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Chambovet v. Cagney

35 N.Y. Super. Ct. 474 3 Jones & S. 474 Court N.Y. Super. Ct. Decision date 1873-04-07 English

Contents

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LOUIS CHAMBOVET and ELIZA CHAMBOVET, Plaintiffs and Respondents, v. JAMES CAGNEY, Defendant and Appellant.

Headnote

I. Parties to Action.
1. Plaintiffs, two or more—motion to dismiss as to all, on the ground that one only has an interest properly denied.
1. Application. a. Husband and Wife.
On the trial of an action brought by husband and wife for the unlawful taking by the defendant of certain personal property, it being proved that the property had been bought with money earned by the wife’s labor, and money contributed by the husband, defendant moved for a dismislal of the complaint as to both, on the ground that the wife had no interest in the property or the cause of action, Held that the motion was properly denied.
II. Opinion of Witnesses as to Value.—Evidence.
1. Before a witness can be allowed to testify to an opinion as to the value of an article, a foundation must be laid by showing him to be competent to form an opinion from a peculiar knowledge of the article and its value.
1. To allow a witness under objection to testify to his opinion before such foundation has been laid (if the defect is not subsequently cured) is error. a. Sufficiency of proof.
1. Where the only evidence to lay the foundation was that the witness had purchased some of the articles in question, held on appeal to be insufficient.
p. 475
HX Instrument pleaded in Defence, or read in Evidence on the
Trial, under a General Denial, as the Foundation of or in Support of a Defence in an Action at Law.—Plaintiffs’ Bight as
to attacking it.—Evidence.
1. Plaintiff "may show that the instrument was not made by him, or was obtained from him by fraud, or that the particular clause contained therein relied on was inserted fraudulently.
It is not necessary that he should bring am, action for its reformation or cancellation.
IV. Husband and Wife.
1. Tenants in common in personal property.
1. Semble—They may be tenants in common in such property.
2. Pa/rtners.
Semble—They cannot be partners.
Before Barbourb, Ch. J., Curtis and Sedgwick, JJ.
Decided April 7, 1873.
Appeal from judgment and order denying motion for a new trial.
The complaint among other things alleged that the plaintiffs were engaged in the business of keeping a boarding and lodging house, in which business they used certain personal property belonging to them ; that the defendant wrongfully took, carried away, and converted to his own use the said personal property.
The answer put in issue these allegations of the complaint and the value of the property. It further said that the plaintiffs had been the lessees and the defendant the lessor of a certain house, at a monthly rent, payable in advance, from the middle of July, 1868, to May 1st, 1889 ; that to secure the due payment of the rent, the plaintiff gave to the defendant a mortgage upon personal property, which they in the mortgage covenanted should be placed in the house rented, “and should not be removed therefrom without the consent of said defendant, and should the plaintiff remove the same or any part thereof, without such consent, that then in that case the whole of the rent of said West Houston
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Street premises up to May 1st, 1869, should at once be and become due and payable ” by the plaintiff to the defendant ; that about September 29th, 1868, the plaintiff did remove from the house referred to the mortgaged property ; that thereupon the defendant took under the mortgage, as he was entitled to, the property and sold the same for the rent, up to May 1st, 1869, which had by the removal fallen due and payable, and that such acts formed the conversion complained of.
On the trial it appeared that the plaintiffs were man and wife ; that the latter had earned money by her labor, that with such money and other money contributed by him, household furniture was bought, which they used in the business of keeping a boarding-house, conducted together by them. It did not appear whether any part of the property set out in the complaint had been bought with the earnings of the business.
On the trial, Louis Chambovet, one of the plaintiffs, was sworn and testified on behalf of plaintiff. On his. direct examination the following questions were put, answers returned, objections raised, rulings made, and exceptions taken.
Q. Did you purchase any of the furniture for the purpose of beginning your business?
A. Yes.
Q. Did you buy any other furniture to put into the house in Houston Street ?
A. After I moved in Houston Street I bought some more furniture, which I put in the house in Houston Street.
Q. What was the value—or what was the amount you paid for the furniture you had in Wooster Street ?
(Question objected to, on the ground that the witness was not shown to be an expert, or that he had any knowledge of the value. The court overruled the objection, and the defendant excepted.)
A. I could not buy them for less than $3,000.
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(Defendant’s counsel objected to the answer. The court allowed the answer to stand, and the defendant excepted.)
