Stuart v. Hawley.

From the 17th to the dry, though it rained a On the 20th the wind fire communicated to

first fired, and did not immediately burn. 20th of July it continued very hot and very little on the morning of the 17th. commenced blowing violently, and the Lockwood's lot, which was a pasture, lying between the plaintiff's and the defendant's lots. On the 26th of July the wind blew a gale, and the fire was blown across Lockwood's lot and extended to the plaintiff's, and burned his grass, crops, &c., occasioning a loss, which was stipulated at $100. The only evidence of any carelessness on the part of the plaintiff is, that the fire was set in a dry time in July. But this single fact, under the circumstances, does not entitle the plaintiff to recover. was set on low swamp ground that had once been burned over. There were no brush near. The stumps were wet and did not burn well, and in fact were not all consumed. It is a well known fact that fire will not so readily run on ground which has been before burned over, as at first. It was set on a day which looked likely for rain. It did rain in the morning, though not to a great extent.

It

It appears to me it cannot be contended that the defendant selected an improper time, or that it was a careless act in him, to set fire to his own fallow, in a month usually chosen for such a purpose. He certainly could not be supposed to know that He who in his infinite wisdom controls the seasons, and holds the winds in his fists, would have suffered the drouth to continue, or have permitted the gale to waft the fires across an adjoining pasture lot to his neighbor's land, on the 26th, and thus do him an injury entirely unexpected and unintentional. The plaintiff should have established the negligence or misconduct, by legal evidence. This, I think, he failed to do. (See case before cited, and Livingston v. Adams, 8 Cowen, 175.) The evidence of want of attention on the part of the defendant, if it be conceded that he did nothing to prevent the fire from spreading, does not help the plaintiff's case. In Clark v. Foot the defendant refused to do any thing, except to prevent the fire from injuring his own premises; and yet the court held it furnished no ground of action. The doctrine contained in Clark

Barber v. Lyon.

v. Foot is fully recognized and approved, and in this state is now settled, in the case of Radcliff's Ex'rs v. The Mayor &c. of Brooklyn, (4 Comst. 195, 200.) A great variety of cases are there collected and commented upon by Judge Bronson; and the conclusions to which the court arrived fully dispose of the present case.

The plaintiff should have been nonsuited, and the jury having found against the law and the evidence, the judgments of the county court and of the justice must be reversed, with costs.

[SARATOGA GENERAL TERM, July 8, 1856. C. L. Allen, Paige, James and Rosekrans, Justices.]

BARBER Vs. Lyon.

B. having agreed to make a wagon for M., the latter gave to L. a written order upon B. for such wagon, which order B. accepted and handed back to L. The wagon was afterwards delivered to L. by B. upon the order. Held, that this was an equitable assignment of the wagon to L., and that B. could not recede from the undertaking, and maintain an action against L. for the price of the

wagon.

Where a paper is shown to be in the hands of a party, and he declines to produce it, upon notice, the inferences are to be taken, in connection with the proof of its contents, most strongly against him.

HIS action was commenced before a justice of the peace of

THIS

the county of Saratoga, to recover the price of a wagon, alleged to have been sold by the plaintiff to the defendant in the year 1853. The trial was by jury, and a verdict was found in favor of the defendant, and the justice rendered a judgment in his favor, for costs. The plaintiff appealed to the county court of Saratoga, and the judge of that county having been the counsel for the defendant certified the appeal to this court. The defense as set up in the answer, was that in February, 1853, one Gad S. Miller was indebted to the defendant, for goods before then sold to him by the defendant, and that he (Miller)

Barber v. Lyon.

gave to the defendant an order on the plaintiff for a one horse buggy wagon, (the one in question,) which the plaintiff was then making for Miller; that the order was, afterwards and during the same month, accepted by the plaintiff, who agreed to deliver the wagon thereon, and afterwards did deliver it.

