author: Hogeboom, J.

text:
    Ross W. Wood and A. H. Grant v. Isaac B. Wellington and E. B. Abbott.
    The charter of the Atlas Mutual Insurance Company, granted in 1843, adopted a section of the charter of the Atlantic Insurance Company, granted in 1842. Held, that these acts, being passed subsequent to the revised statutes, must, so far as they prescribe a rule for the transfer of paper held by the company, different from that declared by the revised statutes, be deemed to overrule the former law.
    The charter of the Atlas Mutual Insurance Company, in regard to notes received for premiums in advance, authorized the company to negotiate them for the purpose of paying claims, or otherwise, in the course of its business. Held, that a note given for premiums on an open policy of insurance to the makers, and afterwards substituted for notes which had been negotiated by the company to the plaintiff’s, for the purpose of paying claims, or otherwise, m the course of its business, must be regarded as a note of the character specified in the charter; and that the transfer thereof to the plaintiffs by the company, was lawful, and the title of the plaintiffs indisputable.

      Held, also, that if the notes originally negotiated were lawfully transferred to the plaintiffs, the surrender of those notes, and the substitution of others in their place, for the convenience and accommodation of the parties, was not unlawful; it being but an exchange of securities, all of which were of a character which made it proper, under the charter, for the company to negotiate them for the purposes of its ordinary business.
    The note sued on was indorsed as follows: “Pay-for account of the Atlas Mutual Insurance Company. G. H. T., Secretary.” It appearing that the object of the indorsement was to pass an absolute title to the plaintiffs, and that this was the usual mode of transfer with this company; and the nature of the transaction showing that the intention of the parties was to pass an absolute and unrestricted title to the paper; Held, that the indorsement, though slightly ambiguous on its face, was susceptible of that construction, and fairly indicated either that the secretary indorsed the note for or on account of the company, or that the plaintiffs, on receiving the sum’due thereon, were to credit the same to the account of • the company, as between the transferee and such company.

      Held, further, that on such an indorsement the makers could not refuse payment to the holders, whether the name of the payee in the indorsement remained in blank, or was filled in with the names of the plaintiffs.
    That it was a transfer of the title to them, only to be defeated on a prose cution of the note, by proof that the plaintiffs were not the real parties in interest.

      Appeal by the plaintiffs from a Judgment of the General Term of Superior Court of New York, affirming a judgment of non-suit of the Special■ or Tried Term of the same court.

    This action was brought against the defendants as makers of a promissory note for $1,400, dated November 8, 1855, and payable eight months after date, to the order of. the Atlas Mutual Insurance Company, of which the plaintiffs claimed to be endorsers and holders. The note was as follows:
    “ $1,400. New York, November 8th, 1855.
    “ Eight months after date we promise to pay to the order of the Atlas Mutual Insurance Compaiy7, for value received, fourteen hundred dollars, payable at the National Bank.
    “ WELLINGTON & ABBOTT.”
    The endorsement thereon was as follows, being made by the secretary of the Atlas Mutual Insurance Company:
    “Pay -for account of the Atlas Mutual Insurance
    Company. “ Geo. H. Tracy, Secretary.”
    The grounds of the motion for a non-suit (which motion was granted), were that the endorsement restricts the plaintiffs’ title, and creates them trustees of the note; and also, that there is no resolution of the board of trustees authorizing the transfer or substitution.
    The resolution here referred 'to does not appear in the case, but is supposed to be that referred to in the eighth section of the first article of that title of the revised statutes which speaks ‘1 of monied corporations.” (1 Revised Statutes, 591.) That section is as follows:
    ■ “Section 8. No conveyance, assignment or transfer not authorized by a previous resolution of its board.of directors shall be made by any such corporation of any of its real estate, or any of Us effects, exceeding the value of one thousand dollars; but this section shall not apply to the issuing of promissory notes, or other evidences of debt by the officers of the company in the transaction of its ordinary business, nor- to payments in specie or other current, money, or in bank bills, made by such officers; nor shall it be construed to render void any conveyance, assignment or transfer in the hands of a purchaser for a valuable consideration and without notice.”
    The plaintiffs introduced considerable additional evidence beyond proof of the note and the endorsement, which it is supposed was intended to sustain one or more of the following propositions, to wit:
    1. That the validity of the transfer of the note did not depend upon the section of the revised statutes just quoted, but upon section eight of the charter of the Atlas. Insurance Company. (Session Laws 1843, Ch. 92, § 8.)
    2. That the transfer of the note by the Atlas insurance Company to the plaintiffs was justified by and in accordance with the section of the charter just referred to.
    3. That the special endorsement of the note above mentioned, was designed to transfer the whole interest in the note to the plaintiffs, and was effective for that purpose, and was not designed as a restrictive endorsement for the benefit of the defendants.
    In support of these propositions, the plaintiffs introduced evidence, the substance of which is hereafter given. The note in question was given to the plaintiffs for premiums upon an open policy of marine insurance. It was transferred to the plaintiffs in substitution for other notes delivered to them as collateral security. On the.30th day of July, 1855, the Atlas Insurance Company borrowed from the plaintiffs their notes for $10,000, payable in four months, which the company used. The plaintiffs claim that this sum was borrowed to enable the company to pay marine losses, but this is rather an inference from the testimony than the result of any direct proof in the case. To secure this indebtedness to the plaintiffs, the company gave them their notes for a like amount ($10,000), maturing about the same time, and secured the same by the transfer of premium notes held by them, amounting to the sum of $12,594.19. The notes thus loaned by the plaintiffs to the company were paid by the plaintiffs.
    On the 27th day of December, 1855, the plaintiffs wanting notes which they could use, returned to the company some of the notes originally received by them as collateral security, and others to the amount of $4,354.50 were substituted in their place. Among those thus substituted was the note in suit. There was no resolution of the board of trustees on the minutes in regard to this transaction. The secretary thought there was a resolution of the finance committee, and that they arranged the original transaction or sanctioned it before it was done, and that most of the trustees were aware of it, and approved it. None of them ever disapproved of it. The substitution was made by the direction of the president and vice president of the company.
    There was some evidence in regard to the pecuniary condition of the company at the time of these transactions, but the inference from the evidence on the whole is, that they were embarrassed father than insolvent, and that they did not fail until an injunction was served on them, in March, 1856.
    The following papers were read in evidence, as bearing upon the authority for and the mode of transfer of the note in suit:
    The charter of the company (Sess. Laws 1843, eh. 92, § 8) makes section 12 of the charter of the Atlantic Insurance Company a part of its charter, and that section is as follows (Laws 1842, ch. 217, § 12):
    “ The company, for the better security of its dealers, may receive notes for premiums in advance, of persons intending to receive its policies, and may negotiate such notes for the purpose of paying claims or otherwise, in the course of its business; and on such portions of said notes as may exceed the amounts of premiums paid by the respective signers thereof, at the successive periods when the company shall make up its annual statement, as hereinafter provided for, and on new notes taken in advance there,after, a compensation to the signers thereof, at a rate to be determined by the trustees, but not exceeding five per cent, per annum, may be allowed and paid from time to time.”
    Under this provision there was a by-law of the company, as follows:
    “The president or vice-president, with the advice and consent of the finance committee, or a majority of them, shall have authority to assign, transfer, or otherwise validly dispose of any bond and mortgages, stocks, bills recivable or any assets of the same, in order to convert the same into money, or to secure the repayment of money borrowed by the company through them, the payment of losses, or other purposes that shall have been sanctioned by the finance committee.”
    On the-30th. October, 1855, the board of directors also adopted a resolution, which was in force when the plaintiffs surrendered their notes and received the note in suit, as follows:
    “ Resolved, That any arrangement made by the finance committee, in paying or arranging for funds to pay the pressing liabilities of the company, and to sustain the institution until other means can be provided, if they shall make themselves or their friends personally liable, the ■ same shall be considered and treated as confidential, in any event equal in all respects to the amount of $40,000 already subscribed by the friends of the company for its relief.”
    The secretary testified that the note in suit was transferred and endorsed in the usual way, and that the company had transferred and endorsed the notes held by them, in this way, to a large amount.

      W. Curtis Noyes, for the appellants.

      Gilbert Dean, for the respondents.
   Hogeboom, J.

It is fair to presume that the court granted the motion for anon-suit on the grounds presented there and hereby the counsel, for the defendants, and stated ■in the case; and I shall therefore limit myself to the discussion of the two propositions embraced in that motion.

-If this case is governed by the eighth section of the first article of the title of the revised statutes which relates to “ moneyed corporations ” (1 Rev. Stat. 591), it is not necessary to decide whether the plaintiffs were properly non-suited. There was no previous resolution of the board of directors, authorizing the transfer of the note in question; nor were the plaintiffs purchasers of the paper for a valuable consideration without notice, within the exception to the general effect of that section. As the plaintiffs dealt directly with the Atlas Insurance Company, and not with a supposed bona fide holder of their paper, they are chargeable with knowledge of the statutory prohibition in question avoiding a transfer not sanctioned by a previous resolution of the board, and are not within the protection of that class of dealers who purchase bona fide from those presumed to have a good title to the paper which they sell. ■

But I think tliis case must rest on the charter of the company, granted in 1843, which adopts a section of the charter of the Atlantic Insurance Company, granted in 1842. (Laws of 1843, Ch. 92, § 8; Laws of 1842, Ch. 217, § 12.) These acts were passed subsequent to the revised statutes, and so far as they prescribe a rule for the transfer of paper held by the company, different from that declared by the revised statutes, they must be deemed to overrule the former law. This was distinctly held- in a case in this respect precisely similar—that of Howland v. Myer (3 Comst. 290.)