Q. How much did you pay for the furniture you bought in Houston Street %
A. There are the bills for it; I don’t remember the amount I paid.
Q. (Bills shown.) Look at those bills and then tell me, if you can, how much you paid for the furniture you bought when in Houston Street ?
(Defendant’s counsel objects to the bills being shown. Overruled, and exception by defendant.)
A. Pretty near $300, I think ; I didn’t count exactly.
At the conclusion of the testimony on both sides, defendant’s counsel moved to dismiss the complaint for the following reasons among others, to wit:
First. Because a partnership cannot exist between husband and wife, they being one person in law, and cannot contract with each other.
Second. Because all the personal property of the wife at common law belonged to the husband, and the enabling statutes have not changed that law, in so far as regards property acquired in the manner set forth in the pleadings.
Third. Because a married woman, having no legal existence apart from her husband, cannot hold personal property jointly with her husband.
Fourth. Because the statutes of 1845,1848,1849,1860, ■or 1862 do not confer such right.
Fifth. Because, even if husband and wife are capable of holding property, in a sense, jointly, they hold by entireties, and not as joint tenants or as tenants in common. And there is no such thing as tenancy by entire-ties in personal property.
The court denied the motion, and defendant’s counsel •excepted.
The jury rendered a verdict for plaintiffs, and assessed
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their damages at $2,030. Defendant then moved for a new trial on the judge’s minutes, which motion was denied.
Judgment was thereafter entered on the verdict, and also an order denying the motions for a new trial.
From the judgment and order, defendant appeals.
Elias J. Beach, attorney, and of counsel for appellant,
urged:
It is a well-known principle of the common law that “husband and wife” are regarded as one person (Co. Litt. 112a 187b; Litt. secs. 168-291; 1 Blackst.Com. 441; 2 Kent. Com (11th ed., Comstock's), 113 Bright on Husband and Wife, 2).
In consequence of this unity, neither could make a contract with or a grant to the other (Shepherd v. Shepherd, 7 Johns. Ch. 90 ; Voorhees v. Pres. Church, 17 Barb. 104 -105; White v. Wager, 25 N. Y. 329 ; McQueen on Husband and Wife, 18).
All the personal property of the wife—such as money, goods and chattels, and movables—belong absolutely to the husband at common law, and he can dispose of them at pleasure ; and on his death they go to his representative, as being entirely his property (2 Kent, 11th ed. 129).
Married women are, by the common law, incapable of forming a partnership (2 Kent Com., sec. 28, pp. 54 to 64; Story on Partnership, ch. 2, § 10, p. 13; Collyer on Partnership, § 15, p. 11).
The enabling statutes have not changed the principle of the common law, as stated in the foregoing point (Laws, 1845, chap. 11, p. 11; Laws, 1848; Laws, 1849; Laws, 1868, chap. 200, p. 307; Laws, 1860; Laws, 1862).
The titles of these acts state that they were intended “ more effectually to protect the property of married “women
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The intention, was to prevent the husband from dissipating or squandering the same, either by disposing of it or by contracting debts for the payment of which the wife’s property would be liable.
It will be observed that the legislature has been very careful, in all of the enabling acts, to declare that the husband shall have no control whatever over his wife’ s property. But once permit a partnership in personal property between husband and wife, and the whole object and intention of the legislature is defeated.
Aside from this, however, nowhere, in any of those acts, has the principle of the common law, as stated in the first point, been changed. That principle remains unchanged, and is still the law of this State.
The decisions all recognize the existence of this principle of the common law. A few of those decisions are cited below (By the court, Hogeboom, J., in Longendyke v. Longendyke, 44 Barb. 366 ; Perkins v. Perkins, 62 Barb. 531 ; Draper v. Stouvenel, 35 N. Y. 507 -512; Goelet v. Gori, 31 Barb. 314 ; Farmers and Mechanics Bank v. Gregory, 49 Barb. 162 ).
The law of Mew Jersey as to the property of married women (N. J. Digest, 466) is substantially the same as that of this State. In Mew Jersey it has been decided that where a business is carried on by husband and wife in co-operation, the fruits of the wife’s labor and skill belong to the husband alone, and are not her separate property within the terms of the act for the better securing the property of married women (1869, National Bank of the Metropolis v. Sprague, N. J. (Eq. C. E. Gr.), 13.
It has been shown, beyond the shade of a doubt, that husband and wife can only hold property by entirety and not jointly, or as tenants in common.1 And as there is no entirety in personal property, it is very clear that the plaintiffs did not, and could not, own the property, either jointly or as tenants in common, or by entirety.
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Neither could they as partners. Who ever heard of husband and wife being partners ?
