
    TUERS v. TUERS.
    
      N. Y. Court of Appeals ;
    
    October, 1885.
    Conversion.—Tenants in Common; action against one as agent for all by the other co-tenants.—Pleading; complaint •WHETHER FOR BREACH OF CONTRACT OR FOR TORT.—DAMAGES; measure.—Exceptions.—Parties plaintiff.
    Where one of several tenants in common of real property acts as agent for all, upon a contract, express or implied, that he will collect the rents, pay taxes, &c., and pay over to his co-tenants their shares of the net income, an action may be maintained by them jointly as upon a money demand arising on contract.
    Such an arrangement supersedes the ordinary rights of a tenant in common, so far as inconsistent with the obligations of the agency.
    It is not necessary to bring an action of an equitable nature, for an accounting, nor an action upon the statute relating to tenants in common (1 R. S. [1st ed.j § 9, p. 750).
    An action for breach of the contract duty is none the less sustainable as solely an action on contract, because the complaint alleges a misappropriation and conversion of the plaintiff’s share of the moneys.
    Form of complaint in sucih action, sustained, as containing only a single cause of action.
    In such action, the plaintiffs may, on proof of enhanced rates of interest accrued on taxes in default, and the exposure of the prop,erty to liability of foreclosure, recover damages beyond the amount of their shares of net income actually received, and interest thereon.
    An exception, in general language, to the direction of a verdict for a specified amount, will not avail to raise the objection that the amount exceeded the damages proved.
    A tenant in remainder, having an interest in keeping down incumbrances, is a proper party plaintiff.
    Appeal by the defendant from a judgment of the supreme court in the first department, which affirmed a judgment entered upon a verdict directed for the plaintiffs at the trial.
    This action was brought by four plaintiffs; Eliza Gr. and Maria L. Tuers, and Herman and Brittania Wakeman&emdash;the latter, an infant, appearing by guardian ad litem,&emdash;against Sylvester P. Tuers, for the breach of his contract as agent for the collection of the rents, &c., of property owned by the plaintiffs and defendant, in common.
    The allegations of the complaint were as follows s
    “1. That the said plaintiffs are possessed of an undivided interest in certain real estate, situated at the southeast corner of Broome and Attorney streets, in the city of New York, known by the street numbers, 36, 38, 40, 42 and 44 Attorney street, and being fifty feet on Broome street by one hundred feet on Attorney street.
    “ II. That the said plaintiffs appointed and constituted the above named defendant their agent, to collect the rents of said premises, and agreed to pay, and have paid, said defendant, five per cent, on the amount so collected as his compensation during the years hereinafter mentioned.
    “III. That it was further agreed between the said plaintiffs and the said defendant, that the said defendant should pay all taxes and water-rents upon said premises, and keep the same in repair, out of the rents collected by him as such agent.
    “IV. That the said defendant collected the rents of said premises during the years hereinafter mentioned.
    “ V. That the tax upon said premises for the yeár Í875, amounting to $543.90, was confirmed on July 22, 1875, and is now due and unpaid, with interest from said date, and that the water-rent on said premises for said year, amounting to $50.60, is now due and unpaid, with interest from September 14,1876.”
    [Here followed similar allegations as to the taxes in .subsequent years.]
    ‘IX. That the said defendant has neglected to pay each and every of said taxes and water-rents, although out of the sums collected by him as such agent he retained the amount of such taxes, and that the defendant has wrongfully converted and appropriated to his own use each and every of said sums.
    “X. That a demand for said sums has been made upon said defendant, and that he has refused, and still refuses, to pay over the same.”
    The answer : I. Denied the alleged interest of the plaintiff Brittania, and objected to the misjoinder of her as plaintiff ; and alleged that the interests of the other plaintiffs were several and not joint, and objected to the misjoinder of their alleged causes of actions.
    II. Alleged that the defendant acted as tenant in common, not as agent, in having possession and collecting income, and paying expenses ; and denied the alleged agreement of agency.
    III. Alleged that defendant was entitled to one-fourth of all the income, and that he had made over-payments to one of the plaintiffs, and was entitled to an accounting with another.
    At the trial before Mr. Justice La whence and a jury defendant moved (before evidence taken) that plaintiff elect on which cause of action to proceed—for wrongful conversion or on contract; also to dismiss the complaint for insufficiency. Both motions were denied.
    No formal or express contract of agency was proven, but there was evidence that defendant had had charge of the property during the period alleged, had asked for a power of attorney, had spoken of himself as agent for the property, and had rendered some statements showing ren ts received and disbursements,which latter included some taxes.
    It appeared that the plaintiff, Herman, was entitled as tenant by the curtesy-, he being the surviving husband of a sister of defendant; and that the plaintiff Brittania was the daughter of that marriage, entitled to the mother’s one-fourth interest, on the termination of her father’s life estate.
    At the close of plaintiff’s case defendant moved for a nonsuit on the grounds, among others, that he was only a tenant in common, and not liable for use and occupation, but only for excess over his share.
    2. That the action must be in equity or under 1 E 8. 750.
    
