Norris v. Showerman.

a parol agreement, undoubtedly after the original lease was made, partly *executed; and so far executed, it [29] appears to me, as to take it out of the statute of frauds.

And the part of the agreement relative to the change of location yet rests in parol. The defendants do not, it is worthy of remark, seek to avoid this part of it, but acquiesce in the change of location which the complainant sets up, while they seek to avoid that part which was afterwards added to the lease. When Hurd's assignees purchased of him, there was the possession under the modification of the lease, which was notice to them of the modification; for, in equity, that is notice of a fact, which is sufficient to put a party on inquiry. And here, when Hurd's assignees purchased, finding the location variant from the lease, and upon Norris's premises, drawing the water from his pond, upon inquiry of him, they would have learned the agreement under which the change was made, and if the place of measurement were an alteration, of course they would have heard of that also. Notice of a part of the agreement under which Hurd held and occupied, must be deemed notice of the whole of it. It may be remarked, also, that it appears from A. M. Hurd's testimony, that Sage, at the time of the agreement with him for a sale, had actual notice. If, then, the addition to the lease made a change of its terms as to the measurement of the water, and varied the proper construction and effect of the original lease, I could not, I think, avoid coming to the conclusion that, at the time of the purchase, by the defendant's assignors, of Hurd, the agreement, having been thus far performed, was valid in equity; that they, even if they had, at the time of their purchase, acquired a full assignment, should be deemed purchasers with notice; and that the modification of the agreement was obligatory upon them; and, consequently, that even if the construction which I give to the original lease, be not the true one, yet, that with the addition embraced,

Norris v. Showerman

it is so; and that the conclusion of the chancellor is therefore correct.

It is said that the chancellor should, by his decree, have enjoined the defendant from using an excess of water, instead of directing the gates and aperture gauged and inserted. But I think the decree in this respect unobjectionable, and sanctioned by the case of Arthur v. Case, 1 Paige, 448, on the authority of Martin v. Sherman, Mosely, 144.

The defendant's counsel also complains that, by the decree, the gates and aperture, etc., are required to be put in at the defendant's expense. I see nothing wrong in this. He, under the agreement, must draw the water from the pond, for his own benefit, and of course at his own expense. He was requested to put in gates and take only the water that was his under it. According to the construction we deem the true one, he was taking more. He should have complied with the request. That it should be done under the direction of a master was rendered necessary by his

course.

The case is of a novel character in our courts, and has been argued with much zeal and ability. After full and careful consideration of the questions presented, I have come to the conclusion that the decree of the chancellor must be affirmed. And such is the opinion of the court.

Decree affirmed.

80

Dayton v. Williams,

Dayton v. Williams.

A declaration on a guaranty within the purview of the statute of frauds (R. S. 1838, p. 330, ch. 2, § 2, subd. 2), need not aver that the guaranty was in writing.

Nor that the undertaking guarantied, though within the purview of the third section of the same statute, was made with the formalities the statute requires.

That the averment, in a declaration on a guaranty, of notice to the defendant of non-performance by his principal, omits to state when or where the notice was given, is no ground for arresting judgment, but only of special demurrer.

Case reserved from Oakland circuit court. This was an action of assumpsit, founded upon the defendant's guaranty of the performance, by one Tuel, of his contract to deliver to the plaintiff a specified number of sheep, at a place in Buffalo. The cause having been tried, and a verdict found for the plaintiff, the defendant moved in arrest of judgment for the reasons:

1. That the declaration did not aver that the defendant's guaranty was in writing.

2. Nor that the guaranty was made with the formalities required by the statute of frauds.

3. That the averment of notice to the defendants, of Tuel's non-performance, did not show when or where the notice was given.

T. J. Drake and M. L. Drake, in support of the motion.

Hunt & Watson, contra.

GOODWIN, J., delivered the opinion of the court.

The first reason urged for arresting judgment in this case, assumes that, as the statute relating to fraudulent conveyances and contracts in respect to goods, chattels, and things in action, requires every special promise to answer for the

Dayton v. Williams.

[32] debt or default of another, to be in writing *(R. S. 1838, p. 330, § 2), therefore it is necessary that the declaration should aver it to have been so. This, however. is not necessary. The rule is, that where a thing is originally authorized by statute which could not be done at common law, then, in pleading, everything must be averred which the statute requires to bring the act done within it. Thus, in the case of a will of lands, it must be averred to be in writing. But where a statute makes a writing necessary, in a case where it was not so at the common law, then such averment in pleading is not necessary. And, as before the statute a promise to answer for the default of another was valid, if upon a sufficient consideration, though not in writing, it is not necessary to aver it to have been so. That it was so, is

a matter of evidence to be shown on the trial. A distinction, however, is taken between a declaration and a plea, it being said that the plea must show that the contract was such as would sustain an action. The reason of the distinction does not seem very obvious. But the rule as to declarations is well settled: 1 Saund., 276, a, n. 1 and 2; 211, b, n. i; 1 Chitty's Pl., 227, 237; 4 Johns., 237, 239.

The second reason is similar to the above, to wit: that the contract of the party whose undertaking was guarantied by the defendant, is within the third section of the statute of frauds above referred to; and that it is not averred to have been made with the formalities required by the statute, by the delivery of a part of the property embraced in the contract, or anything in earnest, or by writing. The answer to this is the same as the first objection, that, if necessary to give validity to the guaranty, it is a matter of evidence, to be proved on the trial, and not necessary to be set out in the declaration; and, after verdict, must be presumed to have been proved.

The third reason is, that the averment of notice to the defendant, the guarantor, of the non-performance of the

Drew v. Steamboat Chesapeake.

contract by the principal, does not state any time or place when and where it was given. This is mere matter of form, and could be the ground only of a special demurrer. On a motion in arrest, only errors in substance will be considered; and such only can prevail as are not cured by verdict.

Ordered certified that the motion should be denied.

John Drew and others v. The Steamboat Chesapeake.

In cases of collision, the burden of proof is on the plaintiff, not only to show negligence on the part of the defendant, but ordinary care on his own part.

A general custom of navigation, e. g., for vessels to pass each other to the left, may be proved by the testimony of persons skilled in navigation.

Such custom is a part of the law of the land; and a departure from it occasioning collision, will render the party liable, unless the other party, by reasonable effort, might have prevented it; and each party should act upon the presumption that the other party will adhere to the custom.

Case certified from Wayne circuit court. This was a proceeding by complaint under the provisions of the "act to provide for the collection of demands against boats and vessels:" S. L. 1839, p. 70. The complaint alleged that on the fifth day of October, 1839, Drew and others, complainants, were the owners of the sloop Democrat; that while she was passing up Detroit river, within the limits of this state, with four hands, and a cargo of stone on board, she was met by the steamboat Chesapeake, on her way down the same river, and was run down and crushed by said Chesapeake, and sent, with her crew, to the bottom of said river, where she has ever since remained, *broken in pieces, [34] and utterly destroyed, together with her cargo, tackle, furniture, etc.

The cause was tried before the Hon. CHAS. W. WHIPPLE,

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