Newcomb v. Cramer.

done this, the younger Cramer called upon the Thompsons and showed the forwarder's receipt of the delivery of the wagons, and requested the note in question, which the Thompsons then had in their possession. At first this was declined by Oscar F. Thompson, on the ground that he had no directions about it. The facts were then at the same time stated to Isaac W. Thompson, who remarked that "he had seen the wagons as he was passing along in the street." He said "they were nice looking wagons, and thought they would do." He then told his brother to get the note and give it up to the defendants, which he then did; observing that he would keep a copy of the note, so that if there was any thing wrong, or the wagons should not turn out according to contract, it could be rectified.

The wagons remained at the Landing until the last of April, 1846. About half the time they were there, they stood in an open shed--open to the west-that being the side fronting the dock and canal. On the opening of navigation, they were forwarded to the plaintiffs, by Kellogg, and in a few days after arrived in Troy. A carman named Stannard, took them from the dock in Troy, and put them under a shanty on the plaintiffs' premises. He told them of it; and left the wagons there, where they remained until the September following, when they were moved by Stannard to Armstrong & Squires' store, at which place they were seen during the circuit.

In April, 1846, the plaintiffs wrote to the Thompsons, stating the arrival of the wagons in Troy, complaining of them, and declining to receive them, unless the defendants made a further agreement, &c. The reading of this letter as evidence, was objected to by the defendants' counsel, but admitted by the judge. O. F. Thompson communicated the letter to the defendants-he having, as he thought, in the summer, notified the plaintiffs that the wagons had been left at the Landing by the defendants and they declined doing any thing about it. He then demanded the note, or such wagons as it described, which demand they did not comply with. Testimony was introduced on both sides as to the quality and value of the wagons. The plaintiffs' witnesses on this point spoke of the value at Troy, and the defendants' witnesses of the

1

Newcomb v. Cramer.

value at Comstock's Landing and vicinity. The plaintiffs recovered the amount of the note with interest, being $120,76. A motion was now made by the defendants for a new trial, upon

a case.

D. L. Seymour, for the plaintiffs.

J. Finlayson, for the defendants.

By the Court, WILLARD, J. As the charge of the judge is not set forth in the case, and was not objected to, we must presume that it fairly submitted the questions of fact. The weight of evidence as to the quality and value of the wagons, and as to whether the plaintiffs had in fact accepted them, was clearly with the plaintiffs, and warranted the verdict.

The errors mainly complained of are, 1st. The reception in evidence of the letter of the plaintiffs to Mr. Thompson, dated April 23, 1846. It was objected to because it was the acts or declarations of the plaintiffs themselves. The wagons were not received by the plaintiffs at their residence, in Troy, nor did they know of their existence till the opening of canal navigation, in April, 1846, and immediately on seeing them, they wrote the letter in question to Mr. Thompson, their attorney, declining to accept them on the contract, pointing out their defects, and suggesting a course for the defendants to adopt, and directing Mr. Thompson to communicate it to the defendants, which he accordingly did. This was undoubtedly admissible in evidence. It was the notice by the plaintiffs of their non-acceptance of the wagons, and of their specific objections to them. It is not material that it was not addressed to the defendants. It was obviously intended to be shown to them, and was read to them by Mr. Thompson.

It is insisted in the next place, that the acts of the plaintiffs amounted to an acceptance of the wagons. If this be so, the verdict was of course wrong. The wagons, by the terms of the note, were deliverable at Comstock's Landing the 27th January, 1846, to or for the plaintiffs. They were on that day delivered

Leggett v. Rogers.

to Kellogg, at the Landing, and he gave a receipt to the defendants, saying that he had received the wagons in store for O. F. Thompson, consigned to the plaintiffs, Troy, N. Y. Kellogg had the only storehouse at Comstock's Landing, which was 11 miles from Mr. Thompson's, in Granville, and 64 from the plaintiffs', in Troy. Mr. Thompson was not authorized by the plaintiffs to receive the wagons; and there is no evidence that the latter were apprized of the delivery, until their arrival in Troy, in April following.

Under a contract like this, it was the duty of the defendants, after making the delivery at the only storehouse at Comstock's Landing, to notify the plaintiffs thereof, without delay. Until such delivery and notice to the plaintiffs, the latter were not in circumstances to object to the quality of the articles; nor could the title pass. (See Wood v. Tassell, 6 Adol. & Ellis, N. S. 234; Story on Contracts, 801.) As Thompson was not the agent of the plaintiffs, his delivering up of the original note, was a nullity. He had no power to accept the wagons. Notice to him was not notice to the plaintiffs. The defendants knew that Thompson had no right to give up the note. Their obtaining possession of it, was a fraud upon the plaintiffs.