At common law she could not even become the partner of a third party, far less that of her husband (Collyer on Partnership, § 15, p. 11, and authorities cited under sub. div. 3 of the first point).
In Indiana it has been expressly decided that a wife cannot be partner of her husband, and that she cannot bind herself as a partner (1869, Montgomery v. Sprankle, 31 Ind. 113 ).
1 ‘ Husband and wife' cannot be partners. The “law of 1860 does not relate to earnings and profits “made by a woman in a business in which she is united with her husband” (The Accounting in Terrence Boyle’s Estate, 1 Tucker's Reps .).
It is only by express words, or a necessary implication, that a legislative enactment can operate as a repeal or alteration of the common law (Bowen v. Lease, 5 Hill, 221 ; Berly v. Rampacher, 5 Duer, 183 ).
As to the Exceptions.
The exception to this question put to Louis Chambovet, one of the plaintiffs: Q. “ What was the value, or “ what was the amount you paid for the furniture you “ had in Wooster Street? ” was well taken.
This alternative question was allowed to be answered, although not one scintilla of evidence had been given to show that the witness knew anything about the value of furniture.
The exception to the ruling of the court, permitting evidence to be given of the conversations and negotiations which resulted in the execution of the lease, ivas well taken.
It is a well-settled rule of law, that all verbal negotiations which culminate in a written agreement, are presumed to be merged and embraced in the written document, and that neither party to the agreement can insist
p. 481
that the contract is other than what the writing expresses.
Parol evidence of what took place previous to the execution and delivery of the lease in question was, therefore, improperly allowed by the Judge (Rowley v. The Empire Ins. Co., 36 N. Y. 550 ; Benedict v. The Ocean Ins. Co. 31 N. Y. 389 ; Buckley v. Benson, 48 Barb. 283 ; Plumb v. The Cattaraugus Ins. Co., 18 N. Y. 392 ; Brown v. The same, 18 N. Y. 385 ; Sarsfield v. Metropolitan Ins. Co., 42 Stow. 101).
In this last case, Johnson, J., in delivering the opinions of the court, said that the cases of Plumb and Brown, above cited, “ distinctly hold that parol evi- “ dence of what was said between the agent and the as- “ sur ed, at the time the contract was entered into, could 11 not be given by the insured on the trial to change the “contract, even when he had been misled by representations on the other side, unintentionally, into making “ a warrantee which was not true.”
Gray & Davenport, attorneys, and of counsel for respondents,
urged:—1. The husband and wife were properly joined as plaintiffs in this action; and defendant’ s motion for a dismissal of the complaint, and for a nonsuit, on the grounds stated, were properly denied.
(a.) The Code provides in § 117, that “all persons having an interest in the subject-matter of the action, and in obtaining- the relief demanded, may be joined as plaintiffs, except as otherwise provided in this title,’’ i.e., Title III. of Part I. And it is “provided in said title,” in § 114, that “where a married y ornan is a party, her husband must be joined with her, except that when the action concerns her separate property she may sue alone.”
This latter provision (§ 114) considered in the light of the laws of 1860 and 1862, concerning married women, is interpreted by the Court of Appeals to mean that the
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husband is not a proper 'party Jure mariti, in an action by the wife concerning her separate property alone (Palmer v. Davis, 28 N. Y. 242 ).
Bnt if a married woman’s separate property consists of an undivided share in property, of which another, not her husband, owns the other undivided share, that other part-owner, whether tenant in common or joint-tenant, must be joined with the married woman, as co-plaintiff in order to fulfil the requisitions of § 117.
And if it appear that the statutes of 1860 and 1862 permit a wife’s separate property to consist of an undivided share in chattels of which her husband owns the remaining undivided share, and if it further appear that the evidence in this case supports such a relation between the present husband and wife, then they were necessarily joined as plaintiffs, to fulfil the requisitions of § 117, and are not prevented from being so joined by the words of § 114.
(5.) If husband and wife can be tenants of undivided share's of the same personal property, these plaintiffs appear by the evidence to have been such tenants of the property converted, and to have been tenants in common, and in an action for such conversion they must have been joined as co-plaintiffs (2 Black. Com. 399; Rice v. Hollenbeck, 19 Barb. 664 ; Putnam v. Wise, 1 Hill, 234 ; Hill v. Gibbs, 5 Hill, 56 ).
The joint purchase of the chattels in question by the plaintiffs, with their separate earnings, did not result either in a joint tenancy or a partnership as to those chattels, but, as before claimed, in a tenancy in common (2 Kent’s Com. *350; Jackson v. Robinson, 3 Mason’s Rep. 138 at p. 141; Collyer on Partnership, ed. 1839, § 8, note a, §§ 10, 11, 12; Story on Partnership, § 80).
