author:
Wright, J.
      Balcom, J.,

text:
    Kenyon v. The People.
    Under the act to punish seduction as a crime (ch. 111 of 1848) it is sufficient that the defendant effected his object by a conditional promise that, if the girl would permit his illicit connection, he would marry her.
    The submitting to his embraces upon this proposition is, it seems, a promise to marry on her part.
    Evidence of general reputation of the girl’s want of chastity is inadmissible. Previous chaste character, in this statute, means actual personal virtue—not reputation; and can be impeached only by specific proof of lewdness.

      The corroboration of the seduced female, required by the statute, relates to the promise and the intercourse: it is not necessary in respect to her chastity or to her being unmarried.
    The evidence of the seduced female is admissible.that the promise of marriage was the inducement to the illicit intercourse.
    .It is unnecessary that the promise should be a valid one, or that the defendant be of full age. It is sufficient that he has arrived at the age of puberty.
    The prisoner was convicted at the Yates Court of Sessions, con an indictment for seducing and having illicit connection with Mary.......,■ under promise of marriage.
    The prosecutrix testified that, previous to the time the prisoner had sexual intercourse with her, he said to her if she would have sexual intercourse with him he would marry ■ her; that she consented after he had stated this, but did not say to him whether she would marry him before he had sexual intercourse with her; that he had visited her as a suitor from time to time, more than a year prior to the time he made the statements as to marrying her.
    The district attorney put this question to her, viz.: “ What influence did this promise of his to marry you have upon your mind by way of inducing you to consent to have sexual intercourse with him ?” She answered under the defendant’s objection and exception, “I thought he was going to have me, and nobody would know it.” She also testified, under objection and exception, that she had never had sexual intercourse with any person except the prisoner, and was the mother of a child by the prisoner. She further testified that she had never been married, and never had received the addresses of any person as a suitor except the prisoner! The mother of the prosecutrix testified in corroboration as to former chastity, age, being unmarried, &e.
    Mo evidence was given as to the age of the prisoner, and his counsel insisted that before he could be convicted, the district attorney should prove he was-twenty-one years of age at the time of the seduction.
    There was evidence, other than that of the prosecutrix showing that the prisoner visited her alone evenings in her mother’s parlor, from time to time, before .and at the time she probably became pregnant.
    The prisoner offered to prove that the character of the prosecutrix for chastity, was, by general reputation among her neighbors, bad; which offer was objected to. The court excluded the evidence, and the prisoner’s counsel excepted.
    The prisoner offered to prove that from general reputation among the neighbors, where the mother of the prosecutrix resided and kept house, and with whom the prosecutrix lived, the house kept by the mother, was a house of ill-fame. The evidence was excluded, and the prisoner’s counsel excepted.
    The prisoner’s counsel first made a motion to quash the indictment, and afterwards that the court direct the jury to acquit the prisoner, on the grounds, among others: That there was no allegation in the indictment, or proof, of mutual promises by the prosecutrix and the prisoner, to marry each other prior to the time of the seduction; that there was no allegation in the indictment, or proof, that the prisoner was unmarried; that the promise of the prisoner to marry the prosecutrix, was a conditional one. These motions were denied, and the prisoner’s counsel excepted.
    The court charged the jury, among other things, as follows: If you shall be fully satisfied from the evidence, that the pri- ' soner promised to marry the prosecutrix, if she would have carnal connection with him, and she believing in such promise and intending on her part to accept such offer of marriage, did have such carnal connection, it is a sufficient promise of marriage under the statute, to which portion of the charge the prisoner’s counsel excepted.
    In other words, the judge continued: If the prisoner promised to marry the proseóutrix if she would submit to have carnal and illicit intercourse with him, and she believing such promise to have been made in good faith, and on her part intending to accept such offer of marriage, then yielded, we say that such a promise is sufficient to bring the prosecutrix within the protection of the statute: to which portion of the charge the prisoner’s counsel excepted.

      The judge further said: We advise and instruct you that in respect to the prosecutrix being an unmarried female, she needs no corroboration. The prosecutrix has testified to her chastity, and if entitled to credit, this is sufficient, and she need not be corroborated as to chastity. The prisoner’s counsel excepted to. the above portion of the charge and every part thereof.
    The court submitted the question td' the jury whether the prosecutrix was entitled to be believed as a witness in the case.
    The court charged that Mrs........testified that the.prisoner was frequently at her house, and that he and the prosecutrix occupied the parlor and were frequently alone; that she put them in a position where an act of seduction could be done, and that the jury would say what inference they would draw from the testimony, and whether it corroborated the prosecutrix on the point as to being seduced by, and having illicit intercourse with, the prisoner. To which portion of the charge the prisoner’s counsel excepted.
    The court instructed the jury, in substance, that a female of “ chaste character ” within the meaning of the statute, is one who is free from unlawful commerce, undefiled, and who has never had sexual intercourse with a man.
    The prisoner’s counsel requested the court to charge the jury that to warrrant a conviction, the prosecutrix must be supported and corroborated by other evidence. 1. In regard to the promise of marriage made by the prisoner. 2. To the seduction. 3. To the illicit connection. 4. That she was unmarried. 5. That she was of previous chaste character. The court refused so to charge, and the prisoner’s counsel excepted.
    The prisoner’s counsel also .requested the court to charge the jury that to warrant a conviction the jury must find that there was a legal and binding promise of marriage before the seduction took place; which the court refused to do, and the prisoner’s counsel excepted.
    The prisoner’s counsel further requested the court to charge that if they should find that the'promise of marriage made by the prisoner was dependent upon the prosecutrix having connection with him, and that the promise was not complete until such connection did actually take place, then the prisoner could not legally be convicted of the offence charged in the indictment. The court refused so to charge and the prisoner’s counsel excepted.
    After the prisoner was sentenced, the case was taken to the Supreme Court in the 7th district, where the judgment of the Court of Sessions was affirmed. The prisoner then removed the case into this court by writ of error.

      A. V. Harpending, for the plaintiff in error.

      John D. Wolcott, for The People.
   Wright, J.

,The prisoner was indicted under the Statute of 1848, “to punish seduction as a crime.” (Laws of 1848, chap. 111.) A number of exceptions were taken on the trial, and to the charge of the court, some of which are clearly frivolous; while others, and especially those involving a construction of the statute, require some consideration.

1st. The defendant offered to prove on the trial that the character for chastity of the witness and prosecutrix was, by general reputation among her neighbors, bad. This was excluded, and I think properly. Evidence that a female is by reputation unchaste, is not competent by way of impeachment. Indeed, a witness cannot be impeached by proof of any specific immorality. It must rest on general moral character, or character for truth. (Bakeman v. Row, 18 Wend., 146, and cases cited.) Nor can “ character,” as the term is used in the statute under which the prisoner was convicted, be proved by reputation. The statute is: “ Any man who shall, under promise of marriage, seduce, and have illicit connection with any unmarried female, of previous chaste character, shall be guilty of a misdemeanor,” &c. Character, as here used, means actual personal virtue, and not reputation. The female must be unmarried and chaste in fact, when seduced. By the terms “chaste character,” the legislature could only have meant personal qualities that make up the real character, and not public reputation, which is the estimate of character formed by the public. It could not have been intended to substitute reputation for character in this, its primary and true sense. The accused may, by proof of specific acts of lewdness, on the part of the female, and not otherwise, show that she was in fact unchaste.

