its subscribers, which would reasonably lead the latter to understand the words in a secondary and a defam60 atory sense, it was neither alleged nor proved. Words not libelous per se may become so from the connection in which they are used,

Gro 83 $166 46

GS
Flour &c

44

**

Printer 83 $142

Hotel

**

Gro
B & S

**

At the bottom of the page upon which the or the circumstances under which they are foregoing appeared was the following: "** published. The situation and surroundings For explanation, please call at our office."of the most innocent expression may make it The superintendent of the defendant was libelous, but they must be distinctly alleged called as a witness for the plaintiff, and tes- and proved. The mere position in a newstified that the two stars as used in said circu- paper of an advertisement apparently inoflar simply meant that the reader should refer fensive, but surrounded by suggestive items, to the margin of the sheet for explanation, may make it a question for the jury whether that it meant nothing more than this, and it is libelous or not. Zier v. Hofflin, 33 that it did not mean anything good or bad Minn. 66, 21 N. W. Rep. 862. Words are with reference to the plaintiff's financial rep- to be construed in the light of their surutation. It appeared that about 300 copies roundings; and, although harmless upon of the circular were issued, and that they their face, if found in bad company, may were sent to all subscribers in the district, from that circumstance be determined to whether they were interested in the financial have an injurious meaning. It becomes condition of the plaintiff or not. At the a question for the jury, if there is any close of the evidence, no testimony having evidence of such extrinsic facts to be subbeen offered by the defendant, the counsel mitted to them. Id.; Williams v. Smith, for the plaintiff asked the court to submit L. R. 22 Q. B. Div. 134; Odger, Sland. & the following questions to the jury: (1) Lib. 113. The notification sheet in question Whether or not the publication of the circu- contained many names, each with figures or lar of November 12th would not be under- characters printed opposite. If it had apstood unfavorably to the plaintiff, per se, peared that those figures and characters were among persons not interested in the plain- parts of a cypher understood, or capable of tiff, and not called for by the customers of being understood, by the subscribers, through the defendant; (2) whether the plaintiff had a key furnished by the defendant, and that in not sustained damages under the evidence." each case, or even in many cases, they indiThe court refused said appiication, and di- cated that the person against whose name 'rected a verdict for the defendant. they stood had failed in business, or was pre

paring to fail, or was financially embarrassed, a case would have been presented for our determination quite different in its legal aspects from the one now under consideration. Erber v. Dun, 12 Fed. Rep. 526, 532; Woodling v. Knickerbocker, 31 Minn. 268, 17 N. W. Rep. 387; Shepheard v. Whitaker, L. R. 10 C. P. 502; Bank v. Henty, L. R. 5 C. P. Div. 514; Ruel v. Tatnell, 29 Wkly. Rep. 172. This appeal must be decided upon what was alleged and proved by the plaintiff, and not upon what might have been alleged and proved. On the record as presented, we think that it was the duty of the learned justice who presided at the circuit to direct a verdict for the defendant. We have examined the exceptions relating to evidence, but, in the light of the suggestions already made, it is obvious that none of them were well taken. The judgment should be affirmed, with costs. All concur, except BRADLEY and HAIGHT, JJ., not sitting

conveyed their interest to A., she acquired the entire beneficial interest in the property, making the exercise of the power of sale unnecessary.

Appeal from city court of Brooklyn, general term.

The action was brought to recover a certified bank-check, representing the balance alleged to be due of the purchase price of real estate sold and conveyed in March, 1885, by the plaintiff to the defendant Waddell, which bank-check the latter had deposited with the defendant Major. It appears that at the time of the delivery of the deed to the defendant Waddell he paid all the purchase money except $1,000, for which amount he delivered his check to Major, pursuant to an understanding with plaintiff that it be held until the title was examined, and, if found to be "such as a party could be compelled to accept under a contract assuring a title in fee," then the check should be delivered to the plaintiff. After examination the defendant Waddell notified the plaintiff that the deed did not convey a good title to one-third of the premises, and thereupon tendered reconveyance to the plaintiff, and demanded repayment of the money he had paid. This was refused, and the action was thereafter EQUITABLE CONVERSION-POWERS-TRUSTEES AND Commenced. The title to the one-third in

(116 N. Y. 234)

GREENLAND v. WADDELL et al. (Court of Appeals of New York, Second Division. Oct. 8, 1889.)

