Hawkins v. Brown."

way of remainder or reversion. I did not suppose that the absolute owner in fee could be guilty of waste upon his own. land. But suppose the pleader did not use the term in the sense the law uses it, but intended simply to allege that the defendant promised not to cut timber, &c. and that he intended his action to be an action upon the promise or contract to recover damages for the breach; what then? I will not spend time in endeavoring to show that no such action, under the circumstances of this case, could be maintained. All the agreement between the parties, and all the representations, were made before the deed was executed and the mortgage given, and the statute says that the remedies of the mortgagee shall be confined to the land, &c. The allegations of a promise not to commit waste, and of fraudulent representations, were not the gravamen of the action. They were irrelevant, and would have been stricken out on motion.

The complaint was properly dismissed, and the judgment should be affirmed.

Judgment affirmed.

[ERIE GENERAL TERM, November 28, 1859. Greene, Marvin and Davis, Justices.]

HAWKINS VS. BROWN & JEFFERY.

Prior to June 23, 1855, the plaintiff and defendants were partners, in the business of manufacturing machines, at Corning, in this state. On that day they agreed to dissolve the partnership; the defendants to give up to the plaintiff certain notes held by the former against him, for $3000, and to give him a shingle machine, and also to construct for him an engine and bill of machinery, which the plaintiff was to set up and run until, from one half the net earnings thereof, to be received by the defendants, they were fully paid for such machinery, less the sum of $300, which was to be deducted from the price. The defendants manufactured the engine and machinery, but on demand by the plaintiff, refused to deliver the same, on the ground

'Hawkins v. Brown.

that the plaintiff had purchased a lot of land in Pennsylvania, on which he proposed to erect the said machinery; that for the purchase money thereof, $1541, he had confessed judgments which had been duly docketed, so as to become liens upon the land; that by the law of Pennsylvania the erection of this machinery upon the premises would make such machinery a part of the realty, so that the judgments would attach to the same as liens, and a sale of the land would pass title to such machinery to the purchaser. Held, 1. That the plaintiff could not recover of the defendants for the price of the shingle machine, in the absence of any proof of a previous demand and refusal of delivery.

2. That in respect to the engine and machinery, if the law of Pennsylvania were as claimed by the defendants, the plaintiff had no right to require the delivery of that property in order that he might turn it over to pay, or secure, a precedent debt, in fraud of the defendants' claim for the purchase money.

3. That the defendants being, by the express terms of the contract, authorized to retain the title to the machinery until the purchase money was paid, they were not bound to relinquish their title to the property, or to allow the property to be sent out of the state, whereby they would be deprived of the same, or their lien upon it.

4. That evidence to show that the law of Pennsylvania was as claimed by the defendants, was admissible, and ought to have been received. JOHNSON, J., dissented.

THE plaintiff and defendants, being partners, under the

name of Brown, Jeffery and Co., on the 23d of June, 1855, made an agreement in writing, by which the latter agreed to purchase of the former his interest in the partnership property and business, and pay him, for the same, certain notes which the said Brown, Jeffery & Co. held against him for $3000, he paying the interest thereon; and further agreed to give the plaintiff a shingle mill in good condition for business, and also to manufacture and construct a bill of machinery, engine, &c. which the plaintiff was to set up and run, the defendants to have one half the net earnings thereof till the whole bill should be paid, less $300 to be deducted from the bill, when the plaintiff should have paid for the same, except the said sum of $300, when the defendants were to give a title to the machinery, and upon which payment they were to deduct the said $300 from their regular price of the same, and the plaintiff, in consideration of the premises, agreed to sell all his

Hawkins v. Brown..

