violation of marital rights; in the other, an aggression on those rights. It is therefore consistent with the principles of justice, that the law should excuse the former, while it demands a justification of the latter. This distinction was rea ognized in the case of Hutcheson v. Peck, (5 John. Rep. 196,) and must, in our opinion, be sustained. At all events, there is not enough disclosed in the case to warrant us in saying that the remark as made was not correct.
Another question remains to be noticed. It appears that the confessions of the defendant were given in evidence to show his agency in the transaction; and the judge, in speaking of those confessions, instructed the jury that they might believe a part and reject others of the allegations made by him; that they might believe the fact that he admitted, and disbelieve the reasons assigned for it. This rule appears to be fully sustained by Mr. Greenleaf in his valuable treatise on Evidence. He says: "Although the whole of what is said at the same time and relating to the same subject must be given in evidence, yet it does not follow that all the parts of the statement are to be regarded as equally worthy of credit; but it is for the jury to consider, under all the circumstances, how much of the whole statement they deem worthy of belief, including as well the facts asserted by the party in his own favor as those making against him." And subsequently, in speaking of confessions by a prisoner, he further says: "If, after the whole statement of the prisoner is given in evidence, the prosecutor can contradict any part of it, he is at liberty to do so, and then the whole testimony is left to the jury for their consideration, precisely as in other cases where one part of the evidence is contradictory to another. For it is not to be supposed that all the parts of the confessions are entitled to equal credit. The jury may believe that which charges the prisoner and reject that which is in his favor, if there are sufficient grounds for so doing. If what he said in his own favor is not contradicted by the evidence offered by the prosecutor, nor improbable in itself, it will naturally be believed by the jury; but they are not bound to give weight to it on that account, but
are at liberty to judge of it, like other evidence, by all the circumstances of the case." (1 Greenl. Ev. §§ 201, 218, 3d ed.)
Several authorities are cited sustaining these doctrines. I will only refer to the case of Kelsey v. Bush & Viele, (2 Hill, 440,) where Judge Bronson, in discussing the effect of confessions, says: "The court and jury are not always bound to give equal weight and importance to every part of the admission. If that part of the confession which discharges the party is in itself highly improbable, or if there be evidence aliunde, although but slight, tending to discredit it, the jury may believe one part of the confession and reject the
The authorities cited by the defendant's counsel on this question, all of which are referred to by the learned judge in his opinion, were cases where there was nothing improbable or suspicious in that part of the confession which went to discharge the defendant; and all the other evidence in the case tended to confirm the truth, and do not conflict with the rule laid down by him, nor with that in the case at bar.
The evidence not only established the fact, that the plaintiff's wife left his house by the advice and agency of the defendant, but also tended to show that he, in such advice and agency, instead of being governed by the reasons assigned by him, was actuated by malice, and that his object was to be revenged for some previous act of the plaintiff. Upon such evidence, the jury were warranted in rejecting the excuse and explanations given by the defendant for his conduct; and the court decided correctly in denying the motion for a nonsuit, and properly instructed the jury, that if they rejected those explanations, and believed that he interfered purposely to remove the plaintiff's wife from her husband, the action would lie. Our conclusion upon the whole case is, that none of the defendant's exceptions are well taken. The judgment must therefore be affirmed, with costs.
[KINGS GENERAL TERM, February 13, 1860. Justices.]
1. In all cases where a party, having it in his power, cancels a contract or declares it void, he should restore the other party to his former right, by repayment of money, or return of property, received on such con- tract; and failing to do so, he is lia- ble to an action for its recovery. Utter v. Stuart, 20
2. A complaint alleged that the plain- tiff, being the owner of a farm, sold and conveyed it to the defendant, who, in consideration thereof, prom- ised and agreed to pay the plaintiff $2700 therefor. That the defendant paid $200, and gave the plaintiff a mortgage on the premises to secure the payment of $2500, the remain- der of the purchase money; that no bond was given as collateral to the mortgage, but the defendant agreed not to commit waste on the premises, by cutting timber or otherwise, and that the farm should be kept and preserved in as good condition as it was at the time of sale; that to in- duce the plaintiff to waive the giv- ing of a bond by the defendant, the latter falsely and fraudulently rep- resented that he purchased the farm for a homestead for his son; where- as, in truth and in fact, he purchased the same for the purpose of selling it at an advance, to one D. who was without means and unable to pur- chase such a farm. That the de- fendant, two days after he had so purchased the farm, sold and con- veyed it to D. without any covenant
or agreement from him restraining the commission of waste, or obliging D. to keep the premises in good con- dition and preserved from waste and depreciation in value. That the de- fendant suffered and permitted D. to cut and destroy the timber on said farm, and the fences, farm and build- ings to become ruined, dilapidated and greatly depreciated in value, to the amount of $800. That the mort- gage had been foreclosed, and the farm was sold for a sum insufficient to pay the same; the deficiency be- ing over $800. The complaint then prayed that the defendant might be adjudged to pay to the plaintiff the amount of such deficiency, with in- terest, &c. Held that the complaint did not state facts sufficient to con- stitute a cause of action; and that it was properly dismissed for that cause. Vrooman v. Dunlap, 202
3. A right of action for the conversion of promissory notes will pass to the assignees of the owner, under a gen- eral assignment executed by him, of all his property, for the benefit of creditors. Whittaker v. Merrill,
4. But where the assignees count only
upon a conversion subsequent to the assignment, as shown by the refusal of the defendants to deliver the notes, on a demand made in their behalf, and they give evidence tend- ing to sustain that claim, it is not competent for them afterwards to avail themselves of the original right of action, so assigned to them, for a conversion previous to the as- signment. in
