(78 Hun, 387.)

#### AKIN v. MEEKER et al.

(Supreme Court, General Term, First Department.

May 18, 1894.)

Assignment or Contract—Validity—Delivery op Original Contract.

Where an agreement to assign contracts does not provide for a delivery of the original contracts to the assignee, such delivery is not essential, and a written assignment of the contracts, with copies annexed, is valid.

Appeal from circuit court, New York county.

Action by Albro Akin against Ezra M. Meeker and others for breach of contract. From a judgment entered on a verdict for plaintiff by direction of the court for $3,808.64, and from an order denying a motion for a new trial, defendants appeal.

Affirmed.

Argued before VAN BRUNT, P. J., and FOLLETT and PARKER, JJ.

Lawrence E. Sexton, for appellants.

John M. Bowers (L. G. Reed, of counsel), for respondent.

*133PARKER, J.

Defendants contracted with, the agents of plaintiff in the state of Washington that defendants would pay $2,800 for the assignment of nine contracts which plaintiff and A. J. Luce & Co. had entered into with nine different growers of hops in that state. Defendants obtained from seven of the nine growers the quantity of hops stipulated for, and netted nearly $15,000 out of the transaction. Two of the contracting hop growers refused to deliver their hops to defendants, but sold them elsewhere, and, as their action in that respect operated to prevent a further addition to the profits accruing to the defendants under their contract, it is made to serve as an excuse for this attempt to wrong the plaintiff out of substantially the entire sum which the defendants promised to pay.

The ground upon which the defendants base their claim to defeat a recovery by the plaintiff is that he failed to perform his agreement in that he did not “properly assign the entire interest” in the nine contracts. The contract recites that Akin (this plaintiff) has this day sold to E. M. Meeker & Co. (these defendants), at 16 cents per pound, “all my right, title, and interest in the following hop contracts for the hop year of 1890.” Then follows a list of the names of the persons with whom the contracts were made, together with a statement opposite each name of the number of pounds which the grower had contracted to sell and deliver. The contract continues : “And I further agree to properly assign the entire interest in the above contracts now in my possession to said E. M. Meeker & Co.” There were other provisions in the contract, but they need not be alluded to. Before this contract was executed, plaintiff’s agents explained fully to the defendants Meeker & Co. that the contracts were in Akin’s hands in New York; that they ran to Akin and A. J. Luce & Co.; that Luce & Co. had been enjoined at the suit of Akin, by the supreme court, from having anything ‘to do with the receipt of hops under the contracts during the year. The contract was drafted by the defendant Meeker, who did not insert in it a stipulation that the original contracts should be delivered to him, but contented himself with a provision that plaintiff sells all his right, title, and interest in the contract, and agrees to properly assign the entire interest therein to the defendants. As soon as Akin had learned of the making of the contract by his agents, he sent a copy of the contracts, each bearing a separate assignment, to his agents, Thompson & French, who in turn delivered them to the defendants. They made no objection at that time, because Akin had sent them copies instead of the original contracts. At the same time, growers’ advance notes, given to Akin for moneys advanced on account of the crops to the several hop growers with whom he had contracts, were turned over by the agents to the defendants, and they were also accepted and retained. Immediately after the receipt of the assignments and the copies of the contracts, together with the growers’ advance notes, defendants wrote to each of the hop growers, informing them that they had purchased his contract with Akin, and inquiring where he wished the advances due September 1st sent. All replied, except Simpson & White, whose contracts, taken together, called for about one-eighth of the entire *134quantity of hops. A few days later, defendants offered Simpson & White the advances called for in the contract, but both refused to receive them. It does not appear that Simpson or White challenged defendants’ title to the contract. They simply refused performance of their contract. Some time after that, defendants wrote plaintiff, asking him to send the originals of the contracts, at the same time informing him that they understood they were to have the originals placed in their hands. As soon as the letter reached the plaintiff in the city of New York, he telegraphed defendants that he had mailed to Thompson & French, his agents, the original contracts assigned. Defendants testified they did not see any of the originals until some time during the ensuing month of October, but do not say that they made any attempt either to see or obtain the originals in the mean time. Their conduct, as disclosed by their own version of it, creates the impression that for some reason they had concluded that it was not wise to have litigation with Simpson & White, because of their refusal to perform, and that, instead, they had concluded to attempt to make good whatever loss, if any, should result, out of the plaintiff, in a contest with whom they would have the advantage accruing from the possession of the sum which they had agreed to pay him for the contracts.