But whether the ownership was that of joint tenants, or tenants in common, is immaterial. In either case plaintiffs are tenants of undivided shares of the same
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property, and must be joined as co-plaintiffs in a suit for the conversion of the property.
(c.) Husband and wife may be either tenants in common or joint tenants of personal property, under the enabling statutes of our State, concerning married women (Laws of 1848 and 1849, III., Rev. Stat, 5th ed., 239 to 241; Law of 1860 and 1862, IV., Id. 696 to 698; Law of 1867, vol. ii. p. 1927, chap. 782; Sheldon v. Clancy, 61 Barb. 475 ; Savage v. O’Neil, 44 N. Y. 298 ).
As to tenants in common, Blackstone says :
“Tenants in common are such as hold by several and distinct titles, but by unity of possession” (2 Black. Com. 191); and as to joint tenants, Lord Coke, after quoting the language of Bracton, that joint tenants hold per my et per tout, says, “And albeit, they are so seized, yet to divers purposes each of them hath but a right to a moiety, as to enfeoff, give or demise, or to forfeit” (Co. Litt. 186, a).
(d.) In relation to property acquired by the wife, as in the case at bar, the husband and wife are no longer one in law, but the wife has a separate existence, apart from her husband. This does away with the theory on which depended the common-law rule, that the husband and wife could not own chattels jointly, and that their joint ownership in real estate was by entireties.
Blackstone says: “ A sixth method of acquiring property in goods and chattels is by marriage. * * * This depends entirely on the notion of a unity of person between the husband and wife, it being held that they are one person in law, so that the very being and existence of the woman is suspended during the coverture, or entirely merged or incorporated in that of the husband” (2 Black. Com. 433). And of real property he says: “If an estate in fee be given to a man and his wife, they are neither properly joint tenants, nor tenants in common, for husband and wife, being considered as one person in law, they cannot take the estate by
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moieties, but both are seized of the entirety, per tout, et non per my” (Id. 182).
This unity of the husband and wife, on which the common-law rule “depends entirely,” has been abrogated by statute and by decisions (Laws of 1848, 1849, 1860, 1862, and 1867). Surely, all this amounts to a complete severance of the unity of husband and wife as to property.
And by the decisions, it is settled that a married woman can hold an undivided share in real estate as her sole and separate property as co-tenant with her husband and that she can maintain an action for its partition in the same manner as if she were a feme sole, and against her husband (Moore v. Moore, 47 New Yor k Rep. 467, Feb. 1872).
And the wife’s unity with her husband is equally severed in regard to personal property (Knapp v. Smith, 27 New York Rep. 277; Ainsley v. Mead, 3 Lansing Rep. 116; Sheldon v. Clancy, 61 Barb. 475 ; Savage v. O’Neill, 44 New York Rep. 298; Minier v. Minier, 4 Lansing, 421. See also Foster v. Conger, 61 Barb. 145 ; Young v. Gori, 13 Abb. Pr. 13 , note; Lockwood v. Cullin, 4 Robertson, 129).
It appearing, then, both by statute and decision, that the husband and wife are no longer “one in law,” the rule that they cannot be joint owners of chattels, is without reason or foundation, and is abrogated.
(e.) In questions of property, the wife can occupy the same relation toward her husband as she can toward any one else (Buckley v. Wells, 33 New York, 518).
II. Joinder of a party plaintiff who has not a cause of action, with a party plaintiff who has, is no ground of nonsuit as against the proper and necessary party; and a motion to dismiss, or for a nonsuit, as against both, will be denied. If the goods converted in this action were the property of the husband alone, defendant’s proper motion was to dismiss as to the wife. jNo such
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motion was made, and the motion that was made was properly overruled (Palmer v. Davis, 28 New York, 242).
Or if the wife was an unnecessary party, the court could have stricken her name from the proceedings in the action, under section 173 of the Code. This can be done before or after judgment, and can be now done, and the judgment allowed to stand in favor of Louis Chambovet (Ackley v. Tarbox, 31 New York, 564).
III. The testimony of the plaintiff, Louis Chambovet, as to the value of the property wrongfully converted by the defendant, was admissible.
He was the purchaser and owner, and acquainted with the condition of the chattels seized, and his was some evidence of value, and with any other on the subject of value, went properly to the jury to be weighed by them.
IV. “The ordinary, and in general the only legal, course is to lay such facts before the jury as have a bearing on the question of damages, and leave them to fix the amount. They are the only proper judges. * * *” (Opinion of the court by Cowew, J., in Norman v. Wells, 17 Wend. 136 , 161; see Harper v. Leal, 10 How. Pr. 276 ; Smith v. Hill, 22 Barb. 656 ; Merrill v. Grinnell, 30 N. Y. 594 , 613).