2d. The judge charged the jury that if they were fully satisfied from the evidence that the defendant promised to marry the prosecutrix, if she would have carnal connection with him, and she believing and confiding in such promise, and intending on her part to accept such offer of marriage, did have such carnal connection, it is a sufficient promise of marriage under the statute. This seems to me unobjectionable. It is not necessary that the promise should be a»valid and binding one between the parties. The offence consists in seducing and having illicit connection with an unmarried female, under promise of marriage. It is enough that a promise is made which is a consideration for or inducement to the intercourse. But if the statute required the promise to be a valid one, the charge was correct. A mutual promise, on the part of the female seduced, is implied if she yields to the solicitations of the seducer, made under his promise to marry. As nothing appeared to the contrary in the case, the defendant is to be regarded as of full age, so far as that may affect his promise. All that is necessary to make any contract is, that the minds of both contracting parties should meet upon the subject matter. The charges implies such mutual assent.

3d. The statute provides “ that no conviction shall be had on the testimony of the female seduced, unsupported by other evidence.” It was claimed by the defendant’s counsel that no conviction could be had unless the prosecutrix was supported by other evidence, not only as to the promise and illicit intercourse, but also as to the facts of her being unmarried, and her previous chaste character. The judge, however, in substance, instructed the jury that no corroboration or support was necessary as to her being unmarried, or as to her chastity. On the point of her being “ unmarried ” she was abundantly supported by other evidence; but as to her previous chastity, there was no affirmative testimony, as there could not well be, except her own. But the judge was right in his construction of the statute. It does not contemplate that the female shall be supported or corroborated upon every material fact alleged. It is enough if the support extends to those facts which go to prove the offence charged. Ho corroboration or support is necessary to the points which merely indicate the person to be protected by the statute, viz.: that she was an unmarried female and of previous chaste character. It was only necessary that she should be supported by direct evidence or proof of circumstances, as to the facts constituting the crime. These were the promise and the intercourse.

4th. The defendant offered to prove, from general reputation among the neighbors, that the house of the mother of the prosecutrix, with whom the latter lived, was a house of ill-fame. This evidence was clearly incompetent. The character of the house could not be shown by general reputation. That a house is disorderly, is to be proven by particular facts. (1 Russell on Crimes, 825.) The general rule is, that hearsay evidence is incompetent to establish any specific fact which is, in its nature, susceptible of being proved by the witnesses who speak from their own knowledge. In this case, if it were at all material to show that the house kept by Mrs......... was a disorderly one, the fact was susceptible of better proof than hearsay, such as the harboring of persons of unchaste character, and permitting it to be a common resort of disorderly persons. Besides, the offered evidence was irrelevant Evidence that Mrs........’s house was a disorderly one would not necessarily affect the character of the¡ prosecutrix for chastity, as she was a minor, residing with her mother. These are the only exceptions that need be noticed; and I think none of them were well taken.

The judgment should be affirmed.

Denio, Ch. J., Davies, Selden, Emott, Rosekrans and Marvin, Js., concurred.

Balcom, J.,

delivered an opinion for affirming the judgment of the Supreme Court, but for other and different reasons, on some points, than those assigned by Judge Weight. He con curred with Judge Weight that the phrase “unmarried female of previous chaste character ” as used in the act under which the prisoner was convicted, means one who has not lost her virtue by illicit intercourse with the other sex; and that she must be regarded as having a “ chaste character ” within the meaning of such act, if she has not been defiled by illicit con nection with a man, though her reputation for chastity be bad. He was of the opinion the offer of the prisoner to prove that the reputation of the prosecutrix for chastity was bad, was in the present tense, and not one to show it was bad prior to her illicit connection with the prisoner, and that for this reason it was properly rejected, but said if the offer was to be regarded as one to prove the reputation of the prosecutrix for chastity bad previous to her connection with the prisoner, it was improperly rejected; and his reasons for this conclusion were as follows: “On the trial of a person charged with the crime of rape, or an assault with an intent, &c., the general character of the prosecutrix, as a common prostitute may be shown. (The People v. Abbott, 19 Wend., 192.) This evidence is admitted in such a case, to create the probability that the prosecutrix consented to the carnal connection instead of being forced to submit to it; and the courts assurpe, by the reception of such evidence, that it tends to prove the prosecutrix'was, in fact, a prostitute at the time of the commission of the acts alleged to have been a rape, or an assault with an intent to commit one. How if it is competent, in such a case to establish by proof of reputation, that the prosecutrix was a prostitute at the time she claims to have been ravished or assaulted with intent, &c., why is it not proper to show by reputation the want of personal virtue in the prosecutrix, in a case like this, previous to her connection with the prisoner ? In other words, why does not evidence of the reputation of the prosecutrix for lewdness prior to her connection with the prisoner,' tend to show she had then actually lost her virtue ? I am of the opinion it does; and that such evidence is admissible in a case like this, though not conclusive, by reason of the peculiar situation of the prosecutrix, and because it is almost impossible to establish want of chastity in the prosecutrix by proof of specific acts of lewdness. I think much less injustice would be done by the admission of such evidence, in a case like this, than by its rejection; and that it should be received on the ground that the case furnishes an exception to the general rule, that facts cannot be established by hearsay evidence.”

Judge B. further said, “ the prisoner’s counsel insisted upon the trial and in the Supreme Court, and has argued here that the word 1 man ’ as used in the statute referred to, means a male person twenty-one years of age. This is too technical and limited a meaning to be applied to the word, in the connection wherein it is used. It has a broader and more comprehensive signification. The apparent spirit of the act, and the mischief or vice aimed at by the legislature, clearly show that the word ‘ man,’ as used in this statute, means a male person who has arrived at the age of puberty, or is capable of committing a rape. Rape is usually defined to be the carnal knowledge of a woman by a man, forcibly and unlawfully against her will; and by the .term ‘ man ’ in this definition is meant a male of the human species of the age of fourteen years and upwards.” (2 Bouv. Law Dic., 420.)

Judge B. was of the opinion that the evidence clearly showed that the prosecutrix was corroborated, or in the language of the statute supported ” on the following points: 1. As to her being chaste previous to her intercourse with the prisoner. 2. As to the prisoner promising to marry her. 3. As to his seducing her and having illicit connection with hér under such promise. 4. As to the prosecutrix being unmarried. Judge B. concurred with Judge Weight in the conclusion that it was unnecessary for the district attorney to prove there was a valid contract of marriage between the prosecutrix and prisoner prior to the illicit connection, and said, among other things, that before the statute could be construed, as contended for by the prisoner’s counsel, it should' read that any man who shall, under contract of marriage, seduce, &c., and not any man who shall, under “promise ” of marriage, seduce, &c., as it now is.

He also said the question put to the prosecutrix, as to what influence the promise of the prisoner to marry her had upon her mind by way of inducing her to consent to have sexual intercourse with him, was proper. Questions as to what influence representations of the prisoner ha ve had upon the mind of the prosecutor, have generally been allowed in cases where their effect was a material point to be determined (People v. Haynes, 11 Wend., 557; People v. Miller, 2 Parker’s Cr. R, 197); and it is now settled that witnesses may, in certain eases, testify what their undisclosed intentions were in transactions. An assignor may testify whether he intended to hinder, delay or defraud his creditors in making an assignment. (Seymour v. Wilson, 4 Kern., 567; Pope v. Hart, 35 Barb., 630.) And there is no difference in principle between permitting a witness to .testify what his undisclosed intentions were, or whether he had a particular one, in doing a specified act, and allowing him to state the undisclosed effect that a certain representation or promise had upon his conduct.

