Deducting from this amount

-the remainder due upon the note, from the value of the mules, left

-due from O'Rourke

to Hadcock. It was found that the value of the Pettibone at the

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 quired 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 sold 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 plaintiff 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 126 38 of the Kittinger upon the information that the Pettibone had not sold for enough to satisfy the claim. I gave that direction." It is apparent that the plaintiff did not avail himself $643 62 of his right to rescind the sale, and repossess himself of the property described in the contract, by virtue of his legal title, in case any part of the price was unpaid; but he elected to collect the sum which he claimed to be due, and he thereby affirmed the sale. Had he disaffirmed the sale he could not have legally done more than to retake the property sold; but instead of doing only this, he enforced the chattel mortgage and the contract for the $4,900 00 avowed purpose of collecting his debt. It is well settled that when a mortgagee, holding a mortgage upon several chattels, continues to sell after he has realized enough to satisfy the debt and costs, he becomes a trespasser. So, when several distinct chattels are sold 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 of the contract, seizes the chattels for the avowed purpose of selling them and collecting the amount due upon the contract, he has no right to seize and sell, or seize and retain, more than is sufficient to satisfy his demand and expenses. The plaintiff asserted in his notice of sale that he would sell the mules and their harnesses to satisfy his claim, and, though the title to them was not reserved by the contract, we think he is now estopped from saying that his act was not by virtue of the contract, and for the purpose of collecting his debt, but was wholly wrongful. But it is said that the case does not show that the mules and their harnesses were sold. The only evidence upon this subject was given by Davis, who testified: "The mules were not sold at this time, [July 28, 1876,] nor were the harnesses." The trial of this case was not concluded until March 3, 1884, more than seven years after the plaintiff took the mules

time of the trial was $750 00 That the value of her use

and the damages for her detention was

·

That the value of the Kittinger at the time of the trial was

And the value of her use, and the damages for her detention was

4,150 00

650 00

3,350 00

Total $8,900 00 --and judgment was directed for $8,500, the value of the use, and the damages for detention, of the two boats, and for the return of the two boats; but, in case a return could not be had, for $1,400, their value. A judgment was entered in accordance with this report, with costs. From this judgment the plaintiff appealed to the general term, where the judgment was affirmed, from which judgment he appeals to this court.

James M. Humphrey, for appellant. George J. Sicard, for respondent.

FOLLETT, C. J., (after stating the facts as above.) The referee, by his decision, in effect finds that the plaintiff elected to affirm the contract of sale, and collect the amount due upon it. The plaintiff's conduct was entirely consistent with this theory, and utterly inconsistent with the plaintiff's present theory, that

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 property, and by this action arising out of the very contract by virtue of which they were taken. When an executory contract for the sale of chattels provides that title shall not pass until the agreed price is fully paid, which is payable in installments, and the vendor permits the vendee to retain possession, and make other payments, after the whole contract price is due, the vendor cannot seize the property and terminate the contract for non-payment until he has demanded payment of the vendee. Hutchings v. Munger, 41 N. Y. 155. There is no evidence in this case that the plaintiff demanded payment of the defendant. Davis testified that he demanded the boats and property covered by "these mortgages," which the defendant denied. The referee did not find whether possession of the boats and their furniture was demanded, but he did find that the plaintiff took the mules and their harnesses without a previous demand.

The judgment roll in the first action between these parties was evidence of the amount due from the defendant to the plaintiff. This amount was the subject litigated in the action. The record shows that the judgment was rendered on the merits, and so it became conclusive between the parties. Code Civil Proc. § 1209. The judgment should be affirmed, with costs. All concur, except BRADLEY, J., who reads dissenting opinion.

It is contended on the part of the defendant that the instrument was or became in its nature a chattel mortgage, because it was treated as such in the use made of it by the plaintiff in filing and refiling it, and in subsequently advertising the boat for sale on taking it from the defendant. It is difficult to see in this any such effect upon the character of the agreement, as its terms clearly and unequivocally characterize it as an executory agreement of sale, and the payment of the purchase price as a condition precedent to the change of title. It is also urged that such condition was waived by the plaintiff because he did not avail himself of the default in payment of the last note when it became due in November, 1875, but received payments of the defendant from time to time thereafter, and did not seek to take the boat until in July following, when this action was commenced. While that was a waiver of the forfeiture so far as to permit the defendant to complete his payments and perfect title to the boat, it did not have the effect to take the condition from the agreement, or to change its character, but by such waiver that right of the defendant was continued until demand and refusal. Hutchings v. Munger, 41 N. Y. 155. The doctrine of the cases which go to support the proposition of waiver of a condition in the transfer of property has relation to the condition upon which delivery of possession is made dependent. Hennequin 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, remaining 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 $643.38, 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 commencement of the action. The This he did. But the sale was conditional. The right of the defendant was to complete the purchase and take title by payment, and until then the title remained in the plaintiff. This was the situation produced by force of the agreement, (Strong v. Taylor, 2 Hill, 326;

fact, as found by the referee in that respect, was based solely upon a record of judgment in an action between the same parties, brought by Hadcock against O'Rourke on or about July 7, 1876, wherein the former alleged payment 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 be tween 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 his 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 the merits is not dependent upon an express declaration to that effect by the referee. It is sufficient that it so appears by the judgment record. Code Civil Proc. § 1209; Van Derlip v. Keyser, 68 N. Y. 443.

