
    Eleanor Meserole, Plaintiff and Respondent, v. William J. Archer and Andrew J. Martin, Appellants.
    1. When, in an action of trover, a witness testifies that the property in question belongs to the plaintiff, who authorized her to pledge it to the defendants on certain terms; that she pledged it on certain terms telling them the property was the plaintiff’s; it is not error to allow such witness to state what she told the plaintiff that the bargain made was.
    2. The plaintiff cannot, in such a case, be deemed to have assented to any bargain except such as she authorized; or was informed had been actually made and to which, on being so informed, she did not object.
    3. The fact that such witness and agent made a written contract with the defendants, which imports that she sold to them such property as her own; does not make evidence, that she, at the time, told them the property belonged to the plaintiff; inadmissible.
    4. Evidence that the plaintiff went with an agent to the defendants before suit brought, having the requisite amount of money with them to make a • legal tender to the defendants, of the amount of their lien on such property; and that such agent told the defendants that he had come to tender the money and get the property in question, and that one of the defendants replied: getaway, I will have nothing to do with it, is (if credited), sufficient evidence of a tender and refusal.
    (Before Bosworth, Hoffman and Woodruff, J. J.)
    Heard, June 10;
    decided, July 3, 1858.
    This action comes before the General Term on an appeal by the defendants from a judgment, entered at Special Term. It was tried before Mr. Justice Hoffman and a jury, in December,
    1857. The appeal presents only questions of law. The action was brought to recover the value of a diamond bracelet, which it was alleged belonged to the plaintiff and had been wrongfully converted by the defendants to their own use.
    The plaintiff’s mother (Mrs. Abraham Meserole), testified that the bracelet was the plaintiff’s property. That she, the mother, owed the defendants a bill. That they called for it, and the mother told them she wanted money. She took the bracelet to them and they offered to lend $300 on it. That she told them it was her daughter’s property, and that she was authorized to leave it on a loan of $300 being made on it, as a security for such loan, and to allow $50 on their bill. That they advanced $100, and agreed to advance the other $200 the next day, but although called upon and asked for it, they never advanced the other $200.
    The mother, among other matters, further testified, thus: “ When I went home I told my daughter, and she objected to the bargain.
    “ The counsel for the defendants duly objected to the testimony of what the witness stated to the plaintiff and the reply thereto, objecting to the bargain, which objection the court overruled and the counsel for the defendants then and there excepted.”
    “ On being shown the following and asked whether it was her signature thereto, she said it was. It was then read in evidence and is as follows:
    “Mess. Archer & Mártir,
    “ Bought of Mrs. Abh. Meserole,
    “ One diamond bracelet,....................... $250
    “Rec’d payment, New York, Nov. 1, 1856.
    Mrs. A. Meserole.”
    She further testified she was told and supposed the paper was a receipt, when she signed it.
    She was asked what she said to the defendants when she left the bracelet. This was objected to on the ground that the contract was in writing and could not be varied by parol. The objection was overruled, and the defendants’ counsel excepted. The witness answered, “ I said I will allow you $50 on the bill, if you advance the $300, and you can hold the bracelet till I can pay you the balance.”
    The plaintiff was examined in her own behalf, and testified that before suit brought, she went to defendants’ store with her attorney Mr. Bulkeley, he having $250, which she had furnished him, with which to make a tender. “Bulkeley, said he came to tender them money and get my bracelet.” He then had money in his hands, how much she could not say. “I heard Mr. Archer say to Mr. Bulkeley, get away, I will have nothing to do with it.”
    Both of the defendants were sworn, and gave evidence tending to show, that plaintiff’s mother sold them the bracelet for $250, taking $100 in cash and allowing their bill, amounting with interest to $150, for the balance, and saying the bracelet belonged to her.
    They contradicted in other particulars the testimony of the plaintiff’s mother, and also the plaintiff, as to some things, which she testified was said and done at the time of the alleged tender. But neither of them denied that Archer said to Bulkeley what the plaintiff swore he did.
    When the testimony was closed, the defendants’ counsel requested the Court to charge the following propositions, severally :
    1. That according to the testimony the defendants became lawfully possessed of the bracelet.
    2. It is necessary, for the plaintiff to sustain this action, that the amount advanced upon the bracelet by the defendants should have been duly tendered to them.
    3. To constitute a tender it should have been made by the offer and exhibition of the money on the part of the plaintiff or her attorney to the defendants.
    And if the Court refuses to charge either, then as to such refusal defendants except.
    The Court then charged the jury, and refused to charge other than what was embraced in the charge, which was substantially as follows:
    That the statements made by the witnesses were wholly irreconcilable; that if the jury fully believed the statements of Mrs. Meserole, the witness on the part of the plaintiff, it would then be proved that the plaintiff was the owner of the property in suit, and also that the plaintiff intrusted her mother to obtain from the defendants an advance upon it of $300, she allowing $50 upon a bill or former indebtedness owing to the defendants.
    The statement of the mother is that she proceeded to the store of the defendants with the bracelet, having no other authority than to pledge it, and after some conversation with the defendants they agreed to advance her the amount which the plaintiff authorized the mother to obtain; that the defendants did not advance at first but $100, but agreed to advance in a few days afterwards the further sum of $200; and that after advancing the $100 they refused to advance anything more.
    
