A

ACTION.

1. In all cases where a party, having
it in his power, cancels a contract or
declares it void, he should restore
the other party to his former right,
by repayment of money, or return
of property, received on such con-
tract; and failing to do so, he is lia-
ble to an action for its recovery.
Utter v. Stuart,
20

2. A complaint alleged that the plain-
tiff, being the owner of a farm, sold
and conveyed it to the defendant,
who, in consideration thereof, prom-
ised and agreed to pay the plaintiff
$2700 therefor. That the defendant
paid $200, and gave the plaintiff a
mortgage on the premises to secure
the payment of $2500, the remain-
der of the purchase money; that no
bond was given as collateral to the
mortgage, but the defendant agreed
not to commit waste on the premises,
by cutting timber or otherwise, and
that the farm should be kept and
preserved in as good condition as it
was at the time of sale; that to in-
duce the plaintiff to waive the giv-
ing of a bond by the defendant, the
latter falsely and fraudulently rep-
resented that he purchased the farm
for a homestead for his son; where-
as, in truth and in fact, he purchased
the same for the purpose of selling
it at an advance, to one D. who was
without means and unable to pur-
chase such a farm. That the de-
fendant, two days after he had so
purchased the farm, sold and con-
veyed it to D. without any covenant

or agreement from him restraining
the commission of waste, or obliging
D. to keep the premises in good con-
dition and preserved from waste and
depreciation in value. That the de-
fendant suffered and permitted D. to
cut and destroy the timber on said
farm, and the fences, farm and build-
ings to become ruined, dilapidated
and greatly depreciated in value, to
the amount of $800. That the mort-
gage had been foreclosed, and the
farm was sold for a sum insufficient
to pay the same; the deficiency be-
ing over $800. The complaint then
prayed that the defendant might be
adjudged to pay to the plaintiff the
amount of such deficiency, with in-
terest, &c. Held that the complaint
did not state facts sufficient to con-
stitute a cause of action; and that
it was properly dismissed for that
202
Vrooman v. Dunlap,

cause.

3. A right of action for the conversion
of promissory notes will pass to the
assignees of the owner, under a gen-
eral assignment executed by him,
of all his property, for the benefit
of creditors. Whittaker v. Merrill,

389

4. But where the assignees count only
upon a conversion subsequent to the
assignment, as shown by the refusal
of the defendants to deliver the
notes, on a demand made in their
behalf, and they give evidence tend-
ing to sustain that claim, it is not
competent for them afterwards to
avail themselves of the original
right of action, so assigned to them,
for a conversion previous to the as-
signment.
ib

2. Prior to June 23, 1855, the plaintiff
and defendants were partners, in the
business of manufacturing machines,
at Corning, in this state. On that
day they agreed to dissolve the part-
nership; the defendants to give up
to the plaintiff certain notes held by
the former against him, for $3000,
and to give him a shingle machine,
and also to construct for him an en-
gine and bill of machinery, which
the plaintiff was to set up and run
until, from one half the net earnings
thereof, to be received by the de-
fendants, they were fully paid for
such machinery, less the sum of
$300, which was to be deducted from
the price. The defendants manu-
factured the engine and machinery,
but on demand by the plaintiff, re-
fused to deliver the same, on the
ground that the plaintiff had pur-
chased a lot of land in Pennsylva-
nia, on which he proposed to erect
the said machinery; that for the
purchase money thereof, $1541, he
had confessed judgments which had
been duly docketed, so as to become
liens upon the land; that by the law
of Pennsylvania the erection of this
machinery upon the premises would
make such machinery a part of the
realty, so that the judgments would
attach to the same as liens, and a

sale of the land would pass the title
to such machinery to the purchaser.
Held, 1. That the plaintiff could
not recover of the defendants for the
price of the shingle machine, in the
absence of any proof of a previous
demand and refusal of delivery.
2. That in respect to the engine and
machinery, if the law of Pennsyl-
vania were as claimed by the de-
fendants, the plaintiff had no right
to require the delivery of that prop-
erty in order that he might turn it
over to pay, or secure, a precedent
debt, in fraud of the defendants'
claim for the purchase money.
3. That the defendants being, by the
express terms of the contract, au-
thorized to retain the title to the
machinery until the purchase money
was paid, they were not bound to
relinquish their title to the property,
or to allow the property to be sent
out of the state, whereby they would
be deprived of the same, or their
lien upon it. 4. That evidence to
show that the law of Pennsylvania
was as claimed by the defendants,
was admissible, and ought to have
been received. JOHNSON, J. dis-
sented. Hawkins v. Brown,

206

3. The law will not allow a party, in
an action for the breach of a con-
tract, to recover, as damages, losses
which he has sustained in the per-
formance of his contracts with oth-
ers, even where such contracts are
founded, in some measure, upon the
contract alleged to have been bro-
ken. Lowenstein v. Chappell, 241

4. On the 20th of February, 1857, the
defendant agreed to rent to the
plaintiff a store, for the term of one
year from the 1st of April then next.
Relying upon this agreement, the
plaintiff sold to M. the lease of a
store he then occupied, agreeing to
give possession on the 2d or 3d of
April; and M. suffered the plaintiff
to occupy a room in the store, for
his goods, in the mean time. For
the purpose of protecting his goods
from damage while the store was
undergoing repairs, the plaintiff
packed them up and they sustained
some damage in consequence of the
packing. In an action to recover
damages of the defendant, for a
breach of his agreement; Held that
the packing of the goods not having
been done for the purpose of remov-

ing them to the store of the defend-
ant, nor being necessary, for that
purpose, the plaintiff could not re-
cover for any injury to the goods
occasioned by the packing thereof;
such injury not flowing directly, or
necessarily, from the breach by the
defendant, but from the plaintiff's
agreement with M. to give up to
him the store in which the goods
were situated, and that they should
in the mean time occupy a particular
space therein.
ib

