"In consideration of the foregoing, the said party of the first part hereby agrees to receive the foregoing in full settlement, satisfaction, and accord of any and all claims and demands of every nature and description whatsoever, which the party of the first part now has or heretofore has had against the party of the third part, as well as any and all claims whatsoever to the said business conducted in the name of 'M. Mitchell,' and in consideration of the foregoing the said party of the first part hereby sells, assigns, transfers, and sets over unto the party of the third part all his right, title, and interest in and to any and all of the merchandise, outstandings, cash in bank, and otherwise, as well as in and to all other assets of every kind, nature, and description to said business in any wise belonging or appertaining.”

It was then provided in the agreement that the party of the first part should deliver to the party of the third part certain specified books and papers, and all other books and papers and property belonging or relating to said business and containing a covenant on the party of the first part with respect to the amount of money he had withdrawn, collected, or received in the business, and with respect to the debts contracted therefor by him. Then followed the final paragraphs of the release preceding the witness clause, as follows:

"And the said parties of the first and second part, in consideration of the foregoing, and the sum of one dollar to them in hand paid by the party of the third part, receipt whereof is hereby acknowledged, do each hereby discharge and release the said party of the third part of, from, and against any and all claims and demands of every nature and description, whether due or to grow due, which against the said party of the third part the parties of the first and second part may now have, since the beginning of the world to the date of these presents, other than those which may arise from or under the terms of this agreement.

"And in consideration of the foregoing, the said party of the third part hereby agrees to assume and discharge all the debts and liabilities incurred in connection with the said business of M. Mitchell, and to hold the said party of the first part free and harmless therefrom; and in consideration of the foregoing the said party of the third part does hereby discharge and release the parties of the first and second part, and each of them, of, from, and against any and all claims and demands of every nature and description, whether due or to grow due, which against the said parties of the first and second part, or either of them, the party of the third part may now have. since the beginning of the world to the date of these presents, other than those which may arise from or under the terms of this agreement."

The learned trial court construed this agreement as in effect constituting two releases, one a particular release with respect to the business, executed between the plaintiff and his father, and the other a general release by the two sons to their father, and therefore held that the general provisions are not limited by the particular provision relating to the settlement of the controversy with respect to the business. I am unable to agree with this construction of the instrument. All of the provisions of the agreement are, I think, consistent with the testimony of the defendant, which shows that he denied that the plaintiff was interested in the business, but conceded that Bertram was associated with him therein. The first part of the agreement relates to the settlement of the controversy between the plaintiff and his father, from which it would appear that the father, while claiming that the plaintiff had no interest, made very substantial concessions represented by his agreement to pay $8,800 on account thereof. The latter part of the agreement, which constitutes an agreement between the two

sons and their father, plainly shows that it also relates to the business, to which the plaintiff had asserted a claim, denied by his father, and in which the father conceded that the other son was associated with him. The consideration for the release of their father by the two sons in this part of the agreement is recited to be the consideration thereinbefore stated, which was the settlement of the controversy between the plaintiff and his father, and in addition thereto the nominal consideration of $1, and while the provisions of the second last paragraph, in which the sons released their father, are general, yet they are qualified by the last paragraph which clearly shows that they were intended to relate to the business, for it is therein provided that the father agrees, in consideration of the release by his two sons, to assume and discharge all debts and liabilities incurred in connection with the business, and to hold them harmless therefrom, and contains in general language a release by the father to the sons.

The general rule is that where a release contains a recital of a particular claim, obligation, or controversy, and there is nothing on the face of the instrument, other than general words of release, to show that anything more than the matters particularly specified was intended to be discharged, the general words of release are deemed to be limited thereby. Jackson v. Stackhouse, 1 Cow. 122, 13 Am. Dec. 514; Hoes v. Van Hoesen, 1 Barb. Ch. 379; McIntyre v. Williams, 1 Edw. Ch. 34; Slayton v. Hemken, 91 Hun, 582, 36 N. Y. Supp. 249, Romaine v. Sweet, 57 App. Div. 613, 68 N. Y. Supp. 516; Murphy v. City of New York, 190 N. Y. 413, 416, 83 N. E. 39; Eisert v. Bowen, 117 App. Div. 488, 102 N. Y. Supp. 707, affirmed 191 N. Y. 544, 85 N. E. 1109; Kirchner v. N. H. S. M. Co., 135 N. Y. 182, 31 N. E. 1104; Texas & Pacific Ry. Co. v. Dashiell, 198 U. S. 521, 25 Sup. Ct. 737, 49 L. Ed. 1150; Todd v. Mitchell, 168 Ill. 199, 48 N. E. 35; Bassett v. Lawrence, 193 Ill. 494, 61 N. E. 1098; Van Slyke v. Van Slyke, 80 N. J. Law, 382, 78 Atl. 179, 31 L. R. A. (N. S.) 778, Ann. Cas. 1912A, 498. At one time it was considered most important in deciding such questions whether a particular recital preceded or followed the general words of release, but later decisions show that this is not controlling. Romaine v. Sweet, supra; Murphy v. City of New York, supra. There is no reference in this agreement to any claim on the part of the sons against the father as their guardian, and it would, we think, be unreasonable to consider the agreement as releasing the liability of the defendant as guardian, even if a general release by the sons to their father would release him as guardian, which is, to say the least, extremely doubtful. See Markley v. Camden Safe Deposit & Trust Co., 74 N. J. Eq. 279, 69 Atl. 1100; Matter of Camp, 126 N. Y. 377, at 389, 27 N. E. 399.