    3. That each co-tenant must sue for his separate share.
    4. That if an agent, the action must be in equity for an accounting.
    The motion, and a motion to direct a verdict for defendant, being denied, the court directed a verdict for plaintiffs for the entire sum.
    
      The supreme courts at general term, affirmed the judgment without opinion ; and the defendant appealed to this court.
    
      Charles N. Judson, for the defendant, appellant.
    I. Defendant being a tenant in common, and himself owner of an undivided part of the rents collected by him, no action could be maintained against him, except an action “of account for money had and received ” under the statute. And that remedy must , be pursued by each one separately for his or her share; a joint action by several against one will not lie (1 R. R. [l ed.] 750, § 9; Code Civ. Pro. § 1666; Hall v. Fisher, 20 Barb. 441, 446).
    II. If an action would lie where all are made parties, it can only be in equity for an accounting (2 VanSant. Eq. Pr. 160, 164; Pars. Contr. [4 ed.] 140; :Trustees of Methodist Church v. Stewart, 27 Barb. 553; McMahon v. Rauhr, 47 N. Y. 67; Bailey v. Bancker, 3 Hill. 188).
    III. The action is in form an action on contract, ^notwithstanding the allegation of conversion (Conaughty v. Nichols, 42 N. Y. 83 ; Austin v. Rawdon, 44 N. Y. 63).
    IV. No time was fixed in which defendant was to pay the taxes and water-rents ; as part owner he was interested in having it done, and if the plaintiffs are prejudiced by his delay in payment, they may file a bill to compel payment, but cannot sue for breach of his contract so long as it remains lawful for him to pay (Campbell v. Macomb, 4 Johns. Ch. 534, 538; Hale v. Omaha Nat. Bk., 47 How. Pr. 201; Frazer v. Western, 1 Barb. Ch. 220).
    V. The judgment was erroneous because Brittania Wakeman was made a party plaintiff, and allowed to recover, although not entitled to anything (Leach v. Leach, 21 Hun. 381; Ransom v. Nichols, 22 N. Y. 110; Hatfield v. Sneden, 54 N. Y. 280). The misjoinder was fatal (Code Civ. Pro. § 488), and was properly set up in the answer {Id. § 498).
    VI. There can be no recovery in this action, as no amendment can be granted changing the cause of action, or changing the action from law to equity (Short v. Barry, 3 Lans. 143, 147; Bradley v. Aldrich, 40 N. Y. 504; Craig v. Hyde, 24 How. Pr. 313; Towle v. Jones, 19 Abb. Pr. 449; Mann v. Fairchild, 2 Keyes, 106; Arnold v. Angell, 62 N. Y. 508).
    
