
    Garrett D. Clark, Plaintiff and Appellant, v. William H. Griffith and Levi Decker, Defendants and Respondents.
    1. The defendants, on the 26th of August, 1858, sold to D. <fc F. four billiard tables, for $1100, taking ten notes, of $100 each, at 2, 3, 4, 5, 6, T, 8, 9, 10 and 11 months, and a note made by one Clark, and a mortgage of the four tables, to secure the payment of the notes made by D. & F., (the mortgage providing, that on default to pay either of those notes, all the notes should be due, and the mortgage might be foreclosed;) and agreed, in writing, that, “ after $300 has been paid of said notes,” to “ give a receipt in full for one table, and so continue until all are paid." On the 14th of January, 1856, the defendants signed and delivered to D. & F., a paper, which states, that they had received from D. & F., $2Í6, “ for one billiard table; said table being one of the four tables included in a mortgage given by said D. & F.”
    2. In March, 1856, D. & F., not having paid more, the defendants foreclosed the mortgage, sold and, at the sale, bought all of the tables; and, on the 8th of September, 1856, the plaintiff, who had succeeded to the rights of D. & F., demanded of the defendants one of the four tables, ’(who refused to deliver it); and thereupon brought an action of trover to recover its value.
    8. Held, that on such a state of facts, the plaintiff could not maintain such an action ; and that his complaint was rightly dismissed at the trial.
    4, An acceptance of the purchase-price of one table, does not bind the mortgagee, (holding a mortgage for the purchase-money of four tables,) to give up or release either table, until the whole is paid; or, if he have agreed to release one on payment of $300, then, until the whole $300 is paid.
    5. When a mortgagee has agreed to release one of several chattels mortgaged, on payment of a specified portion of the debt, an agreement made by him, on payment of a lesser portion of the debt, (the sum paid having, in fact, become payable,) to release one of the mortgaged chattels, is without consideration, and void.
    (Before Hoffman, Woodruff and Pierrepont, J. J.)
    Heard, Feb. 2d;
    decided, March 6th, 1858.
    This action comes before the Court on two appeals taken by the plaintiff, one being from an order denying a motion made by him for a new trial, and the other being from a judgment, upon an order, dismissing his complaint, made at the trial. It was tried on the 22d of June, 1857, before Mr. Justice Woodruff and a jury.
    The complaint states, as a cause of action, “ that about the 1st of March, 1856, a certain billiard-table and four ivory balls, and a lot of cues and counters belonging thereto, the property of the plaintiff, and to the possession of which the plaintiff is entitled, of the value of $275, came into the possession of the defendants. That on or about the 8th of September, 1856, the plaintiff being then the owner, and entitled to the possession of the said property, demanded the same of the defendants, who refused to deliver the same to the plaintiff, but have wrongfully converted and disposed of the same to their own use, to the plaintiff’s damage $300. Wherefore plaintiff demands judgment, that he recover of the defendants $300 damage, besides costs.”
    The answer denies that the billiard-table, etc., was, on the 1st of March, 1856, the plaintiff’s property, or that he then was, or since has been, entitled to the possession thereof, or that they have wrongfully converted and disposed of the same to their own use, or that it was worth $275, or that plaintiff has sustained $300, or any damage.
    It sets up a sale by them, on the 25th of August, 1855, to John E. Dean and Thaddeus Gr. Finnegan, of the property mentioned in the complaint, and of three other billiard-tables and their appurtenances, and that Dean and Finnegan, towards the payment therefor, delivered ten promissory notes of that date, of $100 each, to the defendants, made by Dean and endorsed by Finnegan, at one, two, three, four, five, six, seven, eight, nine, ten, and eleven months from their date, and to secure the payment thereof, at the same time executed and delivered a chattel mortgage of the said four billiard tables and appurtenances.
    That the mortgage provided, that on a default to pay either note, all should become due, and the mortgagees might take and sell the property. That said mortgage was duly filed, stating the time and place. That on the 1st of March, 1856, Dean and Finnegan had failed to pay three of the notes, which matured before that day, and thereupon the defendants elected to consider all the notes due, and took and duly sold the property under the mortgage, for the best price which could be obtained therefor.
    The case, containing the proceedings at the trial, is in these words, that is to say:—
    “ It was proved on the trial that on the 25th of August, 1855, the defendants sold and delivered to John E. Dean and Thaddeus Gr. Finnegan, keepers of a billiard saloon, at 598 Broadway, New York, four billiard-tables, with the balls, cues and maces appertaining thereto, and on the sale, executed and delivered to Dean & Finnegan a bill of sale, in the words following:—
    ‘New York, August 29th, 1855.
    Messrs. Dean & Finnegan
    Bought of Griffith & Decker,
    Four billiard tables and fixtures, . . . $1100.00
    ‘ Received payment by ten notes, made by John Dean, endorsed by T. G. Finnegan, and one note made by G. D. Clark, payable to his own order; and endorsed by J. E. Dean and T. G. Finnegan.
    Griffith & Decker.’
    