[2] There is no force in the contention that the statute of limitations has run against the action. The father as guardian was trustee of an express trust, and until he accounts or repudiates the trust the statute of limitations does not run against the right of the beneficiaries to call him to account. Matter of Asheim, 111 App. Div. 176, 97 N. Y. Supp. 607, affirmed 185 N. Y. 609, 78 N. E. 1099; Matter of Irvin, 68 App. Div. 158, 74 N. Y. Supp. 443; Matter of Anderson, 122 App.

Div. 453, 106 N. Y. Supp. 818; Matter of Camp, supra; Matter of Sack, 70 App. Div. 401, 75 N. Y. Supp. 120; Matter of Taylor, 30 App. Div. 213, 51 N. Y. Supp. 609. So far as appears, he neither accounted nor repudiated the trust. The record discloses no act which would set the statute running in his favor. It must therefore be deemed that he still holds the property for the plaintiff. There is no evidence with respect to when plaintiff first knew or discovered that defendant had received this money as such guardian or had not accounted therefor.

Libby v. Van Derzee, 80 App. Div. 494, 81 N. Y. Supp. 139, affirmed without opinion 176 N. Y. 591, 68 N. E. 1119, and Constantine v. Constantine, 91 App. Div. 607, 87 N. Y. Supp. 139 relied upon by counsel for the respondent, although not in harmony with the views here expressed, are distinguishable on the ground that those actions. were not brought for an accounting, and the decision in one of them was placed on the ground that they were actions at law. Matter of Van Dersee, 73 Hun, 532, 26 N. Y. Supp. 121, also relied upon by the respondent, is, I think, in direct conflict with Matter of Camp, and is inconsistent with the later decision in Matter of Sack, supra, and is also in conflict with the principle upon which the decisions in Matter of Asheim and Matter of Irvin, supra, are based.

It follows, therefore, that the judgment should be reversed, and there should be an interlocutory judgment for an accounting, with costs to the appellant to abide the event. All concur.

(170 App. Div. 458)

MITCHELL v. MITCHELL.

(Supreme Court, Appellate Division, First Department. December 10, 1915.) Appeal from Special Term, New York County.

Action by Bertram Mitchell against Michael Mitchell, individually and as guardian of Bertram Mitchell. Judgment dismissing complaint, and plaintiff appeals. Reversed.

Argued before INGRAHAM, P. J., and LAUGHLIN, CLARKE, SCOTT, and SMITH, JJ.

Harold Nathan, of New York City, for appellant.

Frederick L. Guggenheimer, of New York City (Otto Horwitz, of New York City, on the brief), for respondent.

LAUGHLIN, J. This appeal presents no question with respect to the statute of limitations, but otherwise the facts and questions involved are the same as those presented on the appeal in the action by Leon Mitchell against the same defendant, argued and decided herewith (156 N. Y. Supp. 76), and therefore, for the reasons assigned in the opinion in the other case, the judgment herein should be reversed, and an interlocutory judgment entered for an accounting, with costs to appellant to abide the event. Settle orders on notice. All concur.

(170 App. Div. 408)

McCALMONT v. FARSON et al.

(Supreme Court, Appellate Division, First Department.

December 10, 1915.)

SALES 85-PROVISIONS FOR REPURCHASE-CONSTRUCTION. Defendants, on making a sale of irrigation bonds, wrote plaintiff's executor a letter, praising the bonds and offering at any time to repurchase them at par. Subsequently plaintiff's executor made other purchases, but there was no new agreement by defendant to repurchase such bonds at par. Held, that the agreement to repurchase the bonds applied only to the bonds first sold, the letter referring to the particular bonds, and so defendants were not obligated to repurchase bonds subsequently acquired. [Ed. Note. For other cases, see Sales, Cent. Dig. §§ 236-238; Dec. Dig. 85.]

Clarke, J., dissenting.

Appeal from Trial Term, New York County.

