Monteith v. Evans.

more than ten days have elapsed, and the contractor has not disputed the plaintiff's claim, or adjusted it, or put it to arbitration according to the statute, or paid the same.

The answer set forth that the plaintiff had not performed his contract with Thomas, he had been overpaid by Thomas, and owed the latter when the notice of lien was served. That the defendant, on the 4th of August, 1848, delivered the attested account and papers served on him to Thomas, who, on the 7th of August, agreed with the plaintiff to submit his claim to arbitration, according to the statute, but plaintiff failed to bring his arbitrator at the time appointed. Thomas again agreed with the plaintiff to arbitrate on the 8th of August, and the latter again failed to attend with his arbitrator.

At the trial before SANDFORD, J., in February, 1849, the defendant offered to prove that the plaintiff did not complete his contract with Thomas, that the payment claimed was not due from the latter, and that he owed Thomas, &c. This was objected to by the plaintiff's counsel, and excluded by the judge.

Thomas testified for the defendant, that he received the lien papers from the latter on the 4th of August, and on the 5th served him with a notice that he, the witness, intended to dispute the plaintiff's claim. On the 7th of August he agreed with the plaintiff to settle the matter by arbitrators, and fixed the place where they were to meet on the same day. Witness attended with his arbitrator, but the plaintiff did not attend. A like agreement and failure occurred on the 8th of August. On the 28th of August, a like agreement was made, and on the plaintiff's omitting to attend, the witness tendered to him a written agreement to arbitrate the matter, executed by himself, but the plaintiff would not sign it. All the prior agreements were verbal.

There was some evidence on the part of the plaintiff, contradictory of Thomas's statements, relative to the agreements to arbitrate, and the failures to comply by the plaintiff.

The judge charged the jury, that Thomas was bound, within ten days after he gave the defendant the notice that the plaintiff's claim was disputed, to adjust the matter either amicably

Monteith v. Evans.

or by arbitration with the plaintiff. That his first efforts to arbitrate, on the 7th and 8th of August, did not fulfil the requirements of the statute, because the agreement to arbitrate should be in writing, and he offered no written agreement to that effect.

That the plaintiff, however, could waive the statute limitation and arbitrate effectually after the ten days had elapsed. He thereupon left it to the jury to decide whether the plaintiff consented to arbitrate on the 28th of August, intending that it should have the same effect as if it had been agreed to within the ten days. If he did, and Thomas followed it up by tendering, within a reasonable time, the written agreement of that date to enter into arbitration, then the plaintiff could not recover. Otherwise their verdict must be for the plaintiff. The defendant excepted to the charge, and to the adverse rulings during the trial, and the verdict being for the plaintiff, appealed from the judgment to the general term.

J. Edgar, for the defendant.

J. B. Sheys, for the plaintiff.

BY THE COURT.(a)—As the plaintiff claimed to recover on the

(a) The illness of Sandford, J., to whom it was assigned to deliver the opinion of the court, prevented his drawing it up in form, and at the close of the June Term, the decision was announced in the brief manner here stated.

The provisions of the act of 1830, which came in question, are as follows:(Laws of 1830, p. 412.)

§ 1. Every mechanic, workman, or other person, doing or performing any work towards the erection, construction, or finishing of any building in the city of New York, erected under a contract in writing between the owner and builder, or other person, whether such work shall be performed as journeyman, laborer, cartmen, subcontractor, or otherwise, and whose demands for work and labor done and performed towards the erection of such buildings has not been paid and satisfied, may deliver to the owner of such building an attested account of the amount and value of the work and labor thus performed and remaining unpaid; and thereupon such owner shall retain, out of his subsequent payments to the contractor, the amount of such work and labor, for the benefit of the person so performing the same.

§ 2. Whenever any account of labor performed on a building erected under a contract, in writing, as aforesaid, shall be placed in the hands of the owner of such

Monteith v. Evans.

ground exclusively that Thomas, the contractor, had not agreed to arbitrate pursuant to the statute, the actual state of the accounts between him and Thomas, was of no importance. If the plaintiff proved that ground, the statute fixed the defendant's liability, without any regard to the actual indebtedness.

The only other question in the case is on the instruction to the jury, that the statute creating the lien required the agreement to arbitrate to be in writing. We think, on consideration, that this interpretation is correct. The contractor is to be the actor in the effort to adjust or arbitrate. This follows from his disputing the claim, of which the lien creditor is not otherwise informed, and from the necessity that one or the other shall be done within a limited time, at his peril. After failing to adjust amicably, he was to do all he could towards arbitrating; and he was to do it in such a mode as to protect the owner of the building in paying the contract price to him, in case the plaintiff asserting the lien should not unite in the arbitration. A verbal offer to arbitrate is not such a protection. We think the statute never intended that the right of the lien creditor on the one hand, of the contractor on the other, and of the owner, uncertain to whom he owed the obligation, should depend upon the recollection of an

building, or his authorized agent, it shall be the duty of such owner or agent to furnish his contractor with a copy of such papers, in order that if there shall be any disagreement between such contractor and his creditor, they may, by amicable adjustment between themselves, or by arbitration, ascertain the true sum due; and if the contractor shall not, within ten days after the receipt of such papers, give the owner written notice that he intends to dispute the claim; or if, in ten days after giving such notice, he shall refuse or neglect to have the matter adjusted as aforesaid, he shall be considered as assenting to the demand, and the owner shall pay the same when it becomes due.

