author: Stores, J.

text:
    Minor vs. Ferris and others.
    A testator, after devising his real estate for the benefit of his wife, and directing his executors to sell the same, and to invest the proceeds in some safe property, to remain a fund for her support during her life, gave to his sister, if living at the decease of his wife, and if not, to her children, whatever of said property might be left. He then bequeathed to his sister or to her heirs, at his decease, in general and unrestricted terms, all his personal estate. A general prevailing intention to provide for the support of his wife during her life, at all events, was apparent from the whole of the testator's will, and, in a subsequent clause thereof, he repeated the bequest of the personal property to his sister, and superadded thereto an express provision, that she should have the personal property only in case the proceeds of the real estate should be sufficient for the wife’s support. Held, that the expression annexed to the last bequest to the testator’s sister, was not only a qualification of tbg terms with which it was immediately connected, but also of the bequest to her, of the same property, in the former part of the will; and, that the personal property was, by implication, given for the benefit of the wife, during her life, upon the same terms as those upon which the real estate had been devised.
    This was an action on a bond, given by the defendants, as executors of the last will and testament of Hartwell Reed, deceased, to the plaintiff, as judge of probate for the district of Stamford. The defendants set out the condition of the bond, which was in the usual form, and pleaded performance generally. In the replication, the plaintiff set out the will of the deceased, alleged the settlement of the administration account of the defendants, and assigned, as breaches of their bond, their failure and refusal to pay and deliver over to Mary Fairchild, the wife of-Fair-child, and a sister of the deceased, and for whom the suit was brought, the sum of $1,375.54, in money, and fifty shares of bank stock, in the city of New Orleans, remaining in the hands of the defendants, after such settlement, and which the said Mary claimed under said will. The provisions of that will, material to the present case, are the following :
    “I give and bequeath unto my wife, Mary Ann Reed, who is at present insane, and is in the Retreat for the Insane, at Hartford, in the state of Connecticut, as her dowry, all the real estate where I, at present, reside, lands and tenements, to be sold within one year after my decease, if practicable, by my executors in their judgment, and when sold, the proceeds of the sale of the property, to be invested in some safe property for her, that the interest may support her during her life. It’s my request, that my executors will reserve, out of any cash funds that I may leave, at my decease, enough to support my wife, till the property is sold, which I presume wilknot be over one year.
    “ At her decease, I bequeath it to my sister, Mary Fair-child, living now at New Haven, if living at the time ; if not, to her children, whatever property or cash may be left by my wife, after deducting any donations I have made. If my wife should be deceased before I am, I bequeath to my sister and her heirs, the property above described.

      “ I likewise bequeath to my sister Mary, or her heirs, at my decease, all my movable property, money, &c. After deducting all donations,'(and paying all debts, properly attested,) I. have made previous to my decease.
    ##**#**
    “ It’s my request, that my executors will inform Mr. Virgil Cornish, steward of the Retreat of the Insane, at Hartford, of my decease, and that there are funds for the support of my wife, at the Retreat, if she should remain there.
    ###***#
    “ If my executors should think it advisable, to extend the time of selling my real estate, for the benefit of my wife, for eighteen months, they will please to retain, out of any funds that I may leave, sufficient to pay my wife’s expenses. I think the property, if well sold, the interest will support her, if well invested. All movable property, money, &c., after deducting all legacies and donations, that I may have made, I bequeath to my sister, Mary Fairchild, or if deceased, to her children, if my wife ha's sufficient to support her.”
    The defendants, in their rejoinder, averred, that the deceased wife of the testator, Mary Ann Reed, was incurably insane, and wholly destitute of any means of support, other than the provision made for her, by the will of the deceased husband; that the necessary expenses of supporting her comfortably had been greater than all the interest which had arisen upon the proceeds of the real estate left by the testator, and sold under his will, surpassing the same at the commencement of said action, by a large sum; that, by reason of advancing years and increasing infirmities, the expense of providing for and taking care of the said Mary Ann, would be greater thereafter, than it had previously been; that it was made, by said will, the duty of the defendants to keep on hand, for the purpose of furnishing her such support, while she lived and continued insane, enough of the said estate of the testator to enable them to furnish such support, according to what her condition, at. any time hereafter, might be; and that the whole estate remaining in their hands, was necessary to be kept by them, for that purpose ; and that they still keep said remaining estate in their hands, for the purpose aforesaid, having, at all times, used, and applied the same, for said purpose ; holding it, in all respects, according to the provisions of the will, to be applied, and ultimately appropriated, according thereto; that all the interest and income which they have, since the decease of the testator, received from the proceeds of said remaining estate, above such part thereof as they had necessarily expended, for the support of said Mary Ann, they had, from time to time, paid over to the said Mary Fairchild, with the assent and sanction of her husband, and she had received the same ; that, immediately after the settlement of their administration account, on said estate, they proposed to the said Mary Fairchild and her husband, to pay to her all said estate, remaining in their hands, exclusive of said proceeds of real estate, if they, or either of them, would furnish good, available security, that so much as should be necessary for the support of said Mary Ann, according to the provisions of said will, above the interest of said proceeds of said real estate, should be furnished by the said Mary and her husband, or otherwise, to these defendants, to be by them appropriated to such support, according to the provisions of said will, and would likewise procure to such disposition of said remaining estate, by these defendants, the assent of the children of said Mary, all of full age, and capable of giving such assent; that they were then ready to deliver said remaining estate to said Mary, on said conditions ; but, that said Mary and her husband would not furnish such security, nor procure the assent of said children, but refused, and have ever since refused to procure such security or such assent.
    To this rejoinder, the plaintiffs demurred, generally; and thereupon the case was reserved for the advice of. this court, as to the questions of law, arising thereon.

      Dutton and Ferre, for the plaintiffs,
    contended, 1. That the will itself does not show, that the testator contemplated the insufficiency of the income of the proceeds of the real estate, for the widow’s support. But, the law provides for it, by directing the application of the principal, in such an event. 2 Sto. Eq., 435, 6, 7. Apart from the legacies, there are but two general bequests in the will,—one creating the said trust, and the other to Mrs. Fairchild, of the personalty.