Nor is this in conflict with the decision of this court in Houghton v. McAuliffe and others, in December, 1863. There was nothing in the latter case to show that there was any provision in the charter of that insurance company which conflicted with the rule laid down in the. revised statutes; and the latter were therefore properly held to be applicable.

We must, therefore, examine the case with reference to the charter of the Atlas Insurance Company. That charter, in regard to notes received for premiums in advance, authorized the company to negotiate them for the purpose of paying claims, or otherwise, in the course of its business. The note in question must be regarded as a note of that character. It expressly appears that the note was given for premiums, on an open policy of marine insurance, and it could not' well be, therefore, a note of any other description than those mentioned in the charter. I think we must also assume that the notes for which it, with others, was substituted, in December, 1855, were negotiated for the purpose of paying claims, or. otherwise, in the course of its business. The purpose of the negotiation of the notes is not very distinctly stated, but taking the presumptions of law and the fair inferences from the facts proved, we are authorized to conclude that they were nego: tiated in the course of its business—its lawful business. .If the notes originally negotiated were thus lawfully transferred to the plaintiffs, I do not see. that the surrender of those and the substitution in their place of others (including the note in suit) for the convenience and accommodation of the parties, can be unlawful. It. was but an exchange, of security, all of which, as well those originally taken as those subsequently substituted, were, so far. as we can discover, of a character which made it proper, under the section in question, for the company to negotiate them for the purposes of its ordinary business. In regard to all those matters, as to the notes being taken for- premiums in advance or to their being negotiated for a purpose authorized by the charter, inasmuch as no objection was made to them on the trial in these respects, we are authorized to assume that they came directly within the scope of the. section under consideration. So regarded, their transfer was lawful, and the title of the plaintiffs thereto indisputable, within the case of Howland v. Myer (3 Comst. 290), and if the court below non-suited the plaintiffs on this ground, I think it must have been from inadvertence, in not considering the case last referred to in connection with the provisions of the present charter.

The mode of endorsement is supposed also to present an insuperable difficulty in the way of the transfer of the legal title to the paper to the plaintiffs. It is sufficiently clear that the object of the endorsement was to pass an absolute title to the plaintiffs. The secretary states that this was the usual mode of transfer, and that notes to a large amount have been thus transferred by the company.1 The nature of the transaction detailed in the evidence, also shows that the intention of the parties ivas to pass an absolute and unrestricted title to the paper. The endorsement itself, though slightly ambiguous on its face, is susceptible of that construction, and fairly indicates either that the secretary endorsed the note for or on account of the company, or what is more probable, that the plaintiffs on receiving the sum due thereon, were to credit the same to the account of the company, as between the transferee and such company.

In this case no question is made as to the intention of the transfer between the company and the plaintiff. And on the facts shown, I think the company could not be heard to dispute the plaintiffs’ title. Clearly the defendants on such an endorsement, could not refuse payment to the plaintiffs, whether the name of the payee in the endorsement remained in blank, or was filled in with the names' of the plaintiffs. It was, I think, a transfer of the title to them only to be defeated,, on a prosecution of the note, by proof that the plaintiffs were not the real parties in interest.

The judgment should be reversed, and a new trial granted, with costs to abide the event.

All the judges concurring, judgment reversed.


source: Caselaw Access Project

author: Johnson, J.

license: Public Domain

text:
    The Manufacturers’ and Traders’ Bank v. Morris Hazard, impleaded, &c.
    Where M. H., the endorser of a note, wrote his name in the usual manner, and in good faith, in making the indorsement, using the initial only for his Christian name, but it was written in such a manner that a person not acquainted with the endorser’s Christian name would read it A. 0. instead of M., and the notary who protested the note read it A. 0. and addressed the notice of protest to A. 0. H.; Held, that the mistake in addressing the notice was directly attributable to the manner and form of the endorser’s hand writing in making the endorsement; that the notice sent was-a good notice, in law, to the endorser, and that he could not make the mistake which he had thus occasioned available, to shield himself from liability.
    And the notice having actually come to the endorser, though after a delay of several days; Held, that it was a good notice to charge him, notwithstanding the delay and the erroneous address.
    Reasonable diligence is all that is required, in any case; and where a plaintiff acts upon what the defendant appears to have written plainly upon the instrument, that is reasonable diligence, and he is not bound, as between them, to go beyond that, and make inquiries.
    It is not necessary to an equitable estoppel that the party should design to mislead. If his act was calculated to mislead, and actually has misled, another acting upon it in good faith, and exercising reasonable care and diligence under all the circumstances, that is enough.

      Appeal from an order of the General Term of the Superior Court of the city of Buffalo, reversing a judgment of the Special Term and granting a new trial.

    The action was brought against the defendants as makers and endorsers of a promissory note, dated the 13th of July, 1857, made by the firm of Williams, Tanner & Co., payable to the order of the defendant Williams, and endorsed by him and also by the defendant Hazard, for $2,000, payable at the Metropolitan Bank in the city of New York, sixty days from the date thereof. The defendant Hazard endorsed the note by writing “M. Hazard,” instead of his full name. The note was protested for nonpayment. The notice of protest'was addressed to “A. C. Hazard, Buffalo,” which was the place of the defendant’s, residence, and was duly mailed. On the 21st of Septemher, 1857, the notice was taken from the post-office in Buffalo by one G. S. Hazard, who retained it until the 23d of the same month, when he delivered it to the defendant. G. S. Hazard had no connection whatever with the defendant. The cause was tried before the court without a jury, who found as facts from the evidence that the defendant’s initial in the endorsement was so written that a person not acquainted with his Christian name, and who did not know that the defendant endorsed the note, would read it A. C. and not M.; and that the notary who protested the note read it A. C.; and decided as matter of law that the note was properly protested, and gave judgment against the defendant as endorser. The defendant appealed to the general term of said court, where the judgment of the special term was reversed and a new trial ordered. The plaintiff thereupon appealed to this court from the order of reversal, and stipulated that if said order should be affirmed, judgment absolute should be rendered in the defendant’s favor.

      H. W Rogers, for the appellant.

      G. B. Hibbard, for the respondent.
   Johnson, J.

It is to be presumed that the defendant, ■when he endorsed the note in question, knew when it was payable, and that if it was not paid at maturity, demand of payment and notice of protest might then be made by some official person, who was neither acquainted with him personally, nor with his signature or his manner of making it. The finding by the court assumes that" the defendant wrote his own name in the usual manner, and in good faith, in making the endorsement, using the initial only for his Christian name; but determines that this initial was written in such a manner that a person not acquainted with the defendant’s Christian name, would read it A. C. instead of M.; and that the notary who protested' the note read it A. -C. The mistake, therefore, of addressing the notice of -protest to the defendant as A. C. Hazard, instead of M. Hazard, is directly attributable to the manner and form of the defendant’s handwriting in making the endorsement. This raises the question whether the notice thus addressed and sent is not a good notice in law to the defendant; and whether he can make the mistake which he has thus occasioned available, to shield himself from liability. I have been unable to find any adjudged case which meets this precise question. In principle; however, the ease falls directly within the rule laid down by several of the elementary writers on the subject of notes .and bills of exchange; that when through an error caused by the indistinctness of the writing, the notice does not reach the party in season he is not discharged. Thus, Byles on Bills, at page 207, says: “ If the notice miscarry from the indistinctness of the drawer’s hand-writing on the bill, he will not be discharged.” Chitty says: “The misdirection by mistake, of a letter giving notice of the dishonor, will be no excuse for the consequent delay, unless it w'ere attributable to the default of the drawer or indorser himself.” (Chit, on Bills, 8 Am. 8 Lond. ed. 489.) Parsons in his recent Avor.kon notes and bills, remarking upon the curious questions Avhich have arisen as to the address, says: “ If, for instance, the sender has nn better means of knowing how to address the draAver than by his name as written by himself in the bill, and through an error caused by the indistinctness of the writing the notice does not reach the drawer in season, the drawer is not discharged.” And it is added: “ nor should Ave say, although on this point we have no authority, that the indorsees Avoiüd be discharged, for the case seems to come under the rule of impossibility, as the holder has done all he could do.” (1 Parsons on. Notes and Bills, 485, 6.) Byles and Parsons each cite as authority the case of Hewit v. Thompson (1 Mood and Rob. 541.) That was a nisi prius case, and the notice Avas sent to the Avrong person, and did not reach .the drawer until too' late, The mistake arose from the indistinctness of the drawer’s'writing on the'bill, The question1 was submitted to the jury to consider whether the plaintiff had been led into the error through the indistinctness of the description which the defendant had given of himself in the bill; and if he had, they were instructed the defendant Was not discharged. The case is not decisive or controlling as an authority; but the principle seems to be-, founded in the plainest considerations of justice and good-conscience, that a party should be- bound by a notice-addressed, in accordance with the description he has" given ■ of himself by his own hand on the1 bill- or note. The defendant actually received the' notice as- it was addressed, though not till several days after it was1 sent, and when it would have been clearly too Me- under ordinary circumstances. But the error' which led to the delay, and the misdescription, were both occasioned by the" manner in* which the defendant- described himself in making his* endorsement.

It is claimed, in behalf of the defendant, that the plaintiff, as holder, has been guilty of laches, and that as to the plaintiff,' there was no necessity whatever of sending such a notice. It is- insisted that the plaintiff is presumed to have known the defendant’s Christian name',, and should have sent it correctly to- its correspondent in. ¡New York. But under the circumstances of this case,- it" seems to me that no want of diligence can justly be imputed to the plaintiff. The note was sent to the place where by its terms it was ■ payable. When default" was made by non-payment, notice had- to be given forthwith. There1 was then- "no time for' inquiry, nor did there appear' on the face of the indorse-ment to be any occasion to" make' any. There- did not appear to be any indistinctness or uncertainly in' respect tO' the signature. It appeared plainly to the notary to be the initials of two1 Christian names, instead, of One, and'the notice was addressed accordingly. I do not think, in a case like this, there is any presumption of law, that the plaintiff knew the Christian name of the defendant, or was bound to suppose that it was other than what the initials A. C. as they appeared to others might indicate. To my mind it presents the simple case of a mistake in an address of a notice, caused solely by the manner in which the defendant signed the initial letter to his Christian name, and for which no one but himself is responsible. And as the notice actually came to him, I think it was a good notice to charge him, notwithstanding the delay and the erroneous address thus occasioned.