      On the other hand, the statements on the part of the defendants are equally explicit but directly opposite. The defendants both state that Mrs. Meserole being indebted for a balance of an account amounting to $188.50 for goods furnished to her (and as to which there is no dispute, nor that one article amounting to $150 was for the plaintiff herself), which they were pressing her to pay, she came to their store and represented herself to be the owner, and sold the bracelet in question to them for $250, they calling her indebtedness $150 which included interest, and paying her besides $100 in cash; that it appears the bill against Mrs. Meserole was not receipted, but that is explained by one of them that the bill had been made out some months before and was not there at the time of the sale of the bracelet, and that Mrs. Meserole never asked to have it receipted; they also state they never knew the plaintiff claimed any title to it before this suit was commenced.
    These statements are directly opposite to those made by the plaintiff and her mother.
    The jury must weigh between them, and would render their verdict accordingly as they credited the one or the other representation of the transaction.
    That an actual tender in specie before suit, was brought was necessary to constitute a cause of action, unless the defendants dispensed with it by their express declaration, or by acts equivalent to their express declaration. That if the defendants, upon the plaintiff and Mr. Bulkeley coming to them to make the tender knowing that they had come for that purpose and upon Mr. Bulkeley’s announcing to them the object of his coming, told him to go away that they would have nothing to do with him or it, and did or said enough to show to the jury’s satisfaction that it would be useless to offer them the money, then they might find that the actual tender was dispensed with.
    If they should come to the conclusion that the plaintiff was entitled to their verdict, then they should consider the amount she would recover; that the question of value in this case was one of great uncertainty; that it was said by Mrs. Meserole the bracelet cost $800; but it appears that it was not purchased by the plaintiff but sent to her anonymously, and they probably would not place reliance upon that valuation, but it is said by the mother of the plaintiff that the defendants stated it to be worth $600; that if they should proceed upon that basis then with the $100 advanced and $50 allowed on the bill, the result would be $450; that the damages however were for them to estimate upon the evidence as they best could, provided they should come to the conclusion the plaintiff was entitled to recover.
    The defendants’ counsel then made the following exceptions to the charge:
    1. As to so much of the charge which submitted to the jury the amount of damages the plaintiff was entitled to recover, provided she was entitled to their verdict; also as to the value of the bracelet.
    2. To so much of the charge wherein it is stated that it is not necessary a tender should be made if the defendants stated they would not accept any money for the bracelet; such last exception being made on the ground of there being no evidence to that effect.
    3. The defendants’ counsel also duly excepted to the said charge, on the ground that the Court did not instruct the jury as contained in his said requests; and also to so much and such parts thereof as differed from said several requests.
    The jury thereupon retired and rendered a verdict in favor of the plaintiff against the defendants for the sum of three hundred dollars damages.
    Erom the judgment entered on that verdict, the present appeal is taken.
    