There was nothing in the contract between plaintiff and defendants providing that the original contracts with the hop growers should be delivered, but the instrument did assign the interest of the plaintiff, and stipulated to assign the entire interest. The mere failure to put defendants in possession of the original contracts, therefore, did not constitute a breach of the contract. The agreement between the agents of the plaintiff and defendants, followed by the assignment in writing of each of the several contracts, of which a copy was annexed to the assignment, operated as a valid assignment of Akin’s interest in the contracts. Horner v. Wood, 15 Barb. 371; Doremus v. Williams, 4 Hun, 458; Anderson v. Read, 106 N. Y. 333, 13 N. E. 292. Defendants complained on the trial that, after the original contracts arrived in the state of Washington, plaintiff’s agents, instead of delivering them over to defendants without question, attempted to secure for the plaintiff a sum of money, which was due him under the contract. The defendants successfully resisted this attempt of the plaintiff to secure his debt without litigation. Whether it would have been better for the plaintiff’s agents to have omitted that precaution is not now, and was not then, a matter of legal consequence. A delivery of the original contracts had not been contracted for, and was not essential to vest in the defendants the interest which plaintiff and A. J. Luce & Co. had in them. The defendants apparently had no occasion to make use of the originals, but, had they chosen to compel performance of the contracts of Simpson & White by action, and their title had been called in question, the production of the original contracts in evidence would have fully accomplished defendants’ purpose. It is quite apparent from the discussion already had that defendants’ suggestion that in some way damage resulted by reason of the failure of the plaintiff to de*135liver, in the first instance, the original contracts, is wholly without support in the evidence.

The proposition upon which defendants apparently place more reliance than those so far considered is that defendants were entitled to succeed because plaintiff failed to perform his agreement, in that he neglected "properly to assign the entire interest.” But we think the trial court rightly disposed of that question by its direction of a verdict in favor of the plaintiff, thereby necessarily holding that, defendants having accepted plaintiff’s tender of performance, the defendants were left to such rights and remedies as should accrue to them by virtue of any warranty, expressed or implied, in the contract, and that the only warranty, either expressed or implied, was one of title, touching the alleged breach of which defendants failed to make such proof as entitled them to redress. As to whether there was an acceptance of plaintiff’s performance, there was no dispute as to the facts. It was not controverted that the copy contracts, with assignments and growers’ notes for advances, were put in the possession of the defendants after the making of the contract in suit, and kept by them; that they used them, claiming under and by virtue of them to be the owners of the hops described in them; that they accepted and paid for the hops delivered under such copies and assignments, never having had in their possession the seven original contracts, any more than the two of Simpson & White; that, as to the Simpson & White contracts, they acted upon the assignments in the same way as with the others,— made tender to the growers under the assignments; consulted a lawyer how they should enforce them. These facts, being undisputed, show an acceptance by defendants of the performance tendered by plaintiff. The clause in the contract by which Akin agreed to properly assign the entire interest in the above contracts amounted to an express warranty of title, and, in order to defend against an action for the price of the things sold, defendants must show, in the absence of fraud, an eviction or its equivalent. Or, where the action is brought by a vendee against his vendor for an express or implied breach of warranty of title, there can only be a recovery where proof is made of actual loss. O’Brien v. Jones, 91 N. Y. 198. And, when the vendee relies upon the warranty of title, he must either return to the true owner the property in question, or be prepared to prove its loss under compulsory proceedings, or the payment of money through judgment obtained against him, or voluntarily, in answer to the claim made, and in that case he must also affirmatively establish that the claimant was the true owner, and that his vendor was without title. Case v. Hall, 24 Wend. 102; Bank v. Jarvis, 20 N. Y. 220; Burt v. Dewey, 40 N. Y. 283; McGriffin v. Baird, 62 N. Y. 329; O’Brien v. Jones, supra.

The alleged defect in the title is that A. J. Luce & Co. had an interest in the contracts, as well as the plaintiff, and that there was no assignment of an interest other than that of the plaintiff. The defendants did not return the contracts assigned to them by plaintiff, nor prove any loss by reason of compulsory proceedings on the part of A. J. Luce & Co., the payment of money through judgment ob*136tained by them against defendants, or even that A. J. Luce & Co. had made any claim against them whatever. On the trial, as appears from the record, it was shown that A. J. Luce & Co. and Alfred O. Luce were the same person; that from the 9th day of August, 1889, down to the 5th day of July, 1892, Luce was restrained by injunction order and by an interlocutory judgment, at suit of Akin, from demanding or receiving any of the hops covered by the contract which constitutes the basis of this action. By the final judgment determining the respective rights of Akin and Luce, the suit at bar was provided for in such a way that Luce cannot maintain any action against these defendants on account of the transaction which is the subject of this litigation. It is apparent, therefore, that the evidence failed to establish any right on the part of defendants to recover damages against the plaintiff by reason of the alleged breach of an expressed warranty of title. The judgment and order should be affirmed, with costs. All concur.