Klock v. Buell
56 Barb. 398
N.Y. Sup. Ct.
1868
Check Treatment

By the Oourt,

Foster, J.

Exceptions were taken to two of the findings of fact; but no question has been raised upon them here, and they are supported by the evidence.

The principal question arises upon the légal construction of the transfer from the defendant to the plaintiffs. It was an assignment of all the right, title and interest of Buell in. “the within named land,” to Klock & Quid. Construed by itself alone, and without reference to the surrounding circumstances, and independent of the receipt which Buell had received from Frazee, it was meaningless, or so uncertain as to be worthless, but it was executed ■upon the back of the receipt; and of course both were delivered to the plaintiffs at the same time; and the receipt was a part of the assignment; and, so far as the subject matter of the assignment was concerned, it was the all important part of it. The receipt was for the one forty-fifth part of the whole 700 or 800 acres which was bought of Moses Walters. “For one forty-fifth part of the land in Venango county, Pennsylvania, recently purchased of *402Moses Walters by James Frazee.” And when the assignment was indorsed upon it in the language which it contained, it passed to the plaintiff all the interest of Buell, in all that land—not the legal title that he had to it, for he had none, but his interest in it. If the parties had intended to pass any thing less than the interest in the whole of it, the transfer would have used words evidently intended to limit it, as by adding the words “remaining unsold,” after the word “land.” The language of the transfer is very comprehensive, and when taken in connection with the receipt of Frazee to Buell, it is the same as though it read “ I hereby assign all my right, title and interest in the one forty-fifth of all the lands which Walters sold to Frazee.” Strictly speaking, the defendant, at the time of making the assignment to the plaintiffs, had no title whatsoever in the land; for, in the first place, the whole legal title of it was vested in Frazee. And besides, the defendant and his associates had authorized Frazee to sell and convey it at his own discretion, and had taken his agreement to pay them, each, their appropriate share of the net proceeds, when received by him; so that in fact it was the one forty-fifth part of the proceeds which belonged to Buell, and the proceeds was all that he assigned to the plaintiffs. And it was the one forty-fifth part of the proceeds, and just as much one forty-fifth part of the proceeds which had already come to the hands of Frazee, as of those which he should afterwards obtain by sales or leases, or otherwise.

The assignment shows that Buell sold all his interest in the instrument which he had made, and that the plaintiffs were as much entitled to the $422.22 as they were to the sum or sums to be realized by subsequent sales of the land.

Some questions were raised on the trial upon the admissibility of evidence, and exceptions were taken by the defendant’s counsel to the rulings thereon of the referee; *403but. only one of them is presented by the counsel to us. Hiram Klock, who was a witness for the plaintiffs, testified that on the 11th day of May, 1865, he made a demand of the $422.22 of the defendant; and the plaintiffs’ counsel proposed to prove by him that he then said to the defendant, “You sold us that stock at 11 o’clock yesterday; did you at two o’clock have any idea that you had anything left of the property?” and that the defendant replied: “ Klock, I will be honest with you; I did not think I had anything left.” This offer was objected to on the part of the defendant; first, as immaterial and incompetent; secondly, as tending to vary, modify or explain the written assignment; and thirdly, as not the best evidence. The referee overruled the objections and admitted the evidence, and the witness testified as above.

[Onondaga General Term, April 7, 1868.

I have no doubt that the referee erred in admitting this testimony. It could not, however, have influenced the referee in any of his findings of fact. It had no bearing upon any of them; nor could it in the least degree affect the decision of the legal question upon the construction of the assignment. That was to be determined upon the facts found, and if I am right in supposing that the facts found warranted the legal conclusion, then by no possibility could the defendant have been prejudiced by the admission of the testimony.

The judgment should be affirmed.

Judgment affirmed.,

Foster, Morgan and Muüin, Justices,]