The question ably argued for the appellant, as to whether a man and wife can be partners in business, comes up only incidentally on this appeal. The plaintiff’s position is that they were so severally interested in the personal property alleged to have been converted, that they had a right to sue jointly for its conversion. The defendant maintains that because the plaintiffs were husband and wife the law does not permit them to make a partnership for business purposes. Upon that, in connection with the facts of the case, it is further maintained that upon the

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wife putting into the'business, done jointly by herself and her husband, her own earnings, which were used with her husband’s money to buy furniture for the purposes of the business, such furniture became the sole property of the husband, and that a right of action for the conversion of that belonged to him only, and not to him and her jointly.

It would not, however, follow from the invalidity of an attempt of a man and wife to form a business co-partnership, that both or either should lose their rights of property in what they contributed. The money used by each was solely his or hers, and when money owned by both was turned into other property, they held the same interests in that property that they had had in the money. There is nothing to forbid the sole and separate property of each being an undivided interest. If the undivided interest of one subsists in a chattel in Which the other has an undivided interest, there does not seem to be any reason for thinking that their inter- • ests coalesced. If they did, it might be a puzzling matter to decide to whom the whole belonged. Equity, at the suit of either, will set apart the respective interests in case there should be any necessity of resorting to the courts (Moore v. Moore, 47 N. Y. R. p. 467).