5. Held also, that the plaintiff was not
entitled to recover interest on the
value of his entire stock of goods
which he intended to put into the
defendant's store, during the time
he was by the defendant's breach of
contract prevented from exposing
them for sale.
ib

6. The plaintiff, and S., his assignor,
being in possession of a bill of ex-
1 change, valid in their hands, for
$913.50, drawn by one T., their
debtor, to the order of, and indorsed
by, two other persons, on the de-
fendant, payable in three months,
delivered the same to the defendant
on his promise to pay them therefor
the sum of $850, the next morning.
Held that there was a good consid-
eration to uphold the promise; the
parting with the bill, under the cir-
cumstances, being a detriment to the
holders, whether it was then accept-
ed or not, and the receipt of it by
the defendant being a legal benefit
and advantage to him. Forward v.
Harris,
338

7. S., the maker of a note, and the
plaintiff and W. his sureties, being
sued thereon, the plaintiff, before
judgment, paid to the holder one
half of the amount due on the note,
and costs. The holder thereupon,
by a written agreement acknowl-
edging that he had received from
the plaintiff $45 in full for his share
of the note, as one of the sureties,
discharged him from all further lia-
bility thereon, and agreed to use
due care and diligence in the collec-
tion of the note and costs out of S.;
and when collected to pay the plain-
tiff one half of all he should be able
to collect on the note. Held, that
the payment, by the plaintiff, of a
part of the costs of the action on the
note, being a payment of what he
VOL. XXX.

43

9. And in an action against him, upon
his agreement, it will not be a valid
defense for the holder, that the prin-
cipal might, by reason of the pay-
ment to such holder, by the plaintiff,
of one half of the note and costs,
and by the other surety, subsequent
to the agreement, of the other half
of the debt, have successfully de-
fended an action against him on the
note. For non constat that the
principal would, if sued, have avail-
ed himself of the payments by the
sureties, or have been able to es-
tablish that his liability on the note
was discharged.
ib

10. There is no such impossibility of
performance, in such a case, on the
ground of the principal having been
discharged by the payment of the
note, as will relieve the holder from
the obligation of his contract. ib

11. Costs do not become a debt against
a party to an action, until judgment;
unless he agrees to pay them. ib

12. The plaintiff, by a written agree-
ment executed on the 9th of Octo-
ber, 1849, agreed to do the mason
work, and furnish the materials for
erecting a building for the defend-
ant, which was to be completed,
except a portion of the plastering,
on or before the 20th of November
then next; which time was subse-
quently extended ten days. The
building was to be three stories in
height; the defendant reserving the
right to put on a fourth story, by
paying a specified sum per thousand
for the brick laid in the walls. Held
that the defendant's right of elec-
tion, in regard to the fourth story,
could only be exercised while a rea-
sonable time remained for adding
another story and finishing the
work, with the addition, by the time

specified in the contract, or as ex-
tended; and that unless the defend-
ant exercised his right of election
within that time, he lost it. Lauer
v. Brown,
416

13. Held also, that if, within that time.
the defendant elected to have a 4th
story, the plaintiff was bound to
construct it, and perform all the
work (except the plastering) by the
30th of November. That the time
for completing the job was fixed in
reference to all the work, including
the fourth story, if that should be
determined on.
ib

See FRAUDS, STATUTE OF.

by King, for the accommodation of
C. On the 22d of August, 1857, C.
made another note for $2000, at six-
ty days, payable to the order of S.,
which was indorsed by Kelsey, and
afterwards by King, for the accom-
modation of C. Judgment was re-
covered upon both these notes, and
collected of King. On the 10th of
August, 1857, King made his own
note, for $2000, procured it to be
discounted, and loaned the money to
C., and on the 10th of August C.
gave his note, indorsed by Kelsey,
to King, for this $2000, payable in
two months. On this note Kelsey
was not charged as indorser. On
the 24th of September, 1857, a judg-
ment by confession, in favor of King,
against C., for $6000, to secure the
payment of the said three notes of
July 25th, and August 10th and 22d,
was docketed and filed. An execu-
tion was issued upon this judgment,
on which $2847.52 was collected,
which was paid over to King, on ac-
count of the $2000 which he had
raised by the discounting of his own
note, and loaned to C. on the 10th of
August, 1857. This money was so
applied in pursuance of parol direc-
tions given to the attorney, by C., at
the time of issuing the execution.
Held, 1. That the directions given
by C. in respect to the application
of the moneys collected upon the
execution, were in strict accordance
with the rules, both of law and equi-
ty. And that, independent of any
direction or agreement, the law
would apply that money first to the
payment and satisfaction of C.'s
debt to King, for the money loaned;
that being a fixed liability, at the
date of the judgment, while the lia-
bility created by the indorsements
was only contingent; and the latter
claims being secured by the mort-
gage, while the former was not.
2. That the referee erred, in first
applying the $2847.52, collected on
the execution, to the satisfaction of
King's liability on the indorsed
notes. That he should have first
satisfied the debt for money loaned
to C. on the 10th of August, 1857,
and applied the balance to the lia-
bility of King on the indorsements.
3. That the mortgage in question
had priority, as a lien and claim, over
the judgments entered by confes-
sion, in favor of King. Thomas v.
Kelsey,
268