author: Davies, J.

text:
    Stevens et al. v. The Commercial Mutual Insurance Company.
    A marine policy contained a warranty against using ports or places in the Gulf of Mexico. The insurers, for a consideration, gave permission to use Laguna for one voyage. This confined the risk to a direct voyage to and from Laguna.
    It was a deviation and breach of warranty for the vessel, after touching at Laguna, to go to another port on the Gulf, although, for the purpose of entry at Laguna, the commercial regulations of Mexico made it necessary to enter and pay tonnage duties at some other port.
    Appeal from the Superior Court of the city of Hew York. Action on a marine policy. On the trial these facts appeared: Brett, Yose & Co. procured from the defendant, in the city of Hew York, a policy of insurance upon the brig Inda on account of whom it might concern, loss to be paid to them, from the 3d of October, 1852, to 3d of October, 1853, in the amount of $5,000. In October, 1853, it was renewed for a year longer, till October 3d, 1854. The policy contained the following printed warranty: “Warranted not to use ports or places in Texas, except Galveston, nor foreign ports or places in the Gulf of Mexico, nor places on or over Ocracoke Bar, nor ports or places in, nor the mouth of the Columbia river, nor the rivers above San Francisco, higher than Benicia, during the period insured.” Also, “warranted by the assured, free from any charge, damage or loss, which may arise in consequence of a seizure or detention for or on account of any illicit or prohibited trade, or any trade in articles contraband of war.” On the 9th of January, 1853, there was indorsed on the policy by the insurer an agreement that a sale of the brig Inda to Stevens and Peabody and others was not to prejudice the insurance, and on the 8th of Hovember, 1853, the defendant agreed to the following clause indorsed on the policy: “ For the additional premium of two.per cent, the brig Inda has permission to use the port of Laguna for her voyage, without prejudice to this insurance.” The Inda was dispatched from Boston about the 9th of Hovember, 1853, to take a cargo of logwood from Laguna to the Mediterranean sea, and was addressed to Messrs. B. Pauli anda & Co., of Laguna. By the letter of consignment it appeared that the persons dispatching the vessel were in the ’receipt, at the time of its date, of letters from their correspondents in Laguna, of the dates of June 9th, September 12th'- and 29th, of that year. The vessel proceeded to Martinique, in the West Indies, where she was on the 11th of December, 1853, and on that day sailed, in ballast, bound for Laguna, to load for Marseilles, and arrived at Laguna on Christmas day. She did not enter there because the Custom House officers would not let her, that not being a port of entry. She then sailed for Sisal, for the purpose of entering and paying tonnage duties, with the intention of returning to Laguna to land there. Shortly after anchoring at Sisal she went ashore in a gale and was totally lost, within the year insured. The port of Laguna had been open to foreign vessels, by decree of the Mexican Government, of the 16th March, 1852. It was closed to foreign commerce by the regulations of the Mexican tariff, issued in Mexico, on the 1st of June, 1853, and which were in force in Laguna, at the time of the arrival of the Inda. In consequence of the regulations of the said tariff, to enable a vessel coming from foreign ports to use this port (Laguna) it was required that the vessel thus proceeding to’ Laguna should previously go and pay tonnage dues at some of the Mexican ports open to foreign commerce. After the port was closed by the regulations of the tariff of Mexico, it was customary to enter vessels at some neighboring port, before coming to Laguna. There were several ports to which the vessel might have proceeded, viz.: Vera Cruz, Tobasco, Cam-peachy and Sisal. Vera Cruz was a remote and .dangerous port, in winter time: to reach Tobasco it was necessary to go over a perilous bar, and go up thé Grijalva river for more than seventy miles. At Oampeachy the cholera was prevailing. • The master, after consultation with merchants 'at Laguna, concluded to proceed to Sisal. Sisal is about seventy leagues from Laguna; Oampeachy was about forty; Tobasco was nearer than Sisal. A vessel .sailing from Martinique to Laguna would first pass Sisal, then Campeachy, and being at Laguna, would proceed westward some two degrees of longitude, to reach Tobasco._
    At the trial a verdict was taken for the plaintiff for $3,844.15, subject to the opinion of the court at general term, with liberty to that court to enter a nonsuit, and judgment was entered in that court for the defendant. The plaintiff appealed to this court.

      Alonzo C. Paige, for the appellant.

      Daniel Lord, for the respondent.
   Davies, J.

The only question presented for decision is, whether there was such a deviation, by the brig Inda, in the voyage insured against, as discharged the underwriters from the loss sustained. In the present case, the assured warranted, in the first place, not to use ports or places in Texas, except Galveston, nor foreign ports or places in the Gulf of Mexico. For an additional premium paid the assured had permission to use the port of Laguna, in the Gulf of Mexico, for one voyage, without prejudice to the insurance. The warranty, therefore, by the assured, not to use any ports or places in the Gulf of Mexico was dispensed with by the assurers, by permitting the use of the port of Laguna for one voyage. It is-difficult to perceive upon what ground this permission to use that port can be construed into an authorization, or would sanction the use of another port, which the assured had warranted not to use. Such was not the contract of the parties, and the fact that an addititional premium was paid and exacted shows that both parties regarded the risk enhanced by the use of one of the ports warranted against. The brig did proceed to the port of Laguna, but, for reasons not -necessary to repeat, she was unable to use it for the purposes of her voyage. She then proceeded to the port of Sisal, one of the ports warranted against, when the loss occurred, to recover-which this action is brought. The rules of text writers and the authorities all indicate the strictness with which the assured is confined to the voyage marked out in the policy, as where the policy itself, besides indicating the termini of the voyage, contains any directions as to the course which the ship shall take in sailing between them, such directions must be followed with the most scrupulous and literal- exactness, and the slightest failure to comply with them will amount to a fatal deviation. (1 Arn. on Ins., 362.) The same writer says that, hence, where liberty is given in the policy to touch at any one specified intermediate port, it will be a deviation, to put into any other than that named in the policy, though calling at such port may be equally sanctioned by general usages, independent of the policy, and though neither the risks nor premium would- have been increased had such .port been substituted for that named in the clause. (Id., 362.)

The case of Elliott v. Wilmer (7 Brown Par. Cases, 459), is referred to by this writer as a leading authority upon the English law of deviation, and as affording an excellent illustration of most of the principles laid down by him. That case was this: It was usual for vessels sailing from Carrón, in Scotland, with goods in freight, for Hull, in going down the -Frith-ofForth, to touch at different places, for the purpose of taking in and delivering goods particularly at Borneo, Stowness, Leith and Morrison’s Haven. • A merchant, who was desirous of insuring goods on a voyage from Carrón to Hull, directed his broker to effect an insurance, with liberty in the policy “to call as usual" (which would have enabled the ship to touch at all or any of the places above mentioned); instead of this, the broker, contrary to the directions of the merchant, and without Ms knowledge, insured the goods oh the voyage-from “Carrón to Hull, with liberty to call at Leith.” The premium was the same as though the general liberty to call as usual had been inserted in .the policy. The sMp sailed on her voyage, passed by Leith without calling there, but put into Morrison’s Haven; she sustained no damage, either in going into or coming out of the port, got safe again into the direct course of the voyage from Carrón to Hull, and had been proceeding on such course for about a day, when she was overtaken by a storm and wrecked on the coast of Northumberland, with a total loss of the cargo.

The Scotch courts, upon this state of facts, decreed that the underwriters should pay the loss; but the House of Lords reversed this judgment, on the ground that putting into Morrison’s Háven, under a policy which contained no liberty to do so, but, on the contrary, gave express permission to put into , another named port, was a deviation, discharging the underwriters from all further liability. The House of Lords, in this case, applied the familiar and well established rule of “ ex-pressio unius, est exclusio alterius.”

The case of Kettell v. Wiggins (13 Mass., 68), affords an illustration of the rigor with which the courts require the assured to confine himself literally to the voyage insured against. In this case a vessel was insured from Gibraltar to the United States, with liberty to proceed to the Cape de Yerde Islands, for salt. On her arrival at the Island of May she found so many vessels there that she must have waited four or five weeks for her turn to take in a cargó of salt. The Governor of the island proposed to the master to go with his vessel to St. Jago and Fuego, two" other of the Cape de Yerde islands, and procure a cargo of provisions; and engaged that if he would, he should be loaded with salt as soon as he should return, although his turn should not have arrived. The master agreed to these proposals, went to these islands, brought provisions for the governor, and was immediately permitted to take his cargo of salt, and he was thus enabled to load his vessel considerably sooner than he would have been, if he had remained at the isle of May for his turn. After taking in the cargo, the vessel sailed on the return voyage, and was lost. This" was held to be a deviation which avoided the policy. Parker, Ch. J., said it was confidently insisted that as the effect of this expedition, at the request of the governor, was to shorten the duration of the voyage, by enabling the master to obtain his cargo much sooner than he could, it ought to be considered as done for the benefit of all concerned, and not amounting to a deviation. But he says masters have not a right to speculate in this manner upon the possible advantages of pursuing a route which does not belong to the voyage. They are to pursue the usual course, and let the consequences fall where, they may. A case is cited in 2 Park on Insurance (p.-620), tried at- Nisi Prius, quite in point. There the plaintiff was a shipper of goods, in a vessel bound from Dartmouth to Liverpool. The ship sailed from Dartmouth, and put into Loo, a place she must of necessity pass by in the course of the insured voyage. But as she had no liberty given her by the policy to go into Loo, and although no accident befell her going into or coming out of Loo (for she was lost after she got out to sea again), yet Mr. Justice Yates held that this was a deviation and a verdict was accordingly found for the underwriters. Park (p. 619), says if the voyage be changed after the departure of the ship, it becomes a different voyage, and not that against which the insurer has undertaken to indemnify (which, he says, is the true objection to a deviation), the risk may be ten times greater, which probably the insurers would not have run at all, or, at least, would not without a large premium. Nor is it at all material whether the loss be or be not an actual consequence of the deviation, for the insurers are in no case answerable for a subsequent loss, in whatever place it may happen, or to whatever cause it may be attributed.