      Nothing in the will expressly alters this disposition of the estate.. If altered at all, it is by inferences drawn from subsequent passages,—a mode of construction which is unauthorized. 2 Bl. Com., 85. Roach v. Haynes, 8 Ves., 590. Parsons v. Baker, 18 Ves., 478. Thackeray v. Hampson, 2 Sim. & Stu., 214. The meaning of the phrase, near the end of the will, where the general bequest to Mrs. Fairchild is repeated, with the apparent qualification, “ if my wife has sufficient to support her,” is explained in the context. In the next preceding sentence, the testator declares his opinion, that the income of the trust fund will be sufficient for his wife’s support. He then goes on to repeat the bequest to his sister, and adds the expression referred to, which may be considered to signify, “ as my wife has sufficient to support her.” Otherwise it is without meaning, and should be rejected.
    The defendants’ claim can not be justified, by the language of the will. The expression, “ or, if deceased * * to her children,” refers to the contingency of Mrs. Fair-child’s dying before the testator.

      Hawley and Ferris, for the defendants,
    contended, 1. That, in the construction of wills, the prevailing intention of the testator must be carried out. If the expressions in a will are apparently inconsistent, the court must reconcile them, or carry out the prevailing intent. It is manifest, that the testator intended, that his widow should, in any event, be supported from the income of his estate. That intention could not be effectuated, if the interest of $2,000 only, could be applied for such support. If the executors should pay over to Mrs. Fairchild, according to her claim, all the assets of the estate, except the $2,000, how would they answer, in a suit upon their bond, for the benefit of the children of Mrs. Fairchild, if she should die before the widow.
    2. That the conduct of the executors, in retaining under .their control, the assets of the estate, and in the annual payment to Mrs. Fairchild of what remains of the income thereof, after the application of what is necessary to the support of the widow, is entirely consistent with the general scope and provisions of the will, and carries into effect the intention of the testator.
   Stores, J.

We shall confine ourselves to the question ar-

gued hy the counsel in this case ; which is, whether, by the true construction of the will of the testator, his personal property, excepting that which was specifically bequeathed, and what should be wanted for the payment of debts and general legacies, was given by him absolutely and unqualifiedly to his sister, on his decease ; or, whether it was given to her, subject to the trust, on which the real estate had been devised, that it was to constitute and remain a fund, so far as it was required, for the support of his wife during her life.

The frame of this will is so inartificial, and its language so loose, repetitious, and apparently (although as we think, not really) inconsistent, that it is difficult to ascertain, with any great degree of certainty, what was the precise intention of the testator; but we are induced to think, on the whole, that it ought to receive the latter construction. After devising, in the first part of the will, his real estate, for-the henefit of his wife, with a direction, that it shall be sold by his executors, and that the proceeds shall be invested in some safe property for her, “ that the interest may support her during her life,” he bequeaths to his sister, (for whose benefit this action is brought,) if living at the death of his wife, and if not, to her children, whatever of the said property or avails thereof may be then left. He then bequeaths to his said sister, or her heirs, at his decease, in general and unrestricted terms, all his personal estate. If the extent of the sister’s interest in the personal property were to be determined merely by the terms of this latter clause, she would be undoubtedly, entitled to it, absolutely and without qualification, and, therefore, it would not be affected by any trust in.favor of the testator’s wife. This would, however,' be but a very imperfect mode of ascertaining or effectuating his intention with regard to it. For that purpose, it is necessary to look at every other part of the will, bearing on the subject, and also to the situation and circumstances of the testator ; and, in doing this, we have become satisfied, notwithstanding the absolute terms of the above clause, in the first place, that there was a general and prevailing intention, on the part of the testator, that his personal property should be held as a trust fund, during the life of his wife, for her support, so far as it might be necessary for that purpose, and in the same manner as he had before provided for that purpose, in respect to his real estate. In the next place, there is, in a subsequent clause, an express qualification to the bequest' of the personal property to the sister above mentioned, by which it is provided, that she shall have that property, only in case the avails of the real estate shall be sufficient for his wife’s support. From these we deduce, in the last place, a clear implication of a gift or disposition of that property to the wife, or for her benefit, during her life, on the same terms as those on which the real estate had been devised.

1. Respecting the general intention of the testator, we think that there can not be' a doubt, that it was his chief purpose to provide, at all events, a support for his wife, during her life, out of his estate. He was most tenderly attached to her. She was hopelessly insane, and without any means of her own for her support, and would, therefore, on his death, be entirely helpless, and dependent on his bounty. This was well known to him, and evidently was a source of constant anxiety: and this final disposition of his property was made under the influence of, and with reference to, these leading facts. > This is shown, by his frequent mention of her, and recurrence to her situation and necessities, in the will,— by the solicitude he shows on her account,—by the constant thoughtfulness which he evinces, in regard to the adequateness of his real estate for her support,—the terms in which he expresses the opinion, that it will probably be sufficient for that purpose, which seem to imply a doubt whether it will be, unless it is both well sold and well invested,—and, above all, by the immediate repetition of the bequest of his personal estate to his sister, with the provision subjoined to it, “ if my wife has sufficient to support her.”

2. We consider that expression to be a qualification, not only of the bequest to which it is immediately superadded, but also of the bequest to the sister, of the same property, contained in the former part of the will, which is exactly the same, in its import, and nearly so, in its very terms. The last bequest being only a repetition of the other, the qualification of the one thus repeated is a qualification of that of which it is a repetition. It is a restriction of the self-same idea or determination of the testator’s mind, and therefore detracts from the unlimited force or import of the previous expression of it. Such, we think, was his intention. It appears to us, that the first bequest was reiterated by him, and the restriction added to it, obviously for the purpose of explaining his real meaning, in the first bequest, and showing that he did not intend to have it understood in an unrestricted sense ; or, that he had changed his first purpose, to make the bequest unrestricted, and concluded thus to qualify it; in which case, the last bequest, on the familiar principle applicable to wills, would prevail in preference to the first. 1 Jarman on Wills, ch. xv.

3. From these views of the general intention of the testator, and of the restriction to the bequest of the personal property, we think that an implication of a bequest of that property to the wife, of a similar character to that of the real estate, is fairly inferable. That such a bequest may arise, by implication, is well settled; and we are of opinion that it would not be going farther than several of the adjudged cases, to infer it, in the present instance.

The superior court is therefore advised, that the rejoinder is sufficient.

In this opinion, the other judges concurred.

