[EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] *Page 317
[EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] *Page 318 1st. The motion to dismiss the complaint was not well taken. The defendant's counsel, to sustain his motion, relies upon the charter of the city of Brooklyn, which requires the premises to be assessed to the owner or occupant, and on authorities holding that an error or omission so to assess renders the assessment invalid. (Whitney v. Thomas, 23 N.Y., 281; Crooke v.Andrews, 40 N.Y., 547.) The persons to whom the premises were assessed were the owners in common until 1854. The commissioners to make the assessment were appointed in January, 1853. It does not appear that the persons assessed were not the owners when the commissioners made their investigation for the purpose of ascertaining who were the owners or occupants. Such investigation might have been made at any time after the commissioners were appointed. It cannot be necessary for them to follow the changes made in the title during the whole period that they were engaged in making the assessment. This objection is but a suggestion that damages might, perhaps, not have been sustained in consequence of the apparent lien. The reply might also be made that the plaintiff ought not to be subjected to the hazard and expense of litigating this question. The defendant did not prove that the commissioners were notified of any change in the ownership after their appointment. There is no evidence that the defendant notified the plaintiff that any objection to the validity of the assessment existed before he had paid it and discharged the lien, nor that he had made any offer to prosecute an action, or bear the expense of one, for the purpose of procuring a judgment declaring the invalidity of the lien. There is no suggestion of such a defence in the answer, and it appears to have been advanced at the trial for the first time. The defendant should have given the plaintiff seasonable notice that such an objection to the validity of the assessment existed, or have made an offer to be at the expense *Page 320 of prosecuting an action for the removal of the lien, before he demanded to have this objection considered as a defence to the plaintiff's claim.
2d. The counsel for the defendant urges that the judge submitted to the jury, in substance, whether the defendant employed Lawrence to make the search for assessments, without any evidence upon which an affirmative finding could be sustained.
The evidence was undisputed that the plaintiff was wholly unacquainted with Lawrence, and had no communication with him before the defendant returned the order, with the certificates of search for both taxes and assessments attached; also that the defendant received from the plaintiff payment for both searches, and an additional fee for expedition. It was also in evidence that the defendant paid to Lawrence $1.50 out of the sum which he had received from the plaintiff. It is true, the defendant, to preclude the inference of his employment of Lawrence, testified that he did not employ him. It would not be an improper inquiry for the jury, on this evidence, to ascertain whether the defendant employed Lawrence. Such evidence might be thought to prove an employment, and to justify a submission of the inquiry. I am, however, unable to perceive that the inquiry was, in fact, submitted at all.
The judge stated that it had been argued for the plaintiff that it made no difference whether Mix made both of these searches or not; that if he employed any one to do it for him, he is responsible; and the judge then told the jury that they were at liberty to look at it in their own way, from the facts and the evidence. This is the only approach to submitting such a question as the defendant assumes. The judge apparently submits the argument of the plaintiff to the consideration of the jury, rather than any question of the employment of another to make the search. He had previously instructed them that they must be satisfied that the defendant had undertaken or agreed to make the searches both for taxes and assessments. If, as the counsel for the *Page 321 defendant assumes, the judge also submitted the inquiry as to the employment of Lawrence, it was qualified by the prior instruction that they must be satisfied that the defendant had contracted to search for assessments as well as taxes, and was proper, under the testimony above referred to. The true inquiry was, what the defendant contracted to do. This question was distinctly contained in the instructions given. If the jury found that the defendant contracted to search for assessments as well as taxes, it was of no consequence whether he employed Lawrence, or accepted and used as his own a search made and certified by Lawrence voluntarily and without employment. The evidence was uncontradicted that Lawrence was not employed by the plaintiff.
3d. The defendant's counsel again excepts to the charge, claiming that the judge submitted to the jury to find whether the certificate purported to certify to the search for assessments. I do not so understand the meaning of the language used by the judge. If the defendant's counsel is correct in his construction, the inquiry was favorable to his cause rather than adverse.
