of the Southern Railroad Company of Long Island, and its assigns, claiming title thereto for more than six years prior to the commencement of this action. Upon the trial the plaintiff gave evidence tending to show that the Southern Hempstead Branch Railroad Company owned the cars, and that the title to them came to him as receiver of that company; and he proved the value of the cars, and then rested. The defendant offered to show a sale of the two cars to the Southern Railroad Company of Long Island by the persons who owned them before they were claimed to have been sold to the plaintiff's railroad company. The plaintiff objected to the evidence, and the objection was sustained, the court ruling that the question of title in a third party was not raised by the pleadings, and the defendant excepted to the ruling. Later in the progress of the trial the defendant offered to prove title in the Southern Railroad Company of Long Island and its successor, the Brooklyn & Montunk Railroad Company, and that it was the lessee of the latter company, and as such in possession of all its property. The evidence was objected to by the plaintiff, and the objection sustained, on the ground that the title had not been set up in the answer, and the defendant excepted to the ruling. In these rulings, excluding evidence of title to the cars out of the plaintiff, we think the court erred.

The action to recover a chattel, as regulated by the Code of Civil Procedure, is substantially a substitute for the action of replevin as it had previously existed. At common law, and under the Revised Statutes, there were two actions of replevin: one in the cepit, and one in the detinet. In replevin in the cepit, the general issue was tendered by the plea of non cepit, and that put in issue only the taking at the place stated in the declaration. That rule of the common law was copied into the Revised Statutes. 2 Rev. St. 528, § 39. Under that plea the defendant could not show title in himself or in a stranger. As it was necessary, in such an action, for the plaintiff only to show that he was in possession of the property, and that the defendant wrongfully took it from his possession, the plea put in issue all plaintiff was in the first instance bound to prove. Without more, property in a third person could be no defense to such an action. Therefore, in order to defend such an action, the defendant was bound to prove either property in himself, or property in a third person with which he was in some way connected, and under which he could justify, and these facts he was bound specially to allege. But in an action of replevin in the detinet the general issue was tendered by the plea of non detinet, and that plea at common law put in issue as well the plaintiff's property in the goods as the detention thereof by the defendant. And it was provided in the Revised Statutes (2 Rev. St. 529, § 40) that "when the action is founded on the wrongful detention of the goods, and the original taking is not complained of, the plea of the general issue shall be that the defendant does not detain the goods and chattels specified in the declaration, or any part thereof, in manner and form as therein alleged; and such plea shall put in issue, not only the detention of such goods and chattels, but also the property of the plaintiff therein." It was also provided by the Revised Statutes (2 Rev. St. 528,

§ 36) that the action of replevin might be founded upon both the wrongful taking and the detention of the property, in which case it was necessary that the declaration should allege the wrongful taking, and also allege that the defendant continued to detain such property.

It cannot be doubted that this complaint contained all the allegations requisite to show a wrongful detention of the cars. By a liberal construction it might be held to be framed in a double aspect, both for the wrongful taking and the wrongful detention. Upon the trial there was no proof offered or given to show the wrongful taking of the cars, but the plaintiff simply gave proof to show the wrongful detention. Therefore we think the action should have been treated as if it had been brought for a wrongful detention of the cars. It was necessary, therefore, for the plaintiff to show his title to the cars; and what it was necessary for him to show to maintain his action, the defendant had the right to controvert by proof under its general denial. Its general denial put in issue, not only the wrongful detention, but plaintiff's title; and upon that issue it had the right to show, not only title in itself, but title out of the plaintiff and in a stranger. The plaintiff, seeking to take property out of the possession of the defendant, was bound to show title in himself, and the defendant could defend itself by showing that he did not have title, and thus did not have the right to take from it the possession which it had acquired. Caldwell v. Bruggerman, 4 Minn. 270, (Gil. 190;) Jones v. Rahilly, 16 Minn. 320, (Gil. 283;) Kennedy v. Shaw, 38 Ind. 474; Sparks v. Heritage, 45 Ind. 66.