It is contended by the plaintiff's counsel that the only question legitimately involved in the issue for determination in the former action was whether the notes had been paid, and the property thus relieved from the claim 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 payinent, 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 amountdition, 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; Balch v. Patten, 45 Me. 41. It 423. is not unreasonable to suppose that the doctrine may be so extended as to permit the waiver of the tort, and the maintenance of an action as for goods sold and delivered, when the wrong-doer has, by using the property for his own benefit, changed its condition and character, as held in Abbott v. Blossom, 66 Barb. 353. But that question does not arise, and is not considered here.

When the plaintiff, by the action and requisition, sought to obtain, and did take, the boat Pettibone, he was denied the right to the possession of the other boat for the reason before given. I should be inclined to give the defendant the benefit of the recovery of the Pettibone, and damages for its retention, as that produced the larger amount, if that 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 contract of sale, or put an end to it, and this would terminate his right to seek payment, or to avail himself of the security given for it. The plaintiff did at the same time proceed to take both boats. They were taken together, upon his requisition in this action, July 24th, and delivered to him July 27th. On July 22, 1876, he advertised them for sale by separate notices, and sold both of them on the 28th day of that month. The plaintiff had 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 1 Reversing 53 N. Y. Super. Ct. 255.

fendant so stipulates, the judgment, in other respects, and so modified, be affirmed, without costs of this appeal to either party.

(114 N. Y. 558) CARR & HOBSON, Limited, v. STERLING.1 (Court of Appeals of New York, Second Division. June 18, 1889.) BAIL-PRINCIPAL AND SURETY-LACHES --PLEADING-AMENDMENT.

1. In an action on an undertaking given to se

tion, plaintiff alleged that the undertaking was | Upon the trial the court dismissed the comexecuted by defendant, and accepted by plaintiff, plaint, and ordered the exceptions to be heard under an agreement that H. should be released, defendant 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 required; that both went to defendant, and H. asked 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 some talk, partially filled out the bond. They then 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 or

2. 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 than the one in which the order of arrest was issued is immaterial; it being unnecessary that it

should be entitled at all.

3. Judgment was entered against H. in the action in which he was arrested, but an execution against his body did not issue until more than a year and a half thereafter, during most of which time H. remained in the vicinity, but when it did issue he could not be found. Plaintiff's attorney testified that, after judgment was entered, defendant asked him not to press H., and to use his influence in aiding H. to regain his position with plaintiff, and that for this reason he had delayed issuing execution. Held, that the laches in issuing execution were excused.

4. Code Civil Proc. N. Y. § 1207, which provides that "where there is no answer the judgment shall not be more favorable to the plaintiff than that demanded in the complaint," does not prevent the plaintiff, after service of summons and complaint, from amending his complaint, so as to demand a larger sum, without notice to the defendant, who has not appeared, and recovering judgment for the amount claimed in the amended complaint. If the defendant were entitled to notice, the failure to give it would be but an irregularity, which would not render the judgment void.

Appeal from superior court of New York city, general term.

Action by Carr & Hobson, Limited, against Anna J. A. Sterling, upon an undertaking executed by defendant. From a judgment overruling exceptions taken upon the trial and dismissing the complaint plaintiff appeals.

Norman T. Melliss, for appellant. L. Laflin Kellogg, for respondent.

surety, and did not conform to the provisions of the Code, and the plaintiff does not claim the right to recover on it as a statutory undertaking, but does claim the right to recover upon it as an agreement, which is good at common law.

The action in which the order of arrest was issued was brought in the superior court of the city of New York. The undertaking was entitled in the supreme court. It is now claimed that it is void because it is not entitled in the court in which the action was brought. Without stopping to consider the effect that this would have upon a statutory undertaking, we are of the opinion that inasmuch as it is founded upon an agreement, and is sought to be maintained by virtue of the agreement, the defect, if such it be, in a statutory undertaking, is not available in this action. There is no obscurity in the agreement in reference to the order of arrest that Holt was to be released from, or the obligation that the defendant undertook upon his being discharged. Treating it as an agreement between the parties, no particular form was necessary. It was sufficient if the minds of the parties met, and assented to its terms. As an agreement, it was not necessary that it should be entitled, and the words "Supreme Court," at the head thereof, have no significance, and may be properly treated as surplusage.

The original complaint in the action in which the order of arrest was issued demand

HAIGHT, J. This action was brought up-ed judgment for $7,000 and interest. on an undertaking executed by the defendant, to secure the release of one William W. Holt from an order of arrest issued in a civil action. The undertaking was in the sum of $7,500, and provided that Holt "shall at all times render himself amenable to any mandate which may be issued to enforce final judgment against him in the action." Final judgment was entered therein on the 27th day of May, 1882, and thereafter, and on the 29th day of November, 1882, an execution was issued against the property of the judgment debtor. Such execution having been returned unsatisfied, an execution against the body of the said judgment debtor was issued on the 7th day of December, 1883, and was returned by the sheriff, with the indorsement thereon, "Defendant not found." Thereafter this action was brought upon the undertaking.

The de

fendant did not appear in the action. Subsequently, on an application to the special term, the complaint was amended ex parte, so as to demand judgment for $13,618.66, with interest from April 3, 1882, with costs, etc. Thereafter judgment was entered for that amount. It is claimed that this was in violation of section 1207 of the Code of Civil Procedure, which provides that, "where there is no answer, the judgment shall not be more favorable to the plaintiff than that demanded in the complaint." If the judgment is void, then it would not be within the provisions of the agreement, under the terms of which Holt was to render himself amenable to any mandate which may be issued to enforce a final judgment against him in the action. Mittnacht v. Kellermann, 105 N. Y. 468, 12 N. E. Rep. 28. But is it a void judgment?