The plaintiff was entitled to have the jury informed that it made no difference who certified to the search for assessments, if the defendant contracted to make that search, and delivered the return in question in performance of his contract. If the jury were allowed to decide the question as to what was the meaning of the return, or what the defendant purported to certify, it was an error adverse to the rights of the plaintiff, and gave the defendant an additional chance, of which he cannot be heard to complain. The meaning intended to be conveyed by the paragraph to which the exception refers, although not as lucid as it should be, is, as I understand it, whether the search for assessments, certified as it was by another, instead of the party employed, was used or delivered by the defendant as a part performance of his contract with the plaintiff. The return clearly purported to search for assessments as well as taxes, and a return as to both was made and delivered to the plaintiff; but the return *Page 322 to the search for assessments was not signed by the defendant, and it so appeared on the face of the paper, and the plaintiff must have seen it. The defendant, too, must have seen it; and the inquiry was, did he use and deliver it in such a way as to purport to be in performance of his contract with the plaintiff. If, however, the defendant is correct in the meaning which he assumes, it gives him no valid exception.
4th. The defendant's counsel insists that the plaintiff has sustained no damages, inasmuch as he has not proven that he cannot collect the amount of the assessment paid by him on the covenants of Lichtenstein's deed. The proposition referred to on the points is the last of the charge, viz.: "If the plaintiff is entitled to recover, he will be entitled to the amount of the assessment and the interest from the time the money was paid." Nothing has been urged against the rule asserted as to interest.
The defendant's counsel refers to several cases which hold that an agent is responsible only for the actual damages sustained by his principal. He assumes, however, that the burden of proof rests upon the plaintiff to prove that his remedy on the covenants of the deed was not available. The cases cited by him are to the contrary effect. (Allen v. Suydam, 20 Wend., 321;Blot v. Boiceau, 3 Comst., 78; Walrod v. Ball, 9 Barb., 271.) The case of Allen v. Suydam was an action for negligence in presenting a draft for acceptance. It appeared that the bill would not have been accepted if it had been presented in season, and that the drawer had failed, and probably would not have paid it, had it been protested in due season. The judge instructed the jury that the amount of the draft was, primafacie, the measure of damages. The Court of Errors held that this was error; that the jury should have been told to find only such damages as they believed from the evidence probable that the plaintiff might have sustained from the neglect to present the draft in due season. (Page 330). The case of Blot v. Boiceau presents the same principle. The plaintiff consigned merchandise to the defendants *Page 323 for sale, and limited him as to the price at which he should sell. Having proved these facts, the plaintiff rested his case. The defendants offered to prove that the value of the articles was obtained, and that they could not have been sold at a higher price up to the time of the trial. This evidence was excluded. On appeal this was held erroneous; that it was competent for the factor to show that the goods were worth no more, down to the time of the trial, than the price at which they were sold; that,prima facie, the invoice price was the actual value, and if no other evidence had been offered the plaintiff should have recovered according to his claim. (Page 84.) The other case ofWalrod v. Ball is to the same effect. The defendant, who undertook to collect a written obligation for the plaintiff, said, when he received it, that he presumed the maker was good. Held, that was prima facie evidence that the maker was good for the whole amount, and that the defendant was liable for negligence in not attempting to collect; that the onus was on the defendant to show it, if the maker was insolvent, as that was his excuse for neglecting to prosecute. If the cases cited by the defendant are analogous at all, they fail to maintain his position. There was no evidence that the remedy against Lichtenstein on the covenants of his deed was available. It was the duty of the defendant to prove that the plaintiff had sustained no damages, or that he had another sufficient remedy to which he ought to resort, before he could claim a verdict on that ground. The exception does not point directly to the ground now urged. The judge may have supposed, from the exception to the portion of his charge containing two propositions, as to the measure of damages (the principal sum paid and the interest), that counsel objected to the rule as to interest. The exception should state specifically the grounds upon which it rests, unless it is distinctly and readily apparent from the subject referred to. Although defectively taken in this respect, the exception is bad on the merits.
There is no fault in the charge, which is open to objection on the part of the defendant. *Page 324
5th. The request for instructions to the jury, which the judge refused to give, it is now insisted was correct, because the defendant, if liable at all, is liable for not searching for assessments as he had agreed to do, instead of searching negligently, as he is charged by the complaint. The argument proceeds upon the theory that the defendant searched for taxes only, admitting that he agreed also to search for assessments, but did not do so, thus making an entire breach of his contract on the latter branch.
This subject has already been considered under the exceptions to the charge. There was sufficient evidence to submit to the jury whether the defendant meant that the plaintiff should rely upon the search for assessments which he delivered to him, and accept it as his performance of the contract, although actually purporting on its face to have been made by a person other than the defendant. If he did, he was clearly responsible for whatever negligence had occurred, as if he had personally made the search. The request was untenable.
The judgment should be affirmed, with costs.
All concur for affirmance, except LOTT, Ch. C., not sitting.
Judgment affirmed, with costs.