The following are extracts from the opinion:
“ It does not appear from the record that the Statute of Limitations was considered by the court below as constituting a defense. Both parties left Texas within, at most, a few months after the transaction. The plaintiff has never resided in New Jersey, and the deffendant did not remain in New York long fenough for the statute to run. As the statute does not seem to be made a ground of defense in the argument for the defendant, we may dismiss that branch of the case without further examination.
“ It does not appear that the alleged illegal character of the contract entered into the decision of the case in the courts below. The point is not passed upon or referred to at all in the opinion of the General Term. Generally, it may be said that contracts between the citizens of the states in rebellion against the authority of the United States, made during the war, and not in aid of the rebellion, were not invalid. (Cutner v. U. S., 17 Wall. 517; Mitchell v. U. S., 21 id. 350; Gavinzell v. Crump, 22 id. 308; Conrad v. Waples, 96 U. S. 279.)
*744“ In this case it was alleged that the cotton was procured by the plaintiff for the purpose of sale in aid of the rebellion. It as unnecessary to consider now the legal principles applicable to a defense of this character, because the fact has not been found or conclusively established, and the evidence on the point was of such a character that the court could not pass upon the question as one of law. There was a question of fact for the jury to determine before the law could be applied. One of the grounds upon which the General Term affirmed the judgment of nonsuit was that there was a presumption of payment arising from the lapse of time, wholly independent of the Statute of Limitations. This presmnption, however, is not one of law that is available to a defendant as a bar to the action on the claim, but one of fact for the jury. Under the defense of payment, the lapse of time may be considered in connection with all the facts and circumstances of the case, and it may sometimes, with the other circumstances, warrant the inference that the claim was paid. The nonsuit in this case cannot be upheld upon the ground that from lapse of time there is a conclusive presumption that the claim was paid. The facts and circumstances disclosed leave no ground for supposing that any part of the proceeds of the sale of the cotton was ever actually paid to the plaintiff or the firm. The most that the defendant was entitled to on the question of the lapse of time, was to have it submitted to the jury as evidence in support of the defense of payment. (2 Phillips on Ev. [4 Am. ed.] 171; 1 Greenl. on Ev. [13 ed.] § 39; Jackson, v. Sackett, 7 Wend. 94; Bean v. Tonnele, 94 N. Y. 381; Parker v. Foote, 19 Wend. 309; Wood v. Squires, 1 Hun, 481; Miller v. Smith, 16 Wend. 443; Jackson v. Hotchkiss, 6 Cow. 401; Mayor, etc., v. Horner, 1 Cowp. 109; Darwin v. Upton, 1 Sandf. 175.) If this action was brought against the defendant as agent or bailee of the cotton upon an allegation that it had been placed in his hands for sale and he had not accounted for it, then it would probably be incumbent upon him to account for its value, or excuse himself by proof that it was taken from his possession by some power that he could not resist. (Roberts v. Stuyvesant Safe Deposit (Co., 123 N. Y. 57.) But the action was not tried, nor does the plaintiff in the action seek to recover upon that theory, but *745upon the ground that the defendant has received a specific sum of money, as upon a sale of the cotton, which he has not paid over. The judgment must stand unless there' was evidence upon this issue to submit to the jury.
“ The defendant and Kingsbury undertook jointly to sell the cotton for the plaintiff’s firm and were jointly interested in the profits of the transaction as such. Their obligations to the plaintiff, and their power to bind each other in the conduct of the enterprise must be determined upon the general principles applicable to partnership transactions. It was, however, upon the evidence a particular or special, as distinguished from a general partnership, and the power of Kingsbury to bind the defendant extended only to acts necessarily connected with the sale and delivery of the cotton. ( Williams v. Lawrence, 47 N. T. 462; King v. Sarria, 69 id. 25; Union Bank v. Underhill, 102 id. 336.) ”
It appeared from the evidence collated in the opinion, that Kingsbury sold the cotton to a firm in Mexico and received the pay therefor, but failed to deliver it in accordance with his agreement, because of his inability to obtain a permit from the military authorities, and a consequent refusal of the person who held the cotton to deliver it. ’ Kingsbury thereupon returned the purchase-money.
The court say:
“ In this condition of things Kingsbury had the power to bind the defendant by rescinding the sale and returning the money. While it is true that this power to bind the defendant would terminate when the joint enterprise was completed, it cannot be said that the business of the joint venture was completed until the cotton was delivered. They had received the money from the purchasers in anticipation of such delivery, and, not being able to comply with the prerequisite or condition of the sale, common honesty required that they should restore the money. This operated, under all the circumstances, to rescind the sale and discharge the defendant from liability for the money deposited with San Roman.” * * *
“In a word, the case stands as if the defendant and Kings-bury never contracted to sell the cotton, and never received *746any money whatever for it. Then it would, not be claimed that an action would lie for a sum of money received as upon a sale, because no sale was made and no money received. It does not appear what became of the cotton. The argument on both sides seems to assume that it was taken by the military, as it probably was. The burden of showing what became of it would rest upon the defendant if this was an action for its negligent loss or conversion. But we find no evidence in the case which would warrant the jury in rendering a verdict for the plaintiff for the money received from Viuda, Tarnava & Co. under all the circumstances of the case.
L. laflin Kellogg for appellant.
George Zabriskie for respondent.
“ The judgment should, therefore,, be affirmed.”
O’Brien, J.,
reads for affirmance.
All concur.
Judgment affirmed.