FIRST DEPARTMENT, MARCH TERM, 1875. G. Lathrop, Jr., and the defendant Bramhall, conspired together to deceive and defraud Mrs. Godfrey, and induce her, by false and fraudulent representations, to purchase the premises and assume the payment of the mortgage as a personal liability, as part of the purchase-price of the property. That they (or either of them in pursuance of a conspiracy) made the several alleged representations, and that they were false and fraudulent, and she relied upon and was induced thereby to make the purchase and assume the mortgage, and that she suffered the alleged damages and the amount thereof; and of course all the incidents and circumstances of the transaction tending to show either of these things would be admissible in evidence. If the court, on receiving the evidence, had found favorably to the defendants, in respect to every fact it tended to prove, would there be any defense against the mortgage or bond, or personal covenant of Mrs. Godfrey to pay the mortgage as part of the purchase-money? The bond and mortgage would, in that case, be found to be the property of William G. Lathrop, Jr., and that plaintiff held only a naked legal title with no real interest; and the personal obligation of Mrs. Godfrey would equitably be to the plaintiff in interest, and any defense of Mrs. Godfrey which she could interpose, if William G. Lathrop, Jr., were plaintiff on record, would be admissible against the present plaintiff. It would be found also, that William G. Lathrop, Jr., the equitable owner of the mortgage, had conspired with the defendant Bramhall to commit the alleged fraud, and had made the fraudulent representations which induced Mrs. Godfrey to purchase, and by means thereof, had effected the sale to her, and obtained from her the covenant in the deed which makes her personally liable for the debt secured by the mortgage. The amount of her damages by means of the fraud, would also be found. We think in such case, under the authorities, the damages could be applied in this action toward the sum recoverable on the bond and mortgage, or at all events, upon the personal covenant of Mrs. Godfrey on which a judgment has been taken against her for any deficiency. If William G. Lathrop, Jr., conspired, as is alleged, to induce her to purchase the premises by false and fraudulent representations, and to induce her to assume, and agree to pay his bond and mortgage, he and his co-conspirators are all liable for the damages she has sustained; and FIRST DEPARTMENT, MARCH TERM, 1875. the frauds which entitle her to such damages grew out of the transaction which connects her with the bond and mortgage, and entitles him to bring suit against her thereon. If he had sued her on the personal covenant at law, there seems to be no doubt of her right in such action to recoup for her damages.* The right of a defendant in a foreclosure suit, who is personally liable for the debt, or whose land is bound by the lien, to introduce a set-off to reduce or extinguish the claims, was recognized by COMSTOCK, J., in The National Fire Insurance Co. v. McKay; † (and see Hunt v. Chapman). The plaintiff did not, in his complaint, demand a personal judgment against Mrs. Godfrey, but having taken one on sufficient proof in his judgment, he is not at liberty to assert that he was pursuing no personal remedy against her. We think the learned justice erred in his ruling rejecting all evidence under the answer on the ground assigned by him. Judgment reversed and new trial ordered, costs to abide event. DANIELS, J., concurred. Judgment reversed and new trial ordered, costs to abide event. BENJAMIN F. VOORHEES AND OTHERS, PLAINTIFFS, v. CYRUS OLMSTEAD AND OTHERS, DEFENDANTS. Warehouse receipt - difference in effect between delivery of the receipt and of an order for it-bona fide purchaser for value-Estoppel-affirmative action by party claiming it, not essential to its creation. A party who advances money upon presentation to him of a warehouseman's receipt, stands in the position of a bona fide purchaser for value of the property therein described; while one, who in good faith advances money upon an order for such receipt, under an executory arrangement of which the delivery of the receipt was to be the consummation and consideration, does not occupy the same position. If in the latter case the receipt is delivered upon presentation of the order, and no notice of the repudiation of the receipt is given until after the time has 237; * Vassear v. Livingston, 3 Kern., 248; Isham v. Davidson, 52 N. Y., Whitney v. Allaire, 4 Den., 554; S. C., 1 N. Y., 305. FIRST DEPARTMENT, MARCH TERM, 1875. elapsed within which, had such receipt not been delivered, the money advanced upon the order might have been recovered back, such delay will operate as an estoppel, and preclude the party seeking to set aside the receipt from doing so. It is not necessary to an equitable estoppel that the party should willfully intend to mislead, nor that the party who claims the estoppel should have acted affirmatively upon it. It is enough if he has been induced thereby to refrain from such action as lay in his power, by which he might have retrieved his position and saved himself from loss. EXCEPTIONS Ordered to be heard in the first instance at General Term. Wm. W. McFarland, for the plaintiffs. The defendants the Warehouse and Security Company, who claim title to this cotton under a pretended pledge by George E. Biddle & Co., acquire no color of title, under what is known as the factor's act, or the act in relation to warehouse receipts. (6 Edmonds' Statutes, 668; 4 id., 461; Yenni v. McNamee, 45 N. Y., 614.) The factor's act obviously has nothing to do with the case, Biddle & Co. not being in any sense factors or agents. The design was to protect parties, dealing with the holder of the receipt upon