Rejoinder sufficient.


source: Caselaw Access Project

author: Ellswokth, J.

license: Public Domain

text:
    Ogden vs. Raymond.
    Where, in an action of assumpsit, to recover for services in school-teaching, the defence was, that the services in question were rendered for a school district in the state of New York, in pursuance of a contract between the plaintiff' and the trustees of such district, of whom the defendant was one; it was held, that evidence tending to prove that the defendant contracted individually, with the plaintiff, and not in the character of a public officer, was admissible.
    The trustee of a school district, who derives his official character from the general law, and the election of the people of a particular district, is a public officer.
    Where a person, who assumes to contract, in the name of another, as his agent, discloses all the facts, touching his supposed authority, or all which may be fairly inferred from his situation, he can not be held liable, on such contract, especially if he provides against his personal liability in any event, unless he is guilty of fraud, or false representations ; and, even then, he is not necessarily liable, on the contract itself.
    An agent, acting either in a public or private capacity, even though he does not so contract, as to give a cause of action elsewhere, does not necessarily render himself personally liable.
    Therefore, where the defendant, in such action, claimed, that, in contracting with the plaintiff, he acted as one of the trustees of a school district in the state of New York; that, by the laws of said state, he was a public agent, and could not be holden personally liable, unless, in making such contract, he was guilty of fraud, or misrepresentation, or ex. pressly contracted, on his own personal responsibility; and the judge instrueted the jury, that a public agent is one who acts for the government, and not an individual or a private corporation, and that, in the present case, the defendant could not be considered a public agent; and that, if he had not so made the contract, as the law requires, and so that there could be a remedy over, be was personally liable ; it was held, that such charge was incorrect.
    This was an action of assumpsit. The declaration contained two counts, one of which was general. The other alleged, that, on or about the first day of April, 1850, the defendant was indebted to the plaintiff, in the sum of fifty dollars, for labor and services before that time by the plaintiff done and rendered, in teaching school in a certain district in Pound Ridge, county of Westchester and state of New York, at the special instance and request of the defendant. The cause was tried at Fairfield, before the county court, August term, 1852.
    On the trial to the jury, the plaintiff introduced witnesses, and offered, in evidence, the statute laws of the state of New York, relative to common schools, and the judicial decisions of said state, to prove the character in which the defendant contracted for the services of the plaintiff. To the admission of this evidence, the defendant objected, on the ground that it did not support, and was not admissible to prove, either count in the declaration; that the evidence showed aru.e'tbployment, by the trustees of a school district, for which thq^ were liable to be sued, as a corporation, and the' actióp .c’oüld be maintained against them, only in their corporate capacity; that the defendant was a public agent, and' hot-liable to be sued personally, for services rendered to the district; and that if the defendant was liable at all, he could only be sued as a trustee, in his official character.
    The plaintiff claimed, that the evidence was admissible, to show that the defendant contracted with him, in his individual capacity, and on his own responsibility; and, that he was personally liable, though, in so contracting with ■ him, he acted as a trustee, and did not so act as by law to give the plaintiff any remedy for his wages, against the other trustees, nor against any other person or persons. The defendant further ' claimed, that he made1 the contract with the plaintiff, as the trustee of such school district, and that in such capacity, .and in making such contract, he was, by the laws and decisions of said state, a public agent, and could not be holden personally liable, unless, in making such contract, he was guilty of fraud or misrepresentation, or expressly contracted on his own personal responsibility; and asked the court to instruct the jury, that, if they should find that he was, by the laws of New York, such public agent, and made the contract in his official capacity, as' trustee, and without fraud, misrepresentation, or express promise to be bound, or an intention to be bound, he was not personally liable, nor liable in this action.
    The plaintiff denied that the defendant, as such trustee, and in making such contract, was a public agent, and claimed, that, unless the defendant so acted, as to give a remedy somewhere else, he was personally responsible, and liable in this action, and prayed the court so to instruct the jury.
    The court charged the jury, in conformity with the claim of the plaintiff, that the plaintiff must have a claim somewhere,—that a public agent' is one who acts for the government, and not an individual or private corporation, and that in this case, the defendant could not be consyférecQi ■" agent, in the strict sense of the law,—:and, not so^ made the contract as the law requires, and i&as could be a remedy over, he was personally lia ' The plaintiff having obtained a verdict, theSllet a bill of exceptions, and by motion in error, brotagnt tiie ease before the superior court, where it was reserved vice of this court. 6ft

      Butler and Carter, for the motion,
    contended, 1. That the testimony offered by the original plaintiff, should have been excluded. The declaration was against Ogden, in his individual capacity, and the claim of the plaintiff was, that he was personally liable; because, although the trustees were a corporation, and although he made the contract, in the name and behalf of the corporation, he did not so make it, as to bind the corporation ; and, if it clearly appeared,by the testimony, that he did make the contract, as a corporator, and so as to bind the corporation, the testimony does not support the declaration, or prove the issue, but, on the contrary, disproves it. Trustees are clothed with peculiar powers, for the benefit of the district, and their own protection.
    2. That the defendant was a public agent, performing a public duty, imposed by law, and, if that duty was performed, he was not personally liable, unless he superadded his personal responsibility. The court should have so charged the jury; and the plaintiff might have sought redress, by appeal, or by action against the corporation.
    3. That the court erred, in refusing to charge, that the trustees were bound by the contract, if they did not dissent from it. Palmer v. Vandenbergh, 3 Wend., 197. Stackpole v. Arnold, 11 Mass., 34. 1 Green. Ev., 230. Chit. on Con., 24. Sto. Eq., 299. Johnson v. Smith, 21 Conn. R., 627.

      Hawley, against the motion,
    contended, 1. That the testimony was admissible; for it conduced to prove what the plaintiff claimed.
    2. If Ogden did not so contract, as to bind the other trustees, he is personally liable;—whether Raymond did or did not know, that he was professedly employing him, on behalf of the district. 1 Sw. Ev., 330. Gill v. Brown, 12 John., 385. 15 John., 281. Meech v. Smith, 7 Wend., 315. Sterling v. Peet, 14 Conn. R., 245.
    3. There was no necessity for suing the defendant, as a trustee ; and, if he had so contracted as to bind his co-trustees, and so that the plaintiff could have sued the whole, as he had not pleaded the non-joinder in abatement, he could not now take the exception.
    4. With regard to the laws of New York, they were facts, to be .found; and the finding upon them can not be assigned as error.
   Ellswokth, J.