Action by Eleuthera D. McCalmont, as executrix of the last will and testament of James Donald McCalmont, deceased, against William Farson and others. From a judgment entered on a verdict rendered for plaintiff by direction of the court, and from an order denying new trial, defendants appeal. Modified and affirmed.

See, also, 166 App. Div. 921, 151 N. Y. Supp. 1127.

Argued before INGRAHAM, P. J., and McLAUGHLIN, LAUGHLIN, CLARKE, and SCOTT, JJ.

Lewis L. Delafield, of New York City (Alfred Gregory, of New York City, on the brief), for appellants.

Henry H. Abbott, of New York City (Dana T. Ackerly and Edward A. Craighill, Jr., both of New York City, on the brief), for respond

ent.

LAUGHLIN, J. At the close of the evidence counsel for defendants moved for the dismissal of the complaint. The motion was denied, and he excepted. Both parties then moved for the direction of a verdict, and by consent the jury were discharged and the case was submitted to the court for the direction of a verdict without the presence of the jury. On the subsequent direction of the verdict, appellants duly excepted, and also excepted to the denial of their motion. On the 14th day of February, 1910, James Donald McCalmont, plaintiff's testator, either individually or as executor of Samuel P. McCalmont, purchased of the defendants at par and accrued interest GreeleyPoudre Irrigation District bonds of the par value of $5,000, and McCalmont exchanged therefor Chicago Sanitary District bonds of the par value of $5,000, and on the 15th day of April, 1910, purchased of them like bonds of the par value of $15,000 at par and accrued inter

est.

This action was brought to recover back the agreed purchase price, and it is based on a promise alleged to have been made in writing by defendants to repurchase them at the same price at any time. In order to avoid any question with respect to whether the purchases were made by McCalmont individually or as executor, the plaintiff procured an assignment from the surviving executors of Samuel P. Mc

For other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes 156 N.Y.S.-6

Calmont and pleaded in separate counts the purchase by him individually and as executor. On a demurrer to each count of the complaint for insufficiency the complaint was sustained. 166 App. Div. 921, 151 N. Y. Supp. 1127. See, also, Sims v. Farson, 157 App. Div. 38, 141 N. Y. Supp. 673; Id., 162 App. Div. 426, 147 N. Y. Supp. 769.

The defendants were engaged in business in New York as bankers and brokers under the firm name of Farson, Son & Co. The negotiations which, it is now conceded, resulted in the first purchase of bonds in exchange for Sanitary District bonds of the par value of $5,000, opened on the 27th day of January, 1910, by an effort by one Warner, who was a salesman in the employ of defendants, to interest McCalmont in the purchase of some of these bonds, and McCalmont being desirous of selling Chicago Sewer District bonds of the par value of $6,000, which he owned, defendants attempted to find a market therefor. That interview took place at Franklin, Pa., where McCalmont resided. Two days later defendants wrote McCalmont, referring to the "visit" of their salesman, and offering to take his said bonds "at the market" in exchange for an equal amount of "County of Weld, Colo., Municipal Water 6's," known as Greeley-Poudre Irrigation District bonds, at par and accrued interest. A copy of the letter was also sent to Warner, who was called as a witness for defendants and testified that he again called on McCalmont. On cross-examination he denied that McCalmont refused to purchase the bonds unless defendants would agree to repurchase them; but he admitted that after that interview with McCalmont he communicated with defendant Farson by telephone, or had an interview with him in New York. He was then asked whether Farson said "he would send a letter in which he would agree to buy back these bonds that he might purchase," and he answered, "Yes; there would be a letter sent; yes." He was then asked, "To what effect?" and he answered, "Well, to the effect of the marketability of the bonds." On the 7th day of February, 1910, defendants wrote McCalmont as follows:

"Referring to our previous correspondence, and the visit of our Mr. Warner, we call your attention to the following information in regard to the County of Weld, Colorado, Municipal Water 6's. (Greeley-Poudre Irrigation District): * * These bonds are not affected in any way by panics, money fluctuations, as are bonds listed on the Stock Exchange. We always make a market for our offerings, and will be ready at all times to pay you the price at which you purchased them, and will, without a doubt, be able to give you a premium. In our estimation you could not possibly obtain a more conservative and attractive investment, and we should be pleased to receive your order."

Warner again called on McCalmont, who in the meantime had received said letter, and evidently they came to an agreement with respect to an exchange of securities, for on the 14th of February, 1910, the defendants wrote McCalmont confirming a sale to him through Warner of the Greeley-Poudre Irrigation District bonds at par and accrued interest, and the purchase from him of Chicago Sanitary District bonds of the par value of $5,000 at 102 and accrued interest, and inclosing a check for the difference between the price of the bonds sold by them and those they purchased.