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Opinion of the Court, per GROVER, J.
judgment for error of fact and direct a new trial. The judge having found that no such contract as that alleged in the complaint was ever made between Young and the defendant, and the judgment founded thereon having been affirmed by the Supreme Court, the judgment dismissing the complaint must be affirmed by this court, unless the plaintiff was entitled to relief, founded upon the contract which the judge finds was made between Young and the defendant for the sale, by the latter to the former, of the lands in question. Although this contract differs, in some of the terms, materially from the one set out in the complaint, yet, as it is substantially set out in the answer and found by the judge, such relief, if any, may be given thereon as the other facts will warrant. The interest in this contract passed to the plaintiff under the assignment of Young to him, if he so elected. (The Oneida Bank v. The Ontario Bank, 21 N. Y., 490.) This contract was negotiated in the spring of 1859, and, in substance, was an agreement by the defendant to sell and convey to Young the property in question, in consideration of the conveyance, by the latter to the former, of his interest in what was known as the Doane house, and of mortgages to be given by Young to the defendant upon the property in question of $11,000, and the payment to him of obligations assumed by Young to the defendant of about $10,000, and a note of four hundred and some dollars, then given by Young to the defendant. The Doane property, the evidence shows, was then incumbered to within about $7,000 of its value. The property in question was incumbered by mortgages to the amount of $40,000, subject to which the defendant was to convey it to Young and subject to which the mortgages of $11,000 were to be taken by the defendant. No precise time was fixed for the payment of the money or the exchange of the papers, but the former was to be cotemporary with or precede the latter. Young, under the contract, was to receive the future rents and pay the incumbrances. Young did receive the rents until September thereafter; when, failing to pay the interest accruing upon the incumbrances and the money SICKELS-VOL. IV.
Opinion of the Court, per GROVER, J.
agreed to be paid to the defendant, the latter notified the tenants to pay the rents subsequently accruing to him, of which Young had notice. The defendant requested Young about that time to close the transaction. Young being unable to sell the property or otherwise pay the money, he and the defendant agreed to have the property sold at auction in parcels, at which either of the parties were to be at liberty to bid. It was accordingly advertised and sold in the fall of 1859, and the sale was attended by Young and an agent of the defendant; and the property, except a small parcel, was bid in for the defendant at a sum less than the incumbrances then existing thereon, and the mortgages to be given thereon and the money to be paid by Young to the defendant. The counsel for the appellant insists that the defendant was, under the contract, a trustee of the property for Young, and that a trustee cannot discharge himself of his trust by purchasing it in at a sale controlled by himself, and cites authorities establishing these positions. He, therefore, insists that the sale can have no effect upon the rights of the parties; or, at all events, it was voidable at the election of Young, who, in a short time thereafter, gave notice to the defendant that he should insist upon the contract. It is unnecessary to determine whether Young might not, by prompt action in tendering performance of the contract on his part, have enforced performance by the defendant. As he did not do this prior to such sale, Young had notice that the defendant required performance by him without further delay. The sale was resorted to by mutual agreement for the purpose of closing the transaction. When Young ascertained that the property sold for less than enough to satisfy the defendant what he was to receive upon the contract and elected to avoid the sale, he was aware that the defendant would acquiesce in no further delay. The defendant continued in possession of the property, and neither Young nor the plaintiff, of whose interest the defendant knew nothing, did anything whatever toward the performance of the contract for about three years and eight months, when the plaintiff appeared, and, claiming under an assignment made
Opinion of the Court, per GROVER, J.
to him by Young in 1859, demanded of the defendant performance of the contract set out in the complaint, but did not offer to pay the money payable to the defendant under the contract found by the judge. The property, at the time of making the contract, according to the testimony of Young, was worth but little more than the incumbrances thereon, and the sum to be paid by Young to the defendant therefor, exclusive of the conveyance of the interest in the Doane property, but his testimony further shows that its value was largely enhanced between that time and the trial. The cases cited by the counsel for the appellant do not apply to the contract as found by the judge. The counsel endeavors to show that they do apply to, and that the plaintiff is entitled to a specific performance of the contract set out in the complaint. The answer to this is, that the judge has found that such a contract never was made; that by the one in fact made, Young, in addition to giving the mortgages, was to pay the defendant between $10,000 and $11,000 in cash. As no precise time was fixed for this payment, it was payable in a reasonable time or upon request. This request was made in September, 1859, or thereabouts, prior to the agreement to sell the property at auction. Under this state of facts a delay of three years and upwards, without any excuse therefor, was such laches as will preclude a specific performance of the contract. (1 Story's Eq., §§ 771, 776, and notes and authori ties cited; Willards Eq., 292.) When by laches the remedy at law is barred and the right to a specific performance is forfeited, there can be no recovery of what has been paid upon the contract. This view disposes of the questions arising upon the refusal of the judge to find further facts. No further facts could have been found from the evidence given that could have been of any benefit to the plaintiff. Those found determined the rights of the parties. The judgment appealed froin must be affirmed.
