
    Kirchner v. New Home S. M. Co.
    
      (Supreme Court, General Term, Second Department.
    
    February 11, 1891.)
    Relea se—Effect—Matters not Included.
    In an action for injuries to plaintiff’s business and property, it appeared that plaintiff occupied a store where he sold sewing-machines. Among other machines he sold those of defendant, under an agreement by which the price was not payable until the machines were sold. A dispute having arisen as to moneys alleged to be due to plaintiff, he retained S604 collected by him for machines sold. Defendant had plaintiff arrested, and plaintiff, to procure his release, gave defendant a bill of sale of certain property in his shop. Afterwards plaintiff sued defendant for §1,500, alleged to be due him, whereupon defendant forcibly took possession of plaintiff’s shop, and brought various criminal charges against him. Plaintiff then applied to defendant for a restoration of his property, saying that he could resist no longer, which defendant agreed to do if plaintiff would release his claim for §1,500 and for malicious prosecution. The release was a general one. After plaintiff’s property was returned to him he discovered that it had been greatly damaged. Held, that plaintiff’s action was not barred for such injuries as he was ignorant of at the time he signed the release.
    Appeal from circuit court, Kings county.
    Action by Gustav A. Kirchner against the New Home Sewing-Machine Company for damages. The complaint was dismissed at the trial, and plaintiff appeals.
    Argued before Barnard, P. J., and Dykman and Pratt, JJ.
    
      M. L. Towns, for appellant. LeJimaier & Williams, for respondent.
   Barnard, P. J.

This case should have gone to the jury. The defendant is a manufacturer of sewing-machines. The plaintiff sold machines for the defendant. The precise nature of the arrangement is not very clear, but whether the plaintiff was a purchaser of the machines, or was merely an agent to sell them, it seems clear that the price of the machines was not payable by plaintiff to defendant until after they were sold. Kirchner hired the store and had property of his own in it. The defendant arrested the plaintiff for misappropriation of moneys collected, and the plaintiff was put in jail. The plaintiff made a bill of sale of his property in the store, or of some of it, and was released. This bill of sale was given as security for any claim which the defendant might have against the plaintiff. The plaintiff after his release began suit against the defendant to recover $1,500, which he claimed to be due him. If he was right in his claim, then the plaintiff has not misappropriated the defendant’s money; for the claim he made was much larger than the amount which the defendant claimed to have been misappropriated. The plaintiff commenced proceedings to punish the defendant for a contempt of court, the particulars of which do not clearly appear. The defendant then forcibly took possession of the plaintiff’s store under the bill of sale, and of all the property in it, and kept it some three months. There were other legal proceedings taken in the mean while. On the 27th of February, 1888, the plaintiff applied to have his property restored. The defendant agreed to give the store and contents back upon receiving a release of the plaintiff’s claim for the $1,500 and from the action for false imprisonment pending; for there had been arrests made beside the arrest for misappropriation of money. The release drawn was a general release. There were circumstances surrounding the transaction which tended to show duress and oppression, and also that it was not intended to cover any right outside of certain specified claims. It did not cover a refusal to give back the property taken from the plaintiff, for that was the sole consideration of the papers, whatever was in fact intended to be released by it. The complaint alleges that this was not done, and that certain property, which was delivered back, was in an injured condition. The judgment should therefore be reversed, and a new trial granted, costs to abide event.

