13 Daly 281 | New York Court of Common Pleas | 1885
This is an appeal from a judgment entered upon the verdict of the jury in favor of the plaintiff, and from an order denying the motion for a new trial.
The action was brought for the conversion of a quantity of household furniture of the alleged value of $1,275. Also for insulting and abusing the plaintiff and injuring her premises and other property, to her damage in the sum of $2,500.
The answer contains a general denial and justifies the talcing of the furniture under a chattel mortgage.
Questions were submitted to the jury, and they found:
First. That the defendant took from the plaintiff property not covered by the chattel mortgage of the value of $217.
. Second. That the mortgaged goods on the day of removal were of the value of $500.
Third. That the plaintiff’s mother offered to pay the $60 when it was demanded of her by the marshal.
The jury rendered a verdict for the plaintiff for $717.
The judge at the Trial Term, in denying the defendant’s
Furthermore, the misjoinder of causes of action appears upon the face of the complaint; and the defendant, as he has not demurred to the complaint for duplicity, has waived the objection and cannot raise it upon the trial. As to the demurrer interposed at the trial and the motion to strike out certain allegations in the. complaint, it is sufficient to say that the only objection that can be taken to the complaint at the trial is that a cause of action cannot be collected from it, or that the court has not jurisdiction. Here the 'court had jurisdiction and the complaint stated facts sufficient to constitute a cause of action.
The evidence as to the condition of the furniture in July was -properly allowed. It was material and competent on the question of the value of the property at the time of the aUeged conversion, and the court stated that it was allowed for that purpose.
There was no error in allowing testimony as to the defendant’s representations of the character of the parlor furniture at the time he sold it, and of his promise to repair. It was admissible as explaining the suspension of the payment of the installments and as bearing upon the defendant’s intention as to the waiver of the default in the payment of the installments.
The evidence as to the intoxication of the defendant when he came with the marshal and his men to remove the furniture, was admissible as affecting the reliance to be placed upon the defendant’s version of the transaction. That it was admitted for that purpose appears from the case. When the question was asked as to Mr. Willis’ condition at the time he came to the plaintiff’s house, the court asked the defendant’s counsel if he intended to offer him as a witness. Upon the counsel replying that he would be called as a witness the court allowed the question to be answered.
The non-payment of the installments gave the defendant the right, under the terms of the mortgage, to take, the property covered by the mortgage and sell it, in satisfaction of the mortgage debt. He could claim the forfeiture or not. He could take advantage of the breach, or he could elect to waive the forfeiture and regard the contract to pay as still subsisting. He was at liberty to take whichever of the two positions he considered it for his interest to take, but he could not take both. Having once acted, he cannot be permitted to retract. If he has waived the breach of the condition in the mortgage, he cannot afterwards recall the waiver and insist upon the forfeiture. Now, by demanding the sum of $60,—the amount of the three installments,—I think the defendant waived the forfeiture, chose to recognize the contract to pay the installments as still in existence, and elected to extend the time of the plaintiff to pay the installments due, up to the time of making the demand, instead of insisting upon his forfeiture. (Titus v. The Glen's Falls Ins. Co., 81 N. Y. 410, and cases there cited). This was an action upon an insurance policy, and in it the law of forfeiture and waiver is discussed. Judge Eaiil says: “ Forfeitures are not favored in the law, and this doctrine of waiver is. not peculiar to insurance policies, but is applicable to all cases of forfeiture.”
As to leases, the rule is thus stated in Taylor’s Landlord and Tenant, 287: “ The forfeiture of a lease by a breach of any other condition, may, however, be waived in like manner as the forfeiture for non-payment of rent, or a notice to quit. For if the landlord does any act, with knowledge of the breach, which can be construed as an acknowledgment of a tenancy still subsisting, he waives the forfeiture.”
The proof shows and the jury have found that, a demand
The judgment should be affirmed.
Van Hoesen, J., concurred.
Judgment affirmed.