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Wiltsie v. Northam.

they had agreed to do, and the owner notified him that he must pay an advance of $1,600 or quit," and " that he must not remove any of the fixtures or appurtenances;" and that defendant, on the 1st of May, 1857, "quit and surrendered the said premises and fixtures.” It avers that L. & A. knew they had no lease, and that, by the lease under which they occupied, "they had no right to remove the most valuable portion of the fixtures and appurtenances,

** for which said note for $1,600 was given," and also avers great damage to defendant "in his said business" by reason of said misrepresentations. It alleges that defendant established a business which he was obliged to abandon; that he was obliged to remove his coal at great expense, and “also to abandon all the fixtures and appurtenances belonging to said yard," to his damage to an amount beyond that of said note; that the consideration of the note has entirely failed, and that, on the 10th of June, 1856, he brought a suit in the Supreme Court against L. & A. to recover damages for the breach of said agreement and to procure said note to be canceled and delivered up; that L. & A. appeared in said action on the 24th of said June; that it is at issue and pending; that L. & A., and not the plaintiff, “are the real parties in interest in this action;" and it prays a dismissal of the complaint, and "that this defendant may have such affirmative relief in the premises as to this Court shall seem proper."

The plaintiff first called, as a witness, Alfred Ashfield, who testified that the firm of Lalouette & Ashfield consisted of Paul H. Lalouette and Henry Ashfield; that Henry Ashfield is his son; that the note in suit was transferred to the plaintiff about the time the defendant sued L. & A. in the Supreme Court; that in that suit it was decided that the note should not be given up, but that defendant should have judgment for $1,127.60 damages; that the plaintiff bought the note in suit by giving his own note for it; and that the plaintiff, having recovered in this action on a former trial of it, he took up his own note by "an assignment of the judgment so recovered.”

The plaintiff having rested, the defendant moved for a nonsuit, because the evidence showed that the plaintiff was not the lawful owner and holder of the note, and upon the evidence he could not recover on the cause of action stated in the complaint; which motion was overruled, and the defendant excepted.

Wiltsie v. Northam.

The defendant was then sworn in his own behalf; produced the agreement of November 16, 1855, described in his answer; and testified that the note in suit was the one named in said agreement—its amount being larger than the sum there named, by reason of the addition of interest; and also produced a lease which he said “is the lease referred to in the agreement." That lease is dated the 3d of March, 1851; is from John Targee to Alfred Ashfield, for the term of five years from the 1st of April, 1852, at a rent of $700 per annum, payable quarterly. It contained a covenant of the lessee not to assign or underlet without the written consent of the lessor: it contained no covenant for a renewal: it contained a covenant to surrender the premises at the end of the term in as good condition as they then were, ordinary wear and tear alone excepted; and also an agreement that the lessee or his assigns might erect an office on the premises and remove it on or before the expiration of the term. It had a written consent on it, that the lessee might underlet. The defendant further testified that he first discovered, about nine months after he went into possession, that L. & A. had no lease: on conversing with Lalouette, he said he thought there would be no difficulty in procuring a renewal; defendant told him unless he pledged himself to withdraw the note from the bank he would advertise it; that he withdrew the note. He was informed in September, 1856, the lease would not be renewed; that he left the middle of April, 1857; left “the old fixtures in the yard;" removed a horse and cart, worth about $150; expenses of removing were about $100; lost many of his customers, and his business was deranged; and he testified as to the value of the fixtures, if to be used as they were, and their value to be removed.

Mr. Ashfield being recalled, said he took the lease for Lalouette because the owner said he would let to him cheaper than to any one else, and offered to transfer the lease to Northam when the agreement of November 16, 1855, was made; that the lease was then in the room where the parties were; that he first took a lease in 1837, and the present lease is a renewal of that; it has always been in his name; was present when the agreement of November 16, 1855, was signed ; "told Northam he could see the lease if he wished; he said he was in a hurry, and didn't care to see it;" that the office was built in 1837; the addition in

Wiltsie v. Northam.

1819;

the new fence was built before the present lease was made by Lalouette; he occupied two or three years before the last lease was made.

Northam, being recalled, said he did not ask to see the lease, nor was there any offer to show it to him.

There was no evidence of any representations by L. & A. to induce the making of the agreement of November 16, 1855. There was evidence on both sides as to the value of the different articles, denominated fixtures and appurtenances, their value for continued use on the premises, and their value for the purposes of removal. Northam, on his cross-examination, said: “The fixtures were abandoned by me; some one came for me to take away the fixtures ; spoke of the paving stones; the owner came and told me to remove the fixtures or he should send them to the public yard; I remember that circumstance now."