■ Eeasonable diligence is all that is required in any case; and where a plaintiff acts upon what the defendant appears to have written plainly upon the instrument, that is reasonable diligence, and he is not bound, as between them, to go beyond that and make inquiries. In principle it is somewhat analogous to the case of a drawer or endorser holding himself out as living at a particular place. In such a case if a notice is sent there in consequence, he is estopped from denying the validity of the notice, on the ground that it has been sent to the wrong place. (1 Parsons on Notes and Bills,,495.)

In Lawrence v. Miller (16 N. Y. R. 235), the mistake of-serving the notice upon another person of the same name, was not, caused by any act or omission on the part of the ■endorser. That case is plainly distinguishable from this, in that material circumstance.

, It is not necessary to an equitable estoppel that the party should design to mislead. If his act was calculated to mislead, and actually has misled another acting upon it in good faith, and exercising reasonable care and diligence under all the circumstances, that is enough.

I am of the opinion, therefore, that the order of the general term should be reversed, and the judgment' of the special term affirmed.

All the judges concurring, judgment affirmed.


author: Wright, J. Mullin, J.

text:
    Elizabeth Macy, adm’x, &c., of Frederick H. Macy v. David E. Wheeler.
    The supreme court has the undoubted power and right to examine the evidence at large, and upon the whole case, including the law and the facts, to set aside a verdict and grant a new trial.
    That court can, from the evidence, reach different conclusions of fact from those found by the jury. In reviewing trials, it has power to pass upon questions of fact as well as law; whilst the court of appeals is confined to the correction of errors of law only.
    Having no power to review any questions of fact determined in the subordinate courts, when a new trial is granted the court of appeals is obliged to affirm the order, if it can stand consistently with any view to be taken of the evidence given at the trial, where the trial has been by jury.
    The legal and record title does not of itself decide the question of liability for supplies furnished to a registered vessel. The question is,.to whom was the credit given; and the law adjudges it to have been given to the person in "actual possession of the vessel, who controls her operations, receives her freight and earnings, and directs her destination.
    The defendant was the registered owner of a vessel, but he held the title merely as trustee for P., the real owner; and had no interest in her earnings, which belonged tc P. or the persons to whom? he transferred them. The plaintiff furnished a set of sails for the vessel, upon the order of P.: Held, that a verdict for the plaintiff could only be warranted by a finding, 1st. That the contract was not made with, and the credit given to, P. exclusively; 2d. That the defendant was in actual possession of the vessel, controlling her movements and interested in her voyage, and directing what should be done with her, in all respects as her owner, when the sails were furnished; or that he expressly authorized P. to contract for the same on his responsibility.

      Appeal from, an order of the Supreme Court granting a new trial, with a stipulation for final judgment.

    The action was to' recover for a bill of sails furnished by the plaintiff’s intestate for the bark Peytona, of the value of $552.23. The sails were ordered by Antonio Pelletier, in December, 1852, or January, 1853, and the defendant claimed, in his answer, they were furnished on the credit of Pelletier, the defendant not owning the vessel when they were ordered and furnished.
    The liability of the defendant was rested by the court, at the trial, on two grounds: 1st. The jury were instructed that if the defendant was the actual owner and in the possession of and exercising the control of the vessel when the sails were furnished, he would be liable for their value; and 2d. He would be also liable if he expressly authorized Pelletier to contract for the sails on his responsibility. The evidence bearing on these points was substantially as follows:
    The vessel was bought by Pelletier in November. 1852. On the 31st of December, 1852, he executed a bill of sale of eight-ninths of her to the defendant. This was recorded on the 4th of January, 1853. A bill of sale of the other ninth was executed to the defendant by Pelletier’s order, by Babbridge & Valentine, to whom it had boon previously conveyed by Pelletier, dated January 8, 1853, and recorded on the 29th of January, 1853. On the 28th of January, 1853, the defendant signed an agreement with Babbridge & Valentine to purchase of them all stores necessary to fit out the vessel for the voyage. On the 4th' of February, 1853, the defendant took the usual' oath of ' ownership of the vessel, at the custom house. On the 8th of February he signed an agreement employing the master of the bark. On the 28th of February, 1853, the defendant put in a claim, in admiralty, as the sole, true and bona fide owner of the Pey tona. The evidence was all documentary, and these were all the facts tending to show that the defendant was in the possession of the vessel. None of the papers mention or refer in terms to his possession, and they were all subsequent to the contract for the sails, if the defendant’s proof was to be credited. On the other hand it was proved by three witnesses that the defendant’s actual relation to the bark was as follows: Pelletier owned the Peytona, and wished to make her one of a line of Australian packets. Babbridge & Valentine, ship chandlers in New York, made him advances to enable him to carry out this design, and took an absolute bill of sale of the whole ship for their own security. Pelletier quarrelled with them, and made an arrangement with Overman & Grunn, by which the latter firm were to lend him money to pay Babbridge & Valentine, to advance what further sums should be necessary, and to hold the title to the ship as collateral security. As they were aliens, the defendant, who was a lawyer, and engaged in no commercial pursuits, allowed the title to be taken in his name, merely as trustee for them. Babbridge & Valentine would not' consent to relinquish their right to supply stores for the voyage, and retained one-ninth of the vessel as security that Pelletier Would buy of them; and when it was desired by Overman that the defendant should hold title to the whole, Babbridge & Valentine took an agreement of even date with the bill of sale to him, that the stores should be bought of them. Pelletier had the entire management and control of the bark, employed her captain, and gave him minute instructions in writing for the voyage, purchased her stores, and was advertised everywhere as her proprietor. The defendant never gave an order in relation to her, never received or claimed any part of her earnings, never issued any tickets, never saw the plaintiff’s intestate, or knew of his furnishing sails until six months after they were delivered.
    The fact was not disputed that Pelletier .contracted for the sails. There was evidence on the part of the defendant tending to show that he ordered them about the 20th of December, 1852, and while Babbridge & Valentine were the registered owners of the vessel. On the contrary, the testimony of the plaintiff, Macy, tended to show that they were put on the vessel about the 30th of January, 1853, and had been ordered by Pelletier after the defendant acquired the registered title.
    Affidavits of the plaintiff, Macy, wrere put in evidence, sworn to respectively June 30th and July 29th, 1853, in which he stated that the sails were supplied on Pelletier’s credit, and to be paid for by his note at six months. Similar admissions were made to the defendant about the 30th of July, 1853.

      There was no proof tending to show an actual authority to Pelletier from the defendant, to contract on his behalf for the sails, .unless it be Pelletier’s statement, as follows.: “It was understood between Wheeler and me that I was to go on with the vessel and get her ready for sea.” Directly afterwards he testified: “ Wheeler had no interest in the vessel. * * * I made a contract with Macy for the sails. * * * I was to have the profits of the voyage when the bills were settled. * # * I was owner at the time.. I had the entire interest in the profits, and the entire interest in the vessel. * * * There was no arrangement between me and Wheeler. As far as I knew Wheeler merely held the Peytona in trust for Over-man & Grunn. I had exclusive possession of the Peytona up to two days before she sailed.” On the point of authority, the defendant testified explicitly: “I had no interest in the vessel. * * * I had not the possession. * * * I never authorized Pelletier to order a single thing.”
    When the plaintiff rested his case, the defendant moved to dismiss the complaint on the grounds: 1st. Because Wheeler, being the mere registered owner, is not liable for supplies furnished to his vessel simply on the ground of his registered ownership. 2d. There is nothing tending to prove that the sails were furnished on Wheeler’s credit. 3d. Because Wheeler was not registered owner when the sails were furnished. 4'th. Because there is no proof that the defendant was in possession of the vessel.
    The judge said that, as the case stood, he must grant the motion, because there was .no evidence to show Pelletier’s authority to order the sails in question. The plaintiff then obtained leave to introduce further testimony, and called Pelletier. After the examination of Pelletier the motion was renewed on the same grounds, and denied, to. which the defendant excepted.
    The judge, in his charge, submitted two questions to the jury: 1st. Whether the defendant was the actual owner and possessor of the vessel, and controlled her movements, directing what should be done with her in all respects as her owner, at the time the sails were furnished, and instructed them that if they should so find, then the sails came to his. possession, and he would be liable for their value. To this there was no exception. 2d. Whether the defendant expressly authorized Pelletier to contract with the plaintiff for the sails on his responsibility; and if so, then the plaintiff was entitled to their verdict. This was not excepted to.
    The jury found a verdict for the plaintiff. The supreme court, at special term, denied the motion for a new trial, and on appeal to the general term that order was reversed and a new trial ordered, with costs to abide the event.
    From the last named order the plaintiff’s administratrix appealed to this court, stipulating that if the order be affirmed, judgment absolute should be rendered against the appellant.

