
    John Ward v. James Gaunt and James I. Derrickson.
    The plaintiff purchased of the defendants the one-sixth of 66 bales of cotton, for which he paid them in full. The purchase was made in Boston, under an agreement that the cotton should be delivered at New York, and be there sold on account of all the owners, and be divided between them. When the cotton arrived in New York, the defendants, instead of making a sale or division, by mistake, and without the consent or knowledge of the plaintiff, sent it out of the state to a manufactory belonging to themselves in New Jersey.
    
      Held, that the agreement did not constitute all who were interested in the cotton partners, so as to preclude the plaintiff from maintaining an action against the defendants alone for the eleven bales, or their value, to which he was entitled. The defendants, by not delivering the cotton in New York according to their agreement, rendered themselves separately liable.
    Some time after the defendants had discovered their mistake in sending the cotton oiit of the state, they offered to bring back and deliver to the plaintiff the bales to which he was entitled,
    
      Held, that, under the circumstances of the case, the plaintiff was not bound to accept the offer.
    Judgment for plaintiff.
    (Before Oakley, Ch. J., Duer and Slosson, J.J.)
    January Term, 1857.
    This was an action to recover the value of eleven bales of cotton, which the plaintiff alleged that he had purchased from the defendants, and they had neglected to deliver according to the terms of their contract.
    The cause was tried before Woodruff, J., and a jury, in May, 1856, and the jury found a verdict for the plaintiff for $294.92. The verdict was, however, taken subject to the opinion of the court at General Term, upon the validity of the exceptions of the defendants to the ruling and charge of the Judge. Judgment in" the mean time to be suspended.
    All the material facts established by the evidence, and by the verdict of the jury, are fully stated in the opinion of the court.
    There was a conflict in the evidence upon the trial, as to the terms of the contract under which the plaintiff claimed, and as to the persons interested therein, and when the testimony was closed the counsel for the defendants requested the court to charge the j^y—
    1. That the plaintiff could only recover upon proof .of a specific sale of eleven bales of cotton, or one-sixth of sixty-six bales of cotton. 2. That if any purchase was made by the plaintiff of eleven bales, or one-sixth of sixty-six bales, it was made by him in partnership with others, and this action could not be maintained. 3. That the plaintiff never having paid or offered to pay any portion of the expenses of the transportation, &c., to Hew York, he cannot recover. 4. That the defendants had a lien upon and a right to retain the whole of the sixty-six bales, until their charges and expenses on those bales were satisfied. 5. That there was no evidence of a demand for a division of the sixty-six bales, nor for eleven bales, and that such a demand was essential to the plaintiff’s right to recover. 6. That upon the evidence, the bidding off by Gaunt was the act of all the parties, through the one to whom that duty was delegated. 7. That by the agreement of the parties, the defendants had a right to retain the sixty-six bales, for the purpose of a sale, rintil all the parties agreed to divide it and not sell. 8. That there was not evidence in the Case sufficient to justify the jury in awarding damages beyond the mere price of the eleven bales. 9. That the plaintiff was bound to pay his one-sixth of all the expenses upon the whole three lots of cotton bought by the parties.
    His honor, the Judge, refused so to charge in relation to the several propositions aforesaid, otherwise than is hereinafter charged, to which refusal the defendants’ counsel duly excepted, and insisted upon each of the said propositions severally and respectively.
    His honor, the Judge, then charged the jury as follows:
    I. If the plaintiff, after the defendants had bought the cotton, purchased in Boston from the defendants one-sixth of the lot of sixty-six bales to be brought to Hew York, and here either delivered to the plaintiff, or one-sixth of the proceeds thereof paid to him. if sold, and the plaintiff paid the defendants for it on that understanding, and the cotton arrived in New York and came to the possession of the defendants here, and was by the defendants sent out of the state, the defendants are liable for a violation of the right of the plaintiff to have such a division or sale. If the plaintiff has made out that case, the defendants are liable for one-sixth of the value of that cotton, less one-sixth of the expenses of bringing the cotton to New York. I do not recollect that there is evidence that damaged cotton rose in price. It is argued that you may infer a rise in damaged cotton from a rise in sound cotton. I do not so understand it. It does not appear that damaged cotton has any market or market price, and many circumstances might well happen to glut the market with damaged cotton and reduce its price, while sound cotton would be rising, I will not, however, withdraw that question from you.
    II. If, on the other hand, before the cotton .was purchased by the plaintiff, the six parties agreed to unite in a joint adventure, for the common benefit, in which each was to contribute his proportion and each to share in the result, this forms that description of joint undertaking or adventure which we cannot settle in this action. It becomes a sort of partnership, and that cannot be settled without the other parties, and this action is not maintainable.
    
      G. Stevenson, for the plaintiff, now moved for judgment on the verdict.
    
      N. B. Soxie, for the defendants,
    insisted that the exceptions taken on the trial ought to be sustained, and that there should be a new trial, or the complaint be dismissed.-
   By the Court. Slosson, J.

It seems to me that the right of this case, with some slight modification in the amount of the verdict, has been attained by the result of this trial.

