49 N.Y. 623, Lindsley v. Ferguson

Citation:49 N.Y. 623
Party Name:IRA LINDSLEY, Respondent, v. DANIEL FERGUSON et al., Appellants.
Case Date:June 11, 1872
Court:New York Court of Appeals

Page 623

49 N.Y. 623

IRA LINDSLEY, Respondent,


DANIEL FERGUSON et al., Appellants.

New York Court of Appeal

June 11, 1872

Argued Jun. 3, 1872.


Samuel Hand for the appellants. The consent of Starbuck and Russel to the delivery of the note did not bind Ferguson. ( Blake v. Vanderhyden, 1 Paige, 385.) Plaintiff's right to notes depended upon the performance of the conditions. ( Grant v. Johnson, 1 Seld., 252-254; Dey v. Dey, 9 Wend., 134.) The note had no legal existence. ( Artcher v. Whalon, 1 Wend., 181.) Where note is delivered as an escrow and is fraudulently put in circulation, there can be no recovery thereon. ( Vallet v. Parker, 6 Wend., 620; Woodhull v Holmes, 10 J. R., 231; Cary v. Warren, 3 J. Cases, 260; Solomon

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v. Bank of England, 13 East., 134.)Even where note is delivered on condition, until performance a recovery thereon can be defeated. ( Seymour v. Cowing, 1 Keyes, 532-536; Miller v. Gamble, 4 Barb., 146.) This note was delivered as an escrow. ( Clark v. Gifford, 10 Wend., 310.)

Isaac Mott for the respondent. A party cannot affirm in part and rescind in part. ( Wheaton v. Baker, 14 Barb., 594; Lewis v. McMillen, 41 Id., 420; Tompkins v. Hyatt, 28 N.Y. 347.) Having retained the deed and possession after knowledge of the fraud, defendants cannot now allege it. ( Sweetman v. Prince et al, 26 N.Y. 224.) Nothing short of an eviction can be pleaded as a bar to the action. (Lamerson v. Marvin, 8 Barb., 9; Masson v. Bovet, 1 Den., 69; 41 Barb., 420.)


The legal conclusion of the judge, from the facts found by him, that the fraud practiced by Henry Lindsley, in procuring the delivery of the note in suit, did not constitute a bar to a recovery thereon, was correct. The substance of such facts was, that in July, 1867, Lindsley made a parol contract to sell to the defendants, Daniel Ferguson, Benjamin C. Starbuck and Joseph Russell, two hundred and ninety-two acres of land, and to convey the same to them by a warranty deed before the first day of January thereafter, for which they agreed to pay him eight thousand dollars, two thousand on the first day of August thereafter, and for the balance give him three promissory notes, payable at the times and for the several amounts specified in the agreement. That notes, including the one in suit, were executed and by agreement were placed...

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