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Opinion of the Court, per RAPALLO, J.

ents. Trustees, when authorized to sell, can do so only in the mode prescribed in the instrument conferring the authority. (Hill on Trustees, 478, and cases cited; Hawley v. James, 16 Wend., 61; Nicoll v. Walworth, 4 Den., 385.) The condition attached to the power was valid, and the power was extinguished by the death of Mrs. Howell. (Wright v. Wakeford, 17 Ves., 454; Hawkins v. Kemp, 3 East, 410; Doe Mansfield v. Peach, 2 Maule & Selw., 576; Barber v. Cary, 1 Ker., 397; Bateman v. Davis, 3 Madd., 98; Atwater v. Birt, Cro. Eliz., 856; Sykes v. Cleveland, 3 Law J., 181; Danne v. Annas, Dyer, 218.) The power given to the Supreme Court to supply a defective execution of a power, relates merely to the manner of execution. (1 R. S., 736, §§ 121, 131, 132; Cruger v. Jones, 18 Barb., 472; Cockerel v. Cholmeley, 1 Rus. & Myl., 418.)

RAPALLO, J. The power authorized the trustees to sell the trust property only by and with the consent of Mrs. Howell, to be manifested by her uniting with them in the conveyance. This was a valid condition attached to the power. Mrs. Howell was thereby guarded against any sale being made without her personal sanction. Such must be deemed to have been her intention in annexing this condition to the power. No provision is made for the execution of the power in case of her decease. It could, therefore, only be executed in her lifetime. There is nothing in the Revised Statutes which prohibits the annexing of such a condition, or permits it to be disregarded. Mere formalities prescribed by the grantor as to the manner of executing a power, may be dispensed with, but essential conditions cannot. Section 120, 2 R. S., 736, clearly recognizes the right of the grantor to annex conditions, and permits such only as are merely nominal, to be disregarded. This condition is not of that character. Section 121 expressly requires that, with the exception mentioned, the intentions of the grantor as to the conditions of the execution of a power shall be observed. Section 122 relates merely to the manner of authenticating the consent of a third

Statement of case.

party, when such consent is a condition. Whether one of the grantors of the power would come under the designation of a third party as used in that section, is not very material to the present case, though we think that the correct construction of the section would require an affirmative answer to that question if it arose. The section relates to the execution of the power and not to its creation. To a deed in execution of a power of sale, the necessary parties would be the donee of the power and his grantee. The grantor of the power would be a third party.

The judgment should be affirmed, with costs.

All concur.

Judgment affirmed.

ALEXANDER GUTCHESS, Appellant, v. GEORGE B. DANIELS et al., Respondents.

The right of set-off may be waived by the party entitled to it, and where he for a valuable consideration by an agreement deliberately made contracts to waive it, the agreement is binding, and he is estopped from thereafter asserting the right.

G. and Y., plaintiff's assignors, were indebted to defendants, which debt they were unable to pay, they thereupon entered into an agreement with defendants by which the latter upon being secured against losses, agreed to make advances upon the purchase of produce by the former to the amount of its cost, which was to be consigned to them for sale on commission, they to have the usual commissions thereon, one-half of the net profits to be applied upon the debt, and the other half to be paid to the consignors; defendants expressly agreeing that they would retain but one-half, nor seek to set-off their debt against the other half. Under the agreement G. and Y. purchased and shipped to defendants a boat load of wheat which was sold at a profit. In an action to recover the one-half thereof defendants pleaded their debt as a set-off. Held, that the agreement was for a sufficient consideration, and that defendants were thereby estopped. (The cases bearing upon this question collated and discussed.)

(Submitted June 3, 1872; decided June 11, 1872.)

Statement of case.

APPEAL from order of the General Term of the Supreme Court in the fourth judicial department, reversing a judg ment in favor of plaintiff entered upon the report of a referee and granting a new trial.

The action was brought to recover the sum of $748.72, being one-half of the net profits claimed to belong to plaintiff as the assignee of the firm of Gutchess & Yawger, as their share of the net profits arising from the sale of one boat load of wheat consigned by them to defendants, and received and sold by defendants as commission merchants.

On the 29th day of July, 1867, Gutchess & Yawger contracted with the defendants, that they should purchase grain at Port Byron, N. Y., and other places, and ship the same to the defendants at New York city, and that G. & Y. should draw drafts upon said defendants for money to pay for said grain. Gutchess & Yawger also agreed to and did place in the hands of the defendants certain promissory notes, to the amount of $5,000, which were to be held as collateral security for any losses that might occur in this transaction.

