
    John H. Ming et al., Resp'ts, v. Austin Corbin, App'lt
    
      (Supreme Court, General Term, First Department,
    
    
      Filed March 17, 1893.)
    
    1. Trial—Erroneous submission to jury.
    Where questions of law were submitted to the jury, and rightly decided, the fact that they were determined by the jury instead of the court is not an error for which the judgment will be reversed.
    2. Sale—Severance of contract.
    Defendant agreed to purchase $5,000 of county bonds and $5,000 of territorial warrants at eighty-five per cent. The bonds were shipped to him, but he refused to take them at eighty-five, but offered a less price, which was accepted, but defendant only paid part of such reduced price. Held, that the first contracts were so severed by the later transactions that the failure of plaint iff to deliver the warrants did not relieve defendant from paying the balance due on the bonds.
    Appeal from a judgment entered on the verdict of a jury, and from an order denying a motion for a- new trial.
    This action was brought to recover the balance due on the purchase price of certain bonds of the par value of $5,300, issued, by the county of Lewis & Clarke, in the territory of Montana, and sold in 1872 by the plaintiffs to the defendant at about eighty-, two per cent. In March, 1872, one Sherwood was authorized by the plaintiffs to sell for them $5,000 of the bonds of the county of Lewis & Clarice, and $5,000 of territorial'warrants, at eighty-five per cent, and he did sell $5,000 of each kind, at that rate, to' the defendant. Sherwood’s authority and connection with the affair are disclosed by t*he letters of March 6 and 20, 1872, and the three telegrams of March 19th and 20th, same year.
    “Office of Austin Corbin, 170 Broadway.
    “ New York, March 6, 1872.
    “ Jno. H. Ming, Esq., Helena, Mont. Terr.—Dear Sir: I have an opportunity to place a limited quantity of county bonds dr scrip drawing interest, and also territorial scrip. Gould use five thousand, face of Co. warrants, at 85 cts., and same amt. territorial at 85 cts. Row, don’t get alarmed, for this is no corner,, but simply through friendship. I am enabled to place above amts, at price, and if you have same or portion, and wish to dispose of them, you can send them to me, and I will handle them' for you. Guarantee money.
    “ J. K O. Sherwood.”
    “ Helena, Montana, March 19, 1872.
    “ Jas. EL O. Sherwood, care Austin Corbin, 170 Broadway, R. Y. City:
    “ Will sell five each bonds and territorial warrants, at eighty-five for face and interest, and give you two hundred. If wanted,, telegraph.
    “J. H. Ming & Co.”
    From New York, dated 20th March, 1872 :
    “ To J. H Ming & Co.: Send them. Draw on me. Ten days.
    “ J. K. O. Sherwood.’’
    From New York, dated March 20, 1872 :
    “ To J. H. Ming & Co. : Send bonds. Cannot use warrants unless to be bonded in June.
    “ J. EL O. Sherwood.”
    “ Helena, Montana, March 20,1872.
    “ J. EL O. Sherwood, care Austin Corbin, New York:
    “Your two telegrams of the 20 th are at hand. We will ship $5,000 in bonds to-morrow night, as we were unable to get them ready for to-night’s coach. All territorial warrants issued prior to Dec. 1st, 1871 (under which head ours come), are to be bonded in June at 12 per cent interest, but from the tenor of your second dispatch we think you understand this fact, and are not certain whether ours are of the description or not. But as we are not certain about it, we will not ship till we hear further from you. As a matter of course, we cannot allow vou more than $100 for sale of bonds alone. In case you want the warrants you must let us know. The bonds will reach you the day after this letter comes to hand.
    “Very truly yours,
    “J. H. Ming & Co.”
    The foregoing correspondence was all between the plaintiffs and Sherwood, who acted for both litigants. After the date of the last letter, Sherwood left the city, of New York, and the subsequent correspondence was between the principals. At the time of this correspondence the usual time for the transmission of letters between New York and Helena was about ten days. When the letter of March 20th was received at New York does not appear, but probably about April 1st. April 9, 1872, the defendant sent the following telegram to the plaintiffs:
    “ New York, April 9, 1872.