The first question is, the admissibility of

evidence, to prove the character in which the defendant contracted for the services of the plaintiff,—whether individually, or as a public officer. On this point, we think the ruling of the court is not subject to objection. The evidence conduced to establish the point, for which it was offered, and that was sufficient to make it admissible.

In the next place, the defendant claimed, that he made the contract, as a public agent, and therefore was not personally liable, unless indeed, in making the contract, he had been guilty of fraud, or misrepresentation, or had superadded his personal engagement. The plaintiff, on the other hand, claimed that the defendant did not contract, as a public agent, and furthermore, at all events, must be liable, unless he contracted in such a manner, “ as to give the plaintiff a remedy somewhere else.” The court ruled, in conformity to the claim of the plaintiff; and herein, we think, entertained an erroneous view of the law. The court held, that, in point of law, the defendant was not a public agent, and could not be classed with public agents, who are presumed, while acting in public business, to act in an official capacity. We do not readily apprehend, why the defendant, deriving his public and official character from the general law and the election of' the people of a given district, under the law, may not be held to be a public agent, as much as if he were the agent of the state, immediately, or of a county, town, society or school district. Wherein is the difference ? All derive their power from the same source, parceled out, only to be exercised in different jurisdictions, and for different purposes. Such, we understand to be the doctrine of our courts, as held in Adams v. Whittlesey, 3 Conn. R., 564; Perry v. Hyde, 10 Conn. R., 338; Sterling v. Peet, 14 Conn. R., 248; Johnson v. Smith, 21 Conn. R., 627. And the same is the law in New York. Olney v. Wickes, 18 John., 124. Often has it been held, that selectmen, and other kindred officers, are public agents, officers of the law, though elected by their respective towns and districts.

We think, likewise, upon the second point made, that it does not follow, that an agent, acting either in a public or private capacity, is, of necessity, made personally liable, although he does not give a cause of action against some one else. We believe the law to be, that, if a person assumes to act and enter into contracts, in the name of another, as his principal, and does this, with an honest intent, openly, and fully disclosing all the facts touching his supposed authority, or which may be fairly implied, from his situation, and especially, if he provides against his personal liability, in any event, he can not he held liable, unless he be guilty of fraud or false representation; and even then, he is not necessarily liable on the contract itself. Story, in his treatise on Agency, page 322, says : ic It seems clear, that, in no case can an agent be sued, on the very instrument itself, as the contracting party, unless there are apt words therein, so to charge him; thus, if a person, acting as agent for another, should, without authority, or exceeding his authority, make and.,,execute a deed, in the name of his principal, and not in his own name, the agent would not be liable thereon, although it would not bind the principal.” The same was held in Douriman v. Jones, 9 Jurist, 454. Polhill v. Walter, 3 Barn. & Adolph., 114. The same doctrine was asserted in Massachusetts, in Long v. Colburn, 11 Mass., 97. Ballou v. Talbot, 16 Mass., 461 ; and the same in Penn., in Hopkins v. Mehaffy, 11 Serg. & R., 129. The cases in New York are somewhat “different, but, we think, there is no question, but that the rule laid down by Judge Story, is the rule of our courts. We would especially refer to the cases to be found in 1 Am. L. C., 432, and a later case in the 12 Eng. L. & E., 433.

We are aware, that it is not unfrequently laid down, as a rule of law, that, if an agent does not bind his principal, he binds himself; but this rule needs qualification, and can not be said to be universally true or correct, as the cases already cited, abundantly show. If the form of the contract is such, that the agent personally covenants, and then adds his representative character, which he does not, in truth, sustain, his covenant remains personal and in force, and binds him, as an individual; but if the form of the contract is otherwise, and the language, when fairly interpreted, does not contain a personal undertaking or promise, he is not person ally liable; for it is' not his contract, and the law will not force it upon him. He may be liable, it is true, for tortious conduct, if he has knowingly or carelessly assumed to bind another, without authority; or, when making the contract, has concealed the true state of his authority, and falsely led others to repose in his authority ; but, as we have said, he is not, of course, liable on the contract itself, nor, in any form of action whatever. The question in these cases, will be found to be one of construction of the language and meaning of the person who attempts to act for another, and is a question often attended with very great difficulty and doubt; but when the intention is ascertained, that intention should ever be the rule for deciding whose contract it is. The cases are exceedingly conflicting, and unsatisfactory, though they contain some principles universally acquiesced in. If the agent is acting in public business, and enters into a contract, for the benefit of the public, he is presumed to act in his official capacity, as in Hodgson v. Dexter, 1 Cranch, 345; but, if he is acting in private business, there is no’presumption for or against, and he is, or is not, liable, according to the language 'used. The county court held, that the defendant did not bind those for whom he apparently acted, and was therefore, of necessity liable himself. This is not correct.

We have no occasion to comment on other facts of the case, although we think, that, in a subsequent part of the charge, there is some obscurity in the language employed in instructing the jury; but we do not think it necessary to go into the question ; for we mean to place our decision upon the errors already pointed out.

In this opinion, the other judges concurred.

Judgment to be reversed.


author: Waite, J.