EXECUTORS.

1. A will devising and bequeathing all the testatrix's estate, real and personal, to executors, with power of sale, for the purpose of distributing the proceeds as directed, produces an equitable conversion of the real estate into personalty.

question was in Agnes Boerum, who died in the year 1875, leaving a will, which was admitted to probate and recorded. By it she appointed her brother, Fulkert R. Boerum, and Charles H. Vanderveer executors, to 2. The power of sale given by the will to the whom letters testamentary were issued. So executors is not within the statutory term of express trusts, to execute which the supreme court far as essential for reference here, her will has power to appoint trustees under 1 Rev. St. N. was as follows: "After all my lawful debts Y. p. 730, §§ 69, 70. The power of sale being vested are paid and discharged, I give and bequeath in executors, such power would be taken by an ad- and devise unto my executors, * * * ministrator with the will annexed, and, on the acceptance by the supreme court of the resignation and the survivor of them, all and singular of the surviving executor, the power of sale could my estate and property, real and personal, not be executed by a trustee appointed by the su-*** preme court.

to have and to hold the same in 3. The will devised and bequeathed testatrix's trust to receive and collect the rents, issues, estate to executors, with power of sale for the pur- and profits, interest and income thereof, and pose of distributing the proceeds, one-third each as soon after my decease as in their judgment to testatrix's brother and sister, and the income they shall deem expedient, and for the best of the other third to another sister, A., while she remained the wife of her then husband. If she interest of my estate, to sell, assign, transsurvived him she was to take the corpus of the fer, dispose of the same either at public or fund, and, if she did not, it was to go to her lawful private sale, *** and to divide, pay, issue, if she left any surviving her, who reached the age of 21 years; otherwise it' should go to and distribute the proceeds thereof, together testatrix's brother and the other sister. When with the whole of my estate, as follows: To testatrix died A. had no children living. Held, my sister Susan Vanderveer, wife of Charles that the direction to pay the fund to A.'s children H. Vanderveer, one equal third part thereof;

in the event mentioned, or, on their failure to ar

rive at the age of majority, to testatrix's brother and sister, was void under 1 Rev. St. N. Y. p. 773, §1, forbidding the suspension of the ownership of personal property for more than two lives in being at

the death of testatrix.

4. Upon the resignation of the surviving executor, the supreme court appointed A. as trustee, to whom testatrix's brother and other sister conveyed and transferred their contingent interest in the property. Held that, as testatrix would die intestate as to such fund in case A. did not survive her husband, or in case the power of sale was not exercised by sale of the land during her life, the intestacy would be applicable to it as real estate, and the land or personalty would go to testatrix's next of kin, the brother and sister. The issue of A., if she should leave any surviving her, would have no interest in the fund or property, and, if she did not survive her husband, her interest would be only a life-estate. The brother and sister having

to my brother, Fulkert R. Boerum, one equal third part thereof. The remaining one equal third part thereof I hereby order and direct my said executors safely and securely to invest and reinvest from time to time, in their discretion, upon such security, and in such manner, as they shall deem advisable and proper, to receive and collect the interest or income thereof, and, as the same shall by them be so collected, to pay the same to my sister Adrianna Bush, wife of Charles Bush, for and during the joint lives of her and her husband; * * * and in case my said sister Adrianna Bush shall die before her said husband, leaving lawful issue her surviving, then my executors shall, from and after such

the execution of the trusts created by the will, it must be so treated. Kane v. Gott, 24 Wend. 641; Stagg v Jackson, 1 N. Y. 206; Everitt v. Everitt, 29 N. Y. 39. By the terms of the will the entire estate of the testatrix was devised and bequeathed to the executors, and they were given the power of

