Cornell v. Masten

By the Court, Gould, J. The referee finds, as facts, 1st. That Hasten (one of the joint debtors to the plaintiff’s assignor) proposed to sell his barge to some third persons; and made it a part of his agreement to sell, that he was to be released from this debt; of which debt the plaintiff was then the assignee. 2d. That the plaintiff (though not knowing all the particulars of the contract of sale) did know that this release to Hasten was included in that contract, and of course was part of the consideration moving to Hasten. 3d. That the plaintiff made and delivered the paper recited in the report, as a release to Hasten, to be used as such in that sale; that the plaintiff stated to Brodhead, (to whom plaintiff delivered the paper, to be by him delivered to Hasten,) that before he (Brodhead) delivered the same to Hasten, the question whether it affected the liability of Elmendorf & Schoonmaker on this debt should be settled ■ that Brod^ [161] head delivered it to Hasten without any settling of that question ; that thereupon the sale was consummated; and that shortly thereafter the plaintiff was told that the paper had been so delivered. And the referee does not find that the plaintiff made any objection to such delivery, or any inquiry as to the question of the liability of the other parties. 4th. That upon the consummation of the sale, these other parties credited to Hasten $3000, in their partnership books, as so much paid by Hasten on account of the partnership. Some eight or nine months thereafter the plaintiff commences this suit, to recover the amount of the assigned account, against all the parties; and on these facts the referee finds all the defendants liable to pay this whole debt. It is certainly true that the paper delivered to Hasten was not a technical release; as it is not under seal. But it must operate to free Hasten from this debt, by the force of an estoppel, upon the plaintiff’s right to sue him. On the faith of its relieving him from the debt, Hasten has parted with his property to that amount; and it is futile to say that if it does not operate as a payment of so much towards the barge, the purchasers remain liable to Hasten for that sum. For, 1st. Turning Hasten over to the contingencies of a law suit, to get back the part price of his property so delivered on the faith of this paper’s being a valid release, is not restoring him to his former condition. And, 2dly. His suit for such part price would now be barred by the statute of limitations; as nearly seven years have elapsed since the sale. Further, the other defendants, nearly seven years ago, accounted with Hasten for this full amount; and it does not appear that they can be restored to their former condition. We certainly are not, as matter of law, to presume that they can be. As to Brodhead’s delivering the paper, without settling the question of the liability of the other two defendants, he was made the plaintiff’s agent to deliver that paper. And the plaintiff, not the defendants, should suffer if his agent delivered as he was not authorized to do. Besides, the plaintiff [162] knowing of the delivery, utterly neglected to call on Brodhead, to know how the question was settled; and never gave to the defendants any intimation of an improper delivery, until nine months afterwards, when he commenced this suit. [Albany General Term, September 2, 1861. As to the pleadings, they say that the plaintiff “ duly released, discharged, and quit-claimed said Hasten of and from said demand.” And if such he the legal effect of the writing, or of the plaintiff's act; even though such effect he produced only hy the estoppel; we cannot, after the proofs are in without ohjection, reject a defense made out hy those proofs, merely because it is not technically pleaded. If there were an error or defect in the pleadings, as not covering the defense proved, we should disregard it, under the provisions of the code. It is not denied that, if Hasten he free of the claim, the other defendants must he; even without applying in their favor the estoppel, arising from their settling with Hasten. The judgment on the referee's report should he set aside; and a new trial ordered, costs to abide the event. Wright, Gould and Mogeboom, Justices.]