      Carlisle Norwood, Jr. (Norwood & Coggeshall, attorneys), for the plaintiffs, respondents.
    I. The statute (1. R, 8. 750, § 9), did not prevent the recovery by tenants in common against another tenant in common, who had. been duly constituted their bailiff. At common law, “ if one tenant In common occupied and took the Avhole profits, the other had no remedy against him while the tenancy in common continued, unless he was put out of possession, when he might have his ejectment; or unless he appointed the other to be his bailiff as to his undivided, moiety, and the other accepted that appointment, in which case an action of account would lie as against the bailiff as in the case of the OAvner of the entirety, of any estate” (Henderson v. Eason, 9 Eng. L. & Eq. 337, 340; Woolever v. Knapp, 18 Barb. 265). At common law, even where one tenant in common took the whole profits without occupying himself, the other tenant In common was remediless. “For albeit one tenant in common take the whole profits, the other hath no remedy by law against him, for the taking the whole profits is no ejectment” (2 Coke upon Littleton [Butler & Hargrave's Notes, ch. 323], 199 b; Id. 200 b ; Wheeler v. Horne, Willes, 208; Joslyn v. Joslyn, 9 Hun, 388), But even at common law one tenant in, common could appoint the other his bailiff (Woolever v. Knapp, above). The rights of tenants in common, in a case like the present one, were not affected by the; statute cited by defendant. That statute was founded upon the 4 Anne, ch. 16, § 27, and gave a right of. action by one joint tenant, or tenant in common, against the other in cases where he received more than his just share or proportion, leaving the right of such a tenant to take all profits he makes by occupying and cultivating, just as it was before the statute (Woolever v. Knapp, 18 Barb. 265 ; Henderson v. Eason, 9 Eng. L. & Eq. 337 ; Dresser v. Dresser, 40 Barb. 300; Joslyn v. Joslyn, 9 Hun, 388). The cases cited (above) refer to the fact that before the statute one tenant in tiommon could duly appoint the other his bailiff. There can hardly be a question but that in this State one tenant in common could appoint another such tenant his agent and have the same remedies at law against such tenant as if he was a stranger to the title ( Washb. Real Prop. 1 ed. 420 ; 3 ed. 570).
    
      
       1 R. S. 750 (3 R. S. 5 ed. 39); § 9 provided: “ One joint tenant or tenant in common, and his executors or administrators, may maintain an action of account, or for money liad and received, against his co-tenant for receiving more than his just proportion; and the like -action may be maintained by them against the executors or administrators of such co-tenant.”
      This statute being repealed by L. 1880, c. 245, there was substituted the following section of the Code of Civil Procedure. § 1666. A joint tenant or a tenant in common of real property, or -his executor or administrator, may maintain an action to recover his just proportion against his co-tenant, who has received more than his own just proportion, or against his executor or administrator.”
    
   Finch, J.

There is but one cause of action stated in this complaint, and so the exception grounded upon the idea that there were two,—one upon contract and the other for a tort,—and therefore the plaintiffs should have been compelled to elect upon which they would stand, is not well taken. That one cause of action was not merely for the conversion of plaintiff’s money, but for something more than that, of which the conversion was only an element or detail.

The complaint, in connection with the proof under it, showed that the plaintiffs and defendant were tenants in common of certain real estate, the revenue from which came in the form of rents, and to three-quarters of which the plaintiffs were annually entitled; that the property was subject to accruing charges for taxes and water-rents, payable to the city of New York, within whose corporate boundaries it was situated; that the plaintiffs jointly constituted the defendant, their agent to collect and receive the rents accruing which belonged to them, and to pay over the share to which they were entitled ; that he further agreed, as such agent, and in virtue of his own interest in the rents, to pay out of them all the annual taxes and water-rents, and so protect the property from sale; that for these services he was to receive a commission of 3 percent., and afterwards of 5, which was regularly allowed and paid to him; that, notwithstanding, he willfully neglected and refused to perform the stipulated duty, in that he did not pay the taxes and water-rents, but, falsely representing that he had done so, converted to his own use the money of the. plaintiffs set apart for that purpose and agreed to be so appropriated, and neglected and refused to apply his own proportion of such rents to the discharge of his share of such incumbrance.