    “ J. H. Ming & Co., Helena, Montana : Send me five thousand territorial warrants. County bonds not yet arrived. Sherwood gone. A. Corbin.”
    “ White Eiver Junction, Vt., April 13, 1872.
    “ Messrs. J. H. Ming & Co., Helena, Montana, Gentlemen: About six weeks ago I negotiated through Mr. J. K. 0. Sherwood for $5,000 Lewis & Clarke Co. bonds, and a like amt. of territorial warrants at .85 on prin. and accrued interest. I understood that the L. & 0. were such as 1 had had before, 15 per cent. Never knew there were any other. Had no notion they were 12 percent., and I do not think Sherwood had. On Wednesday last, just as I was leaving New York for New England on business, the $4,300 came from you, and a day or two before $1,000 from Phila. (without any advice as to what they were), making together $5,300. I was astonished to find that they were 12 per cent, and at first thought I would hold subject to your order, and write you. Of course, they were not so good into fully 7£ per cent., as what I supposed I had purchased, and I doubted if I could sell them at all to cover cost. On reflection, however, and fearing that a delay might work some inconvenience to you, I determined to place them, if possible, and at best rates without loss, hold funds subject to your order, and trust you to make the thing satisfactory when the situation should be fully understood. Acting upon that, I have sold them, and placed to your credit $4,400, which is subject to your check on me at sight; and I have directed my cashier to send you a check book, as you requested. The balance of $41.77 I let remain open until I hear from you. In regard to the interest, I don’t think you can demand it after the trade was made. It was not my fault, nor yours, that the bonds were not delivered, but my advantage. If you can fairly ask interest of me, then I must hold my money idle in N. Y., waiting for them, and you get interest on it. Eeally, I have never paid it, nor had it charged on bonds coming from there heretofore, and don’t believe I should pay anything after the purchase was concluded by telegraph. If fairly chargeable, then I should, and will. We will settle that satisfactorily. As to the adjustment of this matter generally, as to the misunderstanding, I shall leave it pretty much to you. You can see plainly enough that the bonds are worth fully $350 less than I expected, and I have finally sold them for only enough to let me out about even, and when I might as well have placed other securities paying me at least that much profit. I do not know that it is anybody’s fault that the thing was not better understood. Sherwood, I know, did not speak of their being 12 per cent, and probably did not know it. I did not, and you, probably, supposed we both did. I had never heard that any Co. bonds there drew 12 per cent. It seems to be a very ‘ wide misunderstanding,’ without anybody being particularly to blame; and under all the circumstances I am willing to do my part to harmonize, so that no one will be very much the loser, and all be content, and to this end I will say that if j'ou will discount $100 from the amount as you state it (including the doubtful item of interest, $36.77), say, $4,441.77, less $100, making net, $4,341.77, and call the bonds very well sold at that, as I know they are, I will be satisfied, and try to make up the deficiency on something else. I would not give one cent over 80 for another lot of the same kind. Let me know if I am not, under all the circumstances, pretty reasonable.
    “ Yours, truly, A. Corbin.
    “I received your letter as to territorial warrants, and ordered them forwarded (by telegram) some days ago.”
    The Wednesday preceding April 13th was the 10th, on which date the defendant received $4,300 of the bonds of the county of Lewis & Clarke, and a day or two before that $1,000 of like bonds, as will be seen by the foregoing letter, by which it also appears that there was a misunderstanding between the contracting parties as to the rate of interest borne by the county bonds. To adjust the matter, the defendant offered to credit plaintiffs with $4,341.77. In the usual course of mail this letter reached the plaintiffs about April 23d, who, .on the 29th of the same month, accepted the terms offered by the defendant in his letter of the 13th. The following is a copy of the plaintiff’s letter:
    
