1 Barb. Ch. 273 | New York Court of Chancery | 1846
The decree in this case was unquestionably erroneous, not only as to the defendant Schermerhorn, upon the pleadings and proofs, but also as to the other defendants ; even upon the facts stated in the bill, which was taken as confessed as to them. The answer of Schermerhorn admitted that he purchased after he had been informed, through his agent, of the complainant’s claim. If the vice chancellor, therefore, considered the allegations proved, he should, instead of de
As an answer on oath was waived, the defendants Vanderkemp and Evans probably supposed the solicitor for Schermerhorn could put in an answer for them, and make a defence for all, as he had agreed to do. Their solicitor, therefore, took no notice of the papers, which appear to have been regularly served upon him, from time to time, down to the 10th of May, 1839, when he waived the service of any other papers in the cause upon him. By relying upon Schermerhorn, to put in an answer for them as well as for himself, and neglecting to have
The proceedings before the master were regular, although the order dismissing the appeal had not been actually entered. For the appeal bond was only for costs, and did not therefore stay the proceedings upon a final decree. The execution, however, was irregular: not only because it was made returnable on the sabbath, but also because it was issued' against Schermerhorn, who had been discharged under the bankrupt act; as well as against the' other defendants who were still liable upon the final decree of
In regard to Schermerhorn, however, the execution is erroneous in substance. For his discharge under the bankrupt act was a bar to the recovery of the damages recoverable under the decree, although the amount of such damages was unliquidated at the time of his discharge. By the decree of the vice chancellor the amount of damages, which the complainant was decreed to be entitled to in consequence of the non-performance of the alleged agreement made by Wood with him, became a present debt; payable when the amount thereof should be liquidated by the master. It was therefore a debt which was provable against Schermerhorn’s estate, under the provisions of the bankrupt law of 1841. Under the English bankrupt laws, previous to May, 1825, debts depending upon a contingency, except such as arose upon bottomry or respondentia bonds or upon policies of insurance, which were provided for as early as the 19th of George the 2d, could not be proved under a commission in bankruptcy taken out before the happening of the contingency upon which the debt was payable. (Cooke’s Bank. Law, 141.) There was also a class of debts, for uncertain and unliquidated damages, arising upon contracts, which could not be proved under a commission taken out before the amounts of such debts were ascertained. (1 Deac. Law of Bank. 280.) The 56th section of the act of May, 1825, to amend the laws relative to bankrupts, covered all cases of mere contingent debts. But the case of uncertain debts arising from breaches of contracts, where the amount of damages was unascertained, and could not be computed so as to be sworn to as debts, were left still unprovided for. (See Henley’s Bank. Law, 132.) The 5th section of the United States bankruptcy law of 1841, however, provides in express terms, that all creditors whose debts are not due and payable until a future day; all annuitants, holders of bottomry and respondentia bonds, holders of policies of insurance, sureties,
The petitioners are also entitled to relief in relation to the amount of damages reported due by the master. It is evident, from the affidavits and testimony before me, that the estimate of the value of the property, made by some of the witnesses upon the reference, was exaggerated and extravagant. The report also shows that the master must have adopted an erroneous rule of damages; as he has included therein an allowance, to the complainant, for the rent of the premises, down to the date of his report, in 1845. All that the complainant was entitled to recover, as damages for the non-performance of the alleged agreement, was the value of the premises and improvements thereon at the time of filing his bill, on the 7th of January, 1833, when he alleges he was in possession; after deducting therefrom the purchase money agreed to be paid, but which had not in fact been paid, together with the interest on such purchase money up to that time according to the terms of the agreement. And upon the amount of damages thus ascertained, the master should compute interest from the 7th of January, 1833, up to the date of liis report.
The report of the master and all subsequent proceedings thereon must therefore be set aside, and the enrolment of the decree must be discharged. It must be referred back to the master to review his report, and to take such further testimony as either of the parties shall think proper to produce before him. And he must be directed to ascertain the damages upon the
The costs of the complainant are to be re-taxed, after the coming in and confirmation of the master’s report. And the complainant is to be permitted to include in his bill all such extra costs as shall have arisen from the setting aside- of the former report and subsequent proceedings, and the re-investigation of the case by the master; including the order to confirm the new report, the enrolment and docketing of the decree, and the re-taxation of costs. But no allowance is to be made for the execution which is set aside for irregularity, nor for any proceedings thereon ; and neither party is to tax, or have any costs, as against the other, upon this application.
The order to be entered hereon, is to be entered with the clerk of the sixth circuit, as of the 9th of August, 1845; when the petition was presented to the chancellor, during the vacancy in the office of vice chancellor of that circuit.