      C. N. Black, for the plaintiff.

      E. P. Wheeler, for the defendant.
   Wright, J.

The only exception on the part of the defendant was to the refusal to non-suit at the close of the plaintiff’s evidence. It was not, perhaps, error to decline to hold, on the proof then given, as matter of law, that the defendant had not such a beneficial ownership and possession of the vessel at the time the sails were contracted for and furnished as to render him responsible; or that the contract was made with, and the credit given to, Pelletier, and not to the defendant; or that Pelletier had no actual authority from the defendant to contract on his behalf for the sails. These were questions of fact. If the defendant was the merely legal and registered owner of the vessel, holding the title for himself as security or in trust for others, and not in point of fact- in possession of and controlling her, either as to her destination and employment, • or the proceeds of it, he would not be liable. The legal and record title does not of itself decide the question of liability for supplies furnished to a registered vessel. The question is, to whom was the credit given; and the law adjudges it to have been given to the person in actual possession of the vessel, Avho controls her operations, receives her freight and earnings, and directs her destination. So, also, conceding the defendant to have been in possession and to have sustained such a relation to the vessel as owner as to be responsible for necessaries furnished for her use, if the contract for the sails was made with, and the credit given to, Pelletier, there was no foundation for the plaintiff’s claim. And again, it was undisputed that Pelletier ordered the sails. He ivas not the master of the vessel, and had no implied authority as such to bind the defendant. He was a witness for the plaintiff, and testified that he was the owner. He was advertised as proprietor; and there ivas no evidence to connect him with the vessel, except as owner and proprietor. He was that or nothing. There was, therefore, no implied authority in him.

The further and remaining question was whether Pelletier was.expressly authorized by the defendant to contract with the plaintiff for the sails on his responsibility. If he was without express authority, the defendant would not be bound. Even though the defendant were in possession of the vessel, and actually received the sails contracted for by Pelletier voluntarily, he would not be bound to account for them if there had been no previous request on his part; The rendition of services at the request of one party, beneficial to another, without a previous request from the latter, does not raise an implied promise on his part to pay for them.

It is thus seen that the liability of the defendant depended upon certain conclusions of fact, there being no controversy as to the law of the case, at least as .far as the rights of the plaintiff were affected. The plaintiff had a verdict, which could only have been warranted by a finding: 1st. That the contract was not made with, and the credit given to, Pelletier exclusively. 2d. That the defendant was in actual possession of the vessel, controlling and managing her movements, interested in her voyage, and directing what should ■ be done with her in all respects as her owner, when the sails were furnished; or that he expressly authorized Pelletier to contract for the sails on his responsibility.

The supreme court had the undoubted power and right to examine the evidence at large, and upon the whole case, including the law and the facts, to set aside the verdict and grant a new trial. That court could, from the evidence, reach different conclusions of fact from those found by thó jury. In reviewing trials, its power is to pass upon questions of fact as well as law, whilst this court is confined to the correction of errors of law only. Having no power to review any question of fact determined in the subordinate courts, when a new trial has been granted we are obliged to affirm the order if it can stand consistently with any view to be taken of the evidence given at the trial, where it has been by jury. (Hoyt v. Thompson’s Ex’r, 19 N. Y. Rep. 207; Sanford v. The Eighth Avenue Railroad Company, 23 N. Y. Rep. 343.) We are in this position in the present case. The jury found certain facts, and predicated a verdict upon them. Upon an examination of the evidence at large, and upon the whole case, the supreme court has ordered a new trial. It has reached different conclusions of fact from those found by the jury; and an examination of the case shows that those conclusions ■ are not wholly unsupported by the evidence. Indeed, such examination, instead of leading to the conclusion that the order granting a new trial is not to be justified by any view to be taken of the proof given, plainly shows that the plaintiff established a defense by the clear preponderance of testimony. The evidence tended strongly to show that, the plaintiff contracted with Pelletier for the sails, and upon his credit; that although the defendant held the legal title to the vessel, Pelletier was the equitable owner, in possession, controlling and managing her, directing her destination, and having the sole right to receive her freight and earnings;, and that he ordered the sails on his own responsibility, irrespective of any actual authority from the defendant. It is enough, however, that the supreme court might have taken this view of the evidence.

As we are without power to review questions of fact determined in the subordinate courts, we have no recourse but to affirm the order granting a new trial. The plaintiff, instead of appealing from the order and stipulating for final judgment in case it should be affirmed, ought to have gone down to another trial. But we have no power to give the case that direction.

The order granting a new trial must be affirmed, and judgment absolute rendered against the appellant.

Mullin, J.

This cause was tried by a jury, and a verdict rendered for the plaintiff. The defendant's counsel moved, at the special term, for a new trial, which motion was denied. On appeal to the general term this order was reversed, and a new trial granted. It was held, in Sanford v. The Eighth Avenue Railroad Company (23 N. Y. 343), that when the trial is by jury we have no power, under the existing rules of law, to review any question of fact determined in the subordinate courts. In this case, therefore, we should bo obliged to affirm the order granting a new trial if that order could stand consistently with any view to be taken of the evidence given at the trial.

In that case I infer that no questions of law were involved; that the motion for the new trial was made on the facts only. In this case there are questions of law as well as of fact, and we must examine both before we can reverse the order of the general term.

The defendant’s counsel objected to evidence offered on the trial by the plaintiff in reference to the transactions between Pelletier and Babbridge & Valentine, and between Pelletier, Overman & Grunn and Wheeler, and his objections were over-ruled and the evidence was received.' The evidence was competent, and therefore properly admitted. The questions for .the jury to determine were, 1st: Was Wheeler owner and in possession of the vessel when the order for the sails was given by Pelletier? If he was owner, then, 2d. Was Pelletier his agent in ordering the property?

The defence denied even nominal ownership by the defendant when the sails were ordered, but insisted that Pelletier was the real owner, and the nominal title at that time was in Babbridge & Valentine. And that after the defendant obtained the nominal legal title, Overman & Grunn had an interest in the vessel, and in the liabilities existing against her. It was impossible to ascertain who was liable for supplies, without an inquiry into the transfer of and dealings concerning the ship by the several parties connected therewith. When the facts were all out it might be that many of them- were irrelevant or otherwise incompetent, and should have been stricken out. No motion to strike out was made, and the defendant cannot now complain if such matters are now found in the case. It was impossible when the evidence was offered, for the court to separate the legal from the illegal, and it was his duty therefore to admit the whole, subject to the right of the counsel to move to strike out that which was illegal.

The defendant’s counsel moved for a non-suit, which motion was denied. ' When the plaintiff rested the second time there was evidence sufficient to carry the case to the jury. The defendant was shown to be the legal owner; he had hired the captain, agreed to pay for supplies, and Pelletier had given evidence which might be construed as proof of authority from the defendant to him to order the sails from the plaintiff. It is true, much of this evidence related to a day subsequent to the order. But the bill of sale of eight-ninths of the vessel from Pelletier to the .defendant, bears date the 31st December, 1852, while the order for the sails was not given to the plaintiff until about the middle of January following. If the plaintiff was found to be owner from the 1st January, the other evidence in the case might justify a verdict for the plaintiff. It is sufficient for our present purpose that there was some evidence tending to prove the defendant liable.

If I am right in regard to these legal questions, it follows that the general term must have granted the new trial on the evidence; and I propose to inquire very briefly, whether within the rule laid down in Sanford v. The Eighth Avenue Railroad Company, cited supra, in any view of the evidence the order granting a new trial can stand.

While it is true that there is some evidence to support the verdict of the jury, it is equally true that a verdict for the defendant would have been not only justified, but if rendered, could not have been set aside as against the weight of evidence, or as unsupported by it.

It was indubitably established that Pelletier was the real owner of the vessel, both before and after the transfer to defendant; that the defendant had no interest in his or her earnings; and that they belonged to Pelletier, or those to whom he transferred them. Under these circumstances, the defendant was not liable for supplies, unless purchwed by him, or by some person authorized by him. (Abbott on Shipping, 32; Leonard v. Huntington, 15 J. R. 298; Wendover v. Hogeboom, 7 J. R. 308; and cases cited in note to page 33 of Abbott on Shipping.)

When supplies are furnished to a ship, the person furnishing- them has three remedies to which he may resort in order to collect the price. 1. He may enforce them against the ship. 2. Prosecute the owner or person in the. actual possession and bound to furnish supplies; and 3. He may sue the person ordering them. If the vendor will not adopt the first of these three, an action must be brought against a party liable to him.

We have seen that mere ownership alone does not subject the owner to liability, and for very obvious reasons. It is competent for the owner to charter the ship to another, and while the person hiring is in possession and use of the vessel there would be no justice in subjecting the owner to liability. As well might the owner of a house be liable for repairs or supplies while it is occupied by a tenant. (Cutler v. Thurlo, 20 Maine, 217; Abbott on Shipping, 35 and note.)

The hirer is pro hac vice owner, and alone liable. (Cases cited supra; Sherman v. Fream, 30 Barb. 478; 8 John. Rep. 272.)

Upon the same principle it has been held that a purchaser of a vessel, after his contract of purchase, and before the title is actually transferred, is liable for supplies, if he is in possession of her at the time, and the person in whom the legal title is, is not liable. (Hussey v. Allen, 6 Mass. 163; Portland Bank v. Stubbs, id. 422; Mulden v. Whitcock, 1 Cowen, 290; 11 Mass. R. 34.)

The question is then brought down to this: Was the defendant in the actual possession of the vessel at the time the sails were ordered; or was Pelletier his agent, and as such, authorized to bind the defendant? If the evidence does not support either of these propositions, then the new trial was properly granted.

There is some proof of possession, not of actual occupation by the defendant, but of acts of ownership after the transfer to him by Babbridge & Valentine, but none as early as the middle of January. The agreement between-B. & V. and the defendant for supplies, bears date the 28th January, 1853. The bargain with the captain was on the 8th February. The defendant’s claim to the vessel made in.the United States district court for the southern district of Few York, was sworn to on the 28th February. The oath of ownership was taken on the 4th February. Aside from these acts, there is no evidence that the defendant had anything whatever tq dq 'with the ship. The learned justice who tried this cause instructed the jury'that they might take these facts into consideration in passing on the question whether the defendant was in the actual possession of the ship. The evidence was competent upon that question. But it was met, and I think overcome by the undisputed evidence of both the defendant and Pelletier, that the defendant was not in possesssion, and did not control the ship.