text:
    Jones vs. Mallory and another.
    By our law, interest is allowed, on the ground of a contract, expressed or implied, to pay it, or as damages for the breach of a contract, or the violation of a duty.
    A mere stakeholder is not liable, for interest upon money in his hands, although he makes a profit, by the use of such money.
    A, one of the defendants, directed B, the plaintiff, to levy an execution against C, upon the moneys of D, then in the hands of B, claiming that such moneys belonged to C,'and gave to B, a bond of indemnity, and, also, a writing, that he might retain the funds in his hands, till the title to the same was settled. D brought a suit against B, for the moneys, which, after A had obtained satisfaction of his judgment, in another way, was settled, by A’s paying to D, principal, interest and costs. In an action by B, upon said bond, it was held, that he was entitled to recover the interest, as well as the principal, paid him, although A, after such levy was made, demanded, that the money should be pai£ over to him, which was refused.
    Held, also, that B’s right to recover such interest, was not varied, by the fact of his having made use of some of the money, so levied upon, and retained in his hands.
    This was an action of debt on a bond, in the penal sum of $500, dated March 10th, 1849. The condition stated, that the defendant, Mallory, had recovered a judgment against Frederick A. Kemper, for $242.24 damages, and costs, upon which judgment an execution had been issued, and placed in the hands of the plaintiff, as deputy of the sheriff of the county of Fairfield, for collection, and that certain property, which appeared to belong to said Frederick, was claimed by Charles H. Kemper, and thereupon, it was provided that, in case said Mallory should indemnify and save the plaintiff harmless from all trouble, damages! costs, and suits, that should at any time arise, or be brought against him, for levying said execution upon all or any of the property, which said Mallory should judge to belong to the said Frederick, and direct the plaintiff to levy upon, the bond was to be void : otherwise to remain in full force.
    The cause was tried before the jury, in the superior court, holden at Fairfield, in February, 1853.
    Upon the trial, it was proved, that Frederick A. Kemper had transferred certain goods to Charles H. Kemper, in part payment of a certain note,—that the said Charles took them into his possession, and placed them in the hands of the plaintiff, to sell and pay over the proceeds to him,—and that the plaintiff sold the goods and received the proceeds.
    The plaintiff, having recovered the judgment mentioned in said bond, delivered the execution to the plaintiff, with directions to levy the same, as deputy as aforesaid, upon the moneys received by him upon the sale of the goods. The plaintiff objected, and informed Mallory, that the money was claimed by the said Charles, who demanded payment, and threatened him with a suit, if the money was not paid.
    The plaintiff refused to levy upon the money, unless he was fully indemnified by said Mallory, who, claiming that the conveyance of the goods by the said Frederick, to the said Charles, was fraudulent, and void, executed and delivered to the plaintiff said bond of indemnity, and also delivered to him another instrument in writing, of the same date with the bond, in which he directed the plaintiff to levy the execution upon the money, for which the goods were sold, as he judged the money belonged to the said Frederick, and also to retain in his hands,-the money received for the same, until the subject at issue between the parties was finally settled.

    The plaintiff, thereupon, retained said money, amounting to $200, as levied upon by virtue of the execution, and the said Charles immediately brought a suit against the plaintiff, to recover the same. Mallory employed counsel to appear in the case, which was continued in court, for several terms, when he, having obtained payment of his execution, from said Frederick, informed the plaintiff, that he need no longer defend the suit, and might pay over the money to said Charles. The plaintiff, thereupon, paid to the said Charles the said $200,—the interest upon the same from the time of the demand, amounting to $22.19, and the costs of suit, and immediately informed Mallory of such payment, and demanded a reimbursement.
    The defendants offered evidence to prove, that, soon after the bond was given, Mallory called upon the plaintiff for the payment of the $200, which the plaintiff refused to make, claiming a right to hold the money, by virtue of the aforesaid instrument in writing. They also proved-that they were men of property, and abundantly responsible for the amount of the bond, and insisted, that the plaintiff was not entitled to recover of them, any part of the interest paid to the said Charles. They further claimed, that the plaintiff, during a part of the time, in which he held the money, had used it, and that, at the utmost, he could recover only so much of the interest, as would be equivalent to the interest during the time the money was not used by the plaintiff.
    The plaintiff denied that he had so used the money, except in a few instances, when he used some small portions, and immediately afterward replaced them, and that he, at all times, had on hand said sum of $200, ready to pay the same to the party to whom it should be- determined that it belonged, and claimed that, even if he had so used the money, as claimed by the defendants, he was not chargeable with interest, as compensation for such use, and that no deduction from the amount of interest paid by him, could legally be made ; and the court instructed the jury, in conformity with the plaintiff’s claim.
    The jury having returned their verdict in favor of the plaintiff, the defendants moved for a new trial, and the question of law was reserved for the advice of this court.

      Dutton, for the motion,
    contended, 1. That the plaintiff, after the demand of the money, by the defendants, held it in his own wrong, and was chargeable with the interest upon it. The judge should have charged the jury, on the admitted facts, that the plaintiff could not recover the interest. There was a full indemnity, without the written instrument, directing the plaintiff to levy the execution upon the money; and that does not import an indemnity.
    2. But, if not bound to charge in favor of the defendant, the judge was not authorized to direct the jury, as a matter of law, to allow interest ; he should have charged them that, if they found the writing was given, by way of indemnity, they should allow interest; otherwise they should not.
    3. The motion was sufficient to allow this defence. If the defendants’ claim is right, the plaintiff has been indemnified, and has had the use of the money.

      Hawley, against the motion,
    contended, that the defendants were entitled to no deduction, for any use of the money by the plaintiff. It never belonged to him. It always belonged to Kemper, and the defendants could not claim the benefit of interest on money belonging to another person. The proper rule of damages was, the amount received by Kemper, of the plaintiff. This is the only rule contemplated by the contract.

      So far as the law regarding the allowance of interest, or of damages measured by the rate of interest, furnishes analogy, it leads to the same result. The plaintiff’s position, even in the light most favorable to the claims of the defendants, was somewhat like that of a stakeholder—and it is well settled, that a stakeholder or an auctioneer, is not liable for interest on a deposite. Chit., C., 621, 307. Ju., 308, 310, 311. Harrington v. Hoggart, 20 E. C. L., 443, 4. id., 14. Lee v. Munn, 4 id., 814. Farquer v. Farley, 2 id., 229. Demand of the money, by the defendant, does not help him; the plaintiff, under any circumstances, would have a right to keep it, till the termination of the controversy; but he had the special written direction of the plaintiff, thus to keep it.
   Waite, J.

The plaintiff, in this case, received of Charles

H. Kemper, certain goods to sell, and pay over the proceeds to him. The goods were sold, and while the money, arising from thé sale, remained in his hands, the defendant, Mallory, having an execution against Frederick A. Kemper, and claiming that the goods belonged to him, delivered it to the plaintiff, with directions, as a deputy sheriff, to levy it upon the money in his hands. This the plaintiff refused to do, unless he was fully indemnified. Mallory, to induce him to make such levy, gave him the bond upon which the present suit is brought, and also a writing, saying that he might retain the money in his hands, until the title to the same was determined. The plaintiff, thereupon, retained the money, as levied upon by the execution,—was sued by Charles H. Kemper,—and after Mallory had obtained satisfaction of his execution, in another mode, settled the suit, and paid the principal, interest, and costs. He now claims to recover upon the bond, the amount so paid. The defendants deny that they are liable for the amount of interest.

