Ferry v. Meckert.

She is made a party to the suit as devisee, but not as executrix. By the answer put in by her and William and Sophie Steinbrenner, who are made defendants in respect of a lease of part of the premises given by Meckert to the latter, they admit the making of the bond and mortgage, and that they were intended to secure Akin and Ferry, and Ferry, for indebtedness to them for goods sold and to be sold and advances made and to be made by them, and that there is a large amount due on the bond and mortgage; and Mrs. Meckert admits that, after the dissolution of the firm of Akin and Ferry, Meckert dealt with Ferry on the security of the mortgage. The answer submits the question, whether, under the circumstances, Ferry can have a valid claim under the mortgage for indebtedness contracted with him. individually.

The defendants, the American Trust Company and Charles Muller (who allege that they are creditors of Meckert), by their answer deny that the mortgage is a security to Ferry for the indebtedness contracted with him alone.

The bond and mortgage and assignment to Ferry are proved. By the testimony of Ferry his claim to the security of the mortgage for the indebtedness contracted with him individually is fully established. But while Mrs. Meckert makes no objection to it, the defendants, the American Trust Company and Muller, insist that it is not competent evidence, because, as they contend, this suit is brought against Mrs. Meckert in a representative capacity. Aside from that testimony, however, it is proved by the testimony of Mr. Stoutenburgh, that Meckert admitted that "the money or merchandise received by him from Ferry was intended to be secured by the mortgage, and that the whole amount of the mortgage was due to the latter." Mr. Stoutenburgh was a lawyer, and was consulted by Ferry (Meckert and Ferry going together to his office for the purpose) as to the necessity or advisability of a new mortgage from Meckert fo Ferry, to obviate all question whether the debt which was contracted with Ferry alone after the

Banta v. Brown.

dissolution of the copartnership was a lien upon the mortgaged premises. He advised the execution of a new mortgage, and made preparations accordingly (a search of the title) for drawing one, and but for Meckert's death a new mortgage would have been given' on the mortgaged premises accordingly.

The answer of Mrs. Meckert and the Steinbrenners, as before stated, admits that the mortgage in suit was intended to secure the firm of Akin and Ferry, and Ferry individually; and Mrs. Meckert by it further admits that, after the dissolution, Meckert dealt with Ferry on the security of the mortgage. Ferry, under the circumstances, is entitled to recover under the mortgage his individual debt and the partnership debt to the amount together of the money. which the mortgage purports to be made to secure. Flanagan v. Westcott, 3 Stock. 264; Robinson v. Urquhart, 1 Beas. 515; Atwater v. Underhill, 7 C. E. Gr. 599.

There will be a decree in accordance with these views.

GEORGE BANTA

v.

BENJAMIN H. BROWN and wife.

A public sale was set aside, where, owing to a misunderstanding between the counsel of a mortgagor and the counsel of a bidder who would have offered $1,800 therefor, lands worth $2,500, were sold for about $1,400.

Bill to foreclose. Motion on behalf of mortgagor to set aside sheriff's sale. On petition and affidavits.

Mr. H. S. Drury, for petitioner.

Mr. J. W. Griggs, for purchaser.

Banta v. Brown.

THE CHANCELLOR.

The property brought, at the sheriff's sale, $1,040. It was sold subject to taxes and interest thereon to the amount of about $400. Mr. Drury swears that he considers it worth $4,000. The sheriff swears that it is not worth, under the most favorable circumstances, more than $2,500, and the under-sheriff that, under the most favorable circumstances, it would not bring more than that sum. It evidently brought not more than half its value. William D. Demarest was present at the sale, with his counsel, to buy the property. He would have bid for it $1,400, subject to the taxes. Through his counsel he bid $1,030, and ceased bidding because of the statement made to him by his counsel that the property would be bid up to $2,000 on account of the petitioner. His counsel gives the reason for that statement. He says that immediately before the sale he informed the complainant's solicitor that Demarest had made an arrangement with the complainant for the latter to take a mortgage on the property for the amount due on the decree under which the property was sold, if Demarest should become the purchaser at the sale; and that he told the solicitor that Demarest would buy the property, and thereupon the solicitor said that it would be of no use for Demarest to attempt to purchase, as there were present several persons in the interest of the petitioner who intended to buy the property for him, even though they might be compelled to bid it up to $2,000 to do so.