Upon the other proposition, whether Pelletier was authorized to bind the defendant for supplies, I think the evidence is still more unsatisfactory. The only evidence in support of it, is the statement of Pelletier that “ after this transfer (that of the title to the defendant I suppose is meant), it was understood between the defendant and me that I was to go on with the vessel, and get her ready for sea.” From this statement, the inference as already suggested, might be drawn, that he was thereafter acting as agent of the defendant; but the same witness repeatedly says that the defendant had no interest in the vessel or her earnings. This being so, it would be doing violence to language, to say that the witness intended to testify to an agency. On the contrary, he says that he ordered the sails, wanted credit, and offered his note, which the plaintiff refused.

The proof in the case establishes the liability of Pelletier for the property. He was the actual owner of the vessel, entitled to all her earnings, and was the only person who was interested in furnishing supplies. It was Pelletier who ordered the goods, whose responsibility was relied on, until he became insolvent, and. then the attempt was made to make the defendant liable.

I think the new trial was properly granted, and, under the stipulation, judgment absolute rendered in favor of the defendant, with costs.

All the judges concurring, judgment affirmed.


author: Hogeboom, J. Wright, J.

text:
    Isaac Carpenter and Alfred A. Sutton v. Mary G. Ward.
    A party who cross-examined, a witness as to a collateral matter, is concluded by his answers. He can- not draw out collateral statements from the witness, and for the purpose of discrediting him. show that on some other occasion be stated differently.
    To entitle the examining counsel to show the discrepancy, for the purpose of impeaching the credibility of the witness, it must either appear that the testimony related to a point material to the issue on trial, or to a fact brought out on the examination of the adverse counsel.
    This is an appeal by the defendant from a judgment of the supreme, court, in the second district, in favor of the plaintiff, affirming a judgment entered on the report of a referee. The action was brought to recover the value of a quantity of lumber and coal, alleged to have been sold and delivered to the defendant by the plaintiffs, and was tried before a referee, by whom the following facts were found: That the. plaintiffs, during the year 1854, were coal and lumber merchants at White Plains; and from June, 1854, to January, 1855, the defendant was the owner of certain real estate, situate in the town of Scarsdale, known' as the DeLaneey property. In the fall of 1854 an addition was built to the house on said real estate, and the barn repaired. The addition was built and repairs made by one Hanbold, pursuant to the direction of William Ward, the brother of the defendant, and her general agent, having power to contract debts for' her during the years 1853 and 1854. Hanbold obtained the lumber with which the additions and repairs were made from the plaintiffs’ yard, between the 8th and 21st of October, 1854; and it was worth $132.73. Hanbold, on at least two previous occasions, had obtained lumber of the plaintiffs, by the direction of the defendant’s general agent, once upon a written, and once upon a verbal order, which was used in the repairs - upon the defendant’s property, and for which the plaintiff were paid. That in November, 1854, the plaintiffs sold and delivered coal to the defendant of the value of $24.61, and upon these facts the referee ordered judgment in favor of the plaintiffs for the amount claimed. On the trial of the cause before the referee, the' defendant contested her liability to pay for the lumber, and sundry questions were raised. The general features of the case, as disclosed by the evidence, are as follows: The defendant was the owner of certain real estate in Scarsdale, Westchester county, known as the DeLancey property, between June, 1854, and January, 1855; and her brother, William Ward, was, during the years T85.3 and 1854, and still is, her general agent, with power to contract debts for her. In the fall of 1854, William Ward, the agent, directed a man by the name of Hanbold to put the house and barn on the DeLancey property, owned by the defendant, in order and repair. In pursuance of this direction, Hanbold procured of the plaintiffs, lumber for that purpose, and with it put an addition to the house and repaired the barn. The lumber thus obtained was charged on their books by the plaintiffs to William Ward, and he afterwards recognized the bill, and agreed to pay it. During the time that the addition to the house and repairs to the barn were going on by Hanbold, the defendant was at home and had knowledge of the fact, and made no inquiry or objection. There were divers exceptions to the admissions of evidence, but they were of no importance, except two, the facts in regard to which are sufficiently stated in the opinion of the court. There, was also a motion to nón-suit, at the close of the plaintiffs’ testimony, which was renewed at the close of the case. Both motions were denied, and the defendant in each case excepted.
    The theory of the plaintiffs’ case was that the lumber and coal in question were procured under the authority and direction of the plaintiffs’ general agent by Hanbold, instructed to procure them by such agent. The existence of such general agency was admitted on the trial. Thó instructions by the general agent to Hanbold were sworn to by the latter and not contradicted by Ward, the general agent, who was sworn as a witness on the trial. It was further shown that the lumber was applied to the construction or repair of buildings on.real estate owned by the defendant.

      John H. Reynolds, for the plaintiffs (respondents).

      Samuel E. Lyon, for the defendant (appellant). .
   Hogeboom, J.

I discover only two exceptions in this case which require special remark. The first is that taken to the ruling of the referee in excluding Exhibit C, which is the examination of the witness Hanbold on a former occasion in supplementary proceedings. At that time he testified that neither William Ward nor the defendant was in anyway or manner interested with him in the manufacture of powder at the Bronx River Powder Mills in the county of Westchester. This was supposed to be inconsistent with what he had testified to on the trial of the present cause, to wit: that he was at the time of obtaining the lumber in question managing the powder works with Miss Ward. But to entitle the examining counsel to show this discrepancy for the purpose of impeaching the credibility of the witness, it must either appear that the testimony related to a point material to the issue or trial, or to a fact brought out on the- examination of the adverse counsel. It was neither. It was unimportant to the case to show whether Miss Ward had or had not any business connection with Hanbold in regard to the powder works. Such a fact could neither charge nor discharge the defendant with or from liability for the lumber; which liability rested upon the purchase- of the lumber by the'supposed authority of the general agent and its application to buildings of which she was confessedly the owner. The proposed contradiction was therefore to a collateral fact. It was further a fact drawn out on the examination of the defendant’s counsel, and not being material in itself .to the issue joined in the action the answer of the witness was not open to contradiction. The impeachment of the witness does not come within the rule quoted by the defendant’s counsel, which is as follows. “ The credit of a witness may be impeached by proof that he has made either verbal ór written statements out of court contrary to what he swears at the trial, provided he has-been previously cross-examined as to such alleged statements, .and provided that such statements are upon a point material to the question in issue.” ‘(2 Phillip’s Evidence, Edwards’ edition, 958. Patchin v. The Astor Mutual Ins. Co., 3 Kernan, 268.)

The other exception was to the ruling of the referee allowing, on the application of the plaintiffs, certain testi.mony to be stricken out which the plaintiffs had themselves offered, and which the referee had received under objection, but not under exception. This testimony related to the declarations of the defendant’s agent that he had paid for certain bills of lumber procured on a former occasion by Hanbold on the authority of such agent. Strictly speaking, perhaps, such declarations, not being within the direct scope of the agency, nor made in the execution of the agency, might be regarded as of doubtful propriety. But no exception was taken to -the decision of the referee allowing them to be introduced in evidence. They were therefore not open to review in this court. But. the plaintiff supposing them to be incompetent subsequently asked to have. them struck out,- and the referee .granted the motion, and the defendant excepted to the decision. I do not think this was error. The testimony, if it had remained in the case, though in its effect prejudicial to the defendant, was not open to any allegation of error on her part. Its subsequent exclusion could not work her any legal injury. It is said, however, that by its introduction the defendant had acquired the right to impeach Hanbold in reference to the subject matter of it, vdiich right was impaired and destroyed by its - subsequent exclusion. But to this view there are I think two answers: 1st. that there is no evidence contradicting Hanbold on that point; and 2d. That the right to impeach Hanbold was by the referee expressly reserved to the defendant.

The other exceptions are of minor importance, and are not well taken. And some of them are not only untenable but frivolous.

The motion for a non-suit was properly overruled; there being sufficient evidence for the consideration of the referee. The other exceptions require no remarks. The judgment should be affirmed.

Wright, J.

The facts found by the referee fully justified the judgment. In October, 1854, the -defendant was the owner in fee of certain real estate in the county of Westchester known as the DeLancey property. An addition was built to the house upon the property, and the barn thereon repaired. One Ernst F. Hanbold erected the addition and made the repairs, by direction of William Ward, a brother of the defendant; who during the years 1853 and 1854 was the general agent of the defendant, having power to contract debts on her account. Hanbold obtained the lumber with which the addition and repairs were made, from the yard of the plaintiffs, who were coal and lumber merchants, at White Plains; and the lumber so obtained was of the value of $132.73. Between the 2d September 1854 and the 9th November 1854, the plaintiffs’ sold and delivered coal to the defendant, and at her request, amount-ing in value to the sum of $24.61. It cannot be plausibly-pretended, upon these facts, that the plaintiffs’ were not entitled to recover the amount of the lumber and coal bill.