      
      1 After three hundred dollars has been paid of said notes, then we, Griffith & Decker, are to give a receipt in full for one table, and so continue until all paid. Griffith & Decker.’
    And at the same time Dean & Finnegan executed and delivered to the defendants the notes therein mentioned, and a chattel mortgage, dated August 25th, 1855, and executed under the respective hands and seáis of said Dean & Finnegan, (and filed on the 31st day of August, 1855, as required by Statute,) to secure payment of the ten notes described in said bill of sale, of $100 each, made by John E. Dean, and endorsed by Thaddeus G. Finnegan, upon the billiard-tables, balls, cues, etc., and other property; the mortgage was in the usual form, and conditioned to pay the said ten notes, and if any one or more of the said ten notes were unpaid, the whole of them should become due at the election of the defendants. On the 7th of September, 1855, Dean & Finnegan executed and delivered to the plaintiff a chattel mortgage (in the usual form, also duly filed the same day, as required by law,) upon the same property covered by the mortgage to the defendants, conditioned to pay the plaintiff one thousand dollars on or before the 7th day of September, 1856, and was expressed to be subject to Dean & Finnegan’s mortgage to the defendants.
    In both mortgages was a clause that until default in the condition, Dean & Finnegan should remain in possession of the property mortgaged, and it appeared that they did remain in possession, at Ho. 598 Broadway, in the City of Hew York, from the date of the first mortgage until the 14th day of March, 1856.
    It was also proved that Dean & Finnegan paid the first two of the notes mentioned in the bill of sale and mortgages, and that the note of G. D. Clark therein mentioned was also paid, and that therefor the defendant executed and delivered to Dean & Finnegan, on the day of its date, the following paper, viz.:—
    “ $275.00 Hew York, Jan’y 14,1856. .
    Received from Dean & Finnegan, two hundred and seventy-five dollars, for one billiard table; said table being one of the four tables included in a mortgage given by said Dean & Finnegan.
    Griffith & Decker.”
    
      But at the time this paper was given, or at any other time, no particular table of the four was selected or identified.
    It was further proved that after the last paper was given, as above stated, and on the 18th day of February, 1856, the plaintiff purchased all the right, title, and interest of Dean in the four billiard-tables, cues, maces, etc., which right, title, and interest was at that time sold by the Sheriff of the City and County of New York, under an execution issued and delivered to him upon a judgment in this Court against Dean and one Deagle, in favor of the plaintiff in this action, for $637.97; docketed in the same county, the 6th day of February, 1856. And the execution was issued to the Sheriff on the 6th day of February, 1856. And in the month of April, 1856, Finnegan assigned to the plaintiff all his right, title, and interest of, in and to the same.billiard-tables, cues, maces, etc.
    On the 14th day of March, 1856, others of the notes being past due, the defendants, under their mortgage elected to consider the whole amount due, and as stated in their answer, seized and sold all the four billiard-tables, cues, maces, etc., which were at the sale bought in for the defendants, and came into their possession.
    The complaint alleges that on the 8th day of September, 1856, (after the plaintiff’s mortgage became due,) the plaintiff demanded •of the defendants one of the billiard-tables, cues, maces, etc., and that the defendants refused to deliver the same to him, which is not denied in the answer.
    This action was commenced on the 15th day of September, 1856.
    The Court, after the foregoing facts were proved, dismissed the complaint on the motion of the defendants’ counsel, and the plaintiff excepted.
    On this case, the plaintiff moved at Special Term, before Mr. Justice Hoffman, on the 5th of October, 1857, for a new trial, which motion was denied. On the 19th of October, 1857, judgment was entered in favor of the defendants, and from that judgment, and from the order of the 5th of October, the plaintiff appealed to the General Term.
    