In Wooldridge v. Boydell (Doug., 16), Lord Mansfield said, when the insured intends a deviation from the direct voyage, it is always provided for, and- the indemnification adapted to it. There never was a man so foolish as to intend a deviation from the voyage described, when the insurance was made, because that would be paying without an indemnification. Deviation from the voyage insured arises from after-thought, after-interest, after-temptation. In Laird v. Robertson (4 Brown Par. Oases, 488), a ship was insured for a voyage from Virginia to Rotterdam, with leave to call af a port in England, and after the underwriters had signed the policy, the destination of the voyage was. altered to the port of Hull, there to discharge instead of Rotterdam, and a memorandum of this alteration was indorsed on the policy. Hull, is not a port in the course of a. voyage between Virginia and Rotterdam, but two degrees north of that course. The ship was afterwards lost, and it was held by the House of Lords, that the alteration of the voyage vacated the policy as to all the underwriters, except those who signed the indorsement consenting to the change.

Even if Sisal had been a port at which the master was at-liberty to stop for any cause, it was a deviation in him to pass that port and proceed to Laguna, and then return to Sisal. On the assumption that the voyage was from Boston to Martinique, thence to Laguna, and from thence to Marseilles, and that the policy permitted the master to touch at the port of Sisal, it was a deviation in him to pass Sisal and proceed to Laguna, and from thence to return to Sisal. He must take the ports at which he is permitted to touch in succession. This point was directly ruled in Gardner v. Lenhouse (3 Turn., 16). That was an action upon a policy from London to Trinidad, or the Spanish main, with leave to call at all or any of the West India islands or settlements, and with ■ liberty to touch and stay at any port or places whatever or wheresoever. It was held that the assured must take all the ports at which he touches in the same succession in which they occur, in the course of his voyage insured. If ports of call are named in a policy, in a successive order, the ship must take them in the same succession in which they are named. If they are not named in any order in the policy, they must be taken in the order in which they occur, in the usual and most convenient and practicable course of the voyage, not according to the shortest geographical distances.-

In whatever aspect the case can be considered, it seems to be. well settled that, after the brig left the port of Laguna, to proceed to that of Sisal, she ceased to be under -the protection of the policy, and the underwriters were discharged. It was entering on a voyage not covered by the policy, and the loss having happened after the deviation, the judgment of the Superior Court was correct, and should be affirmed.

Denio, Ch. J., Wright, Balcom and Marvin, Js., concurred; Emott, J., dissented.

Judgment affirmed.


source: Caselaw Access Project

author: Rosekrans, J. Wright, J.

license: Public Domain

text:
    Battle v. Coit et al.

    The transfer of bills of exchange given for the purchase price of chattels, but not accepted in absolute payment, does not transfer to the indorsee any right of action against the vendees for the unpaid purchase money, except as they are liable on the bills.
    Accordingly, where, a partner sold his interest in the firm to the other members, receiving therefor bills to which some, but not all, of them were parties, held, that his release of the partners not hable on the bills was a defence to a suit against them for the purchase money by the indorsee of the bills.
    Appeal from the Supreme Court. The case was this: In April, 1841, William T. Battle (who is the nominal plaintiff in the action) and the defendants composed a copartnership, doing business as. common carriers on the Erie canal, by the name of the Troy and Erie line. The copartnership consisted of the firms of Gf. P. Griffith & Co., who did business at Troy, and acted as the agents of the copartnership at that place, and also of the firms of Townsend & Coit and S. Thompson & Co., located at Buffalo. The defendant, William Griffith, and one James M. Fish (who was not a member of the Troy & Erie line) acted as agents of the copartnership in its business at Bochester, under the name of Griffith & Fish. The plaintiff, on the 2d April, 1841, sold to his copartners all his interest in the property and business of the Troy and Erie line, and for the balance of the purchase money not paid to him in hand, received, without any express agreement to take the same in payment, four drafts of Griffith & Fish upon G. P. Griffith & Co., accepted by. the drawers, and by the acceptances made payable to the order of the plaintiff, at the Bank of Troy; three of the drafts being for $250 each, payable respectively in nine, twelve and fifteen months from date, and the fourth for $274.94, in eighteen months from date. Before any of the drafts matured, the plaintiff, in payment of a prior indebtedness to the Canal Bank of Lockport, indorsed and delivered them to the bank, which has since been the absolute owner and holder thereof. On thS 13th- January, 1842, Gr. P. Griffith & Co. sold out their interest in the property and business of the copartnership to the other members, who assumed the debts of the Troy & Brie line, among which the four drafts were enumerated. Two of the drafts having matured, the bank brought suit thereon in the Supreme Court, in the name of its officers, against all the defendants in this actionj and the defendants, Coit, Kimberly & Ide (who were not of thé firm of G. P. Griffith & Co.) had judgment thereon, upon the ground that they were not parties to the paper, and such judgment remains in full forcé.
    In January, 1848, the bank brought the present action in the name of Battle, for its own benefit, against all the persons that were members of the Troy ¿¿Erie line, in" April, 1841, claiming that the transfer of the drafts to it, transferred the right to sue in Battle's name, and recover to its own use the unpaid portion's of the purchase money represented by the four drafts. In September, 1848, and after the action had been commenced, Battle released and discharged the defendants, individually and as members of the Troy & Erie line, from all actions, causes of action, claims and demands whatsoever, in law or equity, which he ever had, or then had against them. The defendants, however, before the commencement of the action, had notice that the drafts were the property of the bank and that it claimed to recover in the name of Battle, for its own benefit; the original consideration for them. On the trial, before a referee, the. drafts were produced and offered to be surrendered. The referee ordered judgment for the defendants, which, on appeal," was affirmed at general term in the eighth district, and the plaintiff appealed to this Court.

      Chauncey Tucker, for the appellant.

      Harvey & Bass, for the respondents.
   Rosekrans, J.

The opinion delivered by Mr. Justice Gbeeh", in the Supreme Court (19 Barb,, 68), states correctly the principles of law applicable to this case. It is a maxim of the law that the incident shall pass by the grant of the principal, but not the principal by the grant of the incident. The sale by Battle, to his copartners, of his interest in the partnership pro-, perty, created a" debt in his favor, for the price of the property and the drafts which he took were merely the evidences of the debt, and not the debt itself. As between the parties to the sale, the debt was the principal and the drafts the accessary. They were mere securities for the payment of the debt. Had Battle assigned the debt to the bank, such assignment might have operated as an equitable assignment of the drafts, within the principle that whatever transfers a debt, carries with it the securities for the debt. But the transfer of an accessary tó a debt does not transfer the debt; accessorium non trahit principóle. (Broome’s Legal Maxims, 369, fol. 5.) When the principal and incident are separable, and'the incident is transferred,. it becomes the principal as between the parties to the transfer, and- the principal to which it was originally an accessory, becomes either absolutely extinguished or temporarily suspended. Bills of exchange and promissory notes, payable at a future day, received by a vendor of chattels, of his vendee, or by a creditor of his debtor, not as absolute payment, are within this class. While they are held by the vendor or creditor, and before their maturity, the right of-action upon the original consideration upon which they were received, is suspended. They operate as a conditional payment of such consideration, and if they are transferred, and remain in the hands of the assignee after maturity, so long as they so remain they operate as an absolute payment of the original consideration upon which they were taken. The authorities for this rule are numerous in the English courts and our own. (Belshaw v. Bush, 14 Eng. Law and Eq., 269; Clowes v. Claw, 25 id., 451; Frisbee v. Lamb, 21 Wend., 452; Griffith v. Owen, 13 Mees. & W., 58; Willson v. Jamison, id., 128; James v. Williams, id., 828; Hughes v. Wheeler, 8 Cow., 77; Bradish v. Green, 15 Johns., 247; Black v. Zacharie, 3 How. U. S., 483-510; Tobey v. Barker, 5 John., 68; Henry v. Sanger, 3 John. Cas., 71.) If the creditor who takes such securities, indorses them, and is charged as indorser, "and takes up the paper, he is remitted to his original rights. The suspended right of action upon the original consideration, in that case, revives in "him and he may bring his action upon such consideration, or upon the securities, at his election. In Belshaw v. Bush and Crowe v. Clay (supra), it appeared, as it does in the principal case, that the bills given for the price of goods sold were due at the commencement of the action by the vendor for the price, and in both of those cases it was held that to entitle the plaintiff to sue, he ought to be the holder of the bills, and the bills ought to be due. And in Griffin v. Owen, and Wilson v. Jameson (supra), it was said that a bill given for and on account of money due on simple contract, operates as a conditional payment, which may be repudiated at the option of the creditor, if the bill be unpaid at maturity in his hand, in which case he may rescind the transaction of payment and sue on the original contract. No case can be found in our own courts, except Rose v. Baker (13 Barb., 230), to sustain the claim made by the Canal Bank of Lockport, that the suspended right of action upon the original consideration for which Battle' took the drafts passed to the bank by the simple transfer to it of the drafts. The decision in that case is erroneous, except so far as it is based upon the actual assignment of the original consideration to the plaintiff, and such error was the result of a misapplication of the rule that a purchaser of a debt is entitled to all the additional securities for it, though not expressly named in the transfer. Neither in that ease, by the transfer of the notes, noy in the one under consideration by the transfer of the drafts, was the debt transferred for which the notes and drafts were received. The notes and drafts only were transferred; any securities held for their payment may have passed in equity. The contract between Battle and the bank was fully and wholly expressed in the drafts, and his indorsement of them, and the rights and liabilities of the parties to that contract arose upon the drafts thus indorsed as parties to commercial paper, and not otherwise. It has been held in equity that the lien of a vendor upon lands sold for the unpaid purchase money does not pass by his transfer of the notes of the vendee, received in part payment for such purchase, money. In White v. Williams (1 Paige, 502), where such a claim -was made by a party to whom the notes of the.vendee had been transferred by the vendor, the Chancellor said: At the time the complainant bought the note of the vendor the latter unquestionably had such a lien, but. it is not pretended there.was any agreement that it should be transferred-to .the, complainant. If Kingsbury (the vendor) could be considered as, still retaining such lien, after the transfer of the note, it must be on account of his liability as indorser. In a recent case, where the vendor had. negotiated the note, but was.obliged to take it up when it fell due, Lord Eldon sustained the claim of .the original vendor to. a. lien. on. the.land. (Ex parte Loring, 2, Rose’s Cas., 79.) But I am not aware of any case where the assignee of the note or other security has been permitted to sustain such a claim on an implied agreement to assign the lien.” It, must be conceded, however, that upon this subject the authorities in different States are in conflict. In Kentucky, Indiana and Alabama, it is .held that the vendor’s lien passes by the transfer of notes given for the purchase money : while in Georgia, Ohio, Tennessee, Mississippi and Maryland, the contrary rule prevails, and in the latter State it has been held that the lien is not assignable. (1 Leading Cases in Equity; Ware & Wallace’s Notes, 367.) The editors say. the weight of authority is decidedly against the lien accompanying a transfer of the debt.