the belief of his ownership founded thereon, although in fact he might not be the owner of the property, and have no power or authority to incumber it. (Yenni v. McNamee, 45 N. Y., 614.) An intention not to transfer a title to Biddle & Co., and give credit for the price of the cotton for one instant of time, is clearly established by the testimony. The sale, being for cash, payable on delivery, no title would pass until the delivery was completed in every point, and the purchase-money paid, or its payment waived and credit given. And this is equally true, whether the possession of the property be retained by the seller or surrendered to the purchaser. (Kein v. Tupper, 52 N. Y., 550; Ballard v. Burgett, 40 id., 314; Hutchings v. Monger, 41 id., 155; McNeil v. The Tenth National Bank, 46 id., 325; Coghill v. Hfd. & N. H. R. R., 2 Gray, 545; Leighton v. Stevens, 1 App., 154; Churchill v. Bailey, 1 Ship., 64; Leighton v. Stevens, 9 Shep., 252; Comstock v. Smith, 10 id., 302; Luly v. Bundy, 9 N. H., 298; Maxwell v. Briggs, 17 Vt., 176; Bradley v. Arnold, 16 id., 382; Fairbanks v. Phelps, 22 Pick., 535; Dresser Man. Co. v. Waterston, 3 Met., 9; Lehigh v. Field, 8 Watts HUN-VOL. III. 94 FIRST DEPARTMENT, MARCH TERM, 1875. & Sarg., 232; McBride v. White Lead, Geo. Dals., part 1, 165 ; Bennett v. Sims, 1 Rice, 421; Bradshaw v. Thomas, 7 Yerger, 477; Reeves v. Harris, 1 Bailey, 563; Marston v. Baldwin, 17 Mass., 606; George v. Stubbs, 26 Maine, 243; Herring v. Willard, 2 Sandf. Sup. Ct., 418; Buckmaster v. Smith, 22 Vt., 409; Etty v. Aldrich, 46 N. H., 127; Annington v. Houston, 38 W., 448 ; 36 Mo., 479; Patton v. McCane, 15 B. Mon. [Ky.], 555; Acker v. Campbell, id., 372; Pond v. Bradley, 9 Gill & Johns., 220; Blanchard v. Child, 7 Gray, 155; Penbank v. Crooker, id., 158; Goodwin v. May, 23 Geo., 205; Diehon v. Bigelow, 8 Gray, 159; Cragin v. Coe, 29 Conn., 51; Plumer v. Stinly, 16 Ind., 480.) Joseph H. Choate, for the defendants. DAVIS, P. J.: This action was brought to recover possession of 226 bales of cotton. The court at circuit directed a verdict for the defendants. We think the court did not err in the conclusion that the case was a proper one to be disposed of by directing a verdict. There was not sufficient evidence to have justified the jury in finding that the Warehouse and Security Company acted mala fide in the transaction. They were not shown to have had any participation in or knowledge of the alleged fraudulent acts of Biddle & Co., nor to have had any notice that should have put them on inquiry touching the same. There was no substantial dispute as to the facts of the case. There was some conflicting evidence as to the time when the warehouse receipt was delivered to the company, but the court must be held to have assumed that such delivery was made after the weighing, etc., of the cotton was completed, on Saturday, which is in accordance with the plaintiffs' evidence. The facts of the case are these: James Phelan was the owner, and had possession of 226 bales of cotton on store in the warehouse of Cyrus Olmstead, and for which he held Olmstead's non-negotiable receipt. On the 22d of April, 1868, he contracted to sell the cotton to the plaintiff's Voorhees & Garrison, to be delivered and paid for in twenty days. On the next day, Voorhees & Garrison sold a half interest in the cotton to the plaintiffs Solon W. Dewey and Solon W. Dewey, Jr., to be delivered and paid for in nineteen days; and FIRST DEPARTMENT, MARCH TERM, 1875. the last named purchasers left their interest in the cotton with Voorhees & Garrison for sale. On the second day of May, Voorhees & Garrison sold the whole of the cotton to Biddle & Co., to be delivered and paid for within ten days. On the seventh of May, Biddle & Co. drew a delivery order for the cotton on Voorhees & Garrison, and thereupon the latter firm made arrangements to commence the delivery of the cotton on the following morning. They sent a delivery order to Fhelan, asking him to deliver the cotton to bearer, who gave an order on the warehouseman to the same effect. On the morning of the eighth the outdoor clerk of Voorhees & Garrison attended at the warehouse, to receive delivery from Phelan, and make delivery to Biddle & Co. The receiver and sampler of Biddle & Co. was there, and the work of delivering the cotton commenced at about eleven o'clock of that' morning. The bales of cotton were weighed, and as they left the scales were sampled and marked, S. O., which was the cotton mark of Biddle & Co. It was the intention of Voorhees & Garrison, that one delivery should operate for all; that is, as a delivery from Phelan to them, and from them of one-half to Dewey & Co., and of the whole to Biddle & Co.; and this course was in accordance with the usages of dealing in cotton. The cotton, as soon as delivered, was returned to the same warehouse, and stored for Biddle & Co. On the eighth day of May and while the delivery was in progress, Biddle & Co. applied to the Warehouse and Security Company for a loan on this and other cotton, amounting to some 353 bales, at the rate of twenty-five cents a pound. The invoice of the cotton was made out by them, describing it in substance as 350 bales in Olmstead's warehouse, and three bales elsewhere; and a contract was entered into for the loan of $44,000 on the cotton mentioned in the invoice. An order was drawn by Biddle & Co., on the warehouseman, Olmstead, to deliver to the Warehouse and Security Company the receipt for 350 bales of cotton, stored with him for Biddle & Co., and on the same day the check of the Warehouse and Security Company on the National Bank of the Republic, for $44,000, was given to Biddle & Co., who deposited it to their own credit, in the National City Bank of New York. An agent of the Security Company was sent with the order to the warehouse, where he pre |