§ 3. If any such contractor shall dispute the claim of his journeymen, or other persons, for work and labor performed as aforesaid, and if the matter cannot be adjusted amicably between themselves, it shall be submitted, on the agreement of the parties, to the arbitrament of three disinterested persons, one to be chosen by each of the parties, and one by the two thus chosen; and the decision in writing, of such three persons, or any two of them, shall be final and conclusive in the case submitted.

The fourth section gives to the lien creditor an action against the owner, on the contractor failing to pay the amount ascertained, &c. The act of 1832 extended the lien to materials furnished and used in erecting buildings,

Randall v. Parker.

offer so liable to be either misunderstood, imperfectly remembered, or designedly perverted. Every other thing required is to be in writing; the account, the claim, copies thereof, the notices, and the award. We suppose the omission to express that the agreement should be in writing, was either because it was deemed to follow from the requirements just alluded to, or because the revised statutes already provided for written arbitrations. However that may be, we think a sound construction of the act requires that the contractor shall tender to the lien creditor, a written agreement to submit the matter to arbitration, if he dispute the claim and it cannot be amicably adjusted. Judgment at the special term affirmed.

RANDALL v. PARKER.

An actual change of possession of goods sold, in the statute of frauds, means an open, visible, and public change, manifested by such outward signs as render it evident that the possession of the owner, as such, has wholly ceased.

The change must be such as to exclude the hazard of the seller's deriving a false credit from the continuance of his apparent ownership.

The party asserting the validity of a sale of goods, where there has been no actual and continued change of possession, must prove affirmatively that the sale was made in good faith, and without any intent to defraud creditors or purchasers; and he must prove both of these propositions.

If no such evidence be given, the law pronounces the conclusion of fraud, and the question of intent is not to be submitted to the jury.

The question of fraudulent intent, which by the statute is made a question of fact, is to be submitted to the jury in the same manner as other questions of fact; that is, when affirmative proof is given on the side of the party claiming to rebut such intent.

Good faith is proved by showing a valuable, and as the parties believed, adequate consideration, and that the sale was really intended to operate as a valid transfer of ownership; but where this is shown, the party must prove in addition, the absence of a fraudulent intent, by facts or circumstances sufficient to rebut the presumption arising from the seller's remaining in possession.

The decisions of the late Supreme Court, in Collins v. Brush, 9 Wend. 198; Doane v. Eddy, 16 Ibid. 523, and Randall v. Cook, 17 Ibid. 56; approved. They have not been overruled by the subsequent cases in the court for the correction of

errors.

(Before DUER, MASON, and CAMPBELL, J.J.) June 16; July 14, 1849.

Randall v. Parker.

MOTION for a new trial, in an action of replevin, brought by Isaac Randall against the defendant, for taking certain goods as a deputy-sheriff, on an execution. The facts are stated in the opinion of the court. The judge, at the trial, submitted to the jury whether there was an actual and continued possession of the goods alleged to have been sold to the plaintiff; and if there were not, whether the sale was made in good faith and without any intent to defraud creditors. He instructed the jury that if there were no such change of possession, it was conclusive evidence of fraud, unless both of those things were proved on the part of the plaintiff. The charge is further noticed in the decision. The plaintiff excepted to the judge's charge and to his refusal to charge certain propositions submitted to him. The jury found a verdict for the defendant. The cause was afterwards transferred from the supreme court to this court, pursuant to the act of 1849.

W. Watson, for the plaintiff.

J. M. Smith, Jr., and H. H. Burlock, for the defendant.

DUER, J., delivered the opinion of the court :-This is an action of replevin, in which the plaintiff seeks to recover certain goods, articles of household furniture, which had been levied upon by the defendant, as a deputy sheriff, under an execution against Theodore Randall, the son of the plaintiff. That the son was the original owner of the goods, and apparently retained the possession when the levy was made, is not denied; but it is alleged that the plaintiff became the owner by virtue of a bill of sale, executed and delivered to him by his son, on the 12th of May, 1845. The consideration expressed in the bill of sale is $1100, in hand paid. It is not pretended, however, that any cash was then paid, but the son, who was examined as a witness, swore that the true consideration of the sale was the sum of $1100, moneys borrowed from his father in 1845 and 6; for $700 of which sum he had given promissory notes, which he produced upon the trial. There was no evidence, however, that those notes were surrendered to him when the bill of