But Battle’s right of action against all the purchasers, of his interest in the copartnership property, after the maturity of the drafts, cannot be regarded as a collateral security for the payment of the drafts. At most, it can only be considered as collateral security for the payment of the original debt, for the unpaid purchase money. Conceding that this right of action was assignable, and doubtless it was assignable, it did not pass by the transfer of the drafts, and not being otherwise assigned, the Canal Bank of Lockport was not-the owner of the right of action, or cause of action, in this case, and Battle’s release was a perfect bar to the action by the bank in his name. For these reasons the judgment should be affirmed.

Wright, J.

It is- not claimed that Battle assumed to transfer to the Canal Bank of'Lockport, the real plaintiff, any other rights than pertained to the- bills. He owed the bank, and the latter took the drafts in payment of his debts, by simple indorsement and delivery. The question, therefore, is, did this indorsement and delivery transfer to the holder a claim founded upon the original consideration of the bills of exchange, and give the bank a right of action against parties who, though members of the copartnership doing business under the name of the Troy & Erie line, were not parties to the bills ?

It- is true that if Battle had held the drafts when they matured, he might have surrendered them up on the trial, and recovered, under the common counts, the purchase money for his interest in the copartnership, as the fact is found that they were received by him without any express agreement to take the same in payment. But as regards the original consideration of the bills, there is no privity of contract between the bank and the defendants. As indorser of the bills, it acquired Battle’s right to enforce as against the drawers and acceptors, the contracts they had made, and nothing more. It is urged that the right to recover upon the original consideration, passed with the drafts as an incident thereto. I think not. A right of action upon the original consideration 'of commercial paper cannot be said to grow out of such paper, or to pass to each holder. In Cole v. Scott (2 Wash., 141), it was held that the transfer of the vendee’s promissory note received by the vendor of real estate, for the purchase money, will not draw after it a lien on the land, for its payment, in favor of the holder.

I think, therefore, that the referee was right in his conclusion, that the transfer of the drafts to the bank was not an equitable assignment to it of the nominal plaintiff’s right of action against the defendants, for the unpaid purchase money contingent upon the non-payment of the drafts, and the surrender thereof by him. The judgment of the Supreme Court should be affirmed.

All the judges concurring,

Judgment affirmed.


author: Selden, J. Balcom, J.

text:
    Nelson et al. v. Eaton.
    An insurance company transferred to the plaintiffs, as trustees, a promissory note as a security for the liabilities of persons who had lent their credit to the company, with power to sell the note, at public or private sale, without notice: Held, that this power of sale did not take away the power which the trustees took by the mere transfer of the note to sue upon it in their own names, without joining the cesiwis que trust.

      Ji seems that, had the trust deed contained an express agreement noi¡ to sue this would have been unavailable to the maker of the note—he having no interest in the trust: Per Selden, J. •
    An insurance corporation, in the absence of any statutory restriction, has the power to borrow money, and, as incident thereto, the power to transfer its assets in trust for the security of the. lenders.
    It appearing, by the complaint, that several other notes were transferred to the trustees at the same time, and their value not being stated, it will not be assumed on demurrer that the amount exceeded $1,000, nor that the transfer was made without a previous resolution of the directors, in violation of the statute (1 R S., p. 501, § 8.)
    Whether a transfer of the assets of a moneyed corporation, exceeding $1,000 in value, without the previous action of the directors, is not illegal and void, so that the maker of the note might set it up as well as the corporation, its stockholders or creditors; quaere: Per Selden, J.
    Appeal from the Supreme Court. Action to recover the amount of a promissory note for $681.25, dated August 3,1855, made by the defendant payable to the order of the Atlas Mutual Insurance Company twelve months after date. The complaint stated the making of the note by the defendant, and its delivery to the Atlas Mutual Insurance Company (the payees) —a corporation created and doing business under a special act of incorporation by the legislature of this State, passed April 10, 1843: that the plaintiffs, on the 15th of January, 1856, were constituted trustees of a special trust, by a written agreement set forth in the complaint, between the Atlas Mutual Insurance Company and sixteen individuals, by which those individuals agreed to lend to the company their notes—which they were mutually to indorse—to the amount of $5,000 each, to be given to the plaintiffs, as trustees, to be used by them as they might think proper for the benefit of the company; the liability of the makers to be secured by a deposit of collaterals to such an amount and of such a character'as the trustees should think sufficient to cover all the paper—such securities' to be placed in the hands of the plaintiffs, as trustees for all parties concerned, and power was given to the trustees to sell the securities, or any part thereof, at the board of brokers, oi at public or private sale, without notice; and if any loss should occur ultimately to the parties, it should be borne pro rata by all the parties giving the notes. The potes were to be paid by the company by the 1st of November, 1856.
    . The complaint then states, that, in accordance with the provisions of that agreement, the persons signing it loaned their notes to the company, as specified in the agreement, and delivered them to the plaintiffs, trustees, who used the notes for the benefit of the company, as provided in the agreement; that, on or about the said 15th of January, the said company, in pursuance of the agreement, or deed of trust, deposited with the plaintiffs, and transferred to them as such trustees, as collateral security for the liabilities of the said parties as makers and indorsers, the notes so loaned to said company as aforesaid; that among the notes so deposited with them was the. ,note before set forth in the complaint, made by the defendant, “ and duly indorsed in blank by the said Atlas Mutual Company, by an officer thereof, duly authorized, at or before the time of such deposit with the plaintiffs as aforesaid.”
    ■ It is then alleged that, afterwards and before the maturity of the notes s.o loaned, the insurance company failed and became and still is insolvent, and was dissolved, and did not pay or take up the same, or any of them; that the makers of the notes so loaned were compelled to and did'pay and take up the same; and at the commencement of this action- there was still due to said parties and unpaid', for and on account of the notes so loaned by them to - said- company, more than the amount of the defendant’s note; that the note of the' defendant was" transferred to the plaintiffs;-as aforesaid, before the maturity thereof; that they are the lawful owners and holders thereof, as such trustees as aforesaid'; that the same-is due and unpaid, and the defendant neglects to pay "the same, though often requested by the plaintiffs to do so ;■ wherefore j udgment is demanded for the amount of the note and- interest,- besides costs;
    To- this - complaint the defendant demurred, assigning as grounds oft demurrer: 1st; That the complaint does'‘-not state facts sufficient to constitute a cause of action; 2d.- -That the plaintiffs-have not" legal capacity to sue; 3d. That-there is a defect of parties plaintiff or defendant. '
    At the special term of the Supreme Court, the" demurrer was overruled, and on-appeal that order was reversed at the general term and judgment rendered in favor of the defendant for costs; from which judgment the plaintiffs brought this appeal. The cause was submitted on the briefs of counsel, by-

      W. Britton, for the appellants, and

      Gilbert Dean for the respondent.
   Selden, J.

The grounds on which the demurrer-was sustained in the Supreme Court are stated in the opinion as ■ follows : The trust instrument expressly specifying the terms on which the note came into the plaintiffs’ hands, as trustees, expressly giving them the right to sell, &c., but not to sue, the plaintiffs had no right to bring this action, as such trustees. There is no room for presumptions arising from their being the holders of the note, for they themselves set out the manner in which they hold it, and their rights over it. They had a right to sell it, without advertising, or otherwise giving notice; but with the express agreement before us, there is no place for-presumption that they had a right to sue it as the owners and holders.”