      a April 29, 1872.
    “Mr. Austin Corbin, New York city:
    “Your favor of April 13th, notifying us of receipts of bonds is at hand. They were a long time on the road, and we were quite anxious concerning them. The misunderstanding as to the kind of bonds we offered for sale we regret, and we certainly supposed Mr. Sherwood and yourself were posted as to the new issue of bonds, 12s, in accordance with a law of the legislature of ’71, which forbids the issue of any bonds hereafter at a greater interest than twelve (12) per cent. Your letter states that you think that $4,341.77, which brings the bonds down to a net figure of about 81ic., would be fair for all concerned. In view of the fact that Sherwood’s telegram stopped the shipment of territorial warrants, a portion of which you could have used (as it afterwards seemed) to good advantage, and that the transaction was conducted by you without any profit, we accept the change.”
    “New York, April 22, 1872.
    “ J. H. Ming & Co., Helena, Montana:
    
      “ I have sold the territorial warrants, and must insist upon delivery.
    “A. Corbin.”
    “ The Corbin Banking Company, 115 Broadway.
    “New York, April 23, 1872.
    “Messrs. J. H. Ming & Co., Helena, Montana:
    “ Gentlemen: I was a good deal surprised to get your letter of the 10th inst. yesterday, and I immediately telegraphed you that, as I liad contracted the sale of the territorial warrants I must insist upon having them. I purchased the bonds and warrants from Mr. Sherwood, who acted under your telegram. The bonds were understood to be 15 per cent, and the warrants such as would be fundable into the new bonds. After Sherwood left the office, and not knowing where to reach him, I dispatched you that the bonds must be fundable warrants to meet the contract. Sherwood said they were, but I wanted to be sure on that point, and telegraphed you at my expense. You then wrote that they were fundable, but you did not send them along as you should have done. On receipt of your letter I telegraphed you to send. I took the 12 per cent bonds, and made no words about, it, nothwithstanding I expected to have and purchased 15 per cent bonds. I was bound to take the warrants under the contract with Mr. Sherwood, and I cannot see why you are not bound to deliver them, and I cannot consent that it should be otherwise.
    “Yours, truly, A. Corbin.”
    “ The Corbin Banking Company, 115 Broadway.
    “New York, May 11, 1872.
    “ Messrs. J. H. Ming & Co., Helena, Montana:
    “ Dear Sirs—A draft covering your balance was presented yesterday, which I declined to pay. I presume you understand the reason; but that you may not misunderstand it, I write this to say that I consider my purchase of bonds and warrants one, and that I am entitled to the delivery of both, and do not now propose to pay for either until I get both. I have examined all the dispatches and your letter, and I am at a loss to conceive on what grounds you can decline to deliver the warrants.
    “ Yours, truly,
    “A. Corbin.”
    “ The Corbin Banking Company, 115 Broadway.
    “ New York, May 13, 1872.
    “ J. H. Ming & Co., Helena, Mon.:
    “Dear Sirs—I have yours of the 29th ulto. I wrote you in relation to the warrants on Saturday. I regret exceedingly that we should have any difficulty with regard to these warrants, hut I cannot possibly see why you should decline to deliver them. You say that Sherwood's telegram stopped the shipment of the warrants, a portion of which I could have used to advantage. Let me repeat, I bought through Sherwood $5,000 fundable warrants, believing that they were fundable. On the receipt of a letter from the territorial treasurer soon after, I learned that only a portion was fundable. Sherwood not being here, I telegraphed you not to send unless they were fundable. It is not possible, it seems to me, that you could have been mistaken ; indeed, I have your letter now in my hand of the date of the 20th of March, to Mr. Sherwood, in which you say 1 that all territorial warrants issued prior to Dec. 1st, 1871 (under which head ours come), are to be bonded in June, at 12 interest, but from the tenor of your 2d dispatch we think you understood this fact, and are not certain ours are of this description or not, but as we are not certain about it, we will not ship until we hear further from you.’ I bought fundable warrants. In that letter you expressly state yours are of that character. My dispatch to you not to ship anything but fundable warrants must be construed by any reasonable man that fundable warrants were what I bought. I wish to do exactly right in this matter, and not require anything wrong, but, having bought the warrants fairly, and contracted for their sale when reduced to bonds, I consider myself entitled to have them.
    “Yours, truly,
    “A. Corbin.
    “If your draft had been for $3,000 or $3,500, it would have been paid, but I decline to pay for the bonds in full till I get the warrants."
    The defendant credited the plaintiffs with $4,341.77, the price of the bonds as agreed on in the letters of April 13th and 29th, and June 17th paid $3,500 on account. This action was brought to recover the balance, $841.77, for which, with interest, the had a verdict
    
      William J. Kelly, for app'lt; Morgan & Worthington (Charles N. Morgan, of counsel,) for resp'ts.
   Follett J.

