Hale v. Hays

The court on the trial decided that the plaintiff was entitled to recover, on the ground that the clause in the agreement of March 11th, 1861, precluding Mrs. Earl from any right of redemption of the clothing, which is the subject of the action, was void, and instructed the jury to find a verdict in favor of the plaintiff for the value of the clothing. It is evident that the court regarded the agreement as establishing the relation of pledgor and pledgee, between Mrs. Earl and the defendant; that the clause of forfeiture therein was unconscionable, and therefore against public policy, and void. If such was the nature of this agreement, the rule of law applied by the court was correct. (Story’s Bailm. 345. 2 Kent’s Com. 583. See also Civil Code of 1865, Field, Noyes & Bradford, § 1592 : 27 Hoio. Fr. 267; 31 N. Y. Rep. 403.)

But we think the facts do not present the case of a pledge. It is of the essence of such a contract, that the thing should be delivered as a security for some debt or engagement. (Story’s Bailm. 300.) Giving to the agreement under consideration a reasonable interpretation, Mrs. Earl was under no liability or obligation to the defendant or to any other person to pay the taxes in question. There is nothing in the language of the agreement importing such liability or obligation. hior does the recital in it that the parties had agreed that the defendant should retain the clothing as security for the payment of the taxes, afford sufficient ground for an implication to that effect. We think it is more in accordance with the intention of the parties, as manifested by their acts and purposes, to regard this agreement as a modification of the original contract of sale, whereby the defendant agreed to take *580the real estate subject to the taxes, and pay therefor $650 worth less" of clothing, and gave to. Mrs. Bari the option or privilege of acquiring the benefit of the original bargain by paying the taxes within one month. Surely it would have been competent for Mrs. Earl and the defendant to have agreed originally, that the latter should pay one price for the property sold by the former, unincumbered by taxes, or another price, how. much less soever it might be, for the same property subject to the taxes. Such a contract would be free from all.legal'objection. If the vendor should be compelled, by. his inability to pay the taxes, to take the lesser price, it could not be said that he .had thereby been subjected by the vendor to a forfeiture of the greater. (See Brooks v. Avery, 4 Comst. 225.) It does not appear that the taxes in question were assessed against Mrs. Earl, or that she was in any manner liable for the payment thereof, unless such liability was incurred by the agreement of March 11th, 1861. In the absence.of such liability there was no engagement of Mrs.. Earl to which the clothing could attach as a pledge. It may be added that Mrs. Earl never acquired á title 'to the clothing in question. It was to become her property only upon her conveying the real, estate free from taxes. The acts of the defendant, which it is claimed prove a delivery of it to Mrs. Earl in pursuance of the original contract of sale, can have no legal effect by implication, beyond the legal rights of the parties.. As, therefore, Mrs. Earl was unable to perform this contract on her part, a modification of it became necessary. This was accomplished in the manner, and with the effect before suggested.' There was no pledge in fact, nor was any' intended, for' the simple reason that the property was not Mrs. Earl’s but the defendant’s. It follows, therefore, that the plaintiff ought to have been nonsuited.

Mew trial granted.

Seruglmn, Lott, J. B. Barnard and Gilbert, Justices:]