Pratt, J.,

(concurring.) The plaintiff appeals from a judgment of non-suit. The testimony showed that plaintiff had for some years occupied a shop and store where he was engaged in the business of selling and repairing sewing-machines, and where he also carried on other branches of business. Among other machines he sold those of defendant. The retail price was $55, of which $20 went to defendant and the remainder to plaintiff. The plaintiff testified that he considered the machines his “after he signed for them,” and some support is given to that opinion by the fact that on one occasion defendant sued him, and entered judgment in its favor “for sewing-machines sold and delivered.” As early as 1885 a dispute existed between the parties, plaintiff claiming that defendant owed him $1,000 on account. He kept back $604 of money collected, claiming to hold it as an off-set to his claim. Being arrested, he executed to defendant a bill of sale of eight sewing-machines and other property as security for any balance that should be found due it. He was then set free, and restored to the possession of his goods. But no accounting took place, and it does not appear that the bill of sale was again referred to till it was produced on the trial of this action. In 1887 plaintiff claimed that the balance due him was as much as $1,500, and brought a suit to enforce his claim. It appears that in the course of that litigation a motion was made to punish defendant for contempt, and a reference to take proofs was pending. While affairs were in that position a conference was had in the office of defendant between its president, city manager, and other employes, where it was resolved to- eject plaintiff from his store, and take and hold possession. That was done .by defendant’s agents without legal authority; a policeman attending, as he expressed it, “to prevent a breach of the peace.” Numerous witnesses were examined. None of them testify that any claim of right was asserted on the part of defendant or its agents. After plaintiff was ejected, which required some violence, defendant continued in possession of the store, "and, as subsequently appeared, allowed the steam-engines and other property to be destroyed by neglect. The plaintiff then began proceedings against Steele and Irving, agents of defendant, who expelled him from his store, which resulted in a warrant for its restoration. Before the warrant was obtained the landlord gave a lease to another agent of defendant, so that possession could not be delivered under the warrant; and various unfounded criminal charges were instituted against plaintiff by the company’s agents, and, clearly, at the instigation and for the benefit of the company. The result evidently aimed at by these various proceedings was at last produced, namely, to reduce the plaintiff to such distress that he could no longer contend against the company, and to compel him to make his peace with it at its terms. When he applied to it to restore his property, saying he could resist it no longer, they required, as the only conditions, that he execute a release of his claims against the company for malicious prosecution, and of his claim of $1,500. He consented, and the company caused a general release to be prepared, in which was inserted a particular clause and agreement not to interfere with the collection by the company of the moneys due for machines sold by plaintiff. It contained no other special clause, and in that form it was executed by plaintiff, whereupon defendant directed its agent in charge of the place to deliver possession to the plaintiff, which was done. . An examination then disclosed to plaintiff what he had, up to that time, been ignorant of, viz., that Ms machinery had been damaged by neglect and by the elements, and a large part of his tools and other property, including 16 machines, and a valuable recipe for decorating tin, removed, inflicting injuries to the amount of several thousand dollars. Upon proofs of these facts at circuit, the judge, being of opinion that the claim was extinguished by the general release, directed a nonsuit, from which an appeal is brought. There can be no question that the original taking was wrongful. The only-suggested justification was under the “ bill of sale” executed two years before; being for certain specific articles, that clearly could give no right to take property not included therein. Nor would that justify the personal assault. A further answer is that it was given as security for any balance that should be found due on an accounting which defendant afterwards refused to permit. From the time of such refusal the “bill of sale” could have no effect. Moreover, the judgment against Steele and Irving, agents of defendant, is conclusive evidence in this action that the taking was wrongful. They were acting for the Company, for its benefit, and in the line of duty. The principal is bound by an adjudication against the agent. Castle v. Noyes, 14 N. Y. 329, 334. The scope of a release has been well settled. Numerous adjudications are to the effect that the general words will not be allowed to extend the operation of the particular words. This was held so long ago as 2 Rolle Abr. 499. It is so stated in 7 Com. Dig. marg. p.235, “Release of Personal Things,” 3, 5. Henn v. Hanson, 1 Lev. 100; Lyman v. Clark, 9 Mass. 235; Millar v. Craig, 6 Beav. 433,—are to the same effect. The rule is the same in law as in equity. If that rule be applied to the present case, the release would extinguish only plaintiff’s claim to the money due on machines sold by him. Another well-established rule is that a general release will not be allowed to operate beyond the intention of the releasor. As to matters not in contemplation, the minds of the parties have not met. Kirby v. Taylor, 6 Johns Ch. 252; Mumford v. Murray, Id. 452; Parsons v. Hughes, 9 Paige, 591. In Post v. Insurance Co., 43 Barb. 353, 371, 372, paroi evidence of the previous negotiation was admitted to show what the releasor intended to cut off. It is also a well-settled rule that a release will not cut off rights of which the releasor was ignorant. Farwell v. Coker is an ancient case in equity where a release of “all land’s under my father’s will” was held not to cut off lands to which the releasor did not know she was entitled. Lyall v. Edwards, 6 Hurl. & N. 337, was at law, and a replication that “atthe time of execution of the release the plaintiff did not know of the grievances now sued for” was held good. Broderick v. Broderick, 1 P. Wms. 240; Pusey v. Desbouvrie, 3 P. Wms. 316; Ramsden v. Hylton, 2 Ves. Sr. 305; Cholmondeley v. Clinton, 2 Mer. 233,—are to the same effect. The suggestion that to render a release inoperative the error must be “mutual” is discussed in Welles v. Yates, 44 N. Y. 528, and shown not to apply where one party seeks to use an instrument for a purpose not intended by the maker. Such conduct is declared fraudulent. The fact that defendant is a corporation does not relieve it from liability for the acts of its agents. Morton v. Insurance Co., 34 Hun, 366. It was suggested at circuit that, as plaintiff knew he had been deprived of his goods by defendant, his ignorance of the fact that they had been removed or destroyed was not important. He did not know the deprivation was permanent. He was not bound to credit defendant with any wrong-doing of which he did not know. He had a right to suppose his property would be restored to him, and in good order. It is clear that the plaintiff’s action is not barred for such injuries as he was ignorant of at the time he signed the release. The general terms of that instrument will not be allowed to operate upon any rights of action which are not covered by the particular clause, and were not mentioned in the preliminary discussion. ■ The judgment must be reversed, and a new trial granted. The defendant is not entitled to favor, and the costs of the appeal must be paid by defendant to plaintiff.  