Sherwood testified, and in this he was not contradicted, that the plaintiffs authorized him to by the county of Lewis & Clarke, of the face value of $5,000, and warrants issued by the then territory of Montana of the face value of $5,000, at eighty-five per centum, and that he did agree for the plaintiffs to sell and thereafter deliver to the defendant such securities for $8,500. This was an entire contract, and, unless modified, the plaintiffs not having performed it, were not entitled to recover. All negotiations subsequent to the original contract were in writing, and their construction and legal effect were questions of law for the court; but, those questions having been submitted to the jury, and rightly decided, the fact that they were determined by the jury instead of by the court is not an error for which the judgment will be reversed. Thompson v. Roberts, 24 How., U. S., 233-240; Miller v. Eagle Life & Health Ins. Co., 2 E. D. Smith, 268; Compston v. McNair, 1 Wend., 457-463; Pangburn v. Bull, id., 345-352; Hall v. Suydam, 6 Barb., 83-88; People v. O'Neil, 49 Hun, 423; 17 St. Rep., 956; affirmed 112 N. Y., 355; 20 St. Rep., 754; 1 Thomp. Trials, § 1020. We think the correspondence not only warrants, but compels, the •conclusion that there was at least a severance of the original contract. By that contract the plaintiffs agreed to sell, and the defendant to purchase bonds of the county of Lewis & Clarke of the face value of $5,000 for 85 per cent. Subsequently the plaintiffs delivered bonds issued by that county of the face value of $5,300, for which the defendant refused to pay eighty-five per centum, because they bore interest at the rate of twelve, instead of fifteen, per cent. However, the defendant, by his letter of April 13th, agreed to pay $4,341.77, which was less than eighty-two per cent., which proposition the plaintiffs accepted by their letter of April 29th.

The defendant wrote to plaintiffs' in the letter of April 13th, that $4,400 of the price agreed on was placed to their credit, and subject to their check at sight. May 10, 1872, the defendant refused a draft for the full amount agreed to be paid for the bonds, and in'explanation said, in a postscript to his letter of May 13th, that if the plaintiffs had drawn for $3,000 or $3,500, it would have been paid, but that he would not pay for the bonds in full until the warrants were received. June 17th the defendant paid the plaintiffs’ draft drawn for $3,500 against the price of the bonds. This is quite inconsistent with the position taken on the trial, that the original contract had not been severed, and that the failure to deliver the territorial warrants was a defense to a recovery of the purchase price of the bonds. It seems to us that the only debatable question arising out of the correspondence and transaction is whether that part of the contract relating to the warrants was abandoned or rescinded. The decision of this question, depending, as it did, upon the construction of writings, was a question of law for the court, but which the court was not asked to determine.

The defendant, by his answer, did not set up the failure to deliver the territorial warrants as a defense to the plaintiffs’ cause of action, but as a counterclaim; and had the case been tried upon this theory, it may be that damages would have been allowed him. But on the trial the defendant, by his counsel, insisted that the failure to deliver the territorial warrants was a defense to the action, and asked that a verdict be directed for the defendant, and also that the complaint be dismissed.

The court was not asked to rule that, if the original contract had been' severed, the plaintiffs were still liable in damages for their non-performance of that part relating to the territorial warrants, which should be set off against the price agreed to be paid for the bonds. Neither was the court asked to instruct the jury to assess the damages sustained by the defendant by the non-delivery of the warrants, and set off the amount against the demand of the plaintiffs.

The defendant insisted that if damages were sustained by him, they amounted to a defense instead of a counterclaim, and so he insists on this appeal, and we see no way of affording the relief which we might have been able to give had the case been tried upon the theory of the answer, and damages denied him.

■ The judgment should be affirmed, with costs.

Yan Brunt, P. J., and O’Brien, J., concur.  