I cannot assent to this position. The note constituted a perfect obligation against the defendant. He was bound to pay it to the person having the legal title to it. He was not inteiested in the trust, and the creation of it had no effect whatever upon his rights or duties. By the indorsement and transfer of the note to the plaintiffs, they obtained the legal title to it, and the right—the sole right—to demand and receive payment of it. The right of action to recover money attends upon the right to demand and receive it, and, I think, cannot be severed from it. (Flagg v. Munger, 5 Seld., 492.) If the plantiffs could not maintain an action on- the note, then no one could maintain it, for they alone had the legal title; and it would present a strange anomaly in the law if a note, absolutely due to a living person, could be so placed that no person could maintain an action upon it. If such cases can exist, this is not one of them. The power of sale given to the plaintiffs by the trust contract was designed to give them an authority which, by the mere transfer of the notes to them as collateral security, they would not have had. I think it was not designed to take away any power which the transfer of the legal title to the notes gave them. But if such was the design, even if the instrument of trust had contained an express agreement on the part of the plaintiffs not to sue the notes, it would not have aided the defendant in this action. Having the legal title to. the note, they had a perfect right of action against the defendant, and he could not avail himself of their covenant with strangers not to prosecute such action. (Bank of Chenango v. Osgood, 4 Wend., 607-612.) Such an action might be a breach of trust, but that would not aid the defendant—the trust in no way affecting either his rights or his duties. The error in the judgment in this case has arisen from a failure to distinguish between the legal and equitable interests in the note, which have no connection with each other. The legal interest depends upon the indorsement and transfer of the note by the insurance company to the plaintiffs; and in that alone has the defendant anyvinterest. That transfer being perfect, the plaintiffs’ right of action was perfect. The trust did not in any way affect it.

I have, thus far, assumed that the transfer of the note was valid. Its validity, however, is denied, first, on the ground that the insurance company had no power to .create such a trust and, second, that, if it had such power, the transfer was" void for want of a previous resolution of the board of trustees" authorizing it.

It has often been decided that insurance companies, without’ any special authority for that purpose, possess the incidental power to borrow money; and such power, from the nature of their business, would seem to be indispensable to enable them to meet the sudden emergencies to which they are liable. (Furniss v. Gilchrist, 1 Sandf., 53; Curtis v. Leavitt, 15 N. Y., 9-219; Mead v. Keeler, 24 Barb., 20.) The power to borrow might include the power to obtain indorsers or sureties, and to secure them by a transfer of assets for that purpose; and it cannot be material whether such transfer should be directly to the indorser or " to a trustee for his benefit. In either case, the assets would, be equally held in trust. The power to create such a trust, by a corporation not specially authorized, was settled in the case of Curtis v. Leavitt (supra).

There are several conclusive answers to the objection that a resolution of the board of trustees was required to make the transfer of the note valid:

1. The statute only applies to transfers of corporate effects “ exceeding the value of one thousand dollars.” (1 R. S., p. 591, § 8.) The note transferred was $681 only, and all which appears, beyond that is, that certain other notes were transferred—the amount not being shown. We cannot assume from this statement that the amount transferred exceeded one thousand dollars. We could hardly indulge such a presumption, if it yrere necessary to make the transaction legal: much less can we do so, when the effect would be to make it illegal. Nq inferences, riot absolutely required by the facts alleged, can be allowed which will produce that result.

2. If the notes transferred exceeded in value a thousand dollars, the court would not presume that the transfer had been made in violation of the statute. That is a fact, if it exists, to be shown in defence.

“ Acts done by a corporation, which presuppose the existence of other acts to make them legally operative, are presumptive proofs of the latter.” (Per Story, J., in Bank of the United States v. Dandridge, 12 Wheat., 79.) “Illegality is never presumed: on the contrary, everything must be presumed to have been legally done, until the contrary is proved.” (Bennett v. Clough, 1 B. & A., 461.)

3. I am inclined to regard the averments of the complaint, sufficient, if it were necessary for the plaintiffs to show affirmatively a compliance with the statute in question. (2 Kern., 436, 437; 22 How., 236.) The case differs very much from that in 9 Abbott (p. 198). It is not, however, necessary to decide this question; nor whether the want of a compliance with the statute is a defect of which the debtor could take advantage. (6 Seld., 60; 33 Barb., 340.) I doubt the soundness of the opinions expressed in these cases, that none but the corporation, or its creditors or stockholders, could impeach such a transaction, for the want of the previous action of the board of directors. The transfer in such case would be, not only unauthorized, but illegal (3 Kern., 119), and, I think, void, even as to strangers,. However that may be, the plaintiffs here would be protected by the saving clause of the statute in favor of bona fde purchasers, if it were necessary for him to invoke that protection in his behalf. (1 R. S., p. 591, §8; 15 N. Y, 11.)

' The judgment of the general term should be reversed, and the order of the special term affirmed, with costs.

Balcom, J.

The Atlas Mutual Insurance Company was authorized “ to negotiate its promissory notes for the purpose of paying claims or otherwise, in the course of its business.” (Laws of 1842, p. 263, § 12; Laws of 1843, p. 69, § 8.) It therefore had the right to transfer the defendant’s note to the plaintiffs, as collateral security for those loaned to it, and placed in the hands of the plaintiffs for its benefit.

The statements that the company deposited, with, and transferred the defendant’s note to, the plaintiffs as its trustees and the trustees of the sixteen pérsOús and firms named, who had loaned it their notes, 'and that the defendant’s said note "was “ duly indorsed in blank by said Insurance Company, by an officer thereof duly authorized,” at or before the time of such deposit, are sufficient upon demurrer io show that the plaifitiffs as trustees had title to such note, without reference to the allegation that they were, as such trustees, the lawful Owners and holders thereof.

The objection that the allegations were too indefinite, could be taken only by motion. (Seeley v. Engell, 3 Kern., 542; People, ex rel. Crane, v. Ryder, 2 id., 433; Cheney v. Fisk, 22 How. Pr., 236; 15 N. Y., 425; 23 id., 491.)

The transfer of the note by the company to the plaintiffs as collateral security for the benefit of the sixteen persons and firms' who had deposited theirs in the plaintiffs’ hands for the benefit of the company, was not in violation óf any statute or principle' of the common law, and was ad valid as if the transfer had been made directly to those persons and firms.

The allegations in the complaint, to which allusion has been made, justify the conclusion that the officers of the Insurance Company were authorized by a resolution or\by-láw of the board of trustees to borrow money or notes, and pledge the defendant’s note and other collateral securities for the payment of the- same.

The writing pursuant to which.the transfer was made, constituted the plaintiffs trustees of an express trust, within the meaning of section 113 of the Code, as to the defendant’s note, and they may maintain the action thereon in their own names without joining the sixteen persons and firms for whose benefit it is prosecuted, unless they are restricted by the writing to a sale of the note. (Considerant v. Brisbane, 22 N. Y., 389.)

There can be no doubt that the plaintiffs could have received the money due upon the note; and there would have been no ground for questioning their right to enforce payment of it by suit, if the words in the writing, authorizing the plaintiffs to sell it had been left out. It is evident that those words were inserted, not with the view of restricting or curtailing the authority of the plaintiffs in respect to- the notes and other collateral securities placed in their hands, but for the purpose of enlarging it so they would have the right to sell the note and other collaterals pledged to them as security without notice to the company, and to enable them to raise money without delay, by a sale of the same, in case of a necessity for such a course. For without those words in the writing the plaintiffs would not have possessed authority to sell the note or any of the collateral securities in their hands, until they had given personal notice to the company to redeem the same. (Wheeler v. Newbould, 16 N. Y., 392.) It is, therefore, clear that the authority given to the plaintiffs to sell the note did not take away their right to collect it. A similar conclusion was arrived at by the Superior Court of the city of Few York, when this writing was before that court in Nelson v. Wellington (5 Bosw., 178).

These conclusions show that the demurrer to the complaint was not well taken, and. that the judgment of the general term of the Supreme Court should be reversed, and the order of the special term affirmed, with costs.

All the judges concurring,

Judgment reversed, and judgment at special term affirmed.


author: Marvin, J.

text:
    Clapp v. Graves.
    A long summons, issued by a justice’s court against a non-resident, is not a nullity, though the statute (ch. 300 of 1831,' § 33) declares that, in such case, the justice shall have no jurisdiction.
    The defendant waives the irregularity, and gives jurisdiction as to his person, if he appears and pleads to the complaint without objection to the process.
    Appeal from the judgment of the ¡New York Common Pleas, affirming a judgment of the Marine Court. The summons was issued out of the Marine Court, October 24, 1857, returnable ¡November 2d, in an action upon contract in favor of' the plaintiff, and against the defendant and two others. The summons was served upon Graves only, and a complaint was served at the same time. The defendant appeared and answered the complaint on the return day of the summons, and the cause was adjourned. The trial came on December 17, when the defendant objected to the jurisdiction of the court on the ground that the summons was a long summons and he was a non-resident of the city arid county of ¡New York; and after the plaintiff had proved his cause of action arising upon a note of $500, the defendant proved that he was, at the time the action was commenced, a resident of the city of Brooklyn in the county of Kings, and still was such resident, and thereupon moved that the summons and complaint be dismissed, upon the ground that the court had no jurisdiction. The motion was denied, and the defendant excepted. Judgment was rendered against the defendant, which was affirmed upon appeal to the Marine Court at general term, and subsequently by the Common Pleas. The Common Pleas certified that the case was proper for an appeal to this court.