The fixtures and appurtenances are described in the schedule annexed to the agreement of November 16, 1855, as being "two offices, brick; one office desk; one sofa; chairs, washstand, scale and weights; two carts and harness; one horse; one safe, screens and shovels; one sleighbells; sheds; fence around yard; paving; sections; iron rods; hydrants; shop corner Division and Ridge streets."

The Judge charged that the plaintiff " had shown a sufficient title to the note to maintain this action thereon;" ordered a verdict for the amount claimed, subject to the opinion of the Court at General Term, and directed the jury to answer these two questions, viz.:

"1. What was the value of the fixtures on the 1st of April, 1857, viz., two offices, fence, paving, hydrant?

"2. What was the damage to the defendant from the lease having less than two years to run from the date of the agreement, viz., increase of rent, expenses, (breaking coal,) cartage ?"

The defendant excepted to the charge, and claimed the right to go to the jury on the question of ownership of the note and its transfer to the plaintiff. The Court restricted the summing up to the questions specially submitted to the jury, and the defendant excepted.

The jury rendered a verdict for the plaintiff for $1,882.12, and answered the questions submitted thus: Bosw.-Vol. V.

54

Wiltsie v. Northam.

"First. Answer,
Second. Answer,

Increase of rent,
Expenses, breaking coal,
Cartage,

$702 00

$300 00

73 84 20 00 18 00

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$411 84" The plaintiff now moves for judgment on the verdict, and the defendant for a new trial.

A. Wakeman, for plaintiff,

Contended that there was no fraud; that the agreement fixed as the damages to be paid, (if there should be no renewal of the lease for that cause,) one-half of the loss on the fixtures, which the jury found to be worth, April 1, 1857, $702; that according to the evidence they were worth half that to remove, viz., $351, and one-half of this loss would be $175.50; and that on the view most favorable to the defendant, only this sum could be deducted from the verdict.

And that the allegation in the answer, that he was obliged to abandon the fixtures, was untrue, the proof showing on the contrary; not only that he had full liberty to remove them if he saw fit, but that by the law of landlord and tenant he had a legal right to remove them without asking permission. (Taylor's Land. and Ten., &$ 545, 546; Van Ness v. Pecard, 2 Pet., 137; King v. Wilcomb, 7 Barb., 263; Dubois v. Kelly, 10 id., 496; Lawrence v. Kemp, 1 Duer, 363; note to Elwes v. Mawe, 2 Smith's L. C., 99, 115; Amos & Ferard on Fixtures, 32.)

Also that the plaintiff had shown title to the note in suit. It is not necessary for an indorsee to prove that he paid value for the note. (James v. Chalmers, 5 Sand., 52; 2 Seld., 209.)

A. McCue for defendant.

1. The defendant's motion for a nonsuit should have been granted.

The plaintiff, when he rested, had not shown a bona fide own. ership of the note.

II. The Court erred in not permitting the defendant to go to the jury upon the question of the bona fide transfer of the note

Wiltsie v. Northam.

and its ownership by the plaintiff. This was a question of fact clearly put in issue, and it was the right of the defendant to have it determined by the jury.

It is clear that the transfer was merely colorable and made for the convenience of Lalouette & Ashfield, they still retaining their actual interest and ownership. (Killmore v. Culver, 24 Barb., 656; Andrews v. Bond, 16 Barb., 633; Bell v. Drew et al., 4 E. D. Smith, 59.)

III. The plaintiff not being the real party in interest cannot maintain the action. (S$ 111 and 113 of the Code.)

IV. The Court erred in submitting question No. 1 to the jury. The question was improper, both in form and substance.

The question should have been, “What was the value of the fixtures at the time the agreement for the purchase of the same was made ?"

1. Because the damage which defendant sustained accrued immediately upon the breach of the warranty as to title. If Lalouette & Ashfield had no title to these fixtures at the time they attempted to sell and transfer the same, it follows that the use of these fixtures passed with the lease and the value of their use was covered by the rent reserved.

2. The question was improper in substance. The lease was dated March 3, 1851. The fence, offices, paving, hydrant, &c., were all on the premises at this date, and passed under the lease.

And if there were any doubts as to the intention of the parties, the covenant that Alfred Ashfield might erect and build an office on the premises and remove the same, shows that it was not intended that any other improvements should be removed. No office was built under this privilege. The lease expressly recog. nizes the existence of the office.

V. The second question was also improper. The plaintiff having taken the note after maturity, took it, subject to all the equities between the original parties; and the defendant had a right to set off against any recovery by L. & A. if they had sued the note, all damages sustained by him by the deceit and fraud.

The measure of damages was too restricted. The defendant should have been allowed for actual damage to his business.

The plaintiff is not entitled to any judgment, but there should be a new trial.

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