It requires no discussion to show that it was proper for the district attorney to prove that the prosecutrix became pregnant by her illicit connection with the prisoner; and when the child was born; and that she had never had sexual intercourse with any person except the prisoner, and had never received the addresses of any other person as a suitor.

There is no other question in the case worthy of notice. It follows, that the prisoner was lawfully convicted, and that the judgment of the Supreme Court should be affirmed.

Judgment affirmed.


source: Caselaw Access Project

author: Emott, J.

license: Public Domain

text:
    The Genesee College v. Dodge.
    A promissory note was payable in four annual installments, or when $50,000 should have been subscribed for the endowment of a college, the payee, at the election of the maker. The four years having expired, the payee may recover without proof of notice that the subscription was completed, or of demand of payment.
    Genesee College could lawfully stipulate, in consideration of a subscription to its endowment, to give one free scholarship forever to the subscriber his heirs or assigns, in another incorporated seminary of learning.
    Appeal from the Supreme Court. Action on a promissory note, whereby the defendant promised to pay the plaintiff $100 with interest “ when $50,000 are subscribed to the endowment of such institution, or in four equal annual installments, as I shall choose.” On the trial before Mr. Justice Johhsoh without jury, it was proved that more than four years had elapsed between the making of the hote and the commencement of the suit; that more than $100,000 had been subscribed, in similar notes, to the endowment of the plaintiff, and that the only consideration of the note was a certificate reciting that he had become a subscriber for $100 to an endowment for not less than $100,000, and declaring that upon payment of the $100, the defendant, his heirs and assigns, would be entitled to have one scholar educated either in said college or in the Genesee Wesleyan Seminary, in all the solid branches taught therein, free from charge for tuition. These two institutions were situated in the same village.’ The certificate was signed by one Seaver, an agent of the plaintiff to obtain subscriptions. Judgment was entered for the plaintiff, but it was reversed at general term in the sixth district and a new trial ordered. The plaintiff appealed to this court.

      George P. Bradley, for the appellant.

      George T. Spencer, for the respondent.
   Emott, J.

It sufficiently appears that Seaver, who is mentioned in the answer, and spoken of in the evidence, was an agent of the plaintiffs, and was authorized to execute for them, certificates of the character proved in the case. It also appeared, and was admitted by both parties at the trial, that such a certificate was signed by Seaver, and delivered to the defendant as the consideration for his note. This was the act of the corporation, and was as binding upon them as.if it had been specially authorized or directed by the trustees, or had been formally executed by the officers.

The note upon which this action is brought, is payable at the election of the maker either in four yearly installments, or when $50,000 had been subscribed towards the endowment of the Genesee College. It is contended that as there was no evidence of an election by the defendant to pay in annual installments, and the money was therefore due when the sum required was subscribed, the plaintiffs was bound to aver and prove notice .to the defendant, of the completion of the subscription an# demand of payment before bringing the suit. The contract itself does not stipulate for such a notice, nor is a right to notice implied from its terms. The subscription of $100,000 was a fact as easily ascertainable by the defendant as the plaintiffs. The áet to be performed was certain, and it was to be performed by third parties. The condition was not a matter of choice or volition of the plaintiffs or which was locked up within their own breast, but a fact of which the defendant might indeed have required the plaintiffs to give Mm notice, but of which, in the absence of such requirement, be is bound to take notice at Ms own peril. This is the rule given in terms in 16 Vin. Abr., Tit. Notice, p. 5, pl. 10; and it accords with Com. Dig., Condition L., 9; Powle v. Hagger, Cro. Jac., 492; Henning’s case, id., 432. The rule is well stated by Lord Abinger in Hyse v. Wakefield (6 Mees. & Welsh., 451.) “ Where a party stipulates to do a certain thing in a certain specific event which may become known to him, or with which he may make himself acquainted, he is not entitled to any notice unless he stipulates for it; but when it is to do a thing which lies within the peculiar knowledge of the opposite party, then notice ought to be given him.” To the same effect is Douglas v. Howland (24 Wend., 48), in which numerous authorities on the point are cited by Judge Cowen.

The remaining question, and that upon which the Supreme Court reversed the judgment at the circuit, is whether the plaintiffs had power to contract with the defendant in the . terms of their certificate, that he, his heirs and assigns, should have the perpetual privilege of having one scholar educated free from the regular tuition charges in any or all the solid branches taught therein, either in said Genesee College or in the Genesee Wesleyan Seminary. I see no reason to question the power of the corporation to make such a contract for instruction in their own college. If all the students of such an institution were foundationers or scholars free of tuition charges, it would not follow that no revenue would be derived from them, for it-is obvious that boarding and lodging students may be, and it is well known that it often is, more remunerative to colleges and schools than their tuition fees. But we are not concerned with the economical, or more or less profitable working of such a plan; The object of the corporation is a public one, the promotion of education; and the ordinary means to this is the instruction of young men. It is unquestionable that this may be pursued by a college perfectly free of all charges; and, indeed, if by any scheme a sufficient endowment could befurnished to make all the students foundationers or free scholars, the institution might be said preeminently to promote and diffuse education and learning.

The stress of the defendant’s argument was upon the alternative agreement of the plaintiffs to educate a scholar either in their own college or in the Genesee Wesleyan Seminary. It is not stated in the paper to whom the choice is reserved, but it may be admitted that the defendant might exercise the election. The question then is, whether the plaintiffs had power to contract with the defendant for the education of a student in the Genesee Wesleyan Seminary. The Supreme Court seem to have supposed that this seminary was a theological school, and considerable importance is given in the opinion at general term to the supposed fact that this would be an appropriation of the funds of the college to theological purposes, contrary to .section 7 of its charter. (Laws of 1849, p. 88, ch. 52.) There was no evidence at the trial to show what the nature of this seminary is, and it cannot be assumed that it is a school of theology, or an institution of any different nature from the Q-enesee College. In point of fact the Supreme Court were mistaken in supposing it to be a theological institution, as will be seen by looking into its charter. (Laws of 1834, ch. 225, p. 401.) It was established, as its name imports, as a “ seminary of learning.” The charter of the plaintiffs (Laws of 1849, q. s.), creates a corporation “for the purpose of establishing a college,” the object of which is declared to be, “to promote education in general, and to cultivate and advance literature, science and the fine arts.” The corporation is declared to be subject to the-provisions of the Revised Statutes, restricting a corporation from the exercise of any powers except such as are necessary to the exercise of those expressly granted in its charter. (1 R. S., 600.) Both of the institutions above referred to, are situated at Lima in Livingston county, and the 10th and 11th sections of the charter of the college, authorizes it to purchase or lease any property of the seminary to be used for the purposes of this act. It is not probably to be supposed that these sections of the charter expressly contemplated an arrangement for the tuition of pupils in one institution at the expense or by the procurement of the other. But they indicate a connection between them which may lend some sanction to an arrangement by which both may be made to contribute to the object of the incorporation of the college. There is nothing in the charter of the college to forbid it or its trustees from employing the agency or assistance of another school or its teachers, in educating young men or promoting education in general. The purpose of the incorporation is the establishment of a college which includes not only buildings, but teachers and scholars. The object of the college is to promote education, and cultivate and advance literature and science. This object it may pursue by any means not forbidden, and I think it may employ other teachers and other seminaries as preparatory to its own course, or even as a mode of dispensing the instruction ■ it professes to give. In a case in Massachusetts, Amherst Academy v. Cowles (6 Pick., 427), an academy incorporated “ to promote morality, piety and religion, and for the instruction of youth in the learned languages, and in arts and sciences,” was held capable of taking the promissory notes of individuals to constitute a fund to found another institution “for the classical or academical and collegiate education of young men with a view to the Christian ministry.” The powers which such a corporation possesses should be liberally construed, and their exercise allowed with a wide discretion within the field of its objects.