In Kennedy v. Shaw, decided under a system of pleading similar to our own, it is said:

"Where the general denial is pleaded to a complaint in an action to recover the possession of personal property, the plaintiff must show his right to the possession of the property as against anybody else. He must recover upon the strength and validity of his own title and right to the possession of the property, and if the defendant can show the property, and right to the possession of the property, to be in himself, or in a third person, he may do so under the general denial, and thus defeat the action."

This broad and general statement of the rule, however, would not enable one who had taken property from the actual possession of another to justify the taking by the allegation and proof of title in a third person with which he did not connect himself.

There is nothing in the case of Stowell v. Otis, 71 N. Y. 36, in conflict with these views; but, regarding this as an action for the wrongful detention of the cars, that case is an authority for the views we have expressed.

Under our system of practice, and under every rational, logical system of pleading, the defendant must, under a general denial, be permitted to controvert by evidence everything which the plaintiff is bound, in the first instance, to prove to make out his cause of action. Griswold v. Frost, 14 Barb. 536; McKyring v. Bull, 16 N. Y. 297; Wheeler v. Billings, 38 N. Y. 263; Weaver v. Barden, 49 N. Y. 286.

The denial in this answer of "each and every allegation of the complaint not hereinabove admitted or controverted," is a good general de

nial. What had been before admitted and controverted was clearly specified, and hence there was no doubt or confusion as to the application of this general denial; and this answer is not, therefore, condemned by the decision in Clark v. Dillon, 97 N. Y. 370.

The appellant also makes a point as to the statute of limitations. Upon the new trial it should be permitted to prove all the facts bearing upon that defense, and then the application of the law to the facts will probably not be difficult. We do not deem it our duty to say more about it now.

The judgment should be reversed, and a new trial granted; costs to abide event.

(All concur, except DANFORTH, J., not voting.)

(101 N. Y. 357)

STEWART v. Marvel.1

Filed February 9, 1886.

SALE-AGREEMENT TO DELIVER IRON "AS FAST AS MAY BE PRODUCED."

Defendant agreed to deliver 10 car-loads of blooms from iron forge "as fast as they may be produced," and claimed that, as he had actually delivered all he produced, he could not be held to deliver more. Held, that under the contract the blooms must be produced in the ordinary operations of the forge, with reasonable diligence, and with reasonable and proper efforts, and defendant had no right to omit to produce them from mere motives of economy or convenience. EARL, DANFORTH, and FINCH, JJ., dissenting

W. D. Edmonds, for appellants.

Davit McClure, for respondent.

PER CURIAM. On the fourteenth day of November, 1879, the defendant made a contract with the plaintiffs for the sale to them of iron, of which the following is a copy:

"NEW YORK, November 14, 1879.

"Stewart & Co., Easton, Pa.: Sold you to-day ten car-loads of (c) blooms, at $55 per ton, 2,240 pounds, del'd on cars at Easton, Pa., say as fast as they may be produced small enough to meet the usual requirements of measure, payable in 30 days from date of bills. WM. D. MARVEL."

Across the face was written: "Accepted. STEWART & Co." At the date of the contract the defendant was engaged in the production of the iron which he contracted to sell, but shortly thereafter his forge was sold to the Split Rock' Forge & Mining Company, which assumed the performance of the contract on his part. Five car-loads of the iron were subsequently delivered to the plaintiffs, and this action was brought by them to recover damages for the non-delivery of the balance; and the real controversy between the parties is as to the proper construction of the contract.

The defendant contends that he was not obliged to deliver the blooms faster than they were actually produced in the operation of his forge, and that, as he delivered all he actually produced, he was not in default.

1 Affirming 30 Hun, 480, mem.

The contract should receive a reasonable construction, so that, if its language will permit, both parties would be bound to perform in the manner which must have been contemplated by them when the contract was made. It could not have been intended that the plaintiffs should be bound to take the blooms whenever tendered by the defendant, and yet he be at liberty to delay the delivery to suit his own convenience or interest indefinitely. It was plainly meant, by the language "as fast as they may be produced small enough," that the blooms should be produced in the ordinary operations of the forge, with reasonable diligence, and by reasonable and proper efforts. The defendant had no right to omit to produce them from mere motives of economy or convenience, as he was under obligations to produce them.

