3 Johns. Ch. 569 | New York Court of Chancery | 1818
The cause stood over for consideration until this day.
The bill was filed to stay the suit at law brought by the present defendant, Toland, to recover the proceeds of the goods which he had committed to the plaintiffs to sell.
1. The first point which arises for discussion is, whether the plaintiffs can retain those proceeds, or any part of them, against Toland, in consequence of a demand which one of the plaintiffs advances against Meade, who had an interest in those goods.
The goods belonged to Meade fy Toland, in nearly equal
It cannot be denied that Toland was entitled to demand and receive those proceeds, and to bring an action at law in his own name. There was a privity of contract between the parties. A factor, according to the case of Drinkwater v. Goodwin, (Cowper, 251.) who receives, and is authorized to sell goods, may bring an action to compel the buyer to pay, and “ it would be no defence to the buyer, in that action, to say, that as between him and the principal, he ought to have the money.” The factor has a lien on the price of the goods in the hands of the buyer, for the balance of his account, and for his acceptances made upon the faith of the consignment.
In this case Toland was part owner of the goods, and he held the residue as agent or factor of Meade. He dealt with the plaintiffs jointly, as a commercial house, and there was no privity between him and one of the plaintiffs, individually considered, if there could be any set-off allowed in this case, it ought to be of a joint demand of the plaintiffs, and not of the separate demand of one of them. The plaintiffs assumed, and are responsible for those proceeds in their joint capacity. This fact is of it-self
2. This ground is quite sufficient to .justify a dismissal of the bill, as against Toland. But if we go into the examination of the claim set up against Meade, there appears to be a decisive objection to it, arising from the settlement made on the 28th of October, 1808, between Meade and Lyle, who acted as the authorized agent of the plaintiff, who advances the claim.
There was an account current stated and admitted, Lyle acted upon a full knowledge of all the facts. There is no pretence of any fraud or imposition practised upon him, or that he had not a perfect freedom of action in discussing and settling the account. It was founded upon mutual concessions. If a person will enter, even into a
3. If this settlement was not in the way, yet the claims of one of the plaintiffs would not be a proper subject of set-off, for they are founded upon the alleged negligence and misconduct of Meade, and these are matters of tort, sounding in unliquidated damages. Such miscon
Considerable stress was laid by the counsel for the plaintiffs, upon what was said by Lord Hardwicke, in Shish v. Foster. (1 Vesey, 86.) The doctrine, in that case, was considered as being applicable to this, because the plaintiffs might have difficulty in obtaining satisfaction from Meade, who resides in Spain, if the proceeds belonging to him, in this case, were taken out of their hands.
But that case is not analogous. The plaintiff there had filed a bill against his former guardian, to set. aside a stated account, on the ground of fraud; and the defendant filed a cross bill for the specific performance of an -agreement for an estate in possession of the plaintiff. The Chancellor suspended the decree for a specific performance, until the account was taken, as the plaintiff would have been in danger of losing his demand, if the estate had been taken from him, for the defendant had frequently absconded. The cross bill, in that case, was for equitable aid; and under the circumstances of the case, the court applied the rule, that he who would have equity must do it. Whether the rule was properly applied in that case, is at present immaterial, for it is a sufficient objection to the application of the case, that Meade is not now a plaintiff before this court asking for relief.
But Lord Hardvdcke, in delivering his opinion, cited the case of “ Jacobson v. Hans Towns, or merchants of Mmaign.” From the imperfect note which he gives of the case, it would appear, that Jacobson had been a lessee of an estate belonging to the defendants, and the lease having expired, an ejectment had been brought against him at law to recover possession. He filed a bill in Chancery, on the ground, that he was a credited in a long account, and that the estate ought not to be taken from
This case requires every kind of explanation, and I am not willing to consider it as an authority, as it now stands. It is not to be found elsewhere; it is contrary to the principles of the court, which measures out the same justice to foreigners and citizens; and it is contrary to the established doctrine in respect to set-offs. It is altogether new, that an unsettled account can be set off against an ejectment to recover possession of land, to which the lessor, in the ejectment, has an undoubted title. The only case in which an ejectment has been stayed, until an account was taken, is the case of an ejectment for nonpayment of rent, and where the dealings between the landlord and tenant were too complicated for law. The interference of the court, in that special case, was requisite to determine whether there was any foundation for the ejectment. (O’Connor v. Spaight, 1 Sch. & Lef. 305.) But to enjoin a party residing out of the jurisdiction of the court, from covering possession of land to which he has a title, because the tenant in possession has some personal demand against him totally unconnected with a right to the land, would be extraordinary. The ground taken in the case stated, was, that it would be inconvenient or difficult for the tenant to obtain his demand from the party residing abroad. Is the court, then, to hold the land, by way of mortgage, for an uncertain demand sounding in contract or tort, when the parties have created no such lien ?- I cannot venture to act upon such a case without more authority. If that was the law or usage of the court, we should have had better evidence of it than this obscure and solitary allusion to the case of Jacobson v. Hans
I shall not enter into the discussion of the charge of misconduct in Meade, and which occupies so large a part of the pleadings and proofs in this case. Either of the three grounds I have taken are sufficient to destroy the equity of the bill as against Toland, and the two last of them, as against Meade.
The injunction must, accordingly, be dissolved, and the ■hill dismissed, with costs.
Decree accordingly.