That the plaintiff was liable to Kemper, for the interest, is not denied. The goods were placed in his hands, as Kemper’s agent, to sell for his use ; and when sold, the money became the property of Kemper, and the plaintiff liable to him for the amount, unless he could show that it belonged to some other person. This was indeed claimed by Mallory ; but that claim and the defence of the suit were abandoned. The plaintiff, having thus unlawfully withheld from Kemper the money when it became due, was liable, not only for the principal, but the interest upon it, by way of damages for the detention. And the plaintiff, having thus become damnified, is entitled to recover the amount of the defendants upon their bond, unless the circumstances relied upon by them are sufficient to support their claim.

In the first place, it is insisted that the plaintiff is not entitled to interest, because he refused, after the levy was made, to pay the money over to Mallory, who demanded it of him. But we see no obligation on his part to do so. Mallory has shown no legal title to the money. He indeed claimed, that it belonged to Frederick A. Kemper, but even that claim was never established. Besides, it was a part of the original arrangement, by which the plaintiff was induced to take the course he did, that he should retain the money, until the controversy between Mallory and Kemper was settled, and he knew to whom he might safely pay it. And Mallory, having thus drawn him into the controversy, has no right to violate the compact on his part.

Again, it is said, that the defendants were abundantly responsible, and therefore the plaintiff had adequate security upon the bond, and should have paid over the money, when demanded by Mallory. But we do not consider this a sufficient answer. The plaintiff might have consented to retain the money for the benefit of Mallory, if he were authorized to retain it, until the title was settled, that he might have it in readiness, the moment it was ascertained that it belonged to Kemper, when he would not have done so, had he known he must pay it over to Mallory,—expose his property to an execution in favor of Kemper,—and then seek a reimbursement from the defendants, perhaps after a protracted litigation, as in the present case. At any rate, he had a right to prescribe the terras upon which he would consent to act, and those terms having been assented to, and the act performed, it is not in the power of the other party alone to change them, at pleasure.

In the next place, it is said, that the plaintiff used the money, and is therefore chargeable with interest, during the time it was used. It does not necessarily follow, that,because a party, with whom money is deposited, makes use of it, he is therefore chargeable with interest. A bank with which money is deposited for safe keeping, subject to the order of the depositor, is not generally chargeable with interest, on such deposite, although it is mingled with other moneys of the bank and used as such, unless there is something in the case, showing a different intent of the parties.

Interest by our law is allowed, on the ground of some contract expressed or implied to pay it, or as damages for the breach of some contract, or the violation of some duty. Selleck v. French, 1 Conn. R., 33. It is not claimed, that the plaintiff ever made any contract to pay interest on the money in his hands. Is he liable on the ground that he has broken 'any contract or violated any duty ? We have seen, that so far as these defendants are concerned, he was a mere stakeholder of the money, authorized to retain it, until the title to it was determined, and that he has violated no duty, which he owed to them.

The case of Harrington v. Hoggart, seems very much in point, and goes far to sustain the plaintiff’s case, in the various aspects in which it has been viewed. 1 Bar. & Adol., 577. 20 E. C. L., 448.

There the defendant and his partner, who had died before the commencement of the suit, were employed to sell an estate belonging to the plaintiff. They made an agreement with one Secreetan, for the sale, who paid them £2,000 as a deposite. Objections were made by the purchaser to the title, and he delayed completing the purchase. The plaintiff thereupon gave notice to the defendant, to invest the money thus deposited, in the purchase of government securities, offering to indemnify him against any loss that might thereby accrue. The defendant and his partner replied, that they would do so, if the plaintiff would obtain the consent of Secretan, but no such consent was ever obtained. The defendant and his partner received the £2,000, as a deposit, mixed it with their own money and the deposits of other persons, and laid it out in the public funds, but always kept at their bankers, enough to meet the calls of any particular deposits.

The question was, whether the plaintiff was entitled to recover interest on the money, thus deposited with the defendant and his partner.

Lord Tenterden, C. J., in givinghis opinion, said, “There is an essential distinction between the character of an agent, and that of a stakeholder. If an agent receive money for his principal, the very instant he receives it, it becomes the money of his principal. If, instead of paying it over, he thinks proper to retain it and make a profit, he may, under certain circumstances, be liable to account for the profit. Here the defendant is not a mere agent, but a stakeholder. A stakeholder does not receive the money for either party, but for both ; and, until the event is known, it is his duty to keep it in his own hands. If he thinks proper to employ it, and make interest of it, if any loss accrue, he must be answerable for such loss ; and if he is to answer for the loss, it seems to me, he has a right to any intermediate advantage that may arise.”

Parke, J. “ It appears to me that the situation of an auctioneer is this : he receives a sum of money, which is to be paid, in one event, to the vendor, that is, provided the purchase is completed; and, in the other, if it is not completed, to the vendee; he holds the money, in the mean time, as a stakeholder, and he is bound to keep it, and pay it over upon either of those events, immediately. He is clearly not responsible for interest upon the money, if he makes it.” And, after referring to certain cases, he added, “ These cases establish, that a man who holds money as an agent or banker, bound to produce it at a moment’s notice, to the person who deposits it in his hands, is not liable to pay interest, if he makes it.”

Without further pursuing the examination of the case, we are satisfied, that it was correctly disposed of in the court below, and therefore think no new trial should be granted.

' In this opinion, the other judges concurred, except Hinman, J., who tried the cause in the court below, and was disqualified.

New trial not to be granted.


author: Ellsworth, J.

text:
    The Howard Insurance Company vs. The Hope Mutual Insurance Company.
    Where, in an action against a corporation, for use and occupation, the plaintiffs claimed, that the premises in question were hired by the president of such corporation, as their agent, and offered in evidence a record-book of the defendants, containing votes passed by them, for the purpose of proving their approval and ratification of the acts of said agent; it was held, that such book was admissible, for that purpose.
    A vote upon said records, was in the following words : “Ata quarterly meeting of the Mutual Life Insurance Company, of Stamford, holden at their office, in Stamford, May 7th, 1849, the minutes of the two preceding meetings read, amended, and approved.” It was held, that this was a ratification of the votes passed, at one of such previous meetings; and that, in consequence thereof, it was immaterial, whether such previous meeting was, or was not, regularly held.