interest in the business of Brown, Jeffery & Co.; and it was also understood and agreed that the machinery, except the shingle machine, should belong to the defendants till a full performance of the agreement by the plaintiff. The price and capacity of the engine and machinery was fixed by the agreement. This action was brought for a breach of the agreement. The alleged breach consists in the refusal of the defendants to manufacture and construct the engine and machinery, and to allow the plaintiff to set up and run the same; and the plaintiff claimed, by way of damages for the breach, the $300, which, by the agreement, was to be deducted from the bill of machinery upon payment therefor, the expense incurred by the plaintiff in making the necessary preparation to set up and run the machinery, and the price of the shingle machine which he did not want, and declined to take without the other machinery. The defense, as set up in the answer and by the evidence on the trial, consisted of, 1. A general denial. 2. Allegations of performance as respects the notes and the shingle machine. 3. Breach of the contract by the plaintiff in refusing to set up and run the machinery in the state of New York, or elsewhere than in the state of Pennsylvania, and upon premises which he does not own, or which are incumbered to their full value, and his refusal to give the defendants security against the probable loss of the machinery, by reason of his not having a free and unincumbered title to the premises on which he proposed to set up and run the machinery. 4. An offer on the part of the defendants to allow the plaintiff to set up and run the machinery at any place in the state of New York or elsewhere on premises to which the plaintiff has a title, or which is not incumbered to an amount which will jeopard the title of the defendants, and the refusal of the plaintiff to accept such offer.

Upon the trial, after the plaintiff had gone through with his case and rested, the defendants offered to prove a conveyance by one Devlin to the plaintiff of the land at Lockhaven, in the state of Pennsylvania, on which the plaintiff proposed

Hawkins v. Brown.

to set up and run the machinery; that the plaintiff, to secure the purchase money, gave Devlin judgment notes on which judgment, had been entered, and which were a lien on said land; and that by the law of that state, placing the machinery on the said land would subject the same to the lien of the judgment, and the same would pass to the purchaser under a sale upon the judgment. To the exclusion of this evidence by the court, on objection on the part of the plaintiff, the defendants excepted. The defendants having given evidence on their part in answer to the plaintiff's case, and rested, the court charged the jury that if the defendants were guilty of a breach of the agreement and the plaintiff had offered to perform, the latter was entitled to recover by way of damages the amount expended by him in preparing to set up the machinery, amounting to $746.67, deducting $400, which he had realized out of that sum, together with the $300 which by the terms of the contract was to be deducted from the bill of machinery, and the value of the shingle machine, proved at $200. The court also charged the jury that the contract for the machinery and the shingle machine was entire, and the plaintiff was not bound to accept the latter without the former. The defendants excepted to so much of the charge as related to the allowance by way of damages of the $300 which was to be deducted from the price of the machinery; also to so much of the charge as related to the allowance of the $200 as the value of the shingle machine; also to that part of the charge by which the jury were instructed that the contract was entire, and the plaintiff was not bound to accept the shingle machine without the other machinery; also to the refusal of the court to charge that as to the shingle machine the contract was performed.

The jury found a verdict in favor of the plaintiff for $846.67, and from the judgment entered thereon the defendants appealed.

Hawkins v. Brown.

Wm. Irvine, for the appellants.

Geo. T. Spencer, for the plaintiff.

E. DARWIN SMITH, J. From the agreement given in evidence on the trial it appears that, previously to June 23d, 1855, the plaintiff and defendants were partners in business, engaged in manufacturing machines, at Corning, in this state. On that day they agreed to dissolve the partnership, the defendants to give up to the plaintiff certain notes held by the firm against him, for $3000, and to give him a shingle machine, and also to manufacture and construct for him an engine and bill of machinery, which the plaintiff was to set up and run until, from one half the net. earnings thereof to be received by the defendants, they were fully paid for such machinery, less the sum of $300, which was to be deducted from the price, according to the regular rates of work at the shop of the company. No time being fixed for the delivery of these notes, the true construction of the contract would require them to be delivered simultaneously with, or immediately upon, the execution of the contract, and they were doubtless so delivered. The contract was thereby, at that time, so far executed as that the partnership between the parties then became and was, ipso facto, dissolved. So far as related to the delivery of the engine and machinery the contract was necessarily executory, for such machinery and engine were thereafter to be constructed. But the dissolution of the partnership was clearly not suspended till such machinery and engine were constructed and delivered, and did not depend upon the fulfillment by the plaintiff of this part of the contract. It was the obvious intent of the parties that such partnership should be dissolved in fact immediately. The shingle machine was also to be delivered immediately, and its delivery could have been instantly required by the plaintiff; and such delivery was in no way connected with the delivery of the engine and ma