I am of opinion that the Supreme Court erred in reversing the judgment at the circuit, and their order should be reversed and that the plaintiff should have judgment on the note.

Denio, Ch. J., Davies, Wright and Rosekrans, Js., concurred. Balcom and Marvin, Js., dissented. Selden, J., did not sit in the case.

Order for new trial reversed, and judgment for plaintiff.


text:
    Catlin v. Tobias.
    Where goods, are received and used by the vendee under a contract for the delivery of specified quantities in each of three successive months, the quantity delivered being less than that required by the contract, such breach is a bar to an action by the vendor for the price of the goods delivered.
    The vendee under such a contract has a -right to expend the goods delivered, as required in his business, without waiting for the expiration of the month to see whether the vendor will fully perform his contract, and such use is no waiver of his defence in case of the vendor’s breach of contract.

      Appeal from the Supreme Court. The facts are sufficiently stated in the following opinion.

      S. B. H. Judah, for the appellant.

      W. J. Street, for the respondent.
   Emott, J.

This is an action for goods sold and delivered to the defendant by Daniel O. Ketchum and Charles H. Cole, who were partners, under the firm of D. O. Ketchum & Co. The answer, without denying the sale and delivery of the merchandise, denies any indebtedness for the same. It then proceeds to allege, as a separate defence, a contract between the defendant and D. O. Ketchum & Co., for the sale and delivery of certain glassware in quantities and at periods specified in the contract; by which contract Ketchum & Co., in the event of their failing to perform, were to forfeit to the defendant two hundred dollars. The answer goes on to aver that D. O. Ketchum failed to deliver the glassware mentioned in the instrument; that the defendant has been damaged by such failure to the extent of two hundred dollars; that D. O. Ketchum & Co. have forfeited and become liable to pay to the defendant the two hundred dollars specified in their agreement, and the defendant claims to set off this amount against the plaintiff, who is the assignee of D. O. Ketchum & Co., and asks to have the complaint dismissed.

It will be observed that the answer admits the sale and delivery to the defendant of the goods for which the action is brought, while it does not allege that they were delivered under the contract which it sets up. It is doubtful whether the principle and more important question discussed on the argument of this appeal is raised by such an answer, but as it was evidently considered at the trial before the referee in the court below, and is presented by his report, I will proceed to discuss it.

The referee states in his report that on the 15th day of March, 1854, the defendant, who was a manufacturer of liniment, made a contract in writing with D. O. Ketchum & Co., who were vendors of glassware, by which they agreed to deliver to him bottles of various sizes for his medicine, at prices which were specified in the contract, and he agreed to take the glassware. Either party failing to perform was to forfeit or to pay $200 to the other. The bottles were to be delivered during the months of April, May and June next ensuing, and the kinds and quantities of bottles to be delivered during each month are specified in the agreement. The agreement is silent as to the time and manner of payment, although it was proved at the trial, without objection, that there was to be a credit of six months. It was also proved that after all the deliveries which the vendors actually made in April, 1854, the defendant gave them his note at six months for an amount which included the price of similar articles which had been sold and delivered to him before this agreement was made, and also a part of the price of the articles delivered in April after the contract. This note was dated April 13th, 1854, and seems to have been subsequently paid, but the referee’s report is silent in regard to it; nor is there evidence to show that there was any distinct understanding between the parties as to its precise consideration. On the 11th of April the referee finds that D. O. Ketchum & Co. delivered to the defendant sixty-four gross of two-ounce bottles, eighteen gross of ten-ounce bottles, and sixty-two gross of five-ounce bottles. The contract calls for one hundred gross of two-ounce bottles, and twelve gross of ten-ounce bottles, to be furnished in the month of April, but there is nothing in it as to the purchase or sale at any time of any five-ounce bottles. The referee finds that all the bottles thus delivered were received and used by the defendant. After this, on the 14th day of April, 1854, the firm of D. O. Ketchum & Co. was dissolved, and all the assets of the firm, including the contract with'the defendant, and any and every claim against him were assigned to D. O. Ketchum. A short time after this D. O. Ketchum failed, and oh the 10th of June, 1854, executed a general assignment for the benefit of his creditors to the plaintiff. No more bottles were delivered to the defendant after the 11th of April, and the residue of the agreement was not fulfilled by the vendors.

The plaintiff’s assignors have, therefore, failed to perform their contract, and assuming, as the referee has done, that all the articles delivered by them to the defendant, of the description specified and called for by the agreement, were delivered under and in performance of it, the question arises whether, upon such a part performance, payment can be recovered for the price or value of the articles thus delivered. The referee held that the defendant was liable to pay for the glass delivered after the making of the agreement, notwithstanding it was not delivered in pursuance of its terms. He did not, however, find or report that the defendant waived the performance of the contract, but only that he accepted and used the articles delivered. He also decided that the defendant’s claim for damages for the non-delivery of the glass could not be set up under the pleadings and proof in this action against the plaintiff. To these decisions the defendant excepted.

It will be seen that sixty-two gross of five-ounce bottles were delivered by D. O. Ketchum & Co. to the defendant on the 11th of April, which were not called for by the contract. The report of the referee, states that these were not at all within the contract,” which may probably be fairly construed to mean that they were not delivered or received in pursuance of the contract, or as part of the deliveries under it. If this be so, and this finding is not objected toby either party, there can be no reason why the plaintiff should not recover the value of these articles, as upon a separate and distinct sale and delivery to the defendant. H there was such a distinct sale as the referee’s finding seems to imply, the vendors’ right to recover the price of the vendee, does not depend upon their rights or liabilities under the contract of the 10th of March, however the ultimate recovery might be affected or reduced by any counter-claim of the defendant for damages in consequence of a breach of that agreement. If I could find in this case any unequivocal proof of the price .or value of the property included in this separate sale, I should have no difficulty in sustaining a recovery against the defendant in this action to that extent. But the referee does not state this price or value, nor is there any evidence of it except in a bill produced at the trial, and stated to have been rendered to the defendant by the present plaintiff after the assignment to him.

The referee held that the plaintiff’s recovery could not be mitigated or reduced by the loss or damage sustained by the defendant by the breach of the contract. Without discussing that question I will proceed to consider the case in a broader aspect, and to examine the main question, whether the plaintiff can recover for the price or value of the articles actually delivered by his assignor. "A

The referee decided that although there had been only a partial performance of the contract, yet the defendant was liable to pay for the articles delivered under it in such part performance, because they were accepted and used by him. He considered that the deliveries stipulated in the months of April, May and June were to be treated as separate contracts. Even if this were so, the vendors did not perform their contract in respect to the deliveries for the month of April, and the case, after all, stands upon a partial performance only. In Deming v. Kemp (4 Sand. S. C. R., 147), which is cited by the referee, the original contract was void by the Statute of Frauds, and each separate delivery was, therefore, regarded as a separate sale made upon an independent contract. The same feature exists in the case of Seymour v. Davis, decided in the same court (2 Sand. S. C. R., 239).