      A subsequent vote of the trustees of such corporation, not to “ recognize the renting” of the premises in question, was held not to be admissible evidence, in connection with the two former votes, to rebut the presumption, that said last vote was a ratification of the former one.
    The defendants .haying voted that “ A be authorized to settle with 13, in regard to a room, in Wall street, New 'York, engaged by C, last spring, at an amount not exceeding $150, provided the company be released from all claim thereforit was held, that such vote was not a mere offer to compromise with the plaintiffs ; but was proper evidence, to be submitted to the jury, in support of their claim.
    Where, in such action, it appeared, that the original hiring was for more than one year, and that the premises in question had been occupied by a third person, whom the plaintiffs claimed to be an under-tenant of the defendants; and the judge instructed the jury, that the original contract was void, by the laws of the state of New York, for the reason that it was not to be performed within one year from the making of it, and that evidence of the same was only admissible for the purpose of showing whether the defendants had actually occupied the apartments in question, under the licence and permission of the plaintiffs; that this depended, in part, upon the question, whether said actual occupant was the tenant and sub-lessee of the defendants, and if he was not the defendants’ tenant, and was not recognized by them as such, the plaintiffs could not recover ; and that though the recorded votes of the defendants could not recognize and make valid a void contract, yet they were to be received and considered, by.the jury, as evidence, on the question, whether the defendants had actually occupied said apartments,—that if they found such occupancy by them, under the permission of the plaintiffs, then the plaintiffs could recover; otherwise, the defendants must recover; it was held, that this course was correct.
    This was an action of assumpsit, brought by the Howard Insurance Company, a corporation constituted by the laws of the state of New York, against the Hope Mutual Insurance Company, a corporation by the laws of the state of Connecticut, to recover rent for the use and occupation of certain office apartments, in the city of New York.
    The cause was tried before the superior court, at Fairfield, February term, 1853. On the trial, the plaintiffs gave, in evidence, the deposition of Rensselaer Havens, who testified, that he was president of the Howard Insurance Company, in the city of New York, during the year 1849 ; that said company was, and for the last twenty-two or twenty-three years, had been, the owner of a building, No. 66, Wall street, in said city of New York; that, previous to the first day of February, 1849, Aaron M. Merchant, then of Stamford, in Connecticut, applied to him, representing himself to be president of the Hope Mutual Life Insurance Company, of said Stamford ; and that, between said first day of February, and the first day of April, of the same year, he let to said Merchant, for said Hope Mutual Insurance Company, two offices, on the front floor of the said building, at No. 66, Wall street, for the term of one year, from the first day of May, then next, at the annual rent of $650; that neither Mr. Merchant nor the said Hope Company took possession of the offices, for the reason, as assigned by him, that said company could not conform to some laws passed by the legislature of New York, and took their offices to the state of Connecticut; that said Merchant sub-let said offices to David Ogden, who occupied, them from May 1st, 1849, to May 1st, 1850 ; that said Ogden was the tenant of said Merchant and of the company he represented, and not of the Howard Insurance Company ; that, on the 5th of February, 1850, said Ogden paid, on account of said offices, $356.25 ; and on the 18th of May, 1850, the sum of $117.50, for the same premises, leaving a balance of $176.25, with interest from the first day of May, 1850, due to the Howard Insurance Company ; and that no part of said balance had since been paid, by said Hope Company, or by any one, on their behalf. He further testified, that said offices were occupied by Ogden, who had hired them from Mr. Merchant, previously to the first of May.
    They also introduced the deposition of said David Ogden, who testified that, between the first of February and the first of May, 1849, he was informed by Mr. A. M. Merchant, that he had taken said offices, and that he, Ogden, must look out for other offices ; that the witness then took an office in the Exchange ; that, before the first day of May, he found, that said Hope Company was not going to occupy the offices, and that, preferring to remain there, he gave up the office in the Exchange, and made an arrangement with Merchant, to remain in the offices, in No. 66, Wall street.
    The plaintiffs further introduced Joseph Ogden, a brother of David, who testified, that he occupied the offices in question, in company with said David, from said first of May, 1848, to said first of- May, 1849, and that he concurred with said David, in relation to the letting of said offices, to Mr. Merchant, for said Hope Company.
    The plaintiffs claimed, that Merchant, at the time he hired said apartments, was the president' and agent of the defendants, in said hiring; and, if otherwise, that the defendants had ratified’and adopted his acts. The defendants denied that said Merchant had any authority to hire said apartments on their behalf; and, to show that he had such authority, and that the defendants had ratified his acts, the plaintiffs further gave in evidence, the record-book of the defendants, and read therefrom the record of a meeting of the trustees'of said company, holden April 19th, 1849, as follows:
    “ At a special meeting of the board of trustees of the Hope Mutual Life Insurance Company, holden at their office, No. 9, Wall' street, in the city of New York, the 19th of April, 1849, at 3 o’clock P. M., the president took the chair, and declared the board duly organized. Voted, that the president be authorized to dispose of the office taken for the use of the company in Wall Street, at his discretion.”
    Also, the following vote, passed on the 7th of May, 1849 :
    “ At a quarterly meeting of the Mutual Life Insurance Company of Stamford, holden at their office in Stamford, May 7th, 1849, the minutes of the two preceding meetings read, amended and approved. On motion, voted to adjourn to the 14th instant.”
    Also, the following vote, passed on the 4th day of December, 1849 :
    “ On motion, Voted, that Mr. Dana be authorized to settle with Mr. Havens, in regard to a room in Wall street, New York engaged by Mr. Merchant, last spring, at an amount not exceeding $150 ; provided the company be released from all further claim therefor.”
    It also appeared from said record, and was not disputed by the parties, that said Merchant was first appointed a trustee of the defendants, on the 13th day of February, 1849, and president of the defendants on the 21st day of said February, and continued such trustee and president till the — day of August, 1849. He resided in the city of New York, and the vice-president of the defendants, resided in Stamford: The defendants objected to tbe record of the proceedings of the 19th of April, 1849, because it did not appear by said records, or in any other way, that that meetipg had been duly warned, according to the charter and by-laws. The record, so objected to, stood upon said book, immediately preceding the record of the 7th of May, 1849, and, in connection with that vote, the court admitted it in evidence. To this the defendants objected, on the ground, that the contract to take said offices was void, by the statutes of New York, which the defendants produced and read in evidence, and also on the ground that, at the time said contract'was claimed to have been made, said Merchant was not shown to have been the authorized agent of the defendants, to make it; and, also, on the ground, that a void contract, which the defendants claimed this to be, could not be ratified. The plaintiffs claimed, that said vote conduced to show a recognition, by the defendants, of the acts of Merchant, as their agent in hiring said apartments, on their behalf, and in connection with other evidence in the case, conduced to show a recognition of the occupancy, by Ogden, as the defendants’ tenant; and for this last purpose alone, and to show the character of said Ogden’s possession, the vote was admitted.
    The defendants then offered in evidence a vote of the defendants, passed on the 14th of May, 1849, as follows :
    “ Adjourned meeting, May 14th, 1849. On motion, Voted, that this board does not recognize the renting of a new office in Wall street.” And they claimed that, in connection with the vote of May 7th, said vote rebutted any presumption of a ratification of the vote of the 19th of April, and also especially claimed, that it rebutted any presumption, that the defendants had acquiesced in the hiring of .said- apartments, by Merchant as their agent, in their behalf; but, this claim was not made nor suggested, nor said vote offered for said purpose, until after the close of the argument in the case, and after the court began to charge the jury. But the court, on objection thereto," excluded it. The defendants claimed, and requested the court to charge the jury, that the contract of said Merchant, as it was claimed by the plaintiffs, was void, by the laws of New York, and could not be ratified. The plaintiffs denied this to be so, but-claimed further, that if, under said contract, the defendants had entered into the possession of said apartments, and by their sub-lessee, Ogden, had actually occupied the same; that, foy such use and occupation, the plaintiffs could recover, and so they requested the court to charge the jury. The plaintiffs are a corporation, by the laws of New York, and the defendants are also a corporation by the laws of Connecticut. The court charged the jury, that the original contract with Merchant was void, by the laws of New York, as it was not to be performed within a year from the making of it, and also for other reasons, and that it was only admissible, as evidence in the case, for the purpose of showing whether the defendants had actually occupied the apartments in question, under the license and permission of the plaintiffs ; that the case turned upon whether the defendants had so occupied said apartments ; and that this depended, in part, upon whether said Ogden was the tenant and sub-lessee of the defendants, or was occupying without permission of any one, or otherwise, without the permission of the defendants; that, if he was not the defendants’ tenant, and was not recognized by them, as such, the plaintiffs could ijot recover; and that, though said votes of the defendants could not recognize and make valid a void contract, yet they were to be received and considered by the jury, as evidence, on the question whether the defendants actually occupied said apartments ; that, if they found such occupancy by the defendants, under the permission of the plaintiffs, then the plaintiffs could recover; otherwise, the defendants must recover. The jury found a verdict for the plaintiffs, and the defendants moved for a new trial, and the questions thereon arising, were reserved for the advice of this court.