Thus the case stood upon the facts found by the referee. The defendant, however, moved for a non-suit upon, the whole case, which may raise the question in this court Avhether there was any evidence tending to establish the facts found. On this point there is no difficulty whatever. It was conceded that the charge for coal was right; and the lumber bill, only, was disputed. It was admitted by the defendant that she was the owner of the DeLancey property between June 1854 and January 1855, and that William Ward, her brother, during the years 1853 and 1854, was, and at the time of the trial still was, her general agent and had power to contract debts for her. It was shown that in the fall of 1854, William Ward, the agent, directed a man named Hanbold to put the house and barn on the DeLancey property, owned by the defendant in repair. In pursuance of this direction, Hanbold procured of the plaintiffs lumber for that purpose, (which is the lumber bill in question,) and with it put an addition to the house and repaired the barn. The defendant was at home at the time, and had knowledge of the fact that these improvements were going on, on her .property, and made no enquiry or objection. Hanbold was the principal witness on the part of the plaintiffs in respect to the circumstances under which the lumber was purchased and put upon the house and barn and he testified to the express direction of William Ward, the defendant’s agent, to him, to make the improvements—the procuring of the lumber from the plaintiffs for the purpose, and the subsequent recognition by the agent, of the correctness of the bill; and although Ward himself was sworn as a witness, there was no attempt to contradict Hanbold in what he testified to as to Ward’s directions to make the improvements, or to disprove Ward’s agency. There was, therefore, not only slight, but abundant evidence, if credited, to justify the referee’s findings of fact, and his refusal to non-suit.' Indeed the defence was principally confined to an attempt to discredit the plaintiffs’ witnesses, without' offering, or attempting to offer any affirmative proof in denial of Ward’s agency in the management of the defendant’s estate, or his direction to Hanbold to make the improvements'; nor that in pursuance of these directions, Hanbold procured the lumber in dispute from the plaintiffs, and made the repairs as he was directed, with full knowledge of the defendant.

On the cross-examination of the plaintiffs’ witness Han-bold, by the defendant’s counsel, he was made to testify that he was managing the powder mill works on the Bronx river with the defendant at a time anterior, to the repair of the house and barn on the DeLancey property, and that he had got lumber from the plaintiffs, on two several occasions, by direction of Mr. Ward, for repairing the powder mill and the dam; that Ward, as the agent of the defendant, bought the salt petre to make the powder, and it was understood that"the witness and the defendant should divide the profits; and he believed they were so interested together at the time the lumber in question was bought of the plaintiffs. - The defendant’s counsel then proposed to introduce in evidence an affidavit of Hanbold, purporting to have been taken by the county judge of Westchester, on the 20th of November, 1854, on some occasion not disclosed, in which it was stated that the defendant was never in any way or manner concerned or interested with him in the manufacture of powder at the Bronx River Powder Mills; that in April, 1852, the defendant purchased the powder works at public auction, since which time the affiant had been the lessee of the works, and William Ward, acting as the attorney of the defendant, had made him frequent advances of money and merchandize, which he had from time to time in part repaid, with interest thereon; and that Ward’s connection with him was entirely of a friendly and neighborly character. This paper was objected to as evidence, and ruled out by the referee. The question was properly decided. The only object of introducing the paper was to show that Hanbold, on some occasion, in court or out of court, as late as November, 1854, had stated that the defendant had no interest whatever, or never had, in the powder mill business, with the view of impeaching the credibility of the witness. This could not be done. A party who examines a witness as to a collateral matter, (and this was clearly so,) is concluded by his answers. He can not draw out collateral statements from the witness, and, for the purpose of discrediting him, show that on some other occasion he stated differently.

It appears that when Hanbold got the lumber from the plaintiffs, Ward, the agent, was absent. After his return, and after the lumber had been obtained and put into the defendant’s buildings, with her knowledge, and without inquiry or objection, Hanbold had a conversation with Ward in respect to the transaction, which was proved by the plaintiffs, and objected to by the defendant as irrelevant, but no exception was taken to the ruling of the referee. At a subsequent stage of the case the plaintiff moved to strike out the evidence of the declarations of Ward made after the lumber and coal had been delivered. This motion was resisted by the defendant, and granted by the referee, and the defendant excepted. The exception is frivolous. The motion itself was entirely unnecessary; for although the evidence may have been improper when received by the referee, there was no exception taken by the defendant to its admission. Whether the referee had or had not power to strike out the testimony, the exception can not avail the defendant, as it was evidence in favor of the plaintiffs, and she could not be prejudiced by the exercise of the power. Remaining on the record could not possibly have helped the defendant’s case; and if prejudicial, had it remained she could have made no question in respect to it, as there was no exception to its admission. I entertain no doubt, however, that the referee had the power, under the circumstances in which it was exercised, to grant the motion.

The judgment should be affirmed.

All the other judges concurring; judgment affirmed.


author: Denio, C. J. Hogeboom, J.

text:
    The Buffalo City Bank v. The North Western Insurance Company.
    The schooner Europa, owned by B., being at Chicago, laden with a cargo of wheat, B. procured the defendant to insure her freight-list at $1,500, which was about its amount, on a voyage to Buffalo. The vessel and cargo were also insured by other companies, by B. the owner. During the voyage, the vessel went ashore in a storm, at a place where there was no port, and went to pieces, becoming a complete wreck. B. on the same day made abandonment of the different subjects of insurance to the respective underwriters, which were accepted. The insurers of the wheat subsequently saved about three-fourths of the wheat in a damaged condition.'

      Held, that B. having abandoned, as to the freight-list, as for a total loss, and the defendant having accepted the same, such acceptance was conclusive upon it, and the company could not object that the loss was not total, nor that for any other reason, it was not a case for abandonment.

      Held, also, that the defendant having accepted the abandonment of the freight-list as for a total loss, the plaintiff was entitled to recover the full amount of the freight, the same as if the voyage had been completed, and not merely to freight pro rata itineris.

    Action on a policy of insurance on freight, the plaintiff suing for the interest of Elijah K. Bruce, the assured, whose right it acquired by assignment, subsequent to the loss. The schooner Europa being at Chicago, laden with a cargo of 16,758 bushels of wheat, Bruce, the owner, procured the defendant to insure her freight-list at $1,500, which was about its amount, on a voyage from Chicago to Buffalo. The schooner proceeded on her voyage until about six miles from Buffalo, when she went ashore in a storm, at a place where there was no port, and went to pieces, becoming a complete wreck. ' The vessel, cargo and freight all belonged to Bruce, and each was insured in different companies, the defendant being insurer on the freight-list only. Bruce, on the same day, made abandonments of the different subjects of insurance to the respective underwriters, which were accepted. The insurers of the wheat, the Mutual Insurance Company of Buffalo, sent persons to the wreck,- and saved and caused to be brought to Buffalo on other vessels, 12,349 bushels in a damaged condition. The defendant insisted that the plaintiff was not entitled to recover for a total loss, but only pro rata; that the insurers on the wheat having, by the abandonment, became its owners, and having consented to receive the portion which was saved at an intermediate point, thereby became liable to the owners of the vessel for the freight to that point, and hence that the plaintiff could only recover for a partial loss. The judge, Hon. J. A. Verplank, of the superior court of Buffalo, before whom the case was tried without a jury, held otherwise, and gave judgment for the plaintiff for $1,500 and interest, which judgment was affirmed at a general term. The defendant then brought the present appeal.

      J. C. Churchill, for the appellant.

      John Ganson, for the respondent.
   Denio, C. J.

Freight, which is the compensation which the owner of the vessel is to receive for carrying the goods, is, by the law of England, .and of this state, a distinct subject of insurance. In adjusting the indemnity under contracts for insurance, a diversity has arisen between the courts of the two countries. In England freight is considered so far an incident of the ownership of the vessel that where the latter is lost, or so much damaged as to warrant an abandonment in the course of the voyage, the insurers are entitled upon abandonment to the benefit of the contract for carrying the goods, and if freight is subsequently earned for carrying property taken on board át the commencement of the voyage, they can claim it as an incidental advantage acquired by them by means of the abandonment. As where a vessel has been stranded, and in that state abandoned to the insurers, and is afterwards gotten off, repaired and sent on her voyage, and delivers the cargo, thus earning the freight, it belongs to the underwriters on the ship and not to the insurers of freight. (Case v. Davidson, 5 Maule & Selw. 79; affirmed in the Exchequer Chamber, S. C. 2 Brod. & Bing. 379.) The rule has been settled otherwise in this country, where it is held that the insurers of the vessel are entitled only to what the ship may actually earn subsequently to the abandonment. (The United Insurance Company v. Lenox, 1 John. Ca. 377, and note in the edition of 1846—affirmed in error, 2d id. 443; 3 Kent’s Com. 333.) The rule thus established has been subsequently adhered to in this and in other states, as will be seen by the foregoing references. Upon the loss, and abandonment of the ship in this case, the underwriters upon it acquired title to nothing except the debris of the wrecked vessel. If the incipient freight, or any part of it, has been saved by the acts of the owners of the cargo, or their transferees, the insurers of cargo, by their receiving it at the place where the vessel went ashore, or by its being taken to its destination in another vessel, the abandonees of the schooner have no concern with it, and the abandonees of freight are deprived of nothing. It is argued that the defendant ought not to pay the full sum insured because the pro rata amount which the owner of the cargo ought to pay would have been saved to Bruce, as the ship owner, if he had not abandoned the vessel. This might have been secured if the abandonees of the vessel fully represented Bruce in all his rights concerning it; but we have seen that they did not, for they had no concern with the incipient freight, and, as the vessel did not contribute to the earning of freight after the abandonment, if any was earned, these abandonees obtained no interest in the freight whatever.

Nor did the abandonment of the cargo to the underwriters upon it affect the present question. They took the part of the wheat which was saved subject to any claims upon it for pro rata freight, if there were any such claims. (United Ins. Co. v. Lenox, supra—per Radcliff. J., at p. 379.) It.is said that the abandonment of cargo by Bruce was not one of the things which the defendants insured against, which is very true; but the winds and waves which caused the vessel to go ashore, and which produced the injury to the cargo and justified its abandonment, and thus prevented the earning of freight was the very peril which the defendants undertook to indemnify Bruce against. It was the occurrence of the storm which gave rise to the state of things which authorized Bruce to abandon all the several subjects insured to the respective insurers. These insurers, by force of the abandonment, took whatever property or interest remained in the subjects insured, but they did not otherwise represent Bruce. For example, the insurers upon the vessel acquired title to the broken planks, spars and iron which could be collected from the wreck. The insurers upon cargo took title to the damaged wheat subject to the payment of any freight which under the circumstances it ought to bear, and the defendants as insurers of freight succeeded to all claims for freight-which Bruce Would have had against the owners and the cargo, if it had been owned by another person.