      R. Graves, for the appellant.

      Richard M. Harrington, for the respondent.
   Marvin, J.

The statute required that the defendant should be proceeded against by a summons returnable not less than two nor more than four days from its date, and it is declared “if such defendant be proceeded against otherwise, the justice shall have no jurisdiction of the cause.” (Sess. L., 1831, ch. 300, § 33.) Section 47 makes this section applicable to the Marine Court of the city of New York. The cause of action in this case, was one of those in which the Marine Court had jurisdiction. As the statute prescribes the kind of summons by which, the action shall be commenced, and as the statute was not followed in this case, it is clear that the proceedings should have been dismissed if the defendant had raised the question in proper time and manner. But having appeared and answered the complaint and joined in an adjournment, could he raise the question at the time of the trial of the issues, joined upon the merits ?

The summons in this case was not void. It is the process authorized and usúally employed in commencing actions in the Marine or Justice’s Court. It is not, however, authorized in a case where the defendant is a non-resident of the county, and when issued in such a case it is irregular, not being the kind of summons required by the statute in the particular cáse, and unless this irregularity is waived the court will have no jurisdiction of the cause. The statute does not declare a long summons void in any case, but it declares when certain facts exist, that a different summons shall be employed, and if not, then the court shall have no jurisdiction of the cause. It is not always easy to distinguish between an irregularity and a nullity, and the term void is sometimes used in our books as I think, without due consideration. Macnamara on Nullities, (pp. 2, 3, 6), says that an irregularity in its most general sense, is the technical term for every defect in practical proceedings, or the mode of conducting an action or defence, as distinguished from faults in pleadings, and that a nullity is the highest degree of an irregularity in the most extensive sense of that term, and is such a defect as renders the proceeding, in which it occurs, totally null and void, of no avail or effect whatever, and incapable of being made so; and that it may, perhaps, be defined as a proceeding that is taken without any foundation for it, or that is essentially defective, or that is expressly declared to be a nullity by statute. He adds that it may be laid down as a certain rule, that whenever there is any doubt upon the matter, it will always be safe to treat the defect as an irregularity rather than as a nullity, and that there is a tendency in the judges to consider defects merely as irregularities. An irregularity, he says, may be waived, a nullity never can be waived.

Coleridge, J., in Holmes v. Russell (9 Dowl., 487), said: “It is difficult, sometimes, to distinguish between an irregularity and a nullity, but I think the safest rule to determine what is an irregularity and what is a nullity, is to see whether the party can waive the objection. If he can waive it, it amounts to an irregularity; if he cannot, it is a nullity.

In the present case I think it cannot be doubted that the defendant could waive any objection to the summons, on account of its being long instead of short, and not being such as the statute directed in the particular case. If so, then by appearing and answering, without raising the objection, he must be deemed to have waived it. ■ What consequence followed? Clearly that he was in court, upon an issue joined, in an action which the court had jurisdiction to try, and that portion of the statute declaring that if the "defendant be proceeded against otherwise, the justice shall have no jurisdiction of the cause, had no application to the case, as after the waiver the summons is to be regarded as sufficient, and as though it was a short summons such as the statute directs. It was not intended by the legislature to deprive the defendant of the right to waive the defect in the summons, a right of very extensive application in judicial proceedings. The fact that the party who may make the objection, has exercised the right of waiver, is almost always inferred from some act other than an express waiver. It is upon this principle that the order in pleadings by a defendant is established. Thus an omission to plead to the-jurisdiction of the court, is a tacit admission that the court has a right to judge in the cause, and a waiver of any exception to the jurisdiction. This rule does not apply in those cases where the court cannot take cognizance of the subject matter of the suit or proceeding, and in such cases it would be the duty of the court on motion, or ex officio, to dismiss the action or proceeding, as all its acts would be without jurisdiction and utterly void. (Gould’s Plead., ch. 5, §§ 13-24.) The doctrine of waiver has no application in such cases where even express consent will not give jurisdiction.

The following are some of the cases of defective or unauthorized process in justices’ courts held to be irregular, and in which the doctrine of waiver was held applicable. (Day v. Wilbur, 2 Caines, 134; Malone v. Clark, 2 Hill, 657; Wood v. Randall, 5 Hill, 264; Sherman v. Comstock, 17 Wend., 457.)

In Harriott v. Van Cott (5 Hill, 285), the case was like the present, a long instead of a short summons, the defendant being a non-resident. He did not appear and the plaintiff obtained judgment, which the court held was void.

In Bowne v. Mellor (6 Hill, 496), the attachment was the long instead of the short one required by the statute, the defendant being a non-resident of the county. He did not appear. It was held that he might treat the process as void and recover his damages in an action of trespass or waive the irregularity, and take his remedy upon the bond.

Ho case has been found, except Robinson v. West (11 Barb., 309), in which it has been held that appearing and pleading to the merits of the action, was not a waiver of all defects in the process. And in all the cases where the defendant has appeared and answered to the merits, without raising any objection to the process, it has been held that the court had jurisdiction of his person, and if it had jurisdiction of the subject matter of the action, its jurisdiction was perfect.

The judgment should be affirmed.

All the judges concurring,

Judgment affirmed.


text:
    Fowler v. The New York Indemnity Insurance Co.
    A complaint by the assignee of a fire policy averred an insurance of the assignor on his building: that'the policy was duly assigned, with the consent of the insurers: that the plaintiff, at the time of the loss, was the lawful owner of the policy, and of the claim against the insurers by reason of the policy aud loss, and he made a demand of payment, accompanied with the written assent of the person to whom the original assured had, after the loss, assigned all his property.
    Held bad, on general demurrer, as not showing any interest in the subject insured of the plaintiff or his assignor.
    Appeal from the Supreme Court. The plaintiff, as assignee of one Robert Caldwell, brought this action to recover a loss on' a policy of insurance issued by the defendant. The complaint set out that, on the 6th of January, 1853, the defendant, in consideration of thirty dollars to it paid by Caldwell, issued its policy to him, insuring him in the sum of two thousand dollars “on his three-story and attic stone building, shingle roof, and also on his water-wheel, and on a frame one story building attached, occupied by the said assured as a calico and silk printing machine establishment, by machine and hand power:” that, on the 7th of July, 1853, and while the policy was in full force, the premises covered by the policy were destroyed by fire, and the loss thereby was the sum of two thousand two hundred dollars: that, on the 6th of January, 1853, the day the policy was issued, the defendant gave a written consent to the assignment thereof to the plaintiff, and on the same day Caldwell duly assigned the policy and all his interest therein to the plaintiff; and that, on the 12th of July, 1853, Caldwell made and executed to one Belknap a general assignment of all Ms property, real and personal, in trust, for the payment of his debts. The plaintiff averred in the complaint that he was then, and at the time of the destruction by fire of said property, the lawful owner and holder of the policy of insurance, and the lawful owner and holder of the claim and demand against the defendant accruing by reason of said policy and the destruction of the property covered thereby: that on due proof of such loss, the plaintiff had demanded of the defendant the amount due on said policy, and such demand was accompanied by the written assent of the, said Belknap, assignee of said Caldwell as aforesaid, that the plaintiff might receive the amount of said policy from the defendant To this complaint a demurrer was interposed, on the ground that the complaint did not state facts sufficient to constitute a cause of action. ¿ The demurrer was overruled at special term, and judgment given for the plaintiff, which was affirmed at the general term in the second district, and the defendant appealed to this court.

      John K. Porter, for the appellant.

      John H. Reynolds, for the respondent.
   Davies, J.

The radical defect in the complaint is, that it contains no averment of interest, either in the plaintiff or in his assignor, in the subject-matter of the insurance. This court, in the case of Ruse v. Mutual Benefit Life Insurance Company (23 N. Y., 516), distinctly enunciated the proposition that a policy, obtained by a party who has no interest in the subject of insurance, is a mere wager policy. It was said, in that case, that, aside from authority, this question would seem to be of easy solution. Such policies, if valid, not only afford facilities for a demoralizing system of gaming, but furnish strong temptations to the party interested to bring about, if possible, the event insured against. In respect to insurances against fire, the obvious temptation presented, by a wagering policy, to the commission of the crime of arson, has generally led the courts to hold such policies void, even at common law. It was so held in England, at an early day, by Lord Chancellor King, in Lynch v. Dalzell (4,Bro. P. C., 431), and by Lord Hardwicks, in Saddlers' Company v. Budcock (2 Atk., 557); and the courts in this country have generally acquiesced in and approved of the doctrine. In this State, such policies would fall under the condemnation of our statute avoiding all wagers and gambling contracts of every sort; but they would, no doubt, also be held void, independently of the statute, at common law. In Howard v. The Albany Insurance Company (3 Denio, 301), Bronson, Ch. J., asserted the necessity of an interest in the assured in all cases; referring, in support of the doctrine, not only to the statute, but to the decisions of Lords King and Hardwicks (supra): and, in this latter case, Judge Bronson insisted that, in fire policies, the assured must have an interest at the time of the loss, as well as when t¿e contract is made. I understand the same doctrine to be distinctly affirmed by this .court in the case of Murdock v. Chenango County Mutual Insurance Company (2 Comst., 210), viz., that, upon a policy against loss by fire, no recovery can be had, unless the insured has an interest in the subject insured at the time of the loss; and an established rule in pleading was enunciated in that case, that the plaintiff, or plaintiffs, must aver every fact necessary to show a right to recover, and every such necessary averment must be proved.

