The New York herald. [volume] (New York [N.Y.]) 1840-1920, 1854-12-08
Supreme Court-C:eneral Term.

lie Roy rs. Lorber--The following opinion was de-
iivered by Judge Roosevelt at the last term of this
court Tho leading object Of this suit to
alleged mistake in certain agreement between Iowber
| and LIZ Roy, set forth in the complaint Iowber It
se oe'1rs me new code sued lie Roy for an aieyed
latter sought in that court and under the old system OF
practice to reform the agreement by Of defence
which, as the law then Stood not being allowed he
files an affirmative bal in equity for the purpose
praying also for temporary TO be followed the end
by perpetual injunction to stay all further proceed
ings at law in the action in the Superior Court The
controversy arises out Of the dissolution partner
ship iowber claiming that lie Roy, by the agreemS.
WAS 10 have paid certain debts that he left them unpaid
and thai he Iowber) was made to pay them and is
entitled as consequence to be reimbursed. Whereas
payment, although Lowber's by the original letter of
their agreement, was his Le Roy's by the Justice of the
nse and by the true ultimate understanding of the par
ties me articles OF dissolution In the form OF letters
one from lowber containing his proposition to lie Roy
and the Other from Ic Roy containing his answers TO
wber-and both dated 4th Of April Saturday ls4s
Without recitng all the terms Of settlement it is suf
hcen 10 say that under any Interpretation they
grossly unjust to L. Roy and himself being the judge
exceedingly liberal to L0wber. lie Roy, who had put
most ana taken out nothing was in general to
me debts taking the assets except such sppertaned
land that in sundres instead Of CASH. and already
drawn nearly as much he had advanced only
to be discharged from general liability but keep the
machinery and its arpurtenances for himself ssThis
using the language of Lowbers letter. to
take effect on Monday the 9Th inst when all books and
Roy should Ss nsD T.
ner, but had put in the specific sum OF SOS 600 The
concern had been IN operation about nine months and
lowbcr as he said deeply most deeply regre ted that
they should have made such losses in 30 early a stage
Of the partnership" He nevertheless from motives
bona 6de on the day and to the letter which
contained bis proposal appended postscript, apprisng
lie Roy that "the arrangement was upon the express
CONDITION that all amounts and above twenty thou
sand dollars which might be realized out Of the assets
&c were to be paid to him, Inwber" This certainly
pretty strong intimaton and coming from general to
SPECIAL partner. almost guaranteed assurance that
while he Lowber to lose nothiag the loss Of his
associate, under the proposed would and
should be limited to I've thousand dollars Even under
this assumption it was hard bargain, and one which
Lowber had no right to impose upon his goodna
friend Indeed he appears TO have become sensi-
BILE of this himself for the very day he writes another
letter to lie Roy in which he marks out for himself
the future, course Of labor and self denial until
have made up Jas he says my share of the losses Of
lowoer u Roy, 80 as 70 make good the twenty-five
instituted as may express it, Saturday the ath
was rot to take effectit win be recollected, until
Monday, the 9th. 1t was iuchoate, and expressly
agreed to be, during the interval Of the sabbath That
interval appears, the conscience of of the par
es sot being perfectly at ease Was devoted and in this
Wow very properly devoted to selfexaminaton: which
resulted in the discovery that great mistake and per-
haps great wrong had been committed, and in de.
caraon by IOwber that before the arrangement took
effect it should be rectifed aud rercssed The mistake
was one OF fact. The assets instead of being he
Lowbe had given Is Roy to and above
twenty thousand do liars" without the machinery
found after exhaustng large portion of the sabbath
in their detailed investigation at the highest valua
ton to be under and below fifteen Thousand, with the
machinery Here, then, while the matter still in
fei, before its cousumnation, was discovered undis
pn.ed error Of over $40 To rectfy it. required If
not reformation OF the party at least reform of the
agreement. The machinery IL obvious, consistent
ly with any decent regard to fairness honesty
ber and the stipulation that effect must be stricken
out or abandoned. Accordingly, the following day,
lie Roy's hands" schedule furnished on behalf Of
Lowber consulting Of twelve separate items Of property
on hand; and among them the machinery (mill and
cngine,) $500" lie Roy, it seems he owner Of
the premises. The delivery therefore, of Of the
articles accompanied BY the delivery Of the schedule
clearly, at the time intended SO to be- as well by Inv
Der as LIE Roy The opposite ground assumed by him
year afterwards was merely afterthou yht and al
to credit for honest amendment II cannot with,
out the grossest injustice Geprive lie Roy Of the
small modicum which Towber's previous repentance
afterwards repened off, bad actually conceded. The
agreement, II seems TO me- actually reformed by
the parties themselves in it, execution 1t "took ef
feet" not as originally written, but reformed. 1t
was either new agreement supersedng and incor-
porating in part only the letters Of the previous day
made wholly the day of the contamination and deli
vcry, it was the correction Of mistake OF fact 10
the pr sions agreement, and related back to the day
iis inc pton As substituted agreement IL was
admissible, although partly in paro and perfect
defence at law to the action in the Superior Court That
Court, however, viewed it in different light, and
cluded the evidence attempt TO vary the legal i'm
port OF written instrument by parol proof to re-
form contract on the ground Of mistake-which as
tue practice then stood could only be done by direct
bill in equity The decision, therefore, ced in effect
a. it Was the ground OF a want Of jurisdiction
adapted to the relief sought cannot be invoked
an eseppsi without manifest injustice. And the
whole merits of the case developed they have been
in the present sui the Judge at special term him
self Of the opinion, in which fully concur that Low
be after the discovery and acknowledgement OF his mis-
take had just claim to the machinery that he had
Individually and properly relnquishcd il to lie Roy aud
that in doing instead Of making gift, he had only
done what court Of equity would then have compelled
him 10 DO and what having done II voluntarily court
Of equity will compel him to ratify and not permit
him to recall Instead, therefore, Of Diminishing the
plaintiffs complaint decree should be entered declar
ing that the provision contained in the agreement Of dis
solution that Iowber should take the machinery and
its appurtenances founded in mistake, and should
be srickepout and the agreement reformed according
y and that Lowber he perpetuay enjoned from taking
any further steps in the action ri law referred TO in the
pesdnga and that he pay the costs OF this suit ncud
ing the costs OF the appeal
Judge Mitchell disscnted from This opinion remaining
oil the same opinion that expressed at special term,
Supreme Court.
Before Hon Judge Clcrkr.