In the present case there was a valid contract between D. O. Ketchum & Co. and the defendant, for the sale and delivery of bottles of specified sizes during three months. The defen- ii dant, no doubt, made this contract with a view to the requirements of his business, and for the purpose of being supplied with the articles from time to time as he required them. The vendors failed to perform their part of this agreement and the court below held that the defendant was nevertheless bound to performance, that is payment on his part, because he did not return the articles which had been delivered to him. So far as we have any evidence in the case, as to the time and mode of payment, it was not due until after all .the deliveries had been made. The contract was entire, and called for an entire performance, and until such performance was made or tendered there was no liability on the part of the defendant. Even if each month’s delivery is regarded as a separate contract, still the same principles apply and must control the rights of these parties. Even in that aspect of the case, as I have already said, there has been a breach of the contract by the vendor, and his claim for compensation rests upon mere partial performance. I am unable- to see any distinction between such a case and that of Champlin v. Rowley, in the Court of Errors (18 Wend., 258). The idea of an equitable right of recovery in such cases, which was discountenanced by the Chancellor in his opinion there, has found no more favor in the courts of this state subsequently. In Smith v. Brady (17 N. Y., 173), the principles which control all this class of cases were elaborately considered in this court, and it would be a distinct departure from the doctrine of that case to sustain a recovery for the price of the articles delivered under this contract upon the facts before us in this case. The defendant was not bound to retain the articles delivered to him under the contract in the course of the month of April, or of any other month included within its limits, without using or disposing of them until the contract, or even the month, had expired, to ascertain «whether the vendors would perform their agreement. He made his contract to obtain the articles which he was to buy for immediate and constant use, and ho one could have demanded -or expected that he would not use them’ as they ¡Were required in his business. But if he did not waive the performance of the contract he had a right to insist upon its performance as an entirety, and when the vendors, without cause or excuse, refused to perform it, he was not bound to return what he had received, nor could he be compelled to pay for a part performance. Such certainly is now the settled doctrine of the courts of this state.

The case of Shields v. Pettee (2 Sand. S. C., 262), which was cited by the referee in his opinion and on the argument, has no application to the present case. That was a sale of a certain amount of iron as an entirety, all deliverable at once. After the delivery had commenced the vendees found the article not to be such as they had agreed to buy, and they refused to receive any more. They did not, however, return what they had already received, but claimed to retain this, while they refused the residue and still claimed damages for the inferiority in quality of what they retained. The court held that the vendees must either affirm or rescind in toto, and that they could not retain a part of the iron sold them and at the same time refuse the residue, and claim damages for its non-delivery. The difference is as plain between this case and that, as it is between such a case and one where a vendee accepts an article with his eyes open and thus elects to consider it a performance of the contract, although it is different from what the vendor agreed to make it. If, in the case of the sale of the iron, the vendors, after delivering a part had unjustifiably refused to deliver the residue, and yet claimed to recover for what they had delivered, or if in the latter case supposed, the vendor had tendered an article which was not according to his contract, and sought to recover its price although the vendee refused to receive it, the cases would be more analogous to the present.

As I see no way of retaining the judgment for the articles sold and delivered independently of the contract, it must be reversed and a new trial ordered in the court below.

Judgment reversed, and new trial ordered


author: Marvin, J.

text:
    Sweetman v. Prince et al.

    One who was’ entitled to logs which he had cat upon the land of another, under an agreement that they were to be his when he paid a certain sum, greatly inferior to their value as logs, sold them, without disclosing his defect of title. The vendee, after learning the facts, agreed to pay upon a deduction being made from the price upon other grounds than the defect of title. This was a waiver of defence on the ground of fraud.
    Assuming that the vendor was guilty of deceit, and that the vendee had not waived his defence, whether he could set it up, not having been disturbed in the possession by the person having the legal title, and not having offered to return the property to the vendor, guare: Per Marvin, J.
    The vendee of chattels may, it seems, voluntarily, yield possession to a claimant, and recover against the vendor on the implied warranty of title, upon showing that the claimant had title paramount: Per Marvin, J.
    Appeal from the Supreme Court. The plaintiff had a verdict, which, upon motion by the defendant, upon the minutes of the court, was set aside and a new trial granted, and the order was affirmed at the general term. The plaintiff appealed to this court stipulating, that if the order should be affirmed, judgment absolute should be rendered against him. The case is sufficiently stated in the following opinion.

      Cornelius E. Stephens, for the plaintiff.

      Charles D. Adams, for the defendants.
   Marvin, J.

The plaintiff purchased the claim in suit of one Klotwig, and it was for the price or value of certain pine logs, sold by Klotwig to the defendants in April, 1859. At that time Klotwig and the defendants owned saw-mills respectively, upon the same river, or stream, and a portion of the logs were in the stream, and some of them mixed in with the logs of the defendants. The logs had been cut by Klotwig from trees standing upon the land of one Le Roy, and put in part into the stream some miles above the sawmills. Logs so put in the stream were driven down, during a freshet, to the mills. Evidence was given by both parties tending to prove the contract of sale, though there was some conflict as to its terms: also tending to prove a full performance of the contract by Klotwig, and evidence to the contrary. One of the defences was, that the logs were not the property of Klotwig but the property of Le Eoy, who had made a claim upon the defendants, or rather had asserted his title, or forbid the defendants paying Klotwig. There was also a defence of a counter-claim or set-off.

The evidence showed that the logs were cut from timber, standing upon the land of Le Eoy, and that Klotwig cut the timber into logs, under a contract made with one Stewart, the agent of Le Eoy, to purchase the timber, at three dollars a thousand feet. When the logs should be cut, Klotwig was to inform Stewart, who was to have them measured, and Klotwig was to come and settle.for the logs; in the meantime the logs were not to be moved, and were to remain Le Eoy’s until they were paid for. Klotwig, at the time of the sale to the defendants, had not notified Stewart, or paid for the logs. Prince, one of the defendants, informed Stewart, early in the summer, that he had purchased the logs of Klotwig, and wanted to know what Stewart would do about it, and Stewart told him Klotwig had not performed the contract, and forbid his paying him. Stewart was satisfied with the responsibility of Klotwig and also of Prince. Klotwig, in June, 1860, made a' payment to Stewart on account of the logs and took a receipt. It appeared that Prince, as early as May 5th, 1859, had been apprised of Stewart’s claim, and he then told Klotwig, who called upon him to settle, that Stewart had forbid his paying Klotwig, and at that time Klotwig said that Stewart claimed the stumpage. Prince also alleged that Klotwig had previously sawed some of his logs, and that he must pay for them, and Klotwig was willing that from seventy-five to one hundred dollars should be taken out of his claim, for the logs sold, on account of the logs he had used belonging to the defendants. This was the item of set-off or counterclaim submitted to the jury. At this time Prince told Klotwig that he must put in the rest of the logs. The claim in suit was assigned to the plaintiff June 24th, 1859, and the plaintiff, before and after the purchase of the claim, had conversations with Prince, and presented the claim, after it was assigned to him, to Prince, for payment. The evidence proved, or tended strongly to prove, that Prince claimed that all the logs were not put in and marked; some twenty or thirty not put in: that when they were marked and put in, Klotwig’s contract would be fulfilled, and he would pay. .That in some of these conversations, he spoke of Stewart’s claim, and that the plaintiff told him if he set that up as a defence he would sue him immediately, and that Prince desired him not to sue, and promised to pay the plaintiff. These conversations were several months before this action was commenced. There were some exceptions taken during the trial, but it will not be necessary to notice them. At the close of the evidence, the defendants moved for a nonsuit, on the ground, among others, that the logs in ■ question were not Klotwig’s at the time of the sale, but Le Boy’s, which fact Klotwig knew, when he sold them to the defendants, as his ow'n. The motion was denied, and the defendants excepted. After the charge the defendants’ counsel requested the court to direct a verdict for the defendants, upon the same ground stated in the motion for a nonsuit. Befusal and exception. There was a verdict for the plaintiff, for eighty-six dollars which ' was set aside and a new trial granted, upon the ground that the court erred in not instructing the jury, that the plaintiff could not recover for the reason stated. This result was reached by assuming, as a fact, that the title to the logs, at the time’ Klotwig sold them to the defendants, was not in him, but in Le Boy, and that Klotwig knew this fact, and concealed it from the vendees—the defendants—and that he was therefore guilty of deceit or fraud, and that such facts constituted a complete defence to the action for the price or value of the logs.

