Redfield ". Middleton. In The People v. Clerk of the Marine Court, (5 Abb. Pr., 320,) this Court incidentally considered this question, though it was not directly involved. Mitchell, J., said: "The manner relates to the mode of proceeding in effecting an appeal, the notice and security to be given; the effect relates to the consequences produced by the appeal, as under what circumstances it shall operate as a stay of proceedings." But, without considering the subject further, I think the Court below erred in not adopting the dissenting opinion of Brady, J., as a correct exposition of the law on this point. It follows that the undertaking, on which this action is brought, was authorized by the statute, and, if properly executed, operated as a stay, and, therefore, was based upon sufficient legal consideration. The judgment should be reversed and a new trial granted, with costs to abide event. REDFIELD against MIDDLETON. New York Superior Court; General Term, June, 1863. Where the complaint alleged that the plaintiff and defendant had made an oral agreement to carry on the business of publishing books, to which the plaintiff was to contribute contracts with authors, &c., and was to give his personal attention for several years at a salary, and afterwards to have an interest in the business, and further alleged that under such agreement the defendant had become possessed of the stereotype plates of certain books, the right to publish which, upon terms set forth in the complaint, was contributed by the plaintiff; but that the defendant refused to perform the agreement or to form the business connection contemplated, although the plaintiff had been at all times ready and willing, and had offered to perform; and that the defendant was proceeding to publish such books in his own name, denying that the plaintiff had any interest therein, and refusing to surrender the plates and books, though the plaintiff had de Redfield v. Middleton. manded them, and offered to indemnify him ;-Held, that these facts were sufficient to constitute a cause of action for a surrender of the books and plates, and an accounting. The former decision in this case (Redfield v. MIDDLETON, 7 Bosw., 649) dis tinguished. APPEAL from an order overruling a demurrer to the amended complaint in this action. A former decision upon the original complaint is reported in 7 Bosw., 649. The plaintiff subsequently served an amended complaint, the allegations of which are sufficiently stated in the opinions. The cause was heard upon the demurrer, before Mr. Justice WHITE, at a special term in December, 1862, who sustained the complaint, delivering the following opinion: WHITE, J.-The defendant demurs to the amended complaint in this action, on the ground that it does not set forth facts suf ficient to constitute a cause of action. All the statements of the complaint are to be taken as true, and they are in substance these: The plaintiff had formerly carried on the business of publishing, and had mortgaged his stock and material in that business to Bangs Brothers & Co., who took possession of it under the mortgage, and placed it in the hands of a trustee for sale. During this condition of things, the defendant and plaintiff made an oral agreement in January, 1860, by the terms of which the defendant was to carry on the business of publishing as successor of the plaintiff, so soon as he (defendant) could purchase said stock and material. The plaintiff was to contribute to the business his contracts with authors, his influence with them and others, his experience and knowledge as a publisher, and the good-will generally of the business formerly carried on by him. He was also to give his time and personal attendance to the business; and for this he was to receive a salary, the amount of which was to be determined at a future time; and on January 1, 1864, he or his appointee was to receive from the defendant, and become absolute owner of, one-half of the then business, with its accumulated stock and assets of every kind, subject, however, to one-half of the then liabilities of the concern. From January to June, 1860, the plaintiff received from Redfield v. Middleton. England, from R. C. Trench, advance sheets of two of his (Trench's) works, for the purpose of having an American edition of each issued simultaneously with the British publication, and under an agreement between the plaintiff and Trench that the plaintiff should stereotype and publish the work, and that Trench should receive ten per cent. of the retail price of the books, and that the plaintiff have all the remainder, with the stereotype plates. The plaintiff ordered the stereotype plates to be made in his (the plaintiff's) name and upon his own credit. About the time when the stereotype plates were completed, the defendant effected the purchase of the old stock and material formerly belonging to the plaintiff, and entered upon the publishing business as successor of the plaintiff'; and the plaintiff thereupon, in pursuance of and relying upon the good faith of the defendant and the agreement between them, permitted the defendant to take a bill of sale of the stereotype plates from the founder, and to give his note to the founder for their cost, being $445. The defendant immediately caused an edition of each work to be printed, and advertised them for publication by himseif, as successor of the plaintiff. The plaintiff then requested the defendant to have the oral agreement between them reduced to writing; but he refused to do so, and repudiated the agree ment in all its parts, stating that he would not fulfil any stipúlation