[EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] *Page 198 There is but one cause of action stated in this complaint, and so the exception grounded upon the idea that there were two — one upon contract and the other for a tort — and, therefore, the plaintiffs should have been compelled to *Page 200 elect upon which they would stand, is not well taken. That one cause of action was not merely for the conversion of plaintiffs' money, but for something more than that, of which the conversion was only an element or detail. The complaint, in connection with the proof under it, showed that the plaintiffs and defendant were tenants in common of certain real estate, the revenue from which came in the form of rents, and to three-quarters of which the plaintiffs were annually entitled; that the property was subject to accruing charges for taxes and water rents, payable to the city of New York, within whose corporate boundaries it was situated; that the plaintiffs jointly constituted the defendant their agent to collect and receive the rents accruing which belonged to them and pay over the share to which they were entitled; that he further agreed, as such agent, and in virtue of his own interest in the rents, to pay out of them all the annual taxes and water rents and so protect the property from sale; that for these services he was to receive a commission at first of three per cent and afterward of five, which was regularly allowed and paid to him; that, notwithstanding, he willfully neglected and refused to perform the stipulated duty, in that he did not pay the taxes and water rents, but, falsely representing that he had done so, converted to his own use the money of the plaintiffs set apart for that purpose and agreed to be so appropriated, and neglected and refused to apply his own proportion of such rents to the discharge of his share of such incumbrances. The cause of action thus pleaded and proved rested upon a contract relation taking the place of the tenancy in common and superseding the ordinary rights and duties flowing from that relation; and the gist of the action is for a breach of that contract and to recover damages for such breach; of which damages the conversion and misappropriation of the fund set apart for taxes and water rents was both the occasion and the evidence. The appellant so contends and we shall certainly do him no injustice if we thus accept his view of the cause of action as founded, not upon the mere conversion of the plaintiffs' money, but upon a breach of the defendant's duty under his express contract. *Page 201 Such a contract was lawful and valid. The plaintiffs' interest to be protected extended to the entire payment of the whole taxes and water rents and not merely to such proportion as was equitably their debt, since the land was bound for the complete payment and their property could be taken for any unpaid portion. By their agreement, as the action of the defendant for many years indicated, he was to hold so much of the gross rents as was needed for the annual charges as a fund for their payment, and pay over plaintiffs' share of the remainder. His agreement bound him to appropriate his own proportion of the fund reserved to the discharge of the taxes quite as much as the plaintiffs' proportion, and when he failed to do so he inflicted a double injury; for he not only converted and misappropriated the plaintiffs' money confided to him for a special purpose, but he left the taxes and water rents entirely unpaid and accumulating at high rates of interest until the property was advertised for sale and the foreclosure of an outstanding mortgage begun by reason of the default; and he did this deceitfully and fraudulently, falsely lulling his employers into security. There was thus established a valid contract, upon a good and sufficient consideration fully and regularly paid, and a breach of that contract.
The remaining question is one of damages. The plaintiffs were entitled to recover all such as flowed naturally and proximately from the breach, and were not limited to the bare amount of their share of the rents misappropriated, with the lawful interest upon it. Such a recovery would not recompense their loss, or restore them to the condition which would have resulted from performance. Two other sources of injury remain. The defendant's neglect has caused the taxes and water rents to accumulate interest at a special rate greater than that ordinarily allowed by law; and the plaintiffs' interest in the lands is exposed to a liability for the whole amount of the unpaid taxes and to the costs and peril of a foreclosure. They were thus clearly entitled to recover more than their misappropriated share and interest. How much more it is not necessary in this case to consider, for no exception exposes to *Page 202 our review the amount of damages, or the principles upon which that amount was determined. At the close of the case there was a request by the defendant that the court should direct a verdict in his favor, which was refused and he excepted, and then the court directed the jury to render a verdict for the plaintiffs for $2,948.48, to which direction the defendant again excepted. Neither party requested the submission of any question of fact to the jury, and the defendant in no manner raised the question of the amount of damages for which he was liable. That question was for the first time suggested on appeal. It came too late. We may infer from the exact correspondence of the amount of the verdict ordered with the result of the plaintiff's computation put in evidence, that the court awarded as damages the full amount of unpaid taxes and water rents with seven per cent interest, upon the ground that, by the misconduct of defendant, their land was left liable for that amount; but if so, the correctness of that view was in no manner challenged, and seems to have been adopted with the tacit acquiescence of both parties on the trial. The attention of the court was in no respect drawn to the question, and no ruling was sought upon it. The final exception was general and to the right of the plaintiffs to have a verdict at all, and wholly failed to raise the specific question of its correct amount. While, therefore, it may well be that a grave question of damages might have been presented, it is not here and requires no ultimate determination.
The appellant claims that there was a defect of parties plaintiff; that plaintiff Brittania Wakeman had no interest, her father, the plaintiff Herman Wakeman, being entitled to the one-fourth as tenant by the curtesy. The court must have found, and might have done so from the proof, that the contract was made with all the plaintiffs jointly, and that Brittania had an interest in securing the payment of taxes and water rents by reason of her ownership in remainder, and so was a proper party plaintiff.
We find no error in the record, and the judgment should be affirmed, with costs. *Page 203
RAPALLO, EARL and DANFORTH, JJ., concur; RUGER, Ch. J., dissents; ANDREWS and MILLER, JJ., not voting.
Judgment affirmed.