Statement of case.
THE BANK OF NEW ORLEANS, Respondent, v. EDWARD MATTHEWS, impleaded, etc., Appellant.
By the late civil war all commercial partnerships between citizens of the northern and of the southern or Confederate States were dissolved. A citizen, therefore, of the State of New York, a former member of such a partnership, doing business in New Orleans, is not liable upon a note indorsed in the firm name after the commencement of the war. In an action upon a note thus indorsed, the fact that in a power of attorney, given to an agent of the firm, executed by such citizen, he is described as of New Orleans, does not estop him from alleging a residence in New York, in the absence of proof that the party discounting the note had seen the power of attorney or believed he resided in New Orleans.
(Argued February 23, 1872; decided March 26, 1872.)
APPEAL from judgment of the General Term of the Supreme Court, in the first judicial department, affirming a judgment in favor of plaintiff, entered upon a verdict.
These actions are brought against defendants as members of the firm of Brander, Chambliss & Co., upon promissory notes indorsed by said firm and discounted by plaintiff.
On the 27th March, 1861, the firm of Brander, Chambliss & Co. was formed by authentic or notarial act, consisting of James S. Brander, Jr., Samuel L. Chambliss and Edward Matthews as general partners, and James S. Brander, Sr., being named in said act as partner in commendam.
Matthews was a resident of the city of New York. James S. Brander, Sr., was then in the island of Nassau. It was stated in the articles that in case of his refusal to approve, the contract should be void. A copy of the articles was forwarded and he refused to approve. On the 26th of April, 1861, the defendant, Mr. Matthews, made a power of attorney to Glendy Burke, authorizing him to act as the attorney of the firm of Brander, Chambliss & Co. The power of attorney recites that Mr. Brander, Sr., composed one of the firm, as partner in commendam. In it it is stated that Mr. Matthews was a resident of New York. He left New Orleans about the 1st of May, 1861, for New York. The notes in
Statement of case.
question were indorsed and discounted by plaintiff about May 5th, 1862. On the 21st of October, 1861, notice of dissolution of the firm of Brander, Chambliss & Co. was published in the New Orleans Picayune newspaper by the members of the firm in New Orleans.
The State of Louisiana passed an ordinance of secession, January 25th, 1861.
The attack on Fort Sumter was made April 13th, 1861. The first proclamation of President Lincoln, calling out troops, bears date April 15th, 1861.
The second proclamation declaring several States (and among them Louisiana) in a state of insurrection, was issued April 19th, 1861.
A third proclamation was issued relative to blockade, April 27th, 1861.
The act of congress authorizing the president by proclamation to declare all commercial intercourse void between the citizens of the insurrectionary States and citizens of the rest of the United States was passed July 13th, 1861, and the proclamation pursuant to the act of congress was issued August 16th, 1861.
New Orleans remained in possession of the rebel or Confederate forces until it was captured, on or about May, 1862; and a proclamation was issued by the president on the 12th of May, 1862, raising the blockade of New Orleans and restoring commercial intercourse with the inhabitants, under certain restrictions and rules established by the treasury department. Other facts appear in the opinion.
John Sherwood for the appellants. The effect of the rebellion was to dissolve a copartnership between citizens of the north and south. (The Prize Cases, 2 Black., 635; The Venice, 2 Wallace, 274; Mrs. Alexander's Cotton, 2 Wallace, 404; The William Bagaley, 5 Wallace, 377, 407; The United States v. Grossmeyer, 9 Wallace, 75; Granger v. Abbot, 6 Wallace, 535; Swinnerton v. The Columbia Ins. Co., 37 N. Y., 178; Sanderson v. Morgan, 39 N. Y., 231;