of it, except that relating to the payment of a salary to the plaintiff; and denied that the plaintiff or Trench had any right, title, or interest in or to said plates, or editions, or the profits thereof. The share of the business and its assets which the plaintiff was to have in January, 1864, was to him the most valuable of the consideration of said agreement. The plaintiff could and would have paid for the stereotype plates when they were completed if it had not been for his confidence in the defendant's good faith, and his reliance upon the agrecment between them. The plaintiff, upon this repudiation by the defendant of their contract, obtained possession of the defendant's note given by him for the plates, and tendered it to the defendant, and also offered to reimburse him all the expenses he had incurred about said stereotype plates and the printing of said works, and offered VOL. 1.-2 Redfield v. Middleton. to idemnify him fully against any liabilities he had incurred in the business; and he demanded from the defendant the advance sheets and plates and the printed books. With this demand the defendant refused to comply. The plaintiff now brings this suit, and asks judgment that the defendant be required to deliver the plates and books to him, upon his reimbursing the defendant all his expenses, and fully indemnifying him against all liabilities upon account of said plates or works. He asks, also, for an account of any sales made of the books, and that the proceeds be paid over to him by the defendant; he also alleges that the defendant has little or no property, and is pecuniarily irresponsible, and that the works referred to are valuable, and will find a ready and profitable sale; and he further avers that he has tendered performance, and is ready, fully, to perform the contract upon his part. I think these facts constitute a sufficient cause of action They allege, in effect, that the defendant, an insolvent, under the pretext of forming a regular permanent business connection with the plaintiff, of considerable value to the plaintiff, obtained from him, as part of his contribution to the proposed joint undertaking, the privilege of advance sheets, and means of publishing, two works of much profit to the publisher; and , having obtained them, he published the works and refused to form the connection, or quasi partnership, upon the promise of forming which, he obtained from plaintiff, the property and interests in question. This is so fraudulent upon its face, that so long as the property wrongfully acquired existed, and was in its nature capable of recaption and delivery, I can see no reason why it could not be forthwith retaken by the plaintiff in an action of replevin. But as the property or rights acquired by the defendant in this case have undergone a change in their conditions, or been incorporated with other rights or interests, since the plaintiff parted with their control, the present application to the equitable powers of the court is the proper form of proceeding, and the plaintiff should have all the relief which the power of the court can give. The fact that the contract was not in writing, and therefore void, as being within the Statute of Frauds, does not apply Redfield v. Middleton. here; because the action is not brought to enforce the performance of any contract, but simply upon the averment that the defendant, under a false promise, or pretence, that he would make a certain contract with the plaintiff, obtained the plaintiff's property; and now, while refusing to, and declaring that he will not fulfil that false promise, fraudulently retains and uses the property and interests which he had acquired by means of making it, and refuses to return it, or to account respecting it, although requested to do so by the plaintiff. The suggestion, that the plaintiff should not sue the defendant until January, 1864, but should continue to serve him in the mean while, and allow him to enjoy the interest which the plaintiff had contributed to the business, and take the risk of a recovery against him at that time for his breach of contract, is neither sound nor reasonable. The plaintiff could be no more bound to go on and give his time, and services, and means, to the defendant for four years, when the defendant notified him. beforehand, that he, defendant, would only pay him half price, or no price at all, for such time, and services, and means, than a merchant would be bound to continue to deliver merchandise upon a contract running for four years, to an insolvent man, who, upon the receipt of the first parcel, should refuse to pay for it, and should declare that he never would pay any thing, or, at best, but a very small fraction of the value or contract. price, of whatever the merchant might thereafter deliver to him. Such a frank, freebooting purchase would receive but slight comfort or encouragement from any court of justice, whose process the despoiled merchant might demand for the recovery, in specie, of the first parcel which his unprofitable customer had succeeded in fraudulently extracting from him. I take this view of the case only upon the assumption, which a demurrer always requires, that all the material allegations of the pleading demurred to, are true. Upon an answer taking issue upon those allegations, the case may prove to be a very different one. But as it stands upon the demurrer, I must order judgment for the plaintiff, with costs; but with liberty to the defendant to answer in ten days after notice of the order to be entered upon this decision, upon payment of the costs of the demurrer to be taxed. |