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Wilson v. Davol.

ing to the statute, “and that notice of such sale was not duly advertised."

Such being the pleadings, and no evidence having been given of any proceedings to foreclose, the case stands as if the fact of such a foreclosure had not been alleged.

The lease from Carpenter to Davol was for two years from the first of May, 1848. This action is to recover three quarters rent of the premises, ending November 1, 1849, and February 1, and May 1, 1850. This lease and the rents due from Davol as such lessee bave been assigned to the plaintiff.

Davol resists the plaintiff's claim on the ground that lot No. 75 and the adjoining lot had been sold by the sheriff of Kings county, on executions against Carpenter, issued on judgments recovered prior to the date of the lease from him to Davol, and that S. B. Stilwell received, as a judgment creditor redeeming from the purchaser at said sale, the Sheriff's deed on the 16th of March, 1849. That Davol, subsequently thereto paid rent to said Stilwell, as the owner of lot No. 75, by a title thus acquired.

To this it is answered, that in September, 1850, an action was tried which Carpenter had commenced against Stilwell, to recover the possession of another lot in Brooklyn conveyed by the Sheriff's deed before mentioned and sold under the same executions as the one in question; that the validity of such deed, and of the title thereby acquired, was a point in judgment; and that it was held to be invalid.

The Court at Special Term found these latter facts to be true. As we read the case, Carpenter v. Stilwell, (12 Barb., 128, and 1 Kern., 61,) and the reports thereof, were read in evidence by consent, for the purpose of showing thereby what questions were litigated and determined in that action.

If this view be correct, these reports show that the act of the Sheriff in selling upon the executions on which the sale was made, which is the basis of Stilwell's title, and the deed given to carry such sale into effect, were adjudged to be without authority and void.

The only material question left is, whether the judgment in the suit between Carpenter and Stilwell, and the trial and determination of those questions in that suit, are conclusive against Davol in this suit, that Stilwell had no title.

Wilson v. Davol.

· The Court held, as a conclusion of law, " that the defendant is bound by the aforesaid decision in relation to said deed.” To this decision the defendant duly excepted.

The Sheriff's deed to Stilwell is dated on the 16th of March, 1849. Davol claimed to hold under Stilwell from and after the 1st of May, 1849, and refused to pay rent to Carpenter subsequently thereto.

The action between Carpenter and Davol, in which it was determined that the deed of the 16th of March, 1849, was void, was tried on the 14th of September, 1850. It was not found at Special Term when that action was commenced. The summons in it is dated “ August, 1849," and the complaint in it was verified “August 6, 1849.” It may be assumed, therefore, that it was commenced after the 1st of August, 1849, several months subsequent to the time when Stilwell apparently acquired the legal title, and several months after Davol recognized him as the owner and agreed to pay rent to him.

To make the judgment in the action between Carpenter and Stilwell evidence against Davol in the present action, it is indispensable that the former action should have been commenced, if not determined, prior to the time when the agreement between Stilwell and Davol was concluded, and the rights which the latter acquired thereby had become fixed. (Campbell v. Hall, 16 N. Y. R., 580.)

The act, or proceeding, relied upon as an estoppel, must have been done, or been had, prior to the time when the defendant acquired the title which is claimed to be affected and bound thereby.

A judgment between any two parties, determining the title to land which both claim, makes part of the title, runs with the land, and concludes all who derive a title to the land from either of those parties subsequent to such judgment. But it does not bind any person who derives title from either, by a deed or lease executed prior to the commencement of the action in which such judgment was rendered. (Campbell v. Hall, supra, and the cases there cited.)

It was, therefore, erroneous to hold that the judgment in the action of Carpenter against Stilwell and Ambrose bound

Lakeman et al. v. Grinnell et al.

The title of Stilwell under the deed of the 16th of March, 1849, assuming it to be valid, extinguished the title of Davol as lessee of Carpenter. That lease was made after the sale by the Sheriff of the premises thus leased. The sale by the Sheriff was made on the 15th of December, 1847, by virtue of executions on judg. ments docketed the 11th of March, 1846.

Stilwell, having become the absolute owner, by virtue of the Sheriff's sale and Sheriff's deed, had a right to the immediate possession of the premises; and Davol might lawfully agree to occupy as his tenant and to pay rent to him.

The Judge at Special Term did not find, as a fact, that the Sheriff's deed was void, nor was any evidence given upon that point beyond the introduction of the record in the suit between Carpenter and Stilwell, and proving that in such suit it was adjudged to be void.

