Phares and Gould v. Davis.

tuting, for the counts on the notes, counts on the special agreement.

Edmonds, J., allowed the amendment on the following terms: Plaintiffs to pay the costs of the plea and all subsequent proceedings, the trial to be postponed, and defendants to have twenty days to plead to the amended declaration, which might contain the common, counts, but excluding any count upon the notes.

Williams, for plaintiffs.

Havens, for defendants.

ERIE CIRCUIT.

JULY, 1848.

Before EDMONDS, Justice.

PHARES AND EDWARD GOULD V. DAVIS.

Where a contract had been made between the owners of wheat and the shippers to transport the wheat by a certain time, and the warehouse receipts had been put into the hands of the shipper, and the owner had thus parted with his possession of and control over the grain, it was held that the measure of damage for failure to perform the contract was the fall in the price of the grain between the time when it did arrive and should have arrived, and the additional expense the owner had been put to in obtaining repossession.

THE defendant contracted with plaintiffs to bring for them 7,400 bushels of wheat, from Chicago to Buffalo, at 14 cents per bushel, freight, and to be done at the opening of the navigation. It was proved that if shipped by the first trip,

Fowler v. Houston.

the wheat would have arrived at Buffalo 1st of June, at which time it was worth $1,45 per bushel at Buffalo. But the wheat did not arrive until the middle of July, at which time the price had fallen to $1,00 per bushel, and it came subject to a charge of 25 cents per bushel freight, and $116 storage, which plaintiffs were obliged to pay before they could obtain possession of their grain.

Edmonds, J., charged the jury that the plaintiffs, having put into the hands of the defendants the warehouse receipts, and thus parted with possession of and control over the wheat, were entitled to recover, and the measure of damages would be the loss which they had sustained by the fall in the price of the grain, and the sums they had been obliged to pay for storage, and for the excess of freight over the contract price.

Verdict for plaintiffs, $3,857.29.

Green, for plaintiffs.

Havens, for defendant.

ORANGE SPECIAL TERM.

OCTOBER, 1848.

Before EDMONDS, Justice.

FOWLER V. HOUSTON.

Cases in which ten per cent will be allowed under section 263 of the Code,

THIS was a complaint filed against the defendant, as the indorser of a promissory note. to which the defendant had

Fowler v. Houston.

put in an answer, denying that he had received any consideration for his indorsement. No affidavit of merits being filed, an inquest was taken at the Orange Circuit, in October, 1848. At the time of rendering the verdict,

Fullerton, for plaintiff, moved for an allowance of the ten per cent, under section 263 of the Code, on the ground that it was evident that the defendant had no defense, and had put in an answer solely for purposes of delay.

Edmonds, J., said that it was evident that the whole purpose of the defendant had been not to obtain a determination of a disputed question, but to obtain delay. His purpose was answered, and when the cause was called he allowed judg ment to be taken against him, without any resistance on his part. This was, in fact, using the forms of law for mischievous purposes, and converting that which was designed as a means of obtaining substantial justice into an engine of oppression. It was, in fact, a fraud upon the law, and surely is a case in which, if ever, the discretion of the court, under section 263 of the Code, ought to be exercised.

If there was a fair matter of dispute between the parties, a contest of doubt carried on in good faith, in order to obtain a decision of the court upon a difficult matter, there would be much less justice in inflicting upon the losing party the punishment of a percentage on the amount in controversy, than where a debt is honestly due, and a false defense put in, merely for the purpose of staving off the day of payment.

There is another consideration in favor of allowing the percentage in such cases. The amount of costs allowed by the Code is so small, that where the amount claimed is large, great temptation is held out to the debtor to put in an answer to obtain time. The penalty thereby attached to such conduct would, if it was limited merely to such costs, be altogether too trifling to deter any one from putting in false answers. This, in my district, New York, would soon swell to be an alarming evil, and encumber our calendars beyond the possibility of

Executors of Keese and Lawrence v. Fullerton and Armstrong.

reduction. Thus the evil would be allowed to augment itself; and it can, under the law as it now exists, be guarded against only by exercising the power conferred by the section in question.

I shall, therefore, be disposed, in all such cases, to award the percentage, believing that such will be the most beneficial application which can be made of the discretionary power conferred on the court by this provision of the Code.

Motion granted.

ORANGE CIRCUIT.

OCTOBER, 1818.

Before EDMONDS, Justice.

EXECUTORS OF KEESE AND LAWRENCE, SURVIVOR OF KEESE, V. FULLERTON AND ARMSTRONG.

Amendment of complaint on the trial. What defect in pleading may be disregarded under section 151 of the Code.

THIS cause came on to be tried at the Orange Circuit, in October, 1848. The complaint stated that one A. B., being indebted in the sum of $300 to Lawrence and Keese, partners in business, and to others, and being insolvent, had made an assignment to the defendants in trust to pay, first, their expenses in executing the assignment; second, certain rents; and, third, the debt owing to the firm of L. & K.; and averred that the defendants had received, under the assignment, a sum sufficient to pay that debt, whereby the defendants were indebted to the plaintiffs in the sum of $300, and interest. An answer was put in.

Executors of Keese and Lawrence v. Fullerton and Armstrong.

McKissock, for defendants, objected

1. That it did not appear from the complaint that the defendants had received under the assignment enough to pay the plaintiffs and the sums charged upon the assets prior to their claim.

2. That the defendants could not be indebted to the plaintiffs as averred in the complaint, but only to Lawrence, as survivor of Keese.

J. W. Brown, contra, insisted that defendants could not take advantage of these defects on the trial; they ought to have demurred. Besides, they could be disregarded, under the Code, as immaterial.

Edmonds, J.: The last objection may be disregarded under section 151 of the Code, because the averment complained of does not affect the substantial rights of the parties. But the other objection is more material, in this, that the complaint may all be true, and still the plaintiffs not be entitled to recover. To entitle them to recover they must aver and prove, not merely that the defendants received, under the assignment, enough to pay their debt, but enough to pay the prior claims for expenses and rent, and the plaintiffs' debt. I will not, however, dismiss the complaint on that account; the plaintiffs may amend it, by inserting the necessary averments, on payment of the costs of this trial, the defendants to have twenty days to answer the amended complaint.

3-vol. 2.