      C. Bainbridge Smith, for appellants (defendants).
    
      Chauncey Shaffer, for respondent (plaintiff).
   By the Court.

Bosworth, J.

—In disposing of the first exception it must be borne in mind that, according to the theory of the plaintiff’s case, the bracelet was her property; and the witness acted as her agent, and was authorized to leave it with the defendants only upon the condition of their loaning $300, on the security of it. This was about the 1st of November, 1856. The witness returned without the bracelet and with only $100, in money. In the proper discharge of her duty as agent, and according to the usual course of things, it was natural to infer that she told the plaintiff what had been said and done between her and the defendants in respect to the bracelet.

It was material to show what information was communicated to the plaintiff; whether she acquiesced in or objected to, what she was told had been agreed upon; for if she acquiesced, she would thereby assent to only such an arrangement as she was told had been made. She could not be deemed to have acquiesced in an arrangement which she had not authorized and of which she had never heard.

Whether she objected or assented to the arrangement, which the witness, so far as she had then testified, said she had made, and told her daughter she had made, could not by any possibility have affected the verdict.

That arrangement was that they were to advance $300 on the bracelet, and were to be allowed $50 on their bill. Although they did not advance but $100, and refused to advance the other $200, the jury were in effect told that, if they found for the plaintiff, and also found the arrangement authorized and made, to be such as testified to by the plaintiff’s mother, they must deduct from the value of the bracelet the $100 advanced, and the $50 which was to be allowed on their bill. It is not clear on what ground they were entitled to be allowed the $50, if they had refused to comply with the conditions, essential to create the right to retain it as security for that sum.

It is therefore quite clear, that no possible prejudice has resulted to the defendants, from the testimony covered by the exception first taken.

It was certainly proper to show what the agent told the defendants when she left the bracelet. Sufficient evidence had been given to establish, if it remained uncontradicted, that the bracelet was the plaintiff’s, and was intrusted to the witness for a special purpose, and with a limited authority as to the terms and conditions on which it could be, lawfully, left with the defendants. Even, if it had been proved that she sold it, and executed a bill of sale of it, it was competent for the plaintiff to show that they bought it with notice that it was the plaintiff's property, and that the mother had no authority to dispose of it, on the terms on which she said it was left, or on which they claimed they received it.

The objection taken to the evidence was that the contract was in writing and could not be varied by parol. Even if in writing, that was no objection to receiving evidence that they were told the mother had no right to make such a contract, as the paper signed by her imports.

But she had previously testified, without objection, that she signed that paper without reading it, being told by Mr. Archer it was a receipt, and believing “ it was a receipt for $100.”

Under such circumstances, it was also competent for her to state fully and precisely what she said to the defendants, as pertinent to the inquiry whether she signed the paper under- ■ standing its contents and meaning.

The general rule as to the necessity of a tender, and what was essential to a sufficient tender, was stated to the jury as favorably for the defendants as they could ask.

If the plaintiff went with a person to make a tender, and with money enough to pay all the defendants had a right to ask, and if the defendants understood that the plaintiff had come for that purpose, and understanding that, told the person with her, on being informed by him that he and the plaintiff had come to tender them money, and get the bracelet; “to get away,” they “ would have nothing to do with it,” it could not be necessary to exhibit the money or make a more formal offer.

If the jury believed that was said, they were justified in-finding an unqualified refusal to give up the bracelet on any terms, and that the defendants, dispensed with an actual tender.

They might very properly find that this was said, as the plaintiff swore to it, and the defendants, although examined, did not deny it.

We think no error was committed for which a new trial can be granted, and that the judgment must be affirmed

Judgment affirmed.  