      A. B. JDyeit, for plaintiff, the appellant,
    
      Argued, among other propositions, the following:—
    I. The bill of sale from defendant to Dean & Finnegan passed the title of the four billiard-tables to them. The simultaneous mortgage by Dean & Finnegan to the defendants transferred the title again to the defendants, subject only to be defeated by the performance of the condition of the mortgage. The agreement at the foot of the bill of sale, was a part of the transaction, and all read together; the only effect that can be given to it, is an agreement to release each table from the mortgage as paid for, until all are paid for and released.—{Eagers v. Kneeland, 13 Wendell, 114.) The receipt operated as a discharge of one of the billiard-tables from the mortgage; and thereupon Clark, both as assignee of the rights of Dean & Finnegan, and as mortgagee in his own right, became entitled to it.'
    II. The receipt was given in performance of an agreement, and the defendants cannot avail themselves of a defective performance on their part, to deprive us of the billiard-table, for which they have been paid.
    III. It is of no consequence, that no table was selected when the table was released from the mortgage. It must be remembered that Clark sues as the assignee of Dean & Finnegan’s rights, as well as in his own right as mortgagee. 1. The vendee had the right of selection at any time, and was deprived of the exercise of it by the wrongful act of the defendants, of which they cannot avail themselves. The price had been paid, and the table delivered, because the four tables all had previously been delivered to Dean & Finnegan, and were then in their possession. There was nothing to be done to complete the transaction, not even delivery, and the property passed to Clark. (Olyphant v. Baker, 5 Denio, 379; Benedict v. Field, 4 Duer, 158.) 3. There being no selection of any table at the time of the release of one of them, and Dean & Finnegan being in possession at that time, they had a right to retain possession of all four tables, until either the defendants made the selection, or called on Dean & Finnegan to make it. The defendants having taken and converted all the tables without any such selection, Clark, as assignee of the rights of Dean & Finnegan, was entitled to the possession of, and might have sued for all four tables. He might therefore properly sue for one, to the possession of which he was entitled. This was also sufficient to support the allegation of property. Again, if it was uncertain which table was released, it was equally uncertain which three remained covered by the mortgage, and the defendants thus by their own act, and neglect to select a table, confused their remedy, and rendered their mortgage so uncertain as to be incapable of enforcement, and for that reason void, and they, therefore, had no right to take any of the tables—at least before making a selection.
    IV. By the release of one of the four tables without designation, Dean & Finnegan, (and Clark, by assignment from them,) became tenants in common with the defendants, in the- four tables; and by selling the whole, the defendants became liable in trover (for a conversion of the property,) to the extent of the interest of the tenant in common. (Heyl v. Burling, 1 Caines’ R. 14; Selden v. Hickock, 2 Caines’ R. 166; Wilson v. Reed, 3 Johns. R. 175; White v. Osborn, 21 Wendell, 72; Hyde v. Stone, 9 Cowen, 230 ; Sheldon v. Skinner, 3 Wendell, 525 ; 1st Chitty’s Pleadings, page 147, etc.)
    V. The defendants, by seizing and selling the four tables, so mixed up the plaintiff’s property with theirs, that they are liable in trover, even if they mixed the property by common consent. (Nowlen v. Colt, 6 Hill, 461.)
    VI. By seizing the four tables, the defendants were trespassers as to all the tables, and we had a right to waive the tort as to three, and sue for one of them.
    VII. If there be any technical difficulty about maintaining what formerly was trover, or trespass upon the complaint, the answer of the defendant sets up their defence fully, and all the facts were proved on the trial without objection. It is very obvious that, before the Code, we might have recovered the value of one billiard-table, (which we sue for,) in a special action in the case at law, or by a bill in equity, if we had no remedy at law. We certainly had a right to call upon the defendants to make a selection or permit us to do so, and to deliver us the selected table, and upon failure to do either, they were liable to us for the value of one of the tables. Our demand of one of the tables is the same in effect, and our complaint is literally true. The theory of the Code evidently is, that where all the facts are before the Court, if upon those facts the plaintiff, in any form of action at law or in equity, would be entitled to relief, that he shall have it, irrespective of the form of the pleadings. If it is necessary, the Court should conform the complaint to the facts proved, or amend the complaint.
    VIII. The nonsuit should be set aside, and a new trial granted.
    