In Peabody v. Washington County Mutual Insurance Company (20 Barb., 340), the plaintiff, Peabody, sued as assignee on a policy issued to his assignor, one Biggs, who was also a co-plaintiff. The complaint averred the insurance on the property of Biggs, and the assignment of the policy to Peabody as collateral security. Demurrer, on the ground that the complaint did not state facts sufficient to constitute a cause of action. The court held the demurrer well taken as to the plaintiff Peabody, as it did not appear by the complaint that he had any interest at any time in the property insured, and this was fatal to his right to recover; and the court repeats the well-established rule, that the insured must not only have an interest in the subject-matter of the insurance, at the time of insuring, but also at the time the loss happens—(citing 3 Kent’s Com., 371, 375, 4th ed.)

The interest of the assignee must be stated in the complaint, as well as the fire, and other necessary facts, to make out a cause of action. (Granger v. Howard Ins. Co., 5 Wend., 202.) The learned judge who delivered the prevailing opinion, in support of the complaint, in the Supreme Court, says, it is not ordinarily necessary for the plaintiff to allege in his complaint anything which he is not bound to prove in order to make out his case. Hence, he says, it was held, and he believes very generally, that an averment of interest is unnecessary in .declaring on a policy of insurance—citing, as authorities, Nantes v. Thompson (2 East, 385, per Grose, J.); Clendening v. Church (3 Caines, 141); Buchanan v. Ocean Insurance Company (6 Cow., 332). He says, it is true that all these cases were before the passage of our statute to prevent betting and gaming. All of these cases, as is shown in the case of Freeman v. Fulton Fire Insurance Company (14 Abb., 398), decided by the general term of the second district since this demurrer was overruled, were cases of marine insurance. . In such cases an averment of interest was unnecessary, for such policies were valid as wager policies, although the plaintiff in fact had no interest in the subject insured. It follows,- therefore, that neither an averment nor proof of interest could be required to sustain a recovery on such a policy. (Buchanan v. Ocean Ins. Co., supra.)

In the case of Freeman v. Fulton Fire Insurance Company (supra), the Supreme Court held a complaint defective which did not contain an averment that the plaintiff had an interest in the thing insured at the time of the loss, unless the' claim was assigned to him after the loss. In the present case, the policy was assigned before the loss; and, therefore, before the plaintiff could recover, he must prove his interest, and such proof being essential, the interest must be averred in the complaint.

The judgment of the general and special terms must -be reversed, and judgment for defendant, with costs—the plaintiff to have leave to apply to the Supreme Court to amend his complaint on proper terms.

All the judges concurring,

Ordered accordingly.


author: Emott, J.

text:
    Curtis v. Gano et al.

    Evidence by an expert that a machine was not constructed in a workmanlike manner is admissible, though the party offering the evidence decline to follow it by proof of the particulars in which the machine was defective.
    Appeal from the Supreme Court. Action for breach of an-agreement to manufacture eighteen threshing machines. The plaintiff refused to accept three of the machines manufactured by the defendants, on the ground that they were not constructed-in a good and workmanlike manner. The plaintiff called a witness to prove the validity of his objection to these machines. The evidence offered, and which was rejected under exception, is stated in the following opinion. Verdict and judgment for the defendants were affirmed at general term in the sixth district, and the plaintiff appealed to this court.

      E. H. Benn, for the appellant.

      J. McGuire, for the respondents.
   Emott, J.

The defendants constructed three threshing machines, under the contract between them and the plaintiff; and one of the issues litigated at the trial was, whether these machines were built according to the contract, that is, in a good and workmanlike manner. A witness was asked the following question: “Were the three machines' built in a good and workmanlike manner ?” The question was one which came within one of the ordinary and well-recognized exceptions to the general rule forbidding the reception in evidence of a witness’s opinion. It was a matter of skill, requiring peculiar knowledge of the article and judgment respecting it. Thus, a shipbuilder may give his opinion* of the seaworthiness of a ship, and a nautical man of the' skill used in its navigation. (1 Greenl. Ev., §440, and cases cited.) So a competent witness may testify as to the compactness and proper construction of a wall. (Pullman v. Corning, 5 Seld., 93.) A seafaring man-, familiar with the mode of stowing and carrying a particular article in vessels, was allowed to state whether, in his opinion, a quantity of the article in question was properly stowed in a vessel. (Price v. Powell, 3 Comst., 322.) It is, of course, necessary that the witness who is to testify to such matters of opinion should be possessed of the requisite skill and experience in the particular matter to form such an opinion. In this instance the question was objected to generally, and not on the.ground that the witness did not possess the knowledge to entitle him to give an opinion; and the ruling of the judge assumed the same thing. We must assume, therefore, that the witness was an expert, and competent to give the opinion asked for by the question, if such an opinion was evidence. This’is giving, to the objection and exception, as stated in the case, the full scope which can be claimed for them. The ruling of the judge proceeded upon a narrower ground. The bill of exceptions states that the court decided that unless the plaintiff proposed to' prove in what respect the machines were not constructed in a good and workmanlike manner, the general .question must be rejected: The subject-matter of the question being one proper for the opinions of witnesses, and it being assumed that the witness of whom the question was asked was possessed of the qualifications to enable him to form . and express an opinion, I am unable to see how the judge at’ .the trial was authorized to impose such a condition upon the admission of the evidence. It was, in effect, saying that the party should not be permitted to ask one question of a witness which was admissible and proper, unless he would also ask another. It certainly would have been in accordance with the ordinary practice at trials to have .followed such a general question and answer with inquiries as to what the defects were; but if the plaintiff chose to rest upon the general statement alone, and leave it to his adversary to call for more specific objections to the' work by cross-examination, he had a right to- do so. Otherwise, he would not have the right to introduce the opinion of the witness at all. For, if it should be held that this opinion, to be admissible, must be accompanied with a specification of facts upon which it was founded, it would come very near to holding that the facts only, and not the opinion, were admissible. It would, at all events, adopt a rule that the opinion is not admissible until the witness should state the facts; which, in this class of questions, is not the law.

I am of opinion that the judge erred in excluding this evidence, and that this judgment must be reversed and a new trial ordered for .that reason.

All the judges, except Wright, J., concurring,

Judgment reversed, and new trial ordered.


author: Balcom, J.

text:
    Hance et al. v. The Cayuga and Susquehanna Railroad Company.
    When a railroad corporation has constructed and maintains proper fences and cattle guards, as required by statute, its absolute liability for damages to cattle upon its track ceases; and though guilty of negligence in keeping the cattle guards effective, it is not responsible to the owner of cattle who is himself chargeable with negligence in allowing them to get upon the track.
    So held, where the corporation was negligent in not removing snow which filled up the cattle guards so that they made no substantial impediment to the passage of cattle. The owner of cattle escaping from a yard on to the track under such circumstances is chargeable with negligence, and cannot recover for an injury, though guilty of no actual carelessness in suffering them to escape.
    Otherwise, it seems, if the cattle, being lawfully driven along the highway, had made their way on to the track in consequence of the neglect of the railroad company in not clearing its cattle guards of snow: Per Baloom, J.
    Action brought before a justice of the peace to recover the value of a cow. It was admitted by the "defendant that on the night of the 11th of December, 1854, the defendant’s locomotive ran over and killed the plaintiffs’ cow, while on the railroad belonging to the defendant; and that the plaintiffs purchased the cow of Harvey Stevens. The cow was very breachy and would jump and break fences, which was the reason Stevens sold her to the plaintiffs, who were drovers. She was driven from the premises on the 11th of December to the tavern of one Taylor and there put into a yard with five other cattle. The yard was about fifteen rods from a cattle guard, where a highway crossed the railroad. The cow .got over the bars to the yard, by breaking the two upper ones, into the highway, and then went on to the cattle guard and walked over or through it upon the railroad, and was killed by the locomotive, on the railroad, about three-fourths of a mile from the cattle guard.. There, had been so severe, a snow storm that the regular trains could not run on the railroad for a day or two. When the'cow walked through or over the cattle guard it was filled up with snow under the slats, The snow plow ahead of the locomotive had taken off the snow even with the, top of the slats, and from the upper side of the rails on the road, The eow sank into the snow two or three feet, in walking through the cattle guard. Taylor testified that he never knew of cattle passing the cattle guard, before this cow went through or over it, and that the slats of the cattle, guard were five or six inches apart and seven feet long.
    One Baldwin (who worked on the railroad repairing the timbér) testified that he lived three or four rods from the cattle guard; that he saw it some days after the cow was killed; that the slats to it were open; ■ that he did not know but the snow there came up to the under side of them; that he saw the cow the night she was killed; that she was in his lot or yard; that that there was a gate from his yard to the railroad, which was open that night; that the cow went out of his yard on to the railroad; that the railroad was fenced, and that the gate belonged to the railroad fence; also, that the cow might have come into his yard from the railroad or the highway; that there had been a great and severe snow storm; that he was sick and got his father to go and see if it was his (witness’) cow that had gone on to the railroad track. The engineer who ran the locomotive testified that the cow was killed at about 8 o’clock in. the evening; that when he first saw her she was on the south side of a bridge; that he whistled down the brakes ; that the.head-light on the locomotive was lighted; that it was impossible to prevent killing the cow; that she was so near the train when discovered it could not be prevented. Two witnesses testified they were acquainted with the cattle guard; that it was in good repair, or .in good order, though it was partly filled .up with snow at the time the cow was killed. One of them said the railroad was fenced from the cattle guard to the place where the cow was killed, and he had never known of cattle passing over the cattle guard. •
    There was a good fence around Taylor’s yard, from which the cow escaped, into the highway, and none of the other cattle in the yard got out that night.
    At the close of the plaintiff’s evidence, the defendants moved for a nonsuit, on the ground that the plaintiffs had not made out a cause of action; and second, that there had been no negligence shown on the part of the defendants; and further, that the plaintiffs themselves had been guilty of negligence; which motion the justice refused to grant.
    The justice rendered a judgment in favor of the plaintiffs for $25 damages, besides costs, which was reversed by the. Tompkins County Court. The Supreme Court reversed the judgment of the County Court, and affirmed that of the justice, on the sole ground that the justice did not certify that he returned all the evidence given on the trial before him. The return set forth the evidence in detail: first, that given by the plaintiffs, and. then that given by the defendants, and at the end thereof was a statement that “ the evidence here closed,” And after stating the judgment, the justice said: “I hereby certify that the foregoing are all the proceedings had before me in this cause.”
    The case was submitted to this Court upon printed briefs.