The cause of action thus pleaded and proved rested upon a contract relation taking the place of the tenancy in common, and superseding the ordinary rights, and duties flowing from that relation; and the gist of' the action is for a breach of that contract, and to. recover damages for such breach, of which damages the conversion and misappropriation of the fund set.apart for taxes and water-rents were both the occasion and the evidence.

The appellant so contends, and we shall certainly do him no injustice if we thus accept his view of the-cause of action as founded, nob upon the mere con ver-. sion of the plaintiffs’ money, but upon a breach of the. defendant’s duty under his express contract. Such a¡, contract was lawful and valid. The plaintiffs’ interest, to be protected extended to the entire payment of the. whole taxes and water-rents, and not merely to such proportion as was equitably their debt, since the land; was bound for the complete payment, and their property could be taken for any unpaid portion. By their agreement, as the action of the defendant for. many years indicated, he was to hol&.sa much of the gross-rents as was needed for the annual charges as a fund for their payment, and pay over plaintiffs’ share of the remainder. His agreement bound him to appropriate his own proportion of the fund reserved to the discharge of the taxes quite as much as the plaintiffs’ proportion, and when he failed to do so he inflicted a double injury-; for he not only converted and misappropriated the plaintiffs’ money confided to him for a special purpose, but he left the taxes and water-rents entirely unpaid and accumulating at high rates of interest until the property was advertised for sale, and the foreclosure of an outstanding mortgage begun by reason of the default; and he did this deceitfully and fraudulently, falsely lulling .his employers into security. '

There was thus established a valid contract, upon a good and sufficient consideration fully and regularly paid, and a breach of that contract;

The remaining question is one of damages. The plaintiffs were entitled to recover all such as flowed naturally and proximately from the breach, and were not limited to the bare amount of their share of the rents misappropriated, with the lawful interest upon it. Such a recovery would not recompense their.loss or.restore them to the condition which would have resulted from performance. Two other sources of injury remain: The defendant’s neglect has caused the taxes and water-rents to accumulate interest at a special rate greater than that ordinarily allowed by law; and the plaintiffs’ interest in the lands is exposed to a liability for the whole amount of the unpaid taxes, and to the costs and peril of a foreclosure. They were thus clearly entitled to recover more than their misappropriated share and interest. How much more, it is not necessary in this case to consider, for no exception exposes to our review the-amount of damages, or the principles upon which that amount was determined. At the close of the case, there was a request by the defendant that the court should direct a verdict in his favor, which was refused, and he excepted, and then the court directed the jury to render a verdict for the plaintiffs for $3,948.48, to which direction the defendant again, excepted. Neither party requested the submission of any question of fact to the jury, and the defendant in no manner raised the question of the amount of damages for which he was liable. That question was for the first time suggested on appeal. It came too late. We may infer, from the exact correspondence of the amount of the verdict ordered with the result of the plaintiffs’ computation put in evidence, that the court awarded as damages the full amount of unpaid taxes and water-rents, with 7 per cent, interest, upon the ground that by the misconduct of defendant their land was left liable for that amount ; but if so the correctness of that view was in no manner challenged, and seems to have been adopted with the tacit acquiescence of both parties on the trial. The attention of the court was in no respect drawn to the question, and no ruling was sought upon it.

The final exception was general, and to the right of the plaintiffs to have a verdict at all, and wholly failed to raise the specific question of its correct amount. While, therefore, it may well be that a grave question of damages might have been presented, it is not here, and requires no ultimate determination.

The court must have found, and might have done so from the proof, that the contract was made with all the plaintiffs jointly, and that Brittania had an interest in securing the payment of taxes and water-rents by reason of her ownership in remainder, and so was a proper party plaintiff.

We find no error in the record, and the judgment should be affirmed, with costs.

Rapallo, Earl, and Danforth, JJ., concurred.

Ruger, Ch. J., dissented ; Andrews and Miller, JJ., did not vote.  