I do not think that the counsel for appellant is right in his position, that if personal property is sold to a man and his wife together, that they may not hold the relation of tenants in common of it. Personal property may be held jointly or in common, like real estate (Williams’ Personal Property, 3d Am. ed. p. 379 and p. 387). There is nothing to prevent such rights being created, if such be the convention of the parties. In equity, husband and wife are not one in such sense that they may not make a binding agreement between themselves as to the separate property of each. In Livingston v. Livingston, 2 J. Ch. p. 539, it was held that a husband and wife may in equity contract for a boná-fide and valuable consideration for a transfer of property from him to her. If

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they can agree at all, it will not make any difference whether the agreement relates to real property or to personal property, or whether it is an express or an implied agreement.

It is not a consequence of this that a husband and wife have capacity to make the legal contract of a business copartnership. The law has made such rules in respect of the relations of man and wife, that it would be inconsistent with those that they should become partners in business.

There is no doubt that the various acts for the protection of a married woman’s property have left her, in many respects, as the common law placed her, under the control and in the power of her husband. Judge Andrews said in Rowe v. Smith, 45 N. Y. p. 233, that these acts left unaffected the liability of the husband for the strictly personal torts of the wife, and that this liability proceeded upon the theory that the marriage subjected the wife to the dominion and control of the husband (Baum v. Mullen, 47 N. Y. R. p. 579). Such a dominion and control cannot be exercised by one partner in business over another, without a change of those legal relations which have formed the important characteristic of a partnership. In case a wife has a separate property, although domestic circumstances may keep her home, or she may be kept there by the lawful exercise of a husband’s power over her in a proper contingency, he will not have power to dispose of that property. If they were business partners he might legally keep her home and legally dispose of the partnership property at the place of business. I do not believe that the legislature contemplated such an incongruity of rights and duties which accompany the formation of business partnerships between husband and wife.

Married women have been clothed with many power,s which are ordinarily used by persons in becoming co-partners. The power to enter into business with the

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husband is not expressly given, nor is it necessarily implied in the power to enjoy to the fullest extent the rights that are given. The eighth section of the act of March 20, 1860, says “ that no bargain or contract entered into by any married woman, in or about the carrying on of any trade or business, under any statute of this State, shall be binding upon her husband, or render him or his property in any way liable therefor.” There may be no doubt that this would not absolve the husband from the obligation of a contract he helped to make, or in any way authorized to be made ; but it seems almost impossible that such a provision should not suggest some enactment as to the consequences of a partnership between man and wife, if the statute makers had meant to allow them to form one.

It is not necessary to definitely decide this here. We have seen that the plaintiffs’ claim was that they were so interested as owners in the property that they had a right to sue jointly. If the argument of the appellant’ s counsel is correct, the husband was sole owner. The motion to dismiss the complaint was made as tó both plaintiffs, not as to each. Under Palmer v. Davis, 28 N. Y. R. p. 242, and Ackley v. Tarbox, 31 N. Y. R. p. 564, an objection might have been taken on demurrer or by answer that no cause of action existed in favor of either of the plaintiffs severally, or on the trial that it so appeared by the evidence, and in such case the action might have been dismissed as to such one. Judgment is to be given in favor of that one of the several plaintiffs (Code, § 274) in whom there appears to be a cause of action (Calkins v. Smith, 48 N. Y. R. p. 614). The position cannot be maintained on the facts here, that neither of the plaintiffs had any cause of action. The objection must be taken in the right form at the right time. After judgment it is immaterial to the defendant that one more plaintiff appears as owner than the facts warranted. The defendant is not harmed by that.