Defendants agreed to accept drafts drawn by G. & Y. on them for the money expended in the purchase of said grain, and pay the same, and to accept the grain and sell the same for said Gutchess & Yawger for their usual commission.

It was also agreed that defendants should apply one-half of the net profits arising from the purchase and sale of said grain to the payment of certain indebtedness of said Gutchess & Yawger to defendants (which indebtedness was then past due and amounted to $4,403.81); the other half to be paid to Gutchess & Yawger, and not to be otherwise applied by defendants. Defendants expressly agreeing that they will not seek to set-off their debt against it.

In pursuance of this contract, G. & Y. purchased 7,236 bushels and fifty-eight pounds of wheat in August, 1867, and shipped the same to defendants; defendants received and sold the same, and the net profits, over and above all charges, commissions and deductions to be made therefrom, was $1,497.44.

Opinion of the Court, per ALLEN, J.

Defendants, on the 21st of August, 1867, credited G. & Y. one-half of the net profits, $748.72, and applied it on the debt of G. & Y. to them as agreed.

On the 7th of September, 1867, G. & Y. demanded the other half of the profits, which defendants refused to pay over to them.

The referee decided that plaintiff was entitled to judgment for the one-half of the net profits and interest, and judgment was entered accordingly.

H. V. Howland for the appellant. The right of set-off is a statutory one and may be waived by agreement. (Hennis v. Paige, 3 Wheat., 275; Waterman on Set-offs, 10-12.) The contract to waive it is binding. (Waterman on Set-offs, 631.) The avails of the grain belonged to Gutchess & Yawger; it was not a debt, and defendants could not appropriate it without permission. (Ostell v. Brough, 24 How., 274; Frost v. McCarger, 14 id., 131; Howe v. Savery, 49 Barb., 403.)

Miller & Hawley for the respondents. The property vested in defendants upon its delivery to the carrier. (Gros Vendor v. Philips, 2 Hill., 147; Holbrook v. Wright, 24 Wend., 169; Anderson v. Clark, 2 Bing., 20.) Defendants have a legal right to set-off the prior indebtedness. (7 Pick., 214, 220; Downer v. Eggleston, 15 Wend., 51; Barb. Law of Set-offs, 93, 109, 137; McGillivny v. Simpson, 2 C. & P., 320; 9 Dowl. & Ry., 35; Waterman on Set-offs, 638, § 579, and cases cited; 2 Par. on Con., 248, 249; Lovett v. King, 16 Ind., 464; Elard v. Karr, 1 East, 375; Cornfortt v. Rivett, 2 M. T., 510; Mayer v. Nias, 8 Moore, 275; 11 Brigham, 311; Code, §§ 150, 274; Waterman on Set-offs, etc., 359, §§ 305, 306; Code, § 129, sub. 1; 7 Pick., 214, 220.)

ALLEN, J. This case presents but a single question, and that is, whether a party can be deprived of the legal right of set-off by an agreement deliberately made upon a good con

Opinion of the Court, per ALLEN, J.

sideration. The right of set-off in the case of cross-debts is given by law for the benefit of parties having mutual dealings, and to avoid a multiplicity of actions. It is a proceeding by which equity can be done between suitors at law. But like every other benefit or privilege conferred by law, it may be waived by the party entitled to it. In courts of law, a defendant may set-off any claim which he has against the plaintiff, which is within the statute of set-off, or bring an independent action, at his election.

The general doctrine, that an individual may waive any statutory or constitutional provision intended for his benefit, is well settled. (Embury v. Connor, 3 Comst., 511; Kimball v, Munger, 2 Hill, 364.) The right to set-off is not an exception to the general principle. All that the party waiving the right to set-off a demand against the claim of the plaintiffs, in an action in which it is allowable, or omitting to exercise it, loses, is that one remedy for the collection or satisfaction of his debt. There is nothing in the policy of the law to require a creditor to collect his debt, or enforce a claim against his debtor in any particular manner, or at the first opportunity, and there is nothing unusual or against public policy in the waiving of the right of set-off, whether done voluntarily or pursuant to an agreement made upon a good consideration. The case is a simple one.

The plaintiff's assignors were debtors to the defendants, the result of their commercial dealings, in a large sum past due, and were embarrassed in their circumstances, and unable to pay, or even, as it would seem, to continue business. It was for the interest of both debtors and creditor that the former should be enabled from their future earnings to pay off their indebtedness, but to do this, they must have a credit, and be enabled from their earnings to support themselves and families and devote a share of the profits of their business, if a profit should be realized, to purposes other than the payment of their indebtedness to the defendants. Their credit was to be kept good, or re-established with others, and both debtor and creditor might well look, in making an arrangement, to

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