The complainant's solicitor denies that he said this, but says that he told Demarest's counsel that one Barney Sisco was there, and had told him that "if everything was all right he intended to buy the property in for the petitioner at the amount of the complainant's decree." Demarest's counsel (who swears positively) must then have misunderstood what was said to him. He acted in good faith, however, and appears to have acted on his understanding of the conversation in the advice which he gave Demarest, and on which the latter acted in ceasing to bid, as otherwise he

Grassman v. Bonn.

would not have done. It is proved that Demarest ceased bidding because he understood that the property was to be bought for the petitioner unless it should sell for more than $2,000, and his misunderstanding arose from what his counsel understood the complainant's solicitor to say. The petitioner's property was thus sold for about $400 less than Demarest would have bid for it. The purchaser is chargeable with no fraud or evil practice in the matter, but through the misapprehension of Demarest, arising from what his counsel testifies was said by the complainant's solicitor, she was enabled to obtain the property at a price at least $400 below the amount which it would otherwise have brought. This misapprehension is, under the circumstances, ground for setting aside the sale. Lefevre v. Laraway, 22 Barb. 167; Rorer on Jud. Sales §§ 406, 421.

Demarest swears that he considers the property cheap at $1,750, and that he is willing to bid, on a resale, $1,400, which, with the taxes, will make at least that sum. If he will give a sufficient undertaking to bid $1,400 for the property at the resale, the sale will be set aside on terms of paying to the purchaser interest on any money she may have paid to the sheriff on account of her purchase (which money is, of course, to be returned to her), and her costs of this application.

EDWARD GRASSMAN, assignee &c.,

V.

JOHN H. BONN and others, commissioners.

A contract for an extensive public work provided that the commis sioners might retain fifteen per cent. of the contract price and forfeit it if the contractor failed to finish the work. On his failure to do so, without the fault of the commissioners,-Held,

(1) That the entirety of such contract was not affected by the fact that payment for the work done was to be made in installments. (2) That it was not inequitable to enforce such forfeiture.

Grassman v. Bonn.

(3) That the subsequent completion of the work by the contractor's sureties to protect themselves from loss through his dereliction, was not a fulfillment of his obligation so as to save the forfeiture.

(4) That the commissioners, at the contractor's request, applied a part of such fifteen per cent. to pay debts due from him to materialmen and laborers on the work, gave his assignee, under an assignment for the benefit of creditors, no claim to the balance of the fifteen per cent.

(5) That even if the commissioners exceeded their powers in advancing money to the contractor before the work therefor had been actually done, that would not prevent their repaying such advances to themselves by retaining in their hands money due to him, under his express agreement.

Bill for account &c. On final hearing on bill and answer.

Mr. M. W. Niven and Mr. J. W. Vroom, for complainant.

Mr. R. Gilchrist, for defendants.

THE CHANCELLOR.

Thomas H. Niven and John A. Middleton entered into a contract, dated November 7th, 1874, with the defendants, who are the Bull's Ferry road commissioners, to do certain work (road and sewer construction) for them, finding the materials therefor; the price to be paid in monthly installments as the work progressed, and the installments to be based on monthly estimates made by the defendants' engineer, of eighty-five per cent. of the work done at the time. The like percentage was to be paid at the completion and acceptance of the work on the price of the work on which the percentage had not been paid, and of the remaining fifteen per cent., two-thirds were to be paid in six months, and the rest in twelve months, after the date of the final certificate of the engineer. The contractors entered upon the performance of the work, but discontinued it, while it was still unfinished, on the 19th of March, 1875. On the 31st of that month, Middleton assigned his interest in the contract to Niven, who entered into an agreement