The referee found that defendant's forge had the capacity to produce a car-load of blooms every 10 days without interfering in any way with the regular running of the forge, or its other contracts or business; that he delivered the last of the five car-loads on the twenty-eighth of January, 1880, and thereafter delivered no more down to the commencement of this action, in May, 1880, and he found that the usual operations and production of the forge were suspended and delayed during the months of February, March, and April, on the grounds of convenience or economy because of the high price of coal; and that, after the twenty-eighth of February, the defendant failed, neglected, and refused to deliver to the plaintiff any more of the blooms. The evidence justified these findings, and they justify the conclusion of law that the defendant was responsible to the plaintiffs for the damages awarded.

Evidence was given by the plaintiffs, against the objection of the defendant, that the defendant stated, at the time the contract was made, that he could produce a car-load of blooms for delivery to the plaintiffs every 10 days. We think this evidence and other like evidence was competent for the purpose of showing the capacity of the defendant's forge, and how fast, by reasonable diligence and efforts, he could make delivery under his contract.

We have carefully scrutinized other exceptions to rulings upon evidence to which our attention has been called, and do not think any of them require a reversal of the judgment entered upon the report of the referee. The opinion of the referee found in the case is quite satisfactory, and we also refer to that for a fuller statement of the reasons upon which we base our decision. We are therefore of opinion that the order of the general term should be reversed, and the judgment entered upon the report of the referee affirmed, with costs.

(All concur, except EARL, DANFORTH, and FINCH, JJ., dissenting.)

(101 N. Y. 362)

UHRIG v. WILLIAMSBURG CITY FIRE INS. Co.1

Filed February 9, 1886.

FIRE INSURANCE-ACTION-IF ARBITRATION FAILS THROUGH FAULT OF COMPANY, INSURED NEED NOT CONSENT TO SECOND ARBITRATION.

Through the failure and refusal of defendant to go on with an arbitration agreed upon it became ineffectual, and in the mean time, partly under orders of the city, the debris had been removed, and then defendant requested plaintiff to submit to a second arbitration, which he refused, and brought this action. Held, that plaintiff having once consented to arbitrate, if the arbitration failed and came to an end from the fault of the defendants, the arbitration clause could not stand in the way of this action.2

Albert G. McDonald, for appellant.

Patrick Keady, for respondent.

EARL, J. The plaintiff held a policy of insurance issued by the defendant upon certain personal property, and the property was destroyed by fire in July, 1882. The policy contained this clause:

"The amount of sound value and of damage to the property may be determined by mutual agreement between the company and the assured; or, failing to agree, the same shall then, at the written request of either party, be ascertained by an appraisal of each article of personal property, or by an estimate in detail of a building, by competent and impartial appraisers, one to be selected by each party, and the two so chosen shall first select an umpire to act with them in case of their disagreement; and if the said appraisers fail to agree they shall refer the differences to such umpire; and the award of any two, in writing, under oath, shall be binding and conclusive as to the amount of such loss or damage, but shall not decide as to the validity of the contract, or any other question except the amount of such loss or damage."

Among other things in its answer, the defendant alleged that the plaintiff and defendant failed to agree upon the damage occasioned by the fire, and that on or about the eleventh day of August, 1882, it served upon plaintiff a written request that the amount of damages sustained by him from the fire should be ascertained and determined by appraisers, to be selected as required by the policy, and offered to select and appoint an appraiser for that purpose on its behalf, and that he wholly refused to submit to such appraisal, or appoint an appraiser for that purpose, and refused to comply with the terms and conditions of the policy in that respect. Upon the trial it appeared that the fire occurred on Sunday, the thirtieth of July; that on the next day the plaintiff notified the defendant of the fire and of the loss; and on the second day of August it requested an arbitration under the policy, and he assented; that thereupon he selected one De Andreau, and the defendant one Magnus, as arbitrators, and an agreement in writing was executed by the parties submitting the appraisal of the damages to the arbitrators thus selected; and that the arbitrators failed to agree. The defendant gave evidence tending to show that it subsequently made plaintiff an offer to appoint a new arbitrator in the place of Magnus, and also that Magnus offered to unite with De Andreau in selecting an umpire, but that the

'Affirming 31 Hun, 98.

See note at end of case.