The verdict and judgment were right; and the judgment should be affirmed.

Judgment affirmed.

SAME TERM. Before the same Justices.

LEGGETT vs. ROGERS.

A deed executed by the comptroller to a purchaser, upon a sale of lands for taxes, which purports to be given in pursuance of the statute relative to the assessment and collection of taxes, and recites sale of the land for taxes, to the grantee, by virtue of that statute, is valid, although it is not executed in the name of the people,

An error in the notice given to the occupant, on a sale of lands for taxes, as

Leggett v. Rogers.

to the amount claimed to be due for taxes, per centage, &c. will not vitiate a deed executed by the comptroller to the purchaser at the sale. A deed from the comptroller, conveying lands sold by him for taxes, is not even prima facie evidence that the preliminary steps required by law to give that officer authority to sell, have been complied with. And without proof of these, the deed is unavailing to the grantee, in an action of ejectment brought by him to recover the premises. CADY, J. dissented.

THIS was an action of ejectment brought to recover seventysix acres of land, being lot number one in Abeel's three thousand acres patent; and was brought to trial on the first Monday of February, 1849, before the Hon. John Willard, one of the justices of the supreme court, in the county of Warren.

The plaintiff offered in evidence a conveyance from the comptroller, under his hand and the seal of his office, dated on the 7th day of October, 1845, conveying to the plaintiff the said parcel of land; which deed on its face purported to have been given in pursuance of chapter 13 of the first part of the revised statutes, and recited a sale for taxes in the month of June, 1843, and purported to be made between Azariah C. Flagg, comptroller of the state of New-York, of the first part, and the plaintiff of the second part, and concluded as follows: "In witness whereof the said party of the first part, as comptroller for the time being, hath hereunto set his hand, and caused the seal of his office to be affixed, the day and year first above written." The deed was executed in the presence of Philip Phelps, deputy comptroller, and subscribed by him as a witness.

The defendant's counsel objected to the said conveyance being read in evidence, because, as he alledged, it was not given in the name of the people of the state of New-York. The objection was overruled, and the defendant's counsel excepted.

The plaintiff then offered in evidence a copy of a notice and affidavit as follows:

"State of New-York, Warren county, ss. To Simon B. Russell of Bolton in said county. Please to take notice that the following described land, to wit, lot number one in Abeel's three thousand acre patent in said town of Bolton, and which at the time of conveyance hereinafter mentioned was and yet is in your

Leggett v. Rogers.

actual occupancy, was sold for taxes by the comptroller, and conveyed as provided in the third article, title third, and chapter thirteenth of the revised statutes of said state, to Thomas A. Leggett of Chester, in said county of Warren. The amount of the consideration money, to wit, $8,04 mentioned in the conveyance, with the addition of thirty-seven and a half per cent on such amount, and the addition of fifty cents, the sum paid for the comptroller's deed, are in the aggregate $17,09; and unless the last mentioned sum $17,09, shall be paid into the treasury for the benefit of the said grantee Thomas A. Leggett within six months after the service of this notice, the said conveyance of the said comptroller will become absolute, and the occupant and all others interested in the said land be forever barred from all right or title thereto. Dated at Chester, the 12th day of November, A. D. 1845. THOS. A. LEggett."

"State of New-York, Warren county, ss. Joseph Woodward of the town of Warrensburgh, in said county, being duly sworn, says that on the 12th day of November, A. D. 1845, in said county, he served a notice of which the above is a true copy, or duplicate, personally, by delivering the same to the within named Simon B. Russell, the person occupying the land therein de scribed. JOSEPH WOODWARD."

"I certify that the above oath or affidavit was taken before me in due form of law, on the said 12th day of November, 1845, at Warrensburgh, by the above named deponent, who is credible. GEO. RICHARDS, Justice of the Peace."

To which was attached certificates as follows:

"I certify that I have compared the preceding copy of a paper on file in this office with the original, and that the same is a correct transcript therefrom and the whole of the said original. In testimony whereof I have hereunto subscribed my name and caused the seal of my office to be affixed, the 12th [L. S.] day of August, 1848.

Philip Phelps, Dep. Comptroller. "State of New-York. Comptroller's Office. I certify that it appears to my satisfaction, that on the 12th day of November,