In the present action it is open to the parties to litigate that question upon such competent evidence as either may offer; and the defendant is not bound by the decision and judgment in the action between Carpenter and Stilwell. (Thomas v. Hubbell, 15 N. Y., 405-409.)

It follows that the judgment must be reversed, and a new trial granted, with costs to abide the event.

Ordered accordingly.

EBENEZER K. LAKEMAN and others, Plaintiffs, v. MOSES H.

GRINNELL and others, Defendants.

1. When goods were purchased in Connecticut by persons doing business at

Liverpool, England, to be delivered by the vendor on ship board in New York, and were so delivered on board the defendant's ship, then bound for Liverpool, and were received by the defendants for transportation to Liverpool, and a receipt given therefor specifying the price of freight; but before bills of lading were delivered or executed, and before the ship sailed, she was destroyed by an accidental fire at the wharf without any actual negligence of the defendants, and the goods were burned: Held, that the defendants were liable as common carriers for the loss of the goods. Bosw.-Vol. V.

79

Lakeman et al. v. Grinnell et al.

2. The measure of damages where goods are lost before the ship of the car

rier leaves the port of lading, is the value of the goods at that port, and the plaintiff is not entitled to the value at the port of destination less the cost

of transportation. 3. Where goods intrusted to a common carrier for carriage, are lost by acci

dent without any actual negligence on his part, the plaintiff is not entitled to recover interest on the value of the goods, not even from the time of the commencement of suit. (Before HOFFMAN and Slosson, J. J.)

Heard, November 14th; decided, December 31st, 1859

ACTION to recover from the defendants, as common carriers, the value of goods destroyed by fire, after delivery to the defendants for carriage.

The plaintiffs purchased at New Haven, Connecticut, a quantity of India rubber slippers and sandals to be shipped to them at Liverpool, in England, the vendor to deliver them on ship board at the city of New York.

The vendor forwarded the goods to New York, addressed to the plaintiffs at Liverpool, and his agents delivered them on board the ship Henry Clay, belonging to the defendants, then bound for Liverpool, and the same were shipped on the 3d and 4th days of September, 1849; the agent of the defendants received the same on board to be carried from New York to Liverpool, and delivered a receipt therefor specifying the price of freight. The ship was at that time employed by the defendants in the transportation of goods for hire between New York and Liverpool, in England, and they had then advertised her as up for freight and passage on a voyage to Liverpool.

On the next day, (September 5th,) and before any bills of lading for the goods had been delivered or executed, the ship was destroyed by fire at the wharf, and the plaintiff's goods were totally destroyed. It was conceded that the plaintiffs had no proof of actual negligence, and did not charge the defendants with actual negligence by reason of which the fire occurred.

The value of the goods in New York was at that time $4,685.27.

The value of the goods in Liverpool, the port of destination, was $8,054.18; the amount of the freight and duty which should be deducted if that valuation was decided to be the measure of damages was agreed upon.

Lakeman et al. v. Grinnell et al.

The case had been previously tried, and on appeal to the Court of Appeals, that Court decided that the defendants were liable under such circumstances as common carriers, although the loss occurred from fire, which was purely accidental, and happened before the voyage was begun and before bills of lading were signed.

The present trial was to determine the amount which the plaintiffs were entitled to recover, and was had before Mr. Justice SLOSSON and a jury, on the 20th of May, 1859.

The plaintiffs' counsel requested his Honor, the presiding Justice, to charge the jury that the plaintiffs were entitled to recover the value of the said goods at the port of destination, with interest.

The said Judge refused so to charge, and the plaintiffs' counsel duly excepted.

The said Judge then charged the jury that, inasmuch as no fault was imputed to the defendants, and the goods were destroyed before the departure of the ship, and this was known to the plaintiffs, that the plaintiffs were only entitled to recover the value of the said goods at the port of New York; to which charge the said plaintiffs' counsel duly excepted.

The said Judge further charged the said jury, that the said plaintiffs were not entitled to recover interest on the value of the said goods ; to which charge the plaintiffs' counsel also duly excepted.

The jury then rendered a verdict for the plaintiffs for the sum of $4,685.27.

His Honor the Judge, then directed the said exceptions and all the questions of law to be heard in the first instance at a General Term, on a Case to be made, with leave to either party to turn the same into a bill of exceptions.

Richard Goodman, for plaintiffs.

I. By the decision of the Court of Appeals, affirming the law as it has existed for centuries, the defendants were common carriers, and responsible for the loss of the plaintiffs' goods.

They advertised to carry goods for hire, from New York to Liverpool, England, and received the plaintiffs' goods for such voyage.

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