
    Beach v. Berdell.
    (Before Oakley, Ch. J., Campbell and Emmet, J.J.)
    June 23;
    July 2, 1853.
    In determining tipon a demurrer, whether matters separatély pleaded constitute a defence, the court will take into consideration all those parts of the answer which precede that which is covered by the demurrer.
    The sufficiency of the defence may, in many cases, depend upon the fact, whether the allegations in the complaint hatre been admitted or denied.
    As a general rule, it is a good defence to an action to recover the value of personal property as unjustly detained, that it had been delivered to the true owner before the commencement of the suit.
    "Whether, when the defendant is a bailee, he can set up this defence against his bailor^-Quere ?
    Demurrer overruled with costs.
    Appeal from an order at Special Term, overruling a demurrer to a part of the defendant’s answer. The following are the pleadings.
    
      City and County of New York, ss.
    Homer P. Beach, of said City, the plaintiff in the above entitled action, by John G. Vose, his attorney, complains of Robert H. Berdell, the said defendant, and shows to this honorable court, upon information and belief, that in or about the month of August, in the year 1851, at the city and county aforesaid, one Abner W. Spooner being the owner of a certain Texas Bond, (a time copy whereof is hereunto annexed, marked Schedule A, and which said plaintiff prays may be deemed part of this complaint,) by his agent or broker, at the special instance and request of tho said defendant, deposited with him the said Texas bond for the purpose of enabling the said defendant to ascertain the value thereof, and that the said defendant then and there, in consideration that the said Abner W. Spooner would so deposit with Mm the said Texas bond as aforesaid, promised and agreed to and with the said Spooner, that upon the ascertaining the value thereof, he would either purchase the same from the said Spooner and pay him the value thereof, or would return the same to him upon demand.
    And the said plaintiff, upon information and belief, further says, that the said Abner W. Spooner afterwards and in or about the same month of August, A. D. 1851, duly demanded from the said defendant the said bond or the value thereof ; but the said defendant, though admitting that the said Texas bond was in his custody or under his control, utterly neglected and refused either to return the said bond or to pay the value thereof to the said Spooner,
    And the said plaintiff further says, that by reason of the premises the said Abner W. Spooner has suffered damages to the amount of four thousand six hundred and forty-five T°/v dollars.
    And the said, plaintiff further says, that afterwards and on or about the thirteenth day of May, in the year 1852, the said Abner W. Spooner for a good consideration paid to him therefor by the said plaintiff, by an instrument in Writing under his hand and seal, duly executed and delivered, did sell, assign, transfer, and set over unto the said plaintiff the said Texas bond, together with all the right and rights of action of the said Spooner against the said defendant, or against any other person whomsoever, to recover the value of said bond or the possession thereof, with Ml power to sue for, collect and discharge, or sell and assign the same, as by reference to the said instrument of assignment when produced will more fully appear.
    And the said plaintiff further says, that afterwards, and on or about the eighteenth day of May, 1852, he gave to the said defendant due notice of the aforesaid assignment, and demanded from the said defendant the said bond or the value thereof. But the said defendant, though admitting that the said bond was in his possession or under his control, utterly neglected and refused to deliver the same, or to pay the value thereof, to the plaintiff.
    And the said plaintiff further says, that the value of the said bond, at the date of the commencement of this action, was the just and full sum of four thousand nine hundred and eighty dollars, to which amount the plaintiff has suffered damages by reason of the neglect and refusal of the said defendant to perform his said promise hereinbefore set forth. Wherefore the said plaintiff asks that his damages may be assessed at four thousand nine hundred and eighty dollars, for which amount, with lawful interest from the sixth day of July, in the year 1852, he demands judgment against the said defendant.
    Schedule A.
    No. 144.
    Public Debt of the late Republic of Texas.
    2nd Class.
    This is to certify that E. W. Moore, administrator of J. K» Lothrop (dec’d), has, under the provisions of an act of the Legislature of the State of Texas, entitled an act to provide for ascertaining the debt of the late Republic of Texas, approved 20th March, 1848, filed with the Auditor and Comptroller a claim for services as an officer in the Texan navy, amounting to three thousand seven hundred and sixty-six T7A dollars, which is sufficiently authenticated to authorize the auditing of the same under the laws of the late Republic of Texas.
    The said claim, according to the data before us, is Worth three thousand seven hundred and sixty-six dollars, in par funds, as having been at that rate so available to the Government.
    In testimony whereof, we have hereunto set our hands and affixed our seals of office, at Austin, this 11th day of April, 1849.
    [l. bJ [l. s.]
    Signed,
    J. B. Shaw, Comptroller. J. M. Swishes, Auditor.
    