It is further urged that the loss of freight was not so great as to entitle Bruce to abandon it to the defendant. The judge has, however, found that the abandonment was accepted. This divested Bruce of the right to proportionate freight, and conferred that right, if it existed in any one, upon the defendant. But I think there was a just occasion for abandonment. The vessel had become a total wreck at an intermediate point which was not a port, and vessel, cargo and the right to freight were_pmm facie lost. No freight had been earned, and the vessel which was to have earned it was broken to pieces. If any could have ever been earned it would not have been in any natural, but in an exceptional, way, as by the owner of the cargo, accepting it where it then was, or by the abandonee of the ship getting it to port in some other way. An abandonment is said to be justifiable for anything which, in the course of the voyage, constitutes at that time a total loss. If anything subsequently occurs, as a recapture in the case of a vessel captured, or getting a cargo to port in another vessel, it is the good fortune of the underwriters, but does not affect the legality of the abandonment. (Holdsworth v. Wise, 7 Barn. & Cress. 794; 14 Eng. C. L. 129.)

I conclude, therefore, that the judgment of the superioi court of Buffalo was right.

Hogeboom, J.

This is an action upon a policy of insurance upon the freight-list of the schooner Europa for $1,500, effected with the defendant by one Bruce, from whom, through an intermediate assignee from him after the loss, the plaintiff claims-title. Bruce took out separate policies in separate insurance companies on the vessel, cargo and freight respectively. The voyage was from Chicago to Buffalo, and shortly before reaching Buffalo, and distant about six miles therefrom, the schooner went ashore and was lost. No question is made but that she was lost by some of the perils insured against. No question can be made, I think, but that there was a total loss, at all events, of the vessel. The fact found is, that she “ was by the force of the winds and the waves, driven ashore where there was no port, and there went to pieces and became a total loss.” She was thereupon promptly abandoned to the underwriters, and the abandonment was accepted. The cargo was also, on the day of the disaster, abandoned to the underwriters, and such abandonment was accepted. A portion of the cargo, about three-fourths thereof, was subsequently recovered by the underwriters, and taken by them in other vessels to Buffalo, the port of destination. On the same day also, that the disaster occurred, the contract of affreightment and the freight-list were abandoned to the defendant, and the defendant accepted the same. These facts are all found in the case, and no exception is taken to them. The only exceptions in the case are to the finding and decision of the court, that the plaintiff was entitled to recover the whole amount of the freight covered "by the policy of insurance, to wit: $1,500 and interest; whereas, the court should (as it claimed) have decided that the plaintiff was only entitled to recover for a partial loss; and secondly, that the court decided as a question of law on the facts found that the plaintiff was entitled to recover as for a total loss.

The positions taken by the defendant upon this appeal are, as I understand them, 1st. That there was not in fact a total loss of the cargo, or of the freight, and no such acceptance of an abandonment as would extend the right of the insured to recover beyond his actual loss. 2d. That if there was a total loss of the freight, or one which under the acts of. the parties must be treated as such, it occurred by the acts or omissions of Bruce, for which the defendants are not liable.

I. That there was a total loss of the vessel, and an effectual abandonment of her as such to the underwriters, is established by the proof in the case, and found by the court which tried the cause, and is not now open to further examination here. But as the vessel, the cargo and the freight are distinct interests, it is a possible circumstance that a total loss of the vessel would not necessarily involve a total loss also of the cargo and of the freight. In one sense, there was not a total loss of the cargo; for of the 16.000 bushels of wheat with which the vessel was laden, 12.000 bushels reached Buffalo, though in a damaged condition, notwithstanding the disaster. But if the question in this case was as to the right to recover for the cargo as a total loss, I do not see how it could be effectually disputed. It affirmatively appears that the underwriters accepted the abandonment of. the cargo, and this implies a surrender of it by Bruce into their possession, and complete control of it by them. It was abandoned as a total loss, and they accepted it as such. They took possession of it, and themselves caused it to be taken to Buffalo. It was an act performed for their own benefit and their own indemnity. The wheat so taken to Buffalo belonged to them, and was at their disposal. They could not have compelled the owner or consignee to receive it; nor could he, after an effectual abandonment, demand it or recover it. He had no right to it. In its damaged condition he would not of course have received it; nor could the carrier, independent of the question of' abandonment, have compelled its acceptance by him. It is claimed on the part of the appellant, that there was no valid or sufficient acceptance of the abandonment. The question is not open to debate. The fact is found otherwise, and is not subject to review here. The legal effect of the acceptance of an abandonment, is to concede the right of abandonment and the fact of total loss. They are no longer open to question. They are, in the absence of fraud or mistake, conclusive upon the parties, and the underwriters cannot refuse to pay the whole sum insured. (Philips on Insurance, §§ 1697-1705; Arhould on Insurance, 1172; Smith v. Robertson, 2 Dowl. 474.)

The same difficulty meets the defendants on the subject of the freight list. It was abandoned to the defendants, and they accepted it. Ho fraud, mistake or ignorance of the facts is pretended. Such acceptance is conclusive upon them, as before stated. They have no longer any right to object that the loss was not total, nor that for any other reason it was not a case for abandonment. It is said that the act of the defendant’s agent is equivocal both as to the intent and the authority to accept, the abandonment. But the evidence is sufficiently clear to justify the finding of the court, and the fact is found—is not the subject of exception, and is not open to controversy^ It is claimed that the act of abandonment of the freight, if rightfully made, and whether accepted or not, being made at a point intermediate the port of shipment and the port of delivery, could not entitle the ship owner to full freight as for a completed voyage, but only pro rata itineris, and that it was the duty of Bruce, as owner of the vessel, tó offer to carry forward the part of the cargo which survived the wreck to its place of destination, and earn freight thereon, and if he failed or refused to do so, and thereby the cargo was lost, the defendants are not liable for a total loss, but only for such portion of the loss as they would have been chargeable with if the ship owner had done his duty.

But this is an imperfect view of the relations of the parties and of the facts of the case. When the disaster occurred the freight had not been earned; and if the ship owner improperly terminated the voyage at that point, he had no right to demand any freight whatever. He abandoned the vessel, the cargo, and the freight list. These abandonments were accepted by the underwriters. It is unnecessary, therefore, to consider whether they were lawfully made. The defendants are foreclosed from disputing them, at least that involving the freight list. The effect of such abandonment and acceptance was to put the defendants in Bruce’s place as to the obligation to earn freight, and the right to recover therefor. As between themselves and the owners of the Cargo, they were probably bound to carry the cargo, or so much as was saved from shipwreck, to the port of destination. But as between them and Bruce, having accepted the abandonment of the freight list as for a total loss, we must treat it as such, and give effect to it accordingly. We must, I think, regard it in the same light as if the voyage had been completed and the freight fully earned. Hence the plaintiffs would be entitled to recover the full amount of the freight.

The judgment of the court below should be affirmed.

All the judges concurring, judgment affirmed.


author: Ingraham, J.

text:
    Pliny Jewell v. Oliver C. Wright and others.
    Where a promissory note, made and dated in this state, and payable at a bank here, is negotiated in another state, the laws of New York are to control as to the defense of usury.
    And if the note is discounted at a rate of interest exceeding seven per cent., no action can be maintained upon it here.
    This action was brought to recover the amount of a promissory note made by the defendant Wright to the order of the defendant Dunlap, who endorsed it for the benefit and accommodation of the defendant Taylor; and it was without consideration. It was made and endorsed by Dunlap, and delivered to Taylor at Lockport, 11. Y., May 30, 1857, for $400, payable at Niagara County Bank, at Lockport, one year from date. Taylor took it to Connecticut, and there induced the plaintiff to guaranty it for his benefit, and then'endorsed it himself, and procured it to be discounted by Albert Day, at the rate of twelve per cent.; Day reserving out of the face of the note $48, and giving to Taylor, as the net proceeds of the note, $352. The note did not bear interest, and this was its first negotiation. The note, after being protested, was taken up by the plaintiff, who brought this action in the supreme court..
    At the trial, this state of facts was conceded. The plaintiff then read in evidence pages 618 and 619 of Revised Statutes of Connecticut, of 1849, by consent. After proving the amount due on the note, the evidence was closed. The court thereupon directed a verdict for the plaintiff, subject to the opinion of the court at general term, upon a case to be made. The general term gave judgment for the plaintiff on the verdict. From the judgment entered pursuant to such direction, this appeal is taken.

      Geo. W. Cothran, for the appellant.
    I. In determining the validity of a contract purely personal, will the court give effect to the law of the place where the contract was made, or the law of the place where it is, by its terms, to be performed, is the precise question to be passed upon in this case.
    1. In contemplation of law, this contract was made in Connecticut, for it was there that the note was first delivered as the evidence of an existing indebtedness. (Cutler v. Wright, 22 N. Y. Rep. 472-4.)
    2. In general, the validity of personal contracts is deter-' mined by the law of the place of making. In fact, it is the universal rule unless the - parties stipulate otherwise. (Story on Confl. of Laws, §§ 317, 320, 332, 340; Curtis et al. v. Leavitt, 15 N. Y. Rep. 227.)