If this, as a legal proposition, were entirely sound, in the absence of any other facts, it is not properly applicable to this case, and it would have been error to nonsuit, or give the instruction requested. It is a little remarkable that no notice is taken in the charge, or in the opinion delivered on granting a new trial, or at the general term, of the evidence tending to prove a full ratification of the sale by the defendants, after they had full knowledge of all the material facts. They knew of Le Boy’s claim as early as the 5 th of May, when Klotwig called upon them to settle, and they then claimed that Klotwig had not fully performed his agreement; that he had not got in, and marked all the logs, and requested him to complete the performance of the contract. At the same time they made a claim for logs of theirs which Klotwig had used, and Klotwig consented (the defendant, Prince, says), that they might take out of his claim from seventy-five to one hundred dollars on account of their claim, for logs used by him, thus making a new bargain or modifying the original one. • This evidence was properly submitted to the jury, as evidence of a counter-claim or set-off, and I infer from the verdict that it ■ was allowed.

At this time most, if not all, of the logs were in the river, some driven down, and some not.

Again the evidence tended strongly to show that with a full knowlege of the facts, the defendants promised to pay the claim to the plaintiff after it was assigned' to him. If the defendants intended to make any question of deceit or fraud, or to raise the question of title in Klotwig, or his right to sell they should have raised the question at the time the facts came to their -knowledge, and not have proceeded with the contract, by driving the logs to their mills, and converting them to their use. A buyer who is imposed upon by a fraud, and has a right to annul"the sale, must exercise the right as soon as may be, after discovering the fraud. (Parsons’ Mer. Law, 57; Masson v. Bovet, 1 Den., 69; Saratoga & Schenectady R. R. Co. v. Row, 24 Wend., 74; Ross on Comm. L., 439; Campbell v. Fleming, 1 Ad., 611, 40.) The general rule is that he cannot retain the property, and entirely defeat a recovery upon the contract of sale, on account of the fraud, in case the property was of any value. But in this case there was a waiver of any right to set up deceit or fraud in the defence. With full knowledge of the alleged deceit or fraud, the defendants offered to perform the contract upon the allowance to them of from seventy-five dollars to one hundred dollars, their claim for logs used by Klotwig, to be abated from the sum they were to pay; and the evidence tends to show that Klotwig assented to this. This was a claim which, in the absence of a special agreement, could not have been used as a counterclaim or set-off. (Par. Mer. L., 57; Bly v. Welsh, Baldw., 331.)

The effect of this waiver was simply -to trust to Klotwig’s paying to Stewart the claim of Le Boy, for the price of the timber, three dollars a thousand, and Klotwig was responsible. Though the legal title in the logs was in Le Boy, the largest interest in value was in Klotwig, under his contract to purchase the timber, and upon his performing his contract with Le Boy, by paying the three dollars a thousand, (and this was all that Stewart, the agent, demanded,) the legal title would be in Klotwig, or trusting to Klotwig’s responsibility upon his implied warranty of title. If there was any deceit or fraud in the sale, it was under the circumstances so far waived, that the defendants could hot use it, to any extent, or for any purpose, as a defence in this action; and a nonsuit, or direction to the jury, to render a verdict for the defendants, would have been erroneous. It follows that the order granting a new trial, upon the exceptions as above stated, was wrong, and it should have been reversed by the general term, and should now be reversed by this court. It will be noticed that I have thus far proceeded upon the assumption that the law is as held by the court below. I am not prepared to admit that such is the law in this state; no case in support of such position has been found, so far as I know, in this country; and I think our law is in conflict with it. There are some old English cases, which it is claimed, are authority for such position, and upon which the decision below was made, or rather mainly upon the text in Blackstone’s Commentaries and Esp. Nisi Prius founded upon the cases. The latter author, under the title of injuries from deceit in sales, states the rule, and refers for authority to Furnis v. Leicester, Cro. Jac., 474; Cross v. Gardner, Show., 68, and Medina v. Stoughton, 1 Salk., 210. In the first of these cases the seller stated to the buyer, that the sheep were his own sheep, when in truth they were the sheep of another person. The action was upon the case in the nature of deceit, and was held to lie, though the seller, as the case says, made no express warranty, and it was, also held that the action would lie before the owner of the sheep had seized them, or interrupted the buyer. In Cross v. Gardner it was averred in the declaration that the defendant falsely and maliciously affirmed that the oxen were his proper goods, &c. ’ The plaintiff gave credit to this affirmation, bought the oxen, and the true owner recovered them of him. It was objected that the declaration was not good, as it stated no warranty or scienter, but the court held that the affirmation was enough (see this case in Chit, on Contracts, 353); and upon it the author remarks,: This case seems to be maintainable, either upon the ground that the defendant’s affirmation, under such circumstances, amounted to a warranty, or upon the ground that the assertion of such a fact, not known to be true, is under such circumstances, as much a fraud or deceit in law, as an untrue affirmation of a fact known to be false. We shall presently see the pertinency of these remarks, in support of which he cited Adamson v. Jarvis (4 Bing., 66); In the next case, Medina v. Stoughton, the seller affirmed the lottery ticket to be his own, and it was held that this amounted to a warranty. It does not appear from the report in Salk, whether the plaintiff had been compelled to respond to the real owner. I infer that he had. The case was decided upon demurrer and is briefly reported.

In Adamson v. Jarvis the defendant was in possession of the goods, and represented and affirmed to the plaintiff that he had authority to dispose of them, and requested the plaintiff to sell them for him. The plaintiff sold the property, and paid the proceeds to the defendant. A recovery was had by the owner of the goods, against the plaintiff, who was allowed to recover against the defendant. Best, Ch. J., after citing some of the above cases, says, that these cases rest upon this principle, that if a man having the possession of property, which gives him the character of owner, affirms that he is owner, and thereby induces a man to buy, when, in point of fact, the affirmant is not the owner, he is liable to an action, upon the principle that he who affirms, either what he does not know to be true, or knows to be false, to another's prejudice, and his own gain, is, both in morality and law, guilty of falsehood and must answer in damages.