death, pay such interest or income thereof, | Boérum, to plaintiff conveyed such title to or such portion of such interest or income as him. The will was productive of an equitamay be necessary, towards the support, main-ble conversion of the real estate of the testatenance, and education of the child or chil- trix into personalty; and, for the purpose of dren of my said sister Adrianna Bush, until the youngest child shall arrive at the age of twenty-one years, and, on said youngest child arriving at such age, my said executors shall pay and transfer to the child or children that shall then be living the whole of said remaining one-third, with its accumulations, and on the death of all said children before arriv-sale for the purpose of distributing the proing at such age, or on the death of my said ceeds as directed; that is to say, two-thirds of sister Adrianna without leaving lawful issue the amount to be paid to two distributees, and her surviving, my executors shall pay the re- the income of the other third to Mrs. Bush maining one-third, with its accumulations, while she remained the wife of her then husto my brother, Fulkert R. Boerum, and my sis- band. If she survived him, she was to take the ter Susan Vanderveer, to be divided equally corpus of the fund, and if she did not, it was between them, share and share alike; and in to go to her lawful issue, if she left any surcase my said sister Adrianna Bush shall surviving her, who reached the age of 21 years; vive her husband, Charles Bush, then on the otherwise it should go to her brother, Mr. death of her said husband the said remaining one-third, with its accumulations, shall be paid and transferred to my said sister Adrianna Bush, absolutely, in preference to any other disposition thereof."

Boerum, and her sister Mrs. Vanderveer. The executors took no title to the real estate as such. They were vested with a power to deal with it as personal estate, for the purposes of the execution of trusts created by the will; and one question presented is whether the power of sale came within the duty of a trustee, as distinguished from that of an ex

The question as to where is located the line between the duties which fall upon an executor, and may be discharged by an administrator with the will annexed, and the power which must be executed by a trustee, has been involved in some uncertainty in view of the apparent want of harmony in judicial opinion upon the subject. The theory upon which the distinction seems to have been founded is that the duties of an executor pertain to the

In 1883 the executor Vanderveer died, leaving Boerum the sole surviving executor. In February, 1884, Fulkert R. Boerum and Susan Vanderveer conveyed all their inter-ecutor. est in the premises in question to Mrs. Bush, and shortly thereafter, upon the petition of Boerum, and with the consent of Mrs. Bush and Mrs. Vanderveer, an order was made by the supreme court accepting the resignation of Boerum as trustee of such will, and discharging him accordingly, and from all obligation to account further, etc., and by the same order Mrs. Bush was appointed trustee under the will, and directed to file security, etc. Shortly afterwards Mrs. Bush, as trus-office, and those of a trustee to the person; tee, made to one Joslyn a deed of the prem- that the character given to a trustee has relaises, which he thereupon reconveyed to her, tion to a personal trust, while that of an execand she individually made deed of convey- utor is official solely. Hence it has, in the ance to the plaintiff. This was the evidence more recent case of Mott v. Ackerman, 92 N. of the title claimed by plaintiff to the one-Y. 553, been said by Judge FINCH, in speakthird in question, at the time of the com-ing for the court, that, "where the power mencement of the action, to have been con- granted or duty involved imply a personal veyed to the defendant; but before final confidence reposed in the individual over, judgment a further deed was made by Mrs. Bush, as such trustee, to the plaintiff, which was treated as effectual for purposes of the action as if made before its commencement. The judgment directed by the trial court for the plaintiff was reversed, and new trial granted by the general term. Plaintiff ap-peals. Jesse Johnson, for appellant. A. B. Carrington, for respondents.

BRADLEY, J., (after stating the facts as above.) The question is, whether or not the deed of conveyance made by the plaintiff to the defendant Waddell was effectual to convey a perfect title to the one-third of the premises of which Agnes Boerum died seised, and that depends upon the result of the inquiry whether the deeds of Mrs. Bush, individually, and as trustee of the will of Agnes

above, and beyond that which is ordinarily implied in the selection of an executor, * **the power and duty are not those of executors virtute officii, and do not pass to the administrator with the will annexed." And when a discretionary power of sale is given to executors, or when, in the sense as applied to trusts, the duties imposed are active, the executors will be deemed trustees, and such powers cannot be executed by an administrator with the will annexed. Cooke v. Platt, 98 N. Y. 35; Ward v. Ward, 105 N. Y. 68, 11 N. E. Rep. 373. In the present case the real estate of which the testatrix died seised became, by virtue of the direction in her will to sell for the purposes there mentioned, personalty as of the time of her death, upon the principle applicable to such case that what is directed to be done by the will may be regarded as done at the time directed.