2. Prior to June 23, 1855, the plaintiff and defendants were partners, in the business of manufacturing machines, at Corning, in this state. On that day they agreed to dissolve the part- nership; the defendants to give up to the plaintiff certain notes held by the former against him, for $3000, and to give him a shingle machine, and also to construct for him an en- gine and bill of machinery, which the plaintiff was to set up and run until, from one half the net earnings thereof, to be received by the de- fendants, they were fully paid for such machinery, less the sum of $300, which was to be deducted from the price. The defendants manu- factured the engine and machinery, but on demand by the plaintiff, re- fused to deliver the same, on the ground that the plaintiff had pur- chased a lot of land in Pennsylva- nia, on which he proposed to erect the said machinery; that for the purchase money thereof, $1541, he had confessed judgments which had been duly docketed, so as to become liens upon the land; that by the law of Pennsylvania the erection of this machinery upon the premises would make such machinery a part of the realty, so that the judgments would attach to the same as liens, and a
sale of the land would pass the title to such machinery to the purchaser. Held, 1. That the plaintiff could not recover of the defendants for the price of the shingle machine, in the absence of any proof of a previous demand and refusal of delivery. 2. That in respect to the engine and machinery, if the law of Pennsyl- vania were as claimed by the de- fendants, the plaintiff had no right to require the delivery of that prop- erty in order that he might turn it over to pay, or secure, a precedent debt, in fraud of the defendants' claim for the purchase money. 3. That the defendants being, by the express terms of the contract, au- thorized to retain the title to the machinery until the purchase money was paid, they were not bound to relinquish their title to the property, or to allow the property to be sent out of the state, whereby they would be deprived of the same, or their lien upon it. 4. That evidence to show that the law of Pennsylvania was as claimed by the defendants, was admissible, and ought to have been received. JOHNSON, J. dis- sented. Hawkins v. Brown,
3. The law will not allow a party, in an action for the breach of a con- tract, to recover, as damages, losses which he has sustained in the per- formance of his contracts with oth- ers, even where such contracts are founded, in some measure, upon the contract alleged to have been bro- ken. Lowenstein v. Chappell, 241
4. On the 20th of February, 1857, the defendant agreed to rent to the plaintiff a store, for the term of one year from the 1st of April then next. Relying upon this agreement, the plaintiff sold to M. the lease of a store he then occupied, agreeing to give possession on the 2d or 3d of April; and M. suffered the plaintiff to occupy a room in the store, for his goods, in the mean time. For the purpose of protecting his goods from damage while the store was undergoing repairs, the plaintiff packed them up, and they sustained some damage in consequence of the packing. In an action to recover damages of the defendant, for a breach of his agreement; Held that the packing of the goods not having been done for the purpose of remov-
ing them to the store of the defend- ant, nor being necessary, for that purpose, the plaintiff could not re- cover for any injury to the goods occasioned by the packing thereof; such injury not flowing directly, or necessarily, from the breach by the defendant, but from the plaintiff's agreement with M. to give up to him the store in which the goods were situated, and that they should in the mean time occupy a particular space therein. гъ
5. Held also, that the plaintiff was not entitled to recover interest on the value of his entire stock of goods which he intended to put into the defendant's store, during the time he was by the defendant's breach of contract prevented from exposing them for sale. ib
6. The plaintiff, and S., his assignor, being in possession of a bill of ex- change, valid in their hands, for $913.50, drawn by one T., their debtor, to the order of, and indorsed by, two other persons, on the de- fendant, payable in three months, delivered the same to the defendant on his promise to pay them there for the sum of $850, the next morning. Held that there was a good consid- eration to uphold the promise; the parting with the bill, under the cir- cumstances, being a detriment to the holders, whether it was then accept- ed or not, and the receipt of it by the defendant being a legal benefit and advantage to him. Forward v. Harris, 338
7. S., the maker of a note, and the plaintiff and W. his sureties, being sued thereon, the plaintiff, before judgment, paid to the holder one half of the amount due on the note, and costs. The holder thereupon, by a written agreement acknowl- edging that he had received from the plaintiff $45 in full for his share of the note, as one of the sureties, discharged him from all further lia- bility thereon, and agreed to use due care and diligence in the collec- tion of the note and costs out of S.; and when collected to pay the plain- tiff one half of all he should be able to collect on the note. Held, that the payment, by the plaintiff, of a part of the costs of the action on the note, being a payment of what he VOL. XXX.
was not, at the time, under a legal obligation to pay, formed an ample consideration for the agreement of the defendant. And this, whether the action had been previously dis- continued or not. Warfield v. Wat- kins, 395
8. In such a case, the holder, having agreed to make the effort to collect the note of the principal, is bound to do so, by resorting to legal pro- ceedings, if necessary. ib
9. And in an action against him, upon his agreement, it will not be a valid defense for the holder, that the prin- cipal might, by reason of the pay- ment to such holder, by the plaintiff, of one half of the note and costs, and by the other surety, subsequent to the agreement, of the other half of the debt, have successfully de- fended an action against him on the note. For non constat that the principal would, if sued, have avail- ed himself of the payments by the sureties, or have been able to es- tablish that his liability on the note was discharged.
11. Costs do not become a debt against a party to an action, until judgment; unless he agrees to pay them.
12. The plaintiff, by a written agree- ment executed on the 9th of Octo- ber, 1849, agreed to do the mason work, and furnish the materials for erecting a building for the defend- ant, which was to be completed, except a portion of the plastering, on or before the 20th of November then next; which time was subse- quently extended ten days. The building was to be three stories in height; the defendant reserving the right to put on a fourth story, by paying a specified sum per thousand for the brick laid in the walls. Held that the defendant's right of elec- tion, in regard to the fourth story, could only be exercised while a rea- sonable time remained for adding another story and finishing the work, with the addition, by the time
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