Thus, it is seen that in'all the cases there were affirmations, declarations, or representations of title in the vendor, or of a, right to dispose of the property. In some of the cases, the declarations, &c., were held to be express warranties, and in others, that they were made fraudulently, and that the purchaser was thereby deceived. In Furnis v. Leicester it was held, in a case of deceit or fraud, that thé action would lie, before the purchaser had been disturbed in his possession by the real owner of the property, and .this is the only case so holding, so far as I have discovered. According to Ghitty on Contracts, it seems to have been understood that by the English law there was no implied warranty, as such, upon the sale of goods, that the vendor has title, and in the absence of express warranty or fraud the vendor has no remedy upon a failure of .title. (Chit. on Contracts, 353-355.) With such an understanding of the law, the courts might well be astute in finding a remedy, as upon an express warranty, pr for deceit or fraud. With us it has long been settled that in every sale of goods, in the possession of the vendor, there is an implied warranty of title in the vendor. (Pars. on Cont., 459; 1 Johns., 274; 6 id., 5; 20 id., 196; 3 Caines, 272.)

I must not be understood as denying that the vendor may be guilty of a fraud touching the title, though the law annexed to the sale an implied warranty of title, nor shall I assert that this fraud may not arise out of an intentional concealment of the state of the title. There may be cases in which it is the duty of the vendor to disclose fully to the vendee the title of the propérty, and if he does not, the circumstances may be such as to satisfy a jury that the vender intended a fraud, and the remedy, upon the implied warranty, may be inadequate. As to the duty of mutual disclosures and intentional concealments, or suppression of material facts in making a contract, see 2 Kent Com., 482, et seq. The case under consideration cannot be brought within any such principle.' •

Klotwig had purchased the timber and converted it into logs, by his own labor, thus greatly increasing its value, and by his contract he was to have the title to the logs, upon paying the contract price for the timber. He was responsible. He sold and delivered the logs to the defendants, knowing that he had not a complete title, and saying nothing about the title, and under these circumstances the court was requested to hold, as a question of law, that no recovery could be had against the defendants, though they had not been disturbed in their possession of the property by the real owner. There was no request to submit the question to the jury, as one of fraud. The question was also confined to the facts, as they existed at the time of the sale to the defendants, and if the position taken by the defendants’ counsel was sound, I do not see that it would have made any difference if Klotwig had gone and paid Le Boy at any time, after the sale to the defendants.

The effect of the implied warranty of title is to impose upon the vendor the obligation that the vendee shall be safe from eviction or disappointment from other parties. (Bell on Cont. of Sale, 95.) This author also says, that, strictly speaking, eviction is by judicial sentence only, but when a clear right appears in the evictor, and the only consequence of resistance would be to accumulate expenses, the buyer will be entitled to abandon the thing and to insist upon the seller’s warranty. In Vibbard v. Johnson (19 Johns., 77), the purchaser had knowledge of the condition of the title, or rather that it was claimed that the property belonged to a person other than his vendor, and he was not allowed to pay such other person voluntarily, and set up his title as a defence in the action by ¡his vendor for the price. As fraud vitiates all contracts at the election of the party defrauded, such party, in the case of sales' of property, if he desires to be entirely relieved from, the contract, must make his election promptly, upon discovering the fraud. If the vendor has been defrauded in the contract of sale, he may rescind the contract and reclaim his goods while they remain in the possession of the vendee, or one who is not a bona fide purchaser, but he must, in such case, restore to the. vendee what he had received from him. And this rule, by some of the above authorities, applies .equally to vendees who have been induced to purchase by fraud. If they desire to be entirely relieved from the contract, they must rescind it, and restore, or offer to ■ restore, the property purchased. If they retain the property, they may, when sued for the price of it, recoup the damages arising from the fraud, or they may have an .action to recover such damages. But they cannot retain the property, if it is of any value, and defeat a recovery- in toto upon the contract, by reason of the fraud. These principles have been well settled in numerous cases, arising between vendor and vendee, where, however, the question of fraud did not relate to the title of the vendor. What may the vendee do in such a case. May he, on discovering the fraud, return the property to the vendor ? It may be that the true owner had demanded the property of him, or that he will be liable to such owner, though he should return the property to his vendor. ■ It seems to me that in such a case he may return or abandon the property to the true owner, he, of course, assuming the responsibility, when sued by his vendor, of showing the fraud, and showing that the property belonged to the person whose title he had recognized and to whom he had abandoned it, and that such person, as against his vendor, was entitled to the possession of the property.

I also think that the same rule will apply in the case of an implied warranty of title in the vendor, when the vendee had no notice of any claim by the true owner. When the purchaser is satisfied that the claimant of the property is the true owner, and can and will in an action against Mm recover the property from him, or its value, I do not think- he will be bound to resist the claim of such owner, but he may abandon the property to the true owner without action, taking upon Mmself the onus of showing, if sued for the price by his vendor, that his vendee had no title to the property, or right to dispose of it, and that he to whom he had surrendered the property, upon claim, had the title and the right to possession.

The covenant for quiet enjoyment is not broken until there has been a lawful eviction by paramount title. Such eviction need not, however; be by process of law. If a 'valid claim is made by a third person under a title paramount, the plaintiff may voluntarily yield up possession, assuming the burden of proving that the person entering had title paramount. (Greenvault v. Davis, 4 Hill, 643; St. John v. Palmer, 5 Hill, 599; Fowler v. Poling, 6 Barb., 165; Hamilton v. Cutts, 4 Mass., 349.) I think the law is the same in relation to the -breach of the implied warranty of title in the vendor of personal property.

The order appealed from should be reversed, and the plaintiff should have judgment upon the verdict.

All the judges concurring,

Order reversed and judgment for the plaintiff.


author: Davies, J.

text:
    Sands, Receiver, v. Boutwell.
    A mutual insurance company, organized under the general law (ch. 308 of 1849), may divide its business and risks into distinct departments, or classes, pledging the premiums received in each department as the primary, fund for the payment of losses in that department.
    Whether a provision is valid which exempts premium notes received in one department from liability to assessment for losses incurred in another department, gMcere.
    The receiver of an insolvent corporation organized under this act may include in his assessment a reasonable sum for the expenses of making and collecting the same. In the absence of any proof to the contrary, ten per cent upon the amount of losses assumed to be a reasonable charge for such expenses.
    Where the by-laws required the notice of assessment to be published in one newspaper in the county of M., “ and in such other newspapers as the directors may deem necessary,” it seems that a publication in one newspaper in M. county is sufficient, unless a direction for further publication by the directors be shown.
    Appeal from the Supreme Court. Action upon a promissory note in the words following:
    “ [The Secretary may number and date this note.] $1,200. For value received, in Policy No. 61, dated November sixth, 1851, issued by the Columbian Insurance Company, I promise to pay the said company, or their agent for the time being, the sum of twelve hundred dollars, in such portions and at such time or times as the directors of said company may, agreeably to their charter and by-laws, require.
    “ Oliver Boutwell.”
    The referee, before whom the cause was tried, found these facts: The company was a corporation located at Amsterdam, in the county of Montgomery, duly organized, according to the general act for the incorporation of insurance companies, passed April 10, 1849, and transacted such business at that place from June 13th, 1851, the date of its organization, until on or about the first day of August, 1862. The business of the company, in pursuance of its charter and by-laws, was divided into two departments, called The Farmers’ Department, and The Merchants’ Department; and it was provided in the charter that the premium notes received on applications should not be assessed for the payment "of any losses, except in the class to which they belonged. The by-laws declared: That the premium notes received upon risks approved in the Merchants’ Department should be liable to assessments for all losses and expenses occurring in and belonging to said department, and none other; and that the premium notes received upon risks approved in the Farmers’ Department should be liable to assessments for all losses and expenses occurring in and belonging to said department, and none other. The company was duly and legally dissolved, and upon such dissolution one Alexander Sheldon was duly appointed receiver, and subsequently the plaintiff was appointed receiver. The note was made on the 6th day of November, 1851, and was given on an application for an insurance in the Merchants’ Department; and in consideration thereof the company issued and delivered to the defendant a policy of insurance upon property, in the Merchants’ Department. The 'receiver ascertained the amount and extent of the losses and other unpaid liabilities of said company in the Merchants’ Department, and determined the respective portions of such losses and liabilities which each member of the company was liable to pay, and settled and determined that the defendant was liable to pay on his note the sum of $625.06, and assessed the defendant in that sum, and required payment thereof to him; and notice of such assessment, and of the time for the payment thereof was given by the receiver, by publication in a newspaper in Montgomery county for three weeks successively, the last publication being not less than thirty days prior to the time fixed for the payment. The 16th by-law of the company required that notice of all assessments should be given by the secretary, by publication in one newspaper published in Montgomery county, three weeks successively, “ and in such other newspapers as the directors or executive committee may deem necessary.” The referee found for the plaintiff the full amount of the note and interest, upon which judgment was entered for him, which was affirmed at general term. The defendant appealed to this court.