      Benjamin G. Ferris, for the appellant.

      Jerome Rowe, for the respondents.
   Balcom, J.

This court decided, in Orcutt v. Cahill (24 N. Y., 578), that the return of a justice of the' peace to an appeal from a judgment, under the Code, must contain all the testimony received by him in the cause; and that where a justice’s return sets forth the evidence in detail, it is to be considered as stating the whole testimony, unless the contrary distinctly appears. That decision shows that the judgment of the Supreme Court, in this case, cannot be sustained on the ground that the justice of the peace did not certify that he returned all the testimony received by him in the cause.

The defendants had fenced their railroad where the plaintiffs’ cow was killed, and had constructed and maintained a cattle guard at the highway crossing, where she went upon the railroad ; and the evidence fails to ' show that the fence was not “ of the height and strength of a division fence,” or that the cattle guard as made and maintained, was not “ suitable and-sufficient to prevent cattle and animals from getting on to the railroad.” Two or three witnesses, who lived near it, testified they had never known cattle passing over it, and no witness pretended any cattle had ever gone over or through it before the plaintiffs’ cow walked through it; and the evidence is uncontradicted, that she passed through it-in consequence of its being filled' up with snow. There had been so great and severe a snow storm as to prevent the regular trains of cars running on the railroad for a day or two. The snow had been removed from the rails and the top of the cattle guard, but it remained in and under the same and up to the under side of the slats of the guard. The justice was probably satisfied that the defendants were guilty of negligence in not removing the snow from underneath the slats of the cattle guard. But that conclusion, however well sustained- by the evidence, did not justify him in giving judgment in favor of the plaintiffs, if their cow escaped from Taylor’s yard and went to the railroad by reason of their own or Taylor’s negligence. It is only before the requisite fences and cattle guards are" duly made, that a railroad company and its agents are made liable by statute for all damages done by their agents or engines, to cattle, horses or other animals thereon notwithstanding the negligence of the owner cooperates in producing, the damages. After such fences and guards are duly made and maintained, the corporation is not liable for any such damages unless negligently or willfully done (Convin v. The N. Y. and Erie R. R. Co., 3 Kern., 42); and then the person sustaining such damages by reason of the negligence of the corporation, cannot recover if his own negligence in any way concurs in producing the damages.

This court decided in Munger v. The Tonawanda R. R. Co. (4 Comst., 349), that where the statute does not apply, an action against a railroad company, for negligently running their engines or cars against or over cattle and killing or injuring them on their railroad, can not be sustained if the wrongful act or negligence of the owner cooperated with the misconduct of the company to produce the injury to the cattle. Also that when cattle escape from the enclosure of the owner and stray upon the track of a railroad, they are to be regarded as trespassing upon the lands of the railroad company, and that the law charges the owner of the cattle with a wrongful or negligent act, if they stray from his enclosure and go upon lands appropriated by a railroad corporation, although his enclosure is kept well fenced, and he is guilty of no actual carelessness in suffering them to escape.

According to that decision the plaintiffs were clearly guilty of negligence, in suffering their breachy cow to escape from Taylor’s yard and go to the railroad, which cooperated with the defendants’ negligence to produce her death; and as the defendants’ negligence was their omission to remove the snow from underneath the cattle guard, through which the cow walked from the highway on to their railroad and not their failure to construct and maintain one there, sufficient, when not filled up with snow, to prevent cattle and animals from getting on to the railroad, the plaintiffs were not entitled to recover.

If the plaintiffs had been properly driving their cow along the highway, and she had walked over or through the cattle guard on, to the railroad by reason of the omission of the defendants to remove the snow that was in and under the slats of the guard, the case would have been different, and they would have been entitled to recover. But as the case is, the cow went upon the railroad track in consequence of their own as well as the defendant’s negligence, and they should not have recovered.

The justice should have nonsuited the plaintiffs or given judgment in favor of the defendants; and the County Court did right in reversing his judgment.

It follows that the judgment of the Supreme Court should be reversed and that of the County Court affirmed, with costs.

All the judges concurring,

Ordered accordingly.


author: Wright, J.

text:
    Harris v. Harris et al.

    The provision of the Revised Statutes in relation to the probate of a lost will in the Court of Chancery (2 R. S., p. 68, § 67), requiring two witnesses to establish it, relates only to that special proceeding, and does not abolish the common-law rule of evidence which allowed the proof of a lost will, in the same manner as that of a deed, by a single credible witness.
    Accordingly, where, in an action of partition, the plaintiffs established their title by sufficient common-law evidence of the existence and fraudulent destruction of a will, held, that they were not concluded by the dismissal of a suit in which they had sought to obtain the probate and record of the will under the statute.
    Appeal from the Supreme Court. Action for the partition of lands, tried before Mr. Justice Potter, without a jury, at the Saratoga Special Term, in July, 1860. The plaintiff and defendants were the heirs-at-law of John Harris, who died in February, 1859, being seised of the real estate described in the complaint, and sought to be partitioned. The defendants Ephraim and William Harris, severally answered and denied the tenancy in common between the parties, as alleged, and averred that their father, by a last will and. testament, which was never revoked or annulled in any manner, devised said lands, in several and distinct portions, to them; and that they were severally the owners thereof, in fee simple. The plaintiff, in reply to the answers (after a general denial of the new matter stated therein), set up that a former action had been brought by said defendants and one Charles Harris, against the plaintiff and others, in the Supreme Court, for the purpose of having the last will of John Harris proved as a lost and destroyed will; and that said action was duly tried and judgment finally entered therein dismissing the complaint; and claiming that said judgment was conclusive on the defendants’in this action, and that they had no interest in the property by virtue of such will.
    • The pleadings admitted that the parties were the heirs-at-law of John Harris, deceased, and on the trial it was admitted that he died seised of the property described in the complaint; that the same could be partitioned, and that the value of the lands was at least $6,000.
    The defendants Ephraim and William Harris then gave evidence tending strongly to show that in July,' 1856, John Harris made and executed a last will and testament, with all the formalities required by the statute; that he was, at the time, of sound .mind and under no restraint; that the instrument was lost or fraudulently destroyed in the testator’s lifetime, and that it was not destroyed by the testator, animo revocandi. The provisions or contents of this will were proved distinctly and clearly by one witness, who drew it, at the request of the testator, and who was one of the. subscribing witnesses to it. According to his testimony, the will contained a devise of all the testator’s lands described in the complaint, to the defendants, Ephraim and William Harris, and there was no devise of any portion of his real estate to the plaintiff, or to the tesr tator’s daughter, Phebe. The memorandum made- by the witness, preparatory to drawing the instrument, was also produced in evidence, or at least that part of it which had been preserved; and there was other evidence corroborative of the testimony of this witness, as to the contents of the will. There was no other witness, however, testifying distinctly ’ to the “ provisions ” of the will, nor was any copy or draft of it shown.
    After the defendants rested, the plaintiff introduced in evidence the judgment roll in the suit of Ephraim Harris, William Harris and Charles Harris v. Aaron Harris and others, to establish the will of John Harris, as a lost or destroyed will.
    The judge at special term found these facts:
    1. John Harris, deceased,' in July, 1856, made a last will and testament, in due form of law; it was duly and properly executed, and at.the time of making it he was, in all respects, competent to devise real estate, and riot under restraint.
    2. By the terms of the will, John Harris devised to his sons Ephraim and William severally, parcels of land, which together constitute the lands described in the complaint in this action, and which is sought to be partitioned, and was all the real estate of which John Harris died seised.
    8. The said will of the said John Harris was lost or destroyed in the lifetime of the said John Harris; it was not lost or destroyed by him or by his direction, nor with any intent on his part to cancel, revoke dr destroy the same; and said will was not cancelled, revoked or destroyed by John Harris, but was lost or fraudulently destroyed by some other person or persons against his will and consent.
    4. In March, 1859, Ephraim Harris, William Harris and Charles Harris commenced an action in the Supreme Court against Aaron Harris and William Burnham and Phebe,- his wife, alleging in their complaint the making and existence of the aforesaid will by John Harris, and setting forth the terms of said will, alleging its loss, and charging the loss and destruction to the said Aaron Harris, and therein praying the judgment of this Court that the said will be admitted to probate as a lost will. Issue was joined by the defendants thereon, and the action and issues were referred to be heard and determined by a sole referee, who, after hearing the testimony, .found and reported thereon as facts: That John Harris, de* ceased, in the complaint named, made and published his last will and testament in due form of law, to pass real and personal estate; that said will was in existence at the time of the death of the said John Harris, and was fraudulently destroyed after his death, by the defendant, Aaron Harris; that the provisions of said will were not proved by two witnesses, and that no correct draft or copy thereof was proved. And the said referee found, as conclusions of law, from the foregoing facts that the will could not be allowed to be proved as a lost or destroyed will, under article third, chapter sixth of part second of the Revised Statutes; and that the complaint of the plaintiff should be dismissed without costs to either party ; that said report became and is the judgment of the Supreme Court, entered in the clerk’s office, 2d February, 1860, and before the commencement of the present action.
    The judge’s conclusions of law upon these facts were:
    1. That the last will and testament of the said John Harris, • made in July, 1856, was a will and testament of both real and personal estate, made in due form of law, sufficient to pass real and personal estate; that said will was.duly executed by the testator; with all the forms and requirements of the statute; and that the said will was in full force and effect, unrevoked by the said testator at the time of his death.
    2. That by the terms of the said will, Aaron Harris, the plaintiff, had no interest in the real estate of the said testator, that gave him a right to institute an action for partition thereof.
    3. That the judgment in the action, in the Supreme Court, instituted by Ephraim Harris, William Harris and Charles Harris against Aaron Harris, William Burnham and Phebe Burnham, his wife, was not conclusive as to the validity of said will, and was ineffectual against the devisees of the real estate of John Harris, in establishing their title to the said real estate, in this action.
    4. That the plaintiff’s complaint in this action be dismissed, and that the defendants have their costs.