    
      Homer P. Beach v. Robert H. Berdell.—Answer. 1. The defendant, Eobert H. Berdell, by Woodbury & Churchill his attorneys, answers the complaint in this action, and says that the said Texas bond in said complaint mentioned was deposited with him, the month of August, 1851, by one Montagnie, for certain purposes then agreed upon by and between the defendant and said Montagnie, and this defendant denies that the said bond was then the property of or owned by said Spooner, in said complaint .mentioned, and that the same was deposited With the defendant by an agent or broker of said Spooner, and that any such promise or agreement was made by the defendant to and with said Spooner, as is stated and alleged in said complaint.
    2. The defendant denies that said Spooner has sustained damages, by reason of the premises, to the amount stated in said complaint, or to any amount.
    3. The defendant says that he has not sufficient knowledge or information to form a belief whether the said Spotiher, on or about the 13th day of May, 1852, or at any time, executed to the plaintiff, as stated in the complaint, the instrument in writing or assignment therein mentioned, or any instrument in writing or assignment, and he denies that the said plaintiff, in the said month of May, or at any time, had any right, title or interest in or to the said Texas bond or the value thereof, and he denies that the value of the said bond, at the time of the commencement of this action, or at any time, Was the sum of $4,980.94, as stated in the complaint, and that said plaintiff has sustained damages to that amount, as alleged in the complaint, or to any amount.
    4. The defendant denies that the plaintiff gave him due notice of said alleged assignment on or about the eighteenth day of May, 1852, or that he then demanded from the defendant the said bond or the value thereof, or that the said defendant then admitted that said bond Was in Ms possession or under Ms control.
    5. The defendant further answering says, that the said J. T. X. Lothrop, in said bond mentioned, was at the time of his death a citizen and a creditor of the Eepublic of Texas; that he died in said Texas, in the month of ——1845; that the said Texas was then justly indebted to Mm in the sum in said bond mentioned ; that afterwards, and in or about the month of Hay, 1845, the said E. W. Moore, in said bond mentioned, was duly appointed in the State of Texas admiMstrator of the estate of' said Lothrop, and that the State of Texas issued and delivered to said Moore, as such administrator, the said bond as the evidence of obligation for the debt so due from said Re» public to said Lothrop; that the said Lothrop, at the time of his death, left Mm surviving a mother and two brothers and tM’ee sisters, and the children of a sister, then deceased, which said mother, brothers, sisters, and children, are still living, and also, by the laws of Texas, then were and still are the distributees of the personal estate of said Lothrop, and entitled thereto under the statute of distributions of said Texas» And this de« fendant further answers and says, that after the said bond was so issued and delivered to said Moore as aforesaid, and in or about the month of December, 1849, the same came into the possession of one James S. Holman, and that said Holman, as between himself and the said Spooner, in said complaint mentioned, and said plaintiff, and all other persons except the ad» ministrator and said distributees of said Lothrop, had, in the month of August, 1851, and at all times after the same came into his possession as aforesaid, the right and title to said bond ¿ and that in said month of August, 1851, and at all times before and after, the same in fact belonged to, and was owned by and was the property of, the administrator and of said distributees of said LotM'op, the legal right and title thereto being in such administrator, and the beneficial interest, right, and title there» in, after payment of the debts of said Lothrop, being in said distributees; and this defendant further answers, that while the said bond was so in Ms possession as aforesaid, and in or about the said month of August, 1851, he was advised and informed, by and in behalf of the said parties so owning and having right and title to said bond as aforesaid, of the facts above set forth as to the ownership thereof and the right and title thereto, and he Was by them directed and requested not to deliver said bond to any person or persons, except the said parties so owning and having a right and title thereto as aforesaid, and he was by them required and directed to deliver the same to the said parties or their agents, and he did thereupon, and on or about the first day of September, 1851, accordingly deliver up said bond to and for the benefit of said parties so owning and so having right and title to the same; and he defends this suit at the request, and wholly for the benefit, and under the direction of the said parties so owning and so having right and title to the said bond as aforesaid.
    . 6. And this defendant alleges and insists, that by his own showing in said complaint, the plaintiff is not entitled to maintain this action.
    The defendants demurred to all that part of the answer contained in the fifth paragraph, on the ground that the matter alleged therein constituted no defence. The demurrer was overruled at Special Term with liberty to the plaintiff1 to reply, Upon the usual terms»
    Prom tMs order the plaintiff appealed,
    L. B. Shephard, for the plaintiff,
    insisted that the demurrer Was well taken, upon the following grounds,
    I. The defendant having accepted the bond from plaintiff’s assignor, upon a special contract that he would either purchase or return the same upon demand, cannot set up the right of Moore, Holman, and the distributees of Lothrop. 1, His undertaking to return is absolute, and such an undertaking is not answered by asserting the jus tertvL (Year Book, 9 Henry, 6 fo. 58, pl. 4; 1 Rolle Abr., p. 606; Southcote’s Case, 4 Coke, 83 b; Story on Bailments, § 33 Coggs v. Barnard, 2 Ld. Raym. 909 ; 1 Smith’s Leading Cases, p. 82; Kettle v. Brumsale, Willes, 118; Steward v. Dunkin, 2 Campbell, 344; Miles v. Cuttle, 6 Bingham, 747; Gosling v. Birnie, 7 Bingham, 339; Per Pollock, C. B., and Parke, B., in Cheeseman v. Exall, 6 Welsb., Hurl. and Gord. 341, S. C. nom.; Cheeseman v. Exall, 4 Eng. L. and Eq. R. 438; Digest, Lib. 50, tit. 17, c. 23; Pothier de Dépót, Prelim. Art, and 2 Art. § 2, pi. 49, 50, 51; Dig. Lib. 16, tit. 3, c. 31, § 1.) 2. The cases in wMch theyiíg iertii have been allowed to be set up have been usually actions of trover. in ti’over the plaintiff claims as owner, and the gist of the action is a conversion of his property by the defendant. It is, therefore, manifestly proper, in that action, for the defendant to show that the plaintiff was not owner*, and that there was no conversion of his property, (King v. Richards, 6 Wharton, 418; Schermerhorn v. Valkenburg, 11 Johnson, 529; Kennedy v. Strong, 14 id. 128; Rotan v. Fletcher, 15 id. 407.) 3. The jus tertii has always been limited to cases where the depositor fraudulently obtrined possession of .the things deposited. See cases cited, supra sub. 1.
    II. Spooner had a right to assign his cause of action against the defendant. The action is upon the contract. But he had also a right to assign the bond so as to give the plaintiff, upon demand and upon refusal, a right of action against the defendant. (Hall v. Robinson, 2 Comst. 293; Robinson v. Weeks, 1 Code Rep., N. S. 311.)
    