The agreement between the parties was, that the cotton, on its arrival in New York, should either be sold orbe divided in equal shares. At this time there were only four parties in interest, the plaintiff represents one-sixth, the defendants one-sixth, and Wood four-sixths. The cotton consisted of three parcels: one of sixty-six "bales, which was the poorest of the lot, being damaged, and the other two consisting together of two hundred and fifty-two bales.

The plaintiff had paid defendants for his full share of the cost of the whole three hundred and eighteen bales. After the arrival of the two hundred and fifty-two bales in Hew York, the plaintiff and Wood proceeded to divide it, without, so far as the evidence shows, the knowledge of the defendants. Wood took five-sixths of this lot, though entitled to but four-sixths, as his full share of the whole three hundred and eighteen bales, though he says he is entitled to two bales out of the sixty-six to make up his full quota, and so he would be if the bales were all of equal value, as, numerically,five-sixths of two hundred and fifty-two bales falls short by two bales of four-sixths of three hundred and eighteen bales.

In this division, the plaintiff got his one-sixth of the 252 bales only.

On the arrival of the sixty-six bales in Hew York, they were all received by the defendants, and sent by them to their mills at Trenton in Hew Jersey.

Had the defendants intended to insist on a sale of the whole three hundred and eighteen bales, or an exact division of the whole according to value, they should never have assumed exclusive ownership over the sixty-six bales, and sent them away. In any aspect, it was numerically 13 bales more than their full share of the three hundred and eighteen bales. Gaunt said they were sent by mistake, and he was willing to bring them back, and he claimed that he was entitled to a share of the two lots which Wood and plaintiff had divided. It may be that he was, but as plaintiff had got no more than his fair share of those two lots, the defendants should look to Wood, who saw fit to appropriate the best cotton, to make good his entire proportion of the whole. The plaintiff, meantime, is entitled to his one-sixth of the remaining sixty-six bales in order to complete his quota, having paid the defendants for his share of the whole three hundred and eighteen bales.

The defendants, in fact, have both his money and his cotton. The idea of a sale of the cotton, after its arrival in Hew York, appears to have been abandoned by all parties; by Wood and the plaintiff, for they proceeded to divide the two hundred and fifty-two bales; and by defendants, for they sent away the whole sixty-six bales to their manufactory in New Jersey. If this was by mistake, as Gaunt says it was, the mistake should have been rectified by bringing back the cotton before suit; but that the defendants had no idea of a sale is further manifest from Gaunt’s telling the plaintiff that he would send for the sixty-six bales, and he might have his eleven bales if he wished them. I do not thinkthe plaintiff was bound to do this and take the risk of any deterioration in the cotton by its trans-shipment, etc.

If a division and not a sale of the entire lot was the result to which the parties came after- the arrival of the cotton in New York, as I think is manifest from the acts and declarations of the parties, then the defendants, on making good to the plaintiff the cost price of the eleven bales, will have remainingin their hands the value of fifty-five bales, being in the number of bales two more than their share of the three hundred and eighteen. If Wood claims these two bales, it will be a question to be settled between them, whether this is or not a fair offset for the greater value of the bales which Wood took for his share; at all events¡ even if an account should become proper between those parties the plaintiff has no interest in the dispute, since he gets only his one-sixth of the good and the bad cotton in any event.

I think the defence savors somewhat of technicality in insisting that unless the transaction amounts to a literal purchase by plaintiff of defendants of eleven bales, the action must fail. I think the plaintiff was injudicious in declaring in that form, but the gist of the action is a conversion of the property by defendants, and the plaintiff has clearly, I think, established his right to the possession of it.

In one aspect it was a sale and purchase, for the cotton appears to have been originally bid off without any definite understanding as to the future disposition of it; the agreement for a division was made after the purchase of the cotton. Gaunt bid off the sixty-six bales and Wood the residue. Until the agreement for a division, therefore, each lot was the property of the one who bought it, and the sixty-six bales belonged to Gaunt (the defendant). The agreement to pay and divide in equal shares, was, therefore, in legal effect, an agreement by each to purchase and pay for an aliquot share.

The Judge, in putting the case to the jury in the aspect of a sale and purchase, presented the case as favorably for the defendants as it could be done, especially when so presented in connection with the alternative aspect of it as a mere partnership transaction requiring an account. The jury, in weighing the evidence, seem to have taken this view of the matter, and I do not think they were essentially mistaken.

The verdict is too large; there is no evidence of any rise in damaged cotton. It was admitted that there were twenty-nine thousand three hundred and seventy pounds in the sixty-six bales; this, at five cents a pound, is equal to $1,468.50, of which one-sixth is $244.75. This sum should be the basis of the verdict. Interest should be allowed on this sum from the time of the payment, and an adjustment of the expenses paid by each party as admitted by the case.

Unless the parties' can agree on this, there must be a reference to the clerk to make the adjustment, and judgment then entered for plaintiff.

As no point was made of any of the exceptions taken in the progress of the trial, except on the motion to dismiss the complaint, I have not adverted to them, and in respect to the latter motion, it is covered by the foregoing opinion.  