      Judgment at special term being entered, dismissing the plaintiff’s complaint, he appealed therefrom, and the judgment was reversed at general term, and a new trial ordered.
    The defendants, Ephraim and William Harris, appealed from the order granting a new trial, and assented that if such order should be affirmed, judgment absolute might be rendered against them.

      A. Pond, for the appellant.

      L. B. Peter, for the respondents.
   Wright, J.

It is not doubted that irrespective of any statute provision, either in an action at law or on an issue in an action of partition, the evidence upon which the above facts were found was sufficient to prove as well the existence as the destruction and contents of the alleged will. Before the Revised Statutes, at least, in such an action, or on such an issue, only such an amount and degree of evidence was required, as to the contents of the will, as was necessary to establish any other fact in an action; that is to say, proof of the facts in issue, by a single witness. (Jackson v. La Grange, 19 John., 386; Dan v. Brown, 4 Cow., 483; Jackson v. Betts, 6 Cow., 377.) Nor can it be claimed that the probate of a will, not lost or destroyed, in a Surrogate’s Court, or one lost or destroyed in the Supreme Court, under the provisions of the Revised Statutes, is, in either case, conclusive as to real estate. It is conclusive as to personal, but prima fade only as to real estate, and a failure to have a will probated, either in the Surrogate’s Court or Supreme Court does not prevent those claiming under it from setting up and establishing their title by common law evidence, in an action in any court, either of law or equity, where the title to the real estate thereby devised may be involved, or come in question, unless some statutory provision has altered the common law rules of evidence, in respect to the proof of a will lost or destroyed by accident or design, and made it incumbent, in all cases, to prove the contents of such will by at least two credible witnesses, or by one witness and a correct copy or draft of the lost instrument. About the only question in the present case is whether such a statutory rule exists.

The Revised Statutes empowered the surrogate to take proof of wills of real and personal estate presented to him for. probate, and make a record of the same. The mode of doing this was definitely pointed out. But no jurisdiction was conferred on the surrogate to take proof of the execution and validity of a lost or destroyed will. This power was given to the Court of Chancery, now the-Supreme Court. It was provided that “ whenever any will of real or personal estate shall be lost or destroyed by accident or design, the Court of Chancery shall have the same power to take proof of the execution and validity of such will, and to establish the same, as in the case of lost deeds. (2 R. S., 3d ed., p. 132, § 85.) .Upon such will being established by the decree of a competent court, such decree shall be recorded by the surrogate before whom the will might have been proved, if not lost or destroyed; and letters testamentary or of administration, with the will annexed, shall be issued thereon by him in the same manner-as upon wills duly proved before him. (§ 86.) If, before or during the pendency of an application to prove a lost or destroyed. will, letters of administration be granted on the estate of the testator, or letters testamentary of any previous will of the testator be granted, the' court to which such application shall be made shall have authority to restrain' the administrators or executors so appointed from any acts or proceedings, which it may judge would be injurious to the legatees or devisees claiming under such lost or destroyed will. (§ 87). Then follows this provision: “Ho will of any testator who shall die after this chapter shall take effect as a law, shall be allowed to be proved as a.lost or destroyed will, unless the same shall be proved to have been in existence at the time of the death of the,testator, or be shown to have been fraudulently destroyed in the lifetime of the testator ; nor unless its provisions shall be clearly and distinctly proved by at least _ two credible witnesses; a correct copy or draft being deemed equivalent to one witness.” (§ 89.)

The general term of the Supreme Court construed this latter provision as establishing a rule of evidence as to the proof of a lost or destroyed will, for all courts, whatever might be the purpose of proving such' will, and that in respect to such a will its contents must be proved in all cases, and in all tribunals, to give it any validity or effect, by at least two credible witnesses, or by one witness and a correct copy or draft of the lost instrument. On the contrary, it is claimed, that construing this section with the four sections preceding it, the intent of the legislature was to provide a rule of evidence that should be applicable only to the proceeding authorized in Chancery to prove and establish a lost will, and attain the same general results, as to obtaining and preserving record evidence, and the issuing of letters testamentary or of administration by the surrogate, as are obtained by the ordinary probate of a will not lost. If the construction of the general, term'given to the statute be correct, then the provisions of the will of the father of the defendants was not proved as required by it. It would be otherwise if the rule requiring two witnesses to prove the contents of a lost will was limited to the special statutory proceeding for its probate in the Court of Chancery. The rules of evidence in relation to proving the execution and contents of lost instruments, upon trials at law or in equity, would remain unaffected •; and parties acquiring rights under a lost or destroyed will, might establish those rights by the same kind. of evidence as was allowed prior to the enactment providing for the probate of such will.

We are of the opinion that the provisions of section 89, above quoted, were intended to apply only in the direct proceeding under the statute, for the purposes of probate and record of a will alleged to have been lost or destroyed ; and were not designed as a general rule of evidence "in all cases, and in all tribunals, when the execution and validity of a will lost or destroyed by accident or design, should come in question. The statute by the construction given to it by the general term, would alter the rules of evidence of the common law as to the proof of lost wills, and establish what would seem to be an unreasonable discrimination against wills' accidentally lost, or fraudulently destroyed, without fault on the part of the parties interested therein. The legislative intention to effect so radical a change in the common-law rules of evidence is not manifest; and there is nothing in the nature or. character of the instrument to require the contents of a lost will in all cases to be proved by two witnesses, when the contents of a lost deed may be satisfactorily proved by a single witness.

The defendants, as devisees of the real estate of John Harris, deceased, were not concluded by the judgment in the proceedings instituted under the statute to prove and establish their father’s will as ope fraudulently destroyed; nor was such judgment effectual against them as such devisees, in establishing their title to the real estate in the action of partition. It cannot be pretended that the probate and record of a will of real estate by the Supreme Court under the statute, has any other or different effect than the probate before the surrogate of a will not lost; and in the latter case the probate is not conclusive upon any party as to any interest in real estate. Had the defendants, who were plaintiffs in the action or proceeding to prove and establish the will as one lost or destroyed by accident or design, been successful, the judgment thereon would not be conclusive upon or estop the plaintiff in this action, the object of which is to divide the real estate of which John Harris died seised, among those entitled thereto. And if Aaron Harris, the heir-at-law and plaintiff in this action, and who was the defendant in the former one would not have been estopped by the judgment thereon had it been in favor of 'the defendants, the latter cannot be estopped although they failed in that action; as estoppels when they exist at all must be mutual and bind both parties or neither. Besides, the object sought to be attained ’in the two suits are entirely distinct and different. The single purpose of the former one was to make proof of a will alleged to have been lost or destroyed. And the judgment in legal effect was, that there was not sufficient proof to establish the will as a record according to the provisions of the statute in relation to the probate of wills. To this extent it was conclusive. But the action did not directly involve the validity of the will, as a will or devise of real estate, and no such judgment was authorized. Ho such judgment in terms reaching that question, was given. On the contrary the record distinctly shows that the exclusive ground on which the judgment refusing probate proceeded was, that there was a failure of statute evidence as to the contents of the will, which the court found had been made and published in due form of law to pass real and personal estate, and was fraudulently destroyed' by the plaintiff in this action.

I am of the opinion that the defendants were not concluded by the judgment dismissing the complaint in the proceeding to prove and establish the will, and that the facts of the case justified the legal conclusion at the special term, that the plaintiff had no interest in the real estate of the testator that gave him the right to institute an action for the partition thereof.

The order of the Supreme Court should be reversed, and the judgment of the special term affirmed.

Denio, Ch. J., Davies, Selden and Balcom, Js., concurring,

Judgment affirmed.