      P. T. Woodbury, for respondents (the defendants).
    I. The receipts of August 29th, 1855, and January 14th, 1856, do not show an agreement, that as the tables were paid for they were to be released from the lien of the mortgage.
    II. The receipt of January 14th, 1856, did not operate as a release of any particular one of the four tables from the lien of the mortgage, or as a transfer of the interest of defendants therein. 1. No particular one of the tables was ever selected or identified, either in the receipt or otherwise, as the one to be released, or as the one referred to in the receipt. There was, therefore, no evidence that the table demanded or sued for was the one released or referred to in the receipt. 2. The receipt was not under seal, and could not, therefore, operate as a release from the lien of the mortgage, which was under seal. (Frink v. Green, 5 Barbour Sup. Ct. R. 455; Delacroix v. Bulkley, 13 Wend. 71.) 3. The interest of the defendants was yet undivested, because the identification of a particular table to be transferred, was not yet made or attempted. So long as any thing remained to be done to the thing to be transferred, to identify it or discriminate it from others, no title passed. (1 Parsons on Contracts, 441.)
    III. The demand, by the plaintiff, of a table, as admitted in the pleadings, did not operate as an identification or selection of any one of the tables as the one referred to in the receipt. 1. The question, which of the tables should be considered as the one to be released from the mortgage, or paid for in full, was to be settled by the concurrence of both purchaser and vendor. A mere demand of one particular table, by Dean & Finnegan, or their assignee, would not constitute such an identification. 2. There is no evidence that Dean & Finnegan, or the plaintiff, as their assignee, ever attempted to exercise this right, or ever called upon the defendants to concur with them in any such identification. 3. The proof is positive, that no such identification was ever effected. 4. Even if the demand is conceded to have been of one of the tables covered by the mortgage to defendants, and to have operated as an identification or selection of one which the plaintiff was entitled to have released, it was made too late, and after the defendants had foreclosed their mortgage and exercised the right, which they had at the time of such foreclosure, to sell all the tables. The foreclosure took place March 14th, 1856, and the demand was made September 8th, 1856.
   By the Court. Pierrefoht, J.

The plaintiff having rested his case, upon proving the facts above stated, the Judge dismissed the complaint; and we are called upon to say whether he committed an error.

We think that upon payment of $300 by Dean & Finnegan, they were entitled to one of the tables discharged from the lien of the mortgage, and that they might have compelled a selection.

No claim was made for the delivery of any table until six months after they had all been sold under the mortgage; and not until more than six months after the plaintiff had acquired whatever rights he now has; and no one of the four has ever been selected, or in any manner identified as the one claimed by the plaintiff.

The mortgage covered the four tables, and when purchased it was as much a lien upon each as upon any one of the four, and a sale under the foreclosure gave to the bona fide purchaser a title to each of the four tables. The defendant cannot be said to have wrongfully converted the property to his useand as the proofs now stand, the plaintiff is not entitled to the possession of any particular one of these tables any more than to each one of them ; and as it is clear, that he is not entitled to each, and as he has shown no selection or claim to any particular one, we think the complaint was properly dismissed.

The Court are now asked, at General Term, to entertain an original motion to amend the complaint, and so to amend it as to render a new trial necessary, and to reverse the judgment for errors which do not now exist, and which errors are proposed to be created by the amendments.

We doubt any such jurisdiction in the Court, and we should be slow to exercise any such powers if clearly possessed.

No motion to amend was made below, and it.is not proper for a Judge, on a trial, to volunteer and make amendments not moved" by either party. (Loyd v. Fox, 1 E. D. Smith, 101; Brown v. Colie, 1 E. D. Smith, 265.) The plaintiff is not without remedy, if he brings a proper action sustained by sufficient proofs; but with no other evidence than this case presents, he must fail in a simple action for the conversion of personal property.

The judgment must be affirmed with costs.

Woodruff, J.

The mortgage executed by Dean & Finnegan to the plaintiff, on the 7th of September, 1855, being in terms subject to the prior mortgage given to the defendants, the plaintiff knew, when he purchased the interest of Dean, at the sale then made of it by the Sheriff, and also when, in the month of April, 1856, he took from Finnegan an assignment of his interest, that the defendants held a mortgage of the four tables, which was the first and a valid lien upon the property.

His purchase did not impair the rights -of the defendants as mortgagees. (Hull v. Carnley, 1 Kern. 501; 17 N. Y. Rep. 202; Manning v. Monaghan, 1 Bosw. R. p. 467, note.)

The plaintiff’s rights, on the 8th of September, 1856, when he “ demanded of the defendants one of the billiard-tables, cues, maces,” etc., were the same as the rights of Dean & Finnegan would have been had they made the same demand,- not having executed a second mortgage, and their interest in the tables not having been sold by the Sheriff, or otherwise, to any one.

What, then, is the true construction of the instruments executed by the parties?

Dean & Finnegan, upon the purchase of the billiard tables, had executed and delivered to the plaintiff a mortgage to secure the payment of ten notes of Dean, endorsed by Finnegan, of $100 each, parcel of the purchase-money.

The whole purchase-money, for the four tables, was $1100, or $275 for each table. By the terms and legal effect of this mortgage, the defendants acquired a title to the tables, as security for the whole sum of $1000—i. e., for the payment of all of the notes given therefor by Dean, endorsed by Finnegan, and of each of such notes; and they were not, by the tenor of the mortgage, bound to relinquish their lien upon any of the tables, until all of the notes were paid.