      Kellogg & Merritt, for the appellant.

      Henry R. Mygatt, for the respondent.
   Davies, J.

Three points are made by the counsel for the appellant in support of the appeal:

First. That the company had no right to divide their business into two departments, or the receiver to assess the notes of one department only, although the assessment be for losses occurring upon risks taken in that department to which they belong. This point is disposed of by the decision of this court in the case of White, Receiver, v. Giles Ross and others (decided at September term, 1860), when this court held, that the provisions of the charter of the company, dividing its business into distinct departments, was not in conflict with any provision of the act of April 10, 1849, authorizing the formation of insurance companies; that both classes are to be assessed by the receiver, and that it could not be doubted that all the notes of the company constitute its capital, and that although the notes of one department must first be assessed to pay the losses in that department, yet if they are proved not to be sufficient, and anything remains in the other department beyond paying the claims upon it in that branch, resort must be had to those remaining assets, until the whole are exhausted. The principle is here distinctly enunciated, that the division of the business of the company into distinct departments is legal and unobjectionable; and that the notes belonging to each department are primarily to be assessed, and sufficient collected therefrom to pay the liabilities of the particular department to which they belong; and if not adequate for that purpose, then resort is to be had to the notes of the other department, after sufficient shall have been collected therefrom to liquidate the liabilities of that department, .to meet any. deficiency The whole amount of the defendant’s note being required to discharge the liabilities of the Merchants’ Department, to which it belonged, he was properly called upon to pay it.

Second. It is objected that the addition, by the receiver, of ten per cent to the amount of the assessment made by him for the expenses of the assessment and the collection "thereof, was unauthorized, and rendered the assessment void. The charter of this company is not presented to the court; but it seems to have been assumed that its provisions are like those found in. the charter of the Genesee Mutual Insurance Company, referred to in the case of Bangs v. Gray (2 Kern., 477). In that case,, an assessment, which included ten per cent added thereto,, estimated as the expenses of collecting, &c., received the approval of this court. In the absence of any proof to the contrary, we are to assume that ten per cent was a reasonable and proper sum for the expenses of making the assessment and collecting the same. Assuming, therefore, that the assessment was made for the exact sum necessary to discharge the liabilities of the company, it would follow, if the receiver had no power to add thereto an amount sufficient to cover the expenses of making the assessment and collecting it, that such expenses would necessarily be deducted from the amount due to the policy holders. The result would be that the insured would have cast on them the burden of these expenses, and not the insurer. Such a result is contrary to the spirit and intent of the act creating these companies, and hostile to the principle upon which insurances are made. The contract of the insurer with the insured is that of complete indemnity- and whatever expenses or burdens, are incurred to carry into effect this contract should be borne by the party who has obligated himself to make the indemnity, not he who is to receive it. These views are in harmony with those expressed by this court in Bangs v. Gray (supra), and by the Supreme Court of Massachusetts in Jones v. Sisson (6 Gray, 296).

There remains to be considered the third objection, taken by the appellant, in opposition to the recovery in this action. He claims that the assessment made by the receiver was void, for the reason that the 16th by-law of the company required that whenever an assessment should be made by the company, “that notice of the assessment should be given by the Secretary, by publication in one newspaper published in Montgomery county, three weeks successively,' and in such other newspapers as the directors or executive committee may deem necessary,” and that notice of this assessment was not thus given. It is a sufficient answer to this objection to say, that the referee has found no fact which would authorize this court to assume that there was such a by-law of the company. The referee has found that the plaintiff has proven all the material allegations contained in the second cause of action stated in his complaint. In reference to this point the averment in the complaint was, that the receiver had made the assessment, and required the same to be paid to him, on or before the fourth day of July, 1853, “ and notice of such assessment, and of the time for the payment thereof, as required by the by-laws of said company, was duly given by said Sheldon, as such receiver, by publication in the Amsterdam Intelligencer, a newspaper published in the county of Montgomery, for three weeks successively, the last publication whereof, was not less than thirty days prior to the time fixed for the payment.” This finding, therefore, establishes the fact that notice of the assessment was duly given by the receiver, as required by the by-laws of the company, and we are not at liberty to hear suggestions, in opposition to this finding, that the notice was not given in accordance with the by-laws of the company. The by-laws are not set out in the case; but assuming them to be as stated by the appellant’s counsel, in their printed brief, we do not see that they afford any evidence that the referee has found incorrectly upon this point, or that by any proper construction, this by-law should be deemed as controlling the action of the receiver, an officer of the Supreme' Court, and who must necessarily act under its direction. The by-law in its terms, only seeks to govern and direct the action of the company and its officers when the assessment is made by them. It applies in terms only to an assessment made by the company, and as to such an assessment, directs how notice thereof is to be given by its secretary. In the absence of any direction by the directors or the executive committee, the notice is- to be published in one newspaper in Montgomery county. If the directors or said committee should deem it necessary to publish the notice in other newspapers, then it was- to be the duty of the secretary to publish it in such other newspapers as directed. In the absence of such direction, manifestly it would not have been the duty, even of the secretary, to publish it in more than one newspaper. Supposing, as the argument of the appellant’s counsel assumes, that the receiver is the representative of the directors in mating this assessment, and is bound to conform to the by-laws of the company in reference to it, then it would follow that he has the same discretion, as to its publication, that the directors had; and if he did not deem it necessary to publish it in more than one' newspaper, such publication would be no infraction of the by-law.

In any aspect in which this objection may be regarded, it cannot be sustained. The judgment appealed from must be affirmed, with costs.

Rosekrans and Marvir, Js., dissented.

Judgment affirmed.

       The expression of an opinion that the notes received in one department may be ultimately liable for assessment to meet the deficiencies in another department, notwithstanding a by-law to the contrary, was, according to the Reporter’s understanding, a mere obiter dictum in the case of White v. Ross, as it seems to be in this case.