On the trial, the plaintiff proved that about the 1st of June, 1853, the parties met, at a turnpike gate, tended by the witness, the plaintiff coming from the north with the wagon in question hitched to the one in which he was riding, and the defendant coming from the south in another wagon. The plaintiff unhitched the hind wagon and drew it out into the road. The defendant then stepped up and handed the plaintiff a paper about two inches wide, and asked him if he would accept of it. The plaintiff, after looking it over, said he would accept of it as far as it went, and said he should not deliver the wagon to the defendant, unless he would be responsible to him for the balance. The defendant replied, that he should do just as he agreed. During this conversation the defendant was hitching his horse to the new wagon, and fixing his harness. The plaintiff forbade the defendant hitching to the wagon, several times, unless he would agree to become responsible for the balance. The defendant hitched to, and finally drove off, saying, as he struck into a pretty fast trot, that he would not be responsible for one mill. The plaintiff hitched the old wagon left by the defendant on to the one in which he was riding, and drove off with them. This part of the evidence was objected to by the plaintiff, but was received by the court. The plaintiff retained the paper, but did not read it aloud. A notice was served upon him to produce it at the trial. But on being called upon, his counsel declined to produce it. Another witness for the plaintiff testified, that a year ago the spring before, the defendant told him that the plaintiff was making him a wagon, and he did not know but it would cost him $130. The defendant got the wagon soon after this conversation. After proving the value of the wagon, the plaintiff rested. The defendant's counsel moved for a nonsuit, on the ground that the plaintiff had not made out a cause of action; and that if any cause of action was proved, it was in

Barber v. Lyon.

trover and not on contract; and also that the paper should be produced, to show how much the plaintiff was entitled to recover. The court denied the motion, and the defendant proved that, some time before he received the wagon, he met the plaintiff, and inquired of him in relation to the wagon he was making for Miller. They went to the plaintiff's shop and looked at the wagon, and then the defendant produced a written order and showed it to the plaintiff, and told him he could trade with Miller and get the wagon if he, the plaintiff, would accept the order. The plaintiff took the order and looked at it, and said he would accept of it. He said he had no pen and ink in the room, but he would go down and sign it. He went out with the paper, and in a few minutes returned, and gave it back to the defendant, and the witness did not see it after that time. The witness did not read the paper, but the defendant said to the plaintiff, when he handed it to him, that it was an order from Miller, on the plaintiff, for the wagon. The plaintiff said the wagon would cost $125 or $130, and that it would be finished about the first of wagoning.

Another witness for the defendant testified that he saw the plaintiff start with the wagon, from his shop, on the day the defendant received it; and that he returned some time afterwards, without it. On his return he showed the witness a paper or order in writing, which was addressed to the plaintiff, and read, as near as the witness could recollect, as follows: "Let the bearer (or order) have such a wagon as we have talked of (or agreed upon.") It was signed by Gad S. Miller, and under Miller's name was subscribed that of the plaintiff. Some other evidence was introduced, which it is not necessary to detail.

Hoag & Crane, for the plaintiff.

J. B. McKean, for the defendant.

By the Court, C. L. ALLEN, P. J. The testimony in this cause shows conclusively, to my mind, that the plaintiff had agreed to make a wagon for one Miller; that Miller gave to the

Barber v. Lyon

defendant an order upon the plaintiff for that wagon, which was accepted, and the wagon afterwards delivered upon it. There is some little obscurity about the terms of the order, owing to the difficulty of proving its exact reading, by parol. It was shown to be in the hands of the plaintiff, and he declined to produce it upon notice; and under these circumstances the inferences are to be taken, in connection with the proof, most strongly against him. He could have removed all doubt by its production; and his suppression of it, upon the trial, shows that the evidence, at least, did not exceed its contents. The plaintiff, by accepting the order, induced the defendant to look to him instead of Miller; and had he afterwards refused to deliver the wagon, he would have been liable to an action on the part of the defendant. In Morton v. Naylor, (1 Hill, 583,) it was held that an order not payable in money, and drawn on a particular fund or property, is an equitable assignment of the fund on which it is drawn, and that the drawee, being notified of the assignment, must pay accordingly, though there be no formal acceptance. In that case, where a landlord, for value received, gave an order on his tenant to pay one Warner the rents accruing during a certain time, which the tenant, on the order being presented, promised to do, it was decided that he was bound to do so, notwithstanding the landlord subsequently ordered the tenant not to pay. (And see 5 Paige, 640.) But the order here was accepted in writing, as appears from the testimony. And if any balance remained to be paid upon it by the defendant, (see 2 Hill, 582,) the plaintiff had it in his power to show that fact, by producing and giving it in evidence. After accepting it, and delivering it back to the hands of the defendant, neither the plaintiff or Miller could have done any thing to change his, the plaintiff's, liability to the defendant. (1 Hill, 583. 3 Paige, 373.) After the acceptance of the order, the parties met at the turnpike gate, as testified to by one of the witnesses, the plaintiff having the wagon in question, and having evidently started with it from his place of residence for the purpose of delivering it, and the defendant meeting him for the purpose of receiving it. The plaintiff immediately VOL. XXII.

79