      C.P. Kirkland, for plaintiff.
    1. The paragraph of the answer which is demurred to, shows that the bond in question is and always has been the property of third persons; and that the possession of it belonged to those persons when this suit was brought; that the suit is defended for their benefit and under their direction, the bond having previously been delivered to them by the defendant, And this paragraph is of course to be taken and construed in connexion with the preceding parts of the answer, denying that Spooner had any title to the bond, and denying any right to the plaintiff; the plaintiff cannot separate one part of the answer from another and demur. On the demurrer, the whole answer is to be resorted to; and here the answer sets up a perfect defence by denying that Spooner had any title, when he (as alleged) placed the bond in defendant’s hands, and by showing who had the title; and why and how the defendant defends. 1, The bailee has a good defence against the bailor, if the bailor had not a valid title, and the bailee delivers the goods to the true owner. (2 Kent Com. 566, 567; 1 Greenl. Ev., § 207, note 1; Story on Bailms., § 552,102, 34,132; Schermerhorn v. Van Valkenburg, 11 John. 529; Story Ag., § 217, note a; 9 Bing. 382; 6 Whart. 418 ; 15 Johns. 207; 2 Greenl. Ev. § 648; 14 Johns. 132.) 2. Where bailor has not title, and the rightful holder demands possession of bailee, the bailee cannot interplead, but is to be deemed a tortious possessor, if he withhold the goods from the rightful owner. (Stor. Eq. Jur., § 819; Taylor v. Plummer, 3 M. & S. 562.) It would be a palpable perversion of justice and of right to hold that, under the facts stated in the answer and concealed by the demurrer, this plaintiff could recover.
    II. The plaintiff, by Ms own showing, cannot maintain this - action. He is the assignee of a tort; and a tort is not assignable. (Code, § 111; Gardner v. Adams, 12 Wend, 296.)
   By the Court.

The order overruling the demurrer must be affirmed. In judging of the sufficiency of the defence which is set up in that part of the answer to which the demurrer relates, we are clearly of opinion that we have no right to reject from our consideration those parts of the answer which precede it. They must be read and construed in connexion. In determining the question, whether matters pleaded as a separate defence do or do not constitute a bar to the plaintiff’s recovery, it must in many cases be a material consideration, whether the allegations in the complaint are admitted or denied, since upon the one supposition a defence may he plainly insufficient, which upon the other would be as certainly valid.

Here the first paragraph in the answer explicitly denies that the Texas bond, if bond it may he called, was deposited with the defendant by Spooner, or any agent of Spooner. It denies, therefore, that there was any such bailment as the complaint alleges. Hence, upon the pleadings as they stand, the question whether a bailee can set up the title of a third person in opposition to that of his bailor, does not at all arise, and consequently the whole argument in support of the demurrer falls to the ground. If there was no relation of bailor ' and bailee between Spooner and the defendant, the plaintiff can only recover upon the ground that he is the true owner of the bond in question, and to his claim as such the facts set forth in that part of the answer, which is covered by the demurrer, constitute a full defence.

It is not to be inferred from these remarks that had the defendant admitted that he received the bond as the bailee of Spooner, he could not, in our opinion, have interposed the defence which is now set up in his answer. The judges of this court who dScided the case of Bates v. Staunton, 1 Duer S. C. R., p. 85, were disposed to think that in actions like the present, the right of the true owner may be set up, in all cases where, upon his demand, the property has been in fact delivered to him before the commencement of the suit,” and Chancellor Kent has clearly expressed the same opinion—2 Kent’s Com., p. 567. It cannot, however, be said that the question is wholly free from doubt, and as we do not think it is properly before ns, we shall leave it undecided.

Holding the answer to he good, it is not necessary to express any opinion upon the objections that were taken to the complaint.

Order overruling demurrer affirmed, with costs,  