Jones against The Phoenix Bank and others, 8 N.Y. 228

Johnson, J. The only question presented to us in this case, relates to the right of the plaintiff to recover under the offer of a reward made by the defendants. They offer a reward of $5000, for the apprehension of Henry Saunders, Jr., and the recovery of the money, or a proportionate amount for any part thereof.

It is contended on the part of the plaintiff, that the last clause of the offer “ a proportionate amount for any part thereof,” may be disconnected from the clauses which precede it so as to entitle the party who recovered a portion of the money to a proportionate part of the reward, even though the apprehension of Saunders was not accomplished. • If this be so, then the necessary construction of the preceding part of the offer is that if Saunders be apprehended, and the whole of the money be recovered, $5000 is to be paid, but if the whole money'should be recovered without the apprehension of Saunders, no part of the reward would be earned while for the recovery of only part of the money, a proportionate part of the reward would be due.

I think this absurd result shows that the construction contended for can not be correct. The natural and obvious construction of" the offer is, that that the apprehension of the offender coupled either with a complete or partial recovery of the money, entitles the party to the whole or a part of the reward according to the amount of the money recovered. But neither the apprehension of the offender alone, nor the recovery of the money or any part of it alone, comes within the terms of the offer. This offer is a little more definite than that in Thatcher v. England, (3 C.

B. 254.) To come within its terms, the party or parties plaintiff must be able to aver a compliance with them: that he or they did apprehend or procure or cause the apprehension of Saunders, and recover or procure or cause the recovery of the money or some part of it. This plaintiff' was not able to bring himself within these' terms, .and was therefore rightly nonsuited.

What the result might be with other parties united as plaintiff's, each having performed some part of the conditions, and all together having performed all the conditions of the offer, it will be time enough to consider when such a case is presented. The judgment must be affirmed with costs. Taggart, J. I think the reasons assigned for the nonsuit in this action were unsound. The defendants offer a reward of $5000 for the apprehension of Henry Saunders, Jr., and the recovery Of the money or a proportionate amount for any part thereof.

The counsel for the defendants moved for a nonsuit on the ground that the reward offered was for the arrest of Henry Saunders, Jr., and the recovery of the money; that is that the reward was not payable except upon the happening of both events. In other words, that the person who arrested or caused to be arrested the forger was not entitled to the reward, and the person by whom or by whose means the money was recovered was not entitled to the reward or any part thereof.

I have no doubt that the correct grammatical construe tion of the publication is in strict accordance with the grounds assumed on the motion for a nonsuit and the decision made on granting such motion; but is that the legal construction? How is the reward to be divided in case of the arrest of the forger and the recovery of part of the money?

What proportion will it bear to the whole amount: what does “ a proportionate amount” mean, what part of the reward is payable on the arrest of the forger, if any, it is not necessary to decide and it is equally unnecessary to determine what proportion of the reward the discoverer of half or the whole of the money is entitled to. I think the reward or some part of it is payable on the recovery of the money to the person or persons through whose instrumentality the same was recovered. H' I am right in this opinion the .reason assigned for the nonsuit was not a valid one.

But may not the decision of the judge be sustained on other grounds ? It appeared by the pleadings that the several claimants of the reward have submitted the matter of deciding who was entitled to the same to arbitration. The arbitrator awarded one thousand dollars to the plaintiff as his share of the offered rewárd The plaintiff at that time was an infant and did not and could not consent to the arbitration. Subsequent to the making the award by the arbitrator, a guardian was duly appointed for the plaintiff who received the amount awarded to him and applied it to the plaintiff’s use.

After the plaintiff arrived at the age of twenty-one years, he cited his guardian before the surrogate to settle the matter of his guardianship, and the receipt and disbursement of the thousand dollars awarded to him, and has had an accounting with his guardian of and concerning the f 1000, and under his bond and seal has released and discharged his guardian from all claims and demands against him as such guardian.

The plaintiff then after he arrived at full age acquiesced in and sanctioned the arbitration, received the proceeds of the award, and thereby debarred himself of the right to question either the submission or the award made under and in pursuance of it. If the plaintiff intended to insist upon the whole reward, as he has done in this action, he should have refused, after he became of age, to recognize in any way the award made by the arbitrator. It was his duty to decline the receipt of that money and insist upon Ms original claim. But he first received the $1000 with a mental reservation to present this claim.

Neither law nor equity will allow the plaintiff both remedies. If he takes the award he take sit in full, and as an absolute and unqualified discharge of any other claim. Had he refused the award, he might sue for the reward to which he was entitled, but he can not have both. ■ • His averment in the reply that the settlement with his guardian had no reference to the claim in this suit, nor was the same in any way released, discharged or affected thereby, was an averment of a legal conclusion against a previously admitted fact, and sucli conclusion being erroneous can not avail him.

The further answer that at the time of such settlement he had fully determined to proceed by due process of law against the defendants to recover the balance of the reward, is equally unavailable. Had he already proceeded to recover the balance instead of being determined to do so, and then settled with his guardian and received the $1000, such settlement and receipt might have been interposed as a bar to the further prosecution of the action, and a recovery, defeated thereby. The case' of Delano v. Blake (11 Wend. 85) is not so strong a case of positive affirmance of a proceeding as this.

In that case there was a mere acquiescence by neglect. The plaintiff received a note in part payment for his .labor. At the time he received the note he was an infant. He kept the note eight months after he became of age, and then tendered it back to the defendant and demanded payment for his work, the maker of the note having become insolvent. It was held that the retaining of the note by the infant after he became of age for that length of time, was a ratification of the contract, and he could not recover for his work.

In the case now under consideration"the plaintiff previously affirmed the submission to arbitration and the award made thereon. There, was something more than acquiescence. Judgment should, therefore, be affirmed on this ground. . My brethren think it should be affirmed on the first ground as well as this. All the other members of the court were of the opinion that the nonsuit was properly ordered for the reason contained in Judge Johnson’s opinion, and that the judgment should also be sustained for the reasons contained in Judge Taggárt’s opinion. Judgment affirmed.