      8. But where the contract, by its terms, is to be performed in a state other than that in which it was made, effect will only be given to the laws of the place of performance.
    (a.) Such has frequently been declared to be the law of this State, by our courts. (Cutler v. Wright, 22 N. Y. R. 472, 474, 480-9; Everett v. Vendryes, 19 N. Y. 436; Bowen v. Newell, 13 N. Y. 290; Curtis v. Leavitt, 15 N. Y. 14, 85-9, 91, 227, 296, [10]; Hyde v. Goodnow, 3 N. Y. 266; Burckle v. Eckhart, 3 N. Y. 132; Lee v. Selleck, 32 Barb. S. C. R. 522; Pomeroy v. Ainsworth, 22 Barb. 120, and 127-9; President &c. of Bank of Commerce v. Rutland R. R. Co., 10 How. Pr. Rep. 1; Thompson v. Ketcham, 4 J. R. 285; Warren v. Lynch, 5 J. R. 239; Thompson v. Ketcham, 8 J. R. 189; Fanning v. Consequa, 17 J. R. 511; Scofield v. Day, 20 J. R. 102; Sherrill v. Hopkins, 1 Cow. 103; Martin v. Hill, 12 Barb. 631; Balme v. Wombough, 38 Barb. 352; Chapman v. Robertson, 6 Paige Ch. 627; Le Breton v. Miles, 8 Paige Ch. 261.)
    (5.) It is the doctrine established in the supreme co.urt- and circuit courts of the United States. (Andrews v. Pond, 13 Peters’ R. 65; Cox. v. United States, 6 Peters’ R. 172; Van Reimsdyke v. Kane, 1 Gall. R. 371; Emery v. Greenough, 3 Dall. 370; Lanusse v. Barker, 3 Wheat. 101, 146; Slocum v. Pomroy, 6 Cranch, 221; Harrison v. Sterry, 5 Cranch, 289; Pope v. Nickerson, 3 Story C. C. Rep. 465; Strother v. Lucas, 12 Peters’ Rep. 410, 436, per Baldwin:, J,; Bell v. Bruen, 1 How. United States Rep. 169, 182.)
    (c.) It has long been the law of England. (Cooper, v. Earl of Waldegrave, 2 Beavan, 282; Robinson v. Bland, 2 Burrow, 1077; Melan v. Duke of Fitz James, 1 Bos. & Pull. 138; Robinson v. Bland, 1 Black. Rep. 247, 258; Rothschild v. Currie, 1 Q. B. Rep. 43; Thompson v. Powles, 2 Simons’ Rep. 194; Down v. Lippman, 5 Clark & Fin. R. 1, 13, 19, 20; Ferguson v. Fyffe, 8 Clark & Fin. R. 121; Pattison v. Mills, 1 Dow & Clark, 342, 362); and is the law in several of the states.
    (cZ.) It is one of the elementary principles of the law. (Story on Confl. of Laws, §§ 242, 242a, 280; 2 Kent’s Com. 606-9, and notes, 9th ed.; 2 Parsons on Contracts, 95, 100, 2d ed.; 2 Fonbl. Eq. R. 5, chap, 1, § 6, and note; Chitty on Bills, 168, 169, 12th Am. ed.; Story on Promissory Notes, § 165; 2 Parsons on Bills, 320; Byles on Bills, 314 to 316, inarg. page; Story on Bills, § 147; Bayly on Bills, 249, 5th ed.; Marius on Bills, 75, 89-92, 101-103; Edwards on Bills, 180-182.)
    (é.) It is a maxim of the Roman law. “ Contraxisse unusquisque in eo loco intelligitur, in quo ut solveret se obligavit.”

    (/.) It has the general assent of the principal foreign jurists. (Boullenois Observ. 46, page 475, 476, 488; 1 Hertii Oper. De Collis. Leg. §4, n. 53, page 147, ed. 1737; Yoet. ad Pand. Lib. 4, title 1, ^ 29;. 1 Emerigon C. 4, §8; Yoet. de Stat. ^ 9, chap. 2,. §15-, p. 270, ed. 1715; Boullenoies Quest. Contr. des Lois; page 339, &c.; 3 Burge Comm, on Col. and For. Law, Pt. 2, chap. 20, page 771, 772.)

      II. The note having been put into circulation upon a usurious consideration, having been negotiated at the rate of twelve per cent, interest, it is wholly void, and the action cannot be maintained. (3 E. S. 72, § -, 5th ed.)
    III. A contract void by the law of the place where made, even though it is to be performed in another state, by the laws of which it would be valid, is by the just principles of international law, void every where, as the courts of no state will enforce the void contracts of another state. (Hyde v. Goodnow, 3 N. Y. Rep. 266; Andrews v. Herriot, 4 Cow. 510, note a; Andrews v. Pond, 13 Peters’ U. S. Rep. 65; Story on Confl. of Laws, § 243, and cases cited.)
    1. The note in this case was void by the laws of Connecticut, as proved on the trial. (Laws of Conn, in Case, foli 39 to 41, §§ 1, 2.)
    IY. Interest is to be paid according to the law of the place where the contract is made, unless the payment is to be made elsewhere, and then it is to be according to the law of the place where the contract is to be performed. (2 Kent’s Comm. 608, and notes, 9th ed.; Thompson v. Powles, 2 Simons’ Rep. 194; Story on Confl. of Laws, ^ 305, 291, 292, and cases cited; Boyce v. Edwards, 4 Peters, 111; Cash v. Kennion, 11 Vesey, 314; Scofield v. Day, 20 Johns. 102; De Wolf v. Johnson, 10 Wheat. 367, 383; Story on Bills, § 148, and cases cited.)

      James S. Gibbs, for the respondent.
    I. The promissory note in this case, though dated at Lockport, in this state, and made payable at a bank there, was negotiated at Hartford, in the state of Connecticut. As a contract it had its inception in Connecticut. We therefore say the lex loci contractus governs. (Story on Conflict of Laws, § 237.)
    II. The reason of the lex loci contractus is that every person contracting in a country, is understood to submit himself to the laws of the place, and silently to assent to its action upon his contract. (Story on Conflict of Laws, § 261.) So too of its nature and obligation. (Id. § 263.)
    III. The question whether a contract is usurious or not, depends not upon the rate of interest allowed, but upon the validity of that interest in the country where made. (7 Paige, 616.) This case of 7 Paige, 616, is precisely in point in this case. A note was made in New Orleans, payable in New York, with 10 per cent interest; held not void for usury. (20 Martin E. 1, cited Story on Conflict of Laws, § 298—cited and approved in 6 Paige, 627, 634.)
    IV. The courts of a country are presumed to be the best expositors of its own laws, and of the operation of them upon contracts made there. (Ch. J. Marsh at,t, in 10 Wheaton, 159; 17 Martin E. 587.)
    V. The Eovised Statutes of Connecticut, 1849, pages 618 and 619, define and restrain the taking of usury. And the supreme court of Connecticut have placed a construction upon .this statute. (27 Con. Eep. page 363.) It appears from the 3d section of that statute that although the amount received for discount, in this case, was greater than the rate of interest allowed by law, the contract was not utterly void by the laws of Connecticut.
    VI. Where a loan is made in Connecticut at a greater rate of interest than is allowed by the laws of this state, but no greater than the legal rate in Connecticut, the fact that the note is made payable in this state, will not render the transaction usurious and the note invalid. And it rests with the defendants to show that the transaction is contrary to the laws of Connecticut. (29 Barb. 325; Cutler adm’r, v. Wright, 22 N. Y. R. p. 472.)
   Ingraham, J.

It was not denied on the trial of this cause that the note on which the suit was brought was negotiated at a rate of interest illegal, both in Connecticut and New York.

The main question in the case is, whether the laws of New York or Connecticut are to control as to the defense of usury. The note was negotiated in Hartford, but was payable at Lockport, in New York.

Nor can it be denied that a contract is to be governed by the laws of the place where it is made, if it is not to be performed according to the terms of the contract elsewhere. (Story on Conflict of Laws, § 282: 6 Paige, 280; 2 Kent’s Com. 457; Davis v. Garr, 2 Selden, 124.)

But if such note or contract is by its terms to be performed in another state, then the laws of that state must govern. (2 Kent’s Com. 460.) This rule was laid down by this court in Jacks v. Nichols (1 Seld. 178). The court in delivering the opinion, says: “ Concede that the contract ivas made in Connecticut, if it was to be performed in New York, it must, prima facie, be regarded as having been made with reference to the laws of New York.” The fact that.the note was dated in New York, is alone presumptive evidence that the maker not only resided at the place of its date, but contemplated payment there. For the purpose of charging the endorsers, the makers must have been sought at their residence or place of business in this state. The same is stated in Curtis v. Leavitt (15 N. Y. R. p. 9-227), where it is said: “It is a general rule that the law of the place, where contracts purely personal are made, must govern as to their construction and validity, unless they are to be performed in another state or country, in which case their construction and validity depends upon the law of the place of performance.” In Bowen v. Newell (13 N. Y. p. 290), it was held that the law of the place where the note or draft is payable, governs as to the days of grace allowed upon it. In Everett v. Vendryes (19 N. Y. R. p. 436), it was' held the law of the place where the bill was payable, controled as to the liability of the drawer to the indorsee. And in Cutler v. Wright (22 N. Y. R. 472), it was held that a note made in New York, but dated in Florida, and payable there, was governed by the laws of that place; and it is said the authorities do not leave this question in cloubt. The same was also held in Pomeroy v. Ainsworth (22 Barb. 127).

These cases from our own courts, render it unnecessary to examine any other class of decisions upon this point.

The judgment should be reversed, and a new trial ordered.

Davies, J. read an opinion in favor of affirmance. Seldeh, J. was absent.

All the other judges being for reversal, judgment reversed.