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The next exception was to the admission of a question in respect of the value of the property. One of the plaintiffs, Louis Chambovet, was asked, when he was a witness in his own behalf, “ What was the value or what was the amount you paid for the furniture you had in Wooster Street?” An objection was taken “thatthe witness was not shown to be an expert, or that he had any knowledge of the value. ’ ’ The court overruling the objection, the witness answered “thathe could not buy them for less than $3,000.” The answer was also objected to, but allowed to stand, and exceptions were made. Here the opinion of the witness was asked for by the question and given by the answer. The answer did not speak to the fact of what the witness had paid, or had known to be paid, for the property. The rule is, that a witness, to be permitted to testify to an opinion as to value, must be shown affirmatively to be competent to form an opinion from a peculiar knowledge of the article and its value (Turpenning v. The Corn Exchange Ins. Co., 43 N. Y. R. p. 282; Clark v. Baird, 8 N. Y. R. p. 183). In this case there was no fact tending to show that the witness was competent to express his opinion as to value. I think there was error in allowing the question to be asked and the answer to it to stand.

Against the objection of the defendant, the plaintiffs were allowed to give evidence as to what was said and done between them, and the defendant as to the chattel mortgage before it was made. The objection was that all the negotiations and dealings between the parties in reference to the mortgage were merged in it when it was executed and delivered, and that as long as it had not been cancelled or reformed in a competent legal proceeding, it stood as the only evidence of the contract. The admissibility of the evidence was supported on the ground that it would appear from it, that the real agreement of the parties did not provide that there

p. 490
should be a covenant in the mortgage, that in case of a removal of the mortgaged property, the rent for the unpaid term should then become due and payable, and that the plaintiffs being illiterate and ignorant, were fraudulently induced by the defendant to sign the mortgage with such a provision, they not knowing that it had been inserted.

I think there could be no hesitation as to what the rule is, if this case were such that the mortgagee had brought an action at law on the mortgage, he setting it out in his complaint with the disputed clause, and the mortgagors had answered that they had never made said mortgage. In such case (1 Chitty Pl., 12th Am. ed. p. 483; 1 Smith's Lead. C., pp. 629 and 635; Van Valkenburgh v. Rouk, 13 Johns, p. 337; Dale v. Roosevelt, 9 Cow. p. 310), the evidence could be given that the particular averment had been fraudulently inserted by the mortgagor : “ that a different instrument was substituted instead of the one the defendant supposed he was executing.” í£If a deed be misread or misrepresented to an unlettered man, this may be shown on non est factum, because he had never assented to the contract. So if a man be imposed upon and signs one paper while he believes he is signing another, he cannot be said to have assented, and may show this on non est factum."

The rule is applicable here. The defendant had set up the mortgage in a part of his answer, which averred a counter-claim, and referred to it in other parts of his answer, as set out in the counter-claim. The counterclaim as such was overruled on demurrer. There is a doubt, and yet probably enough was left of the answer to show that the defendant meant to plead affirmatively a justification in taking the property under the mortgage. If this was so, as the plaintiff could not voluntarily put in a reply (§ 153), he must be supposed without pleading to put in issue all that was issuable in the answer, or if the defendant gave the mortgage in ey i

p. 491
dence under the mere general issue made "by the answer, the plaintiff clearly had the same right to contest the validity of the mortgage, that they would have had if it were the subject of a formal issue. I think the evidence was properly admitted.

There were other exceptions taken as to admissions of testimony and the charge of the learned judge. There can be so little contest as to the correctness of his views, that it is not worth while to justify them here.

The testimony given by the plaintiffs themselves was the greater part of all that was given on the subject of the value of the property. That given by the husband has been stated. The wife’s testimony as to value, although admissible, because no objection was taken to her competency to speak on that subject, was not of a satisfactory kind. The jury found a verdict of §3,030. From the charge of the judge I am convinced that the jury gave a weight to the plaintiffs’ testimony that he did not expect. As the testimony as to value given by Louis Ghambovet was material, there should be a new trial, with costs to appellant to abide event.

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