Ripley v. Larmouth.

of his name as maker, indorser or otherwise, for my accommodation, or for my benefit, then this transfer to be void and of no effect; but in default of the payment of said notes or other obligations, together with the interest, damages, costs and charges, or expenses incurred or to be incurred thereon, according to the conditions above expressed, then the said Hugh Larmouth, his heirs, executors, administrators and assigns shall have power," &c.

On the 25th day of July, 1856, Wells assigned his counterpart of the lease to the plaintiff, subject to the payment of the three notes of $625, $320 and $300; and on the 8th of October, 1856, he executed to the plaintiff a bill of sale of the 26 cows, to pay a pre-existing debt; the cows then being in the possession of the defendant, and having been in his possession from the time of the commencement of the lease, until he disposed of most of them in 1860, and the residue before the commencement of the suit.

Before the first day of November, 1859, the defendant had paid and taken up each of the said three notes. The defendant proved several failures on the part of Wells to perform his covenants in the lease, for which the referee allowed him damages to the amount of $171. He also proved two notes executed by Wells to himself, one for $78, dated December 1st, 1855, and due presently, and the other for $38.51, dated December 24th, 1856, also on demand. The referee refused to allow the two notes to apply on the rent. The referee also held that the mortgage upon the cows did not include any of the notes upon which the defendant was maker or indorser, executed before the date of the mortgage, except the ones of $625, $320 and $300.

The defendant paid no rent for the farm, except what was paid upon the notes herein before mentioned, and which payments upon the notes allowed, and damages, were not equal to the rent, and the referee held that the mortgage was satisfied, and that the defendant had no title to or lien

Ripley v. Larmouth.

upon the cows, when this suit was brought, and ordered judgment for the plaintiff.

Several questions are presented for our decision, but I shall examine but one, which I think disposes of the case. If the referee was right in limiting the mortgage to the demands which he did, then the mortgage was satisfied, and the defendant had no claim to the cows; but if the mortgage was intended to embrace and cover the notes of $100 each and the note of $200, then there was a balance still due upon the mortgage, and the property in the cows remained in the defendant.

The plaintiff cannot claim a more strict construction of the mortgage for his benefit, than could Wells, if the controversy were between him and the defendant; for he purchased the cows with full knowledge of the mortgage, and to satisfy an old debt which Wells owed him. And the rule is that an instrument is to be construed most strictly as against the party who executes it, and liberally in favor of the party to whom it is delivered.

Now what was the situation of Wells and the defendant when the mortgage was executed. The defendant had executed and indorsed, in all, for him, six notes, three of them amounting to $1245 of principal, and the other three amounting to $400. Specific liens had been given by Wells upon the rents to secure the payment of about $900 of the three large notes, and so given that the note of $625 had priority, and the other one of $300 was executed by the defendant only three days before the mortgage was given. It was natural that the mortgagor should provide in the first place for the payment of these three notes, specifically. It is also apparent that he contemplated the further use of the defendant's name, for his benefit and accommodation, and hence the clause which provided for future liabilities to be created or incurred by the defendant. The parties both well knew that in addition to all that, the two $100 notes, and the $200 note, were also

Ripley v. Larmouth.

outstanding. It is probable, also, that it was in the contemplation of both parties that Wells would pay up these notes, without resort to the rent to do so; and we find that upon the $200 note he did pay up all except $109.21, which was afterwards paid by the defendant, and that upon one of the $100 notes, he paid all but $17.14, which sum was also afterwards paid by the defendant. The fact that it was expected Wells would pay these notes was a good reason why they should not be specifically set out at length in the mortgage; while it would be natural that they should, at the same time, provide for securing the defendant against their payment by him.

It is an elementary principle of construction, that effect must be given to every clause and part of an instrument, if it can be done without any violence to the other parts of the instrument. In other words, that each part of the instrument shall be operative, if it can consistently be done.

The parties had provided specifically for the securing of the three large notes, and also for all future liabilities to be incurred by the defendant for the plaintiff, and yet they continue on and provide to indemnify and save harmless the said Larmouth of and from all damages, costs, charges and expenses, which the said Larmouth has or may incur, or become in any way liable for, on account, or by reason of the use of his name, as maker, indorser or otherwise, for my accommodation or benefit, &c. All of which is clearly surplusage and meaningless, unless it is made to apply to some other subject than the three large notes, and the future indorsements, which had been before provided for, I cannot doubt that the parties intended that clause to cover any balance which the defendant might have to pay upon the three small notes; and if so, then, as I said before, the rents were insufficient to discharge the mortgage.

Entertaining these views, I hold that the defendant had

Cary v. Marston.

the legal title to the cows, as against the plaintiff, and that the action could not be maintained, and as, if I am correct, it disposes of the whole case, I omit to examine the various other questions presented.

The judgment should be reversed, and a new trial ordered, with costs to abide the event.

[ONONDAGA GENERAL TERM, April 4, 1865. Mullin, Morgan, Bacon and Foster, Justices.]

CARY and others, Commissioners of Highways &c., vs. MARSTON.

Commissioners of highways, who have paid the juror's fees and other costs of a reassessment of the damages of a land owner, occasioned by laying out a road through his lands, on appeal by them from the original assessment, upon which appeal the amount of the assessment is reduced, can maintain an action to recover such costs of the land owner.

The statute (Laws of 1857, ch. 455, ◊ 7,) is to be so construed as to include within its meaning the commissioners, when they are successful on the appeal, as well as the other party, when he succeeds.

Where, in an action brought by persons suing as commissioners of highways, to recover the costs of a reassessment, there is some evidence given of their being such commissioners, and no question as to their being such was raised before the justice, either while the trial was progressing, or on a motion that was made for a nonsuit; and no such ground of appeal to the county court was specified; nor does it appear that any such question was raised before the county court; and the whole case shows that the plaintiffs were treated, through the whole trial, as commissioners of highways; it is too late, on appeal, to disturb the judgment of the county court on the ground that they were not such commissioners.

A

PPEAL from a judgment of the Oneida county court, affirming a judgment rendered before a justice of the peace of said county.

White & Lalor, for the appellants.

W. O. Merrill, for the respondents.

Cary v. Marston.

By the Court, FOSTER, J. The action was brought by the plaintiffs, as commissioners of highways of the town of Marcy, to recover the costs of an appeal from an assessment made by commissioners, for the damages of the defendant, in laying out a public road through his lands in said town.

It appeared on the trial that a highway was laid out through the lands of the defendant, and that commissioners duly appointed for that purpose assessed his damages at $80; that from that assessment the commissioners of highways appealed, and the damages were reassessed, by a jury, pursuant to the provisions of the act of 1847, chapter 455, at the sum of $3. The costs of the reassessment, being the fees of the jurors, including those not sworn; of the constable who served the venire or summons upon the jurors; and of the town clerk and justice, amounted to $12.98, which it appeared had been paid by the plaintiffs. Upon this evidence the justice rendered a judgment against the defendant for $12.23 of damages, together with costs of suit. The defendant appealed to the county court of Oneida county, where the judgment of the justice was affirmed, and the defendant brought his appeal therefrom to this court.

The main question is whether the plaintiffs, who have paid the jurors' fees and other costs of the reassessment, can maintain an action to recover them of the defendant; or whether, as the defendant contends, each person entitled to fees for his services, can alone maintain an action therefor.

The statute in question, section 7, declares that when the reassessment is for a smaller amount of damages than was allowed by the assessment appealed from, the party for whom the damages were assessed shall pay the costs thereof; and that when the original assessment is increased, the town shall pay the costs. And it further provides that when two or more persons shall apply for a