But the memorandum, signed by the defendants at the foot of the bill of sale, is an agreement to give a receipt in full for one table, after $800 has been paid.

Giving to this agreement the construction claimed by the plaintiff’s counsel—and perhaps that is most in accordance with the intention of the parties—it was one of the terms of the purchase and of the mortgage, that when $300 was paid by the purchasers, the' defendants were to release one of the tables from the mortgage, and the purchasers, thereafter, to hold one table as their own absolute property.

The sale having been made at $275 for each table, and $300 being paid, the defendants would thus receive not only payment in full for the table so to be released, but would have $25 towards payment for the other three; and when a further $300 was paid, they would have $50 towards payment for the remaining two, and so on. Their relative security would thus increase, as the tables were successively released. Such an arrangement was reasonable, and may, taking both instruments together, be treated as showing the whole intent of the parties.

The defendants could not, therefore, be required to give up any table until $300 was paid; and, until $300 was paid, they could retain their lien, and, in case of any default of payment, could foreclose and sell the four tables.

On the 14th of January, 1855, Dean & Finnegan paid to the defendants $275.

Even if it be conceded, that the payment of $300 would have the effect to discharge one table from the mortgage lien without any act of release by the defendants, in performance of their agreement, it is quite certain that payment of $275 would not ■per se, have that effect, nor would it entitle Dean & Finnegan to have one of the tables designated as being so discharged. The amount had not been paid, which was required to entitle them to have one of the tables released, under the most favorable construction of the meaning and effect of the agreement of the 29th August, appended to the bill of sale.

It is claimed by the plaintiff, that the receipt given on the 14th of January, 1855, operated to discharge one table, so as to entitle him to maintain this action therefor. That paper, signed by the defendants, acknowledges that they have “received from Dean & Finnegan $275, for one billiard-table, said table being one of those included in the mortgage,” etc.

But this paper by no means necessarily operated to release any table from the mortgage. Had not the agreement of August 29th, 1854, been given, binding the defendants to release on the payment of a part of the purchase money, the payment for one, or two, or three of the tables would not have released them; they would still be held, under the mortgage, until the fourth was also paid for; and, under that agreement, the paper in question could have no greater effect, unless the whole $300 was paid.

It was literally true, that on the 14th of January, the receipt of $275 was payment for one table; it was exactly the price at which it was sold, and that is all which this paper necessarily acknowledges.

It does not show an intent to alter or vary the conditions upon which, by the existing agreements, Dean & Finnegan were to have one of the tables released.

Indeed, the terms of this paper are susceptible of a still more restricted construction, viz.: that the money was received “ on account of” one billiard-table; it is not declared to be “in full for one table,” as was provided in the agreement of August 29th; but “ for,” i. e., towards, on account of, one table, or in part payment of the amount, upon payment of which Dean & Finnegan will be entitled to a release of one table.

But, in either aspect of the meaning of its terms, in this respect, it was not a compliance with the terms, on which alone one table was to be released. Those terms required the payment of $300. The defendants were not bound to release the table, and did not release it.

And again. The defendants were not bound to release one table, unless, nor until, $300 was paid. If the receipt given on the 14th of January, could be construed as an agreement to release one table from the mortgage, there was no consideration to uphold it. What was paid, ($275,) was due to the defendants, and its payment was no sufficient consideration for an agreement, on their part, to relinquish any security they held for the payment of the balance. ' In this aspect, then, to hold the receipt to mean any thing more than “received on account of,” or “towards,” one table, (which, in the light of the original agreement, and all the facts, it may well mean,) would be so construing it, as to modify the original contract to the defendants’ prejudice; and that, too, without any consideration paid to them therefor.

It may be, that if the $300 had been paid, and the instrument of the 29th of August be so construed, that such payment would, per se, entitle Dean & Finnegan absolutely to have one of the tables released, it was the duty, as well as the right, of the defendants, to say’which of the tables should be discharged; and that their foreclosing, and themselves purchasing and taking possession of the four tables, would not prejudice the rights of Dean & Finnegan to have such designation made. If so, then the demand made by the plaintiff on the 8th of September, 1856, may, perhaps, be deemed to require them to make a designation; and their unqualified refusal to deliver one table, may be taken as a denial of the plaintiff’s right, and subject them to an action for its value.

But, under the views above expressed, the four tables continued mortgaged up to the time the defendants sold them, as absolutely and effectively as on the day the mortgage was executed; and, by the foreclosure of the mortgage, and the sale under it, the title of the defendants, as purchasers at such sale, became absolute, and the complaint was rightly dismissed.

Judgment affirmed.  