      Ferris and Minor, for the motion,
    contended, 1. That Merchant had no right,, as trustee of said Hope Company, to hire the offices in question or subject the company to the payment of rent. A corporation can act only by its vote ; and this company never, by any vote at a legal meeting, authorized him to hire these offices.
    2. That the meeting on the 19th of April, was an informal assemblage of certain trustees of the company. No notice of it was given, and none appeared upon the records, and the proceedings were not binding upon the company. Stow v. Wyse, 7 Conn. R., 214. Nor, at the legal meeting of May 7th, in which the minutes of the informal meeting were read, and approved, did the Hope Company thereby acquiesce in, or approve of its doings. This reading and approval did not refer to the validity of the proceedings, but were merely a declaration, that certain proceedings had taken place.
    3. That, even if the proceedings of the meeting on the 19th of April, 1849, in connection with the vote of May 7th, in which the minutes of that meeting were read and approved, were rightfully admitted, it was clearly erroneous to exclude from the consideration of the jury, the vote of May 14th, when the matter of hiring was, for the first time, acted upon, by the Hope Company,—because it was a part of the procéedings of May 7th, and, if a part of them are admissible, all are so; and it conduced to repel the presumption of acquiescence and of approval, by the defendants, of the hiring by Merchant.
    4. That the vote of December 4th, was a mere offer of compromise, and did not tend to prove, that Ogden occupied said rooms, as the sub-lessee of the defendants. This appears from the facts in the case, and from the language of the vote. At that time, no portion of the rent had been paid. The first payment was made by Ogden, to the plaintiffs, in February following. They were claiming the whole rent, and the defendants had a right to buy their peace. The language of the vote is, “ to settle,—provided, the company be released from all further claim therefor.”

      Hawley, for the plaintiffs,
    contended, 1. That the evidence showed, that Merchant was authorized to take the office, for the defendants. It showed authority originally granted to him; and, at least, a recognition of his acts, by them. The vote of April 19th, clearly recognized the office, as taken for the defendants,—asserted the power to dispose of it. It belonged to the company, by the act of Merchant. The vote of May 7th clearly affirms this. It is conceded, that the meeting was legal, and the admission of its proceedings in evidence, was not objected to. The minutes of the two preceding meetings were the records of the proceedings of those meetings. Why should the minutes of that meeting be read, without a protest, if it was irregular, and its proceedings void,—unless they thereby intended to validate the proceedings ? If the approbation could be considered as referring, not to the proceedings themselves, but to the history of them, the reading, amending and approving that history, recognized the legality of that meeting. Even if it distinctly appeared that there was no warning, such would have been its effect.
    2. That the vote of May 14th was properly excluded. No party can give in evidence his own declarations, unless they accompany and give character to some act, which is the subject matter of the claim or defence, or in fact, form a part of a declaration of his, given in evidence by the other party. This vote formed no part of, and does not refer to, the proceedings of May 7th, and, therefore, could not be taken, in connection with them.
    3. That the vote of December 4th was admissible, for the purpose for which the court admitted it. It was offered, in connection with other testimony, to show a recognition of Merchant’s acts, and Ogden’s occupation, as under the defendants. If the defendants could be liable, by actual occupancy, either by themselves, or by their sub-lessee, even though the contract, as such, was void, any testimony conducing to show such occupancy, was admissible. The obvious import of the vote is an admission of having had the office, and of liability to pay for it,—the only matter in controversy being the amount. Though the court is ordinarily to give construction to written contracts, yet, declarations, whether oral or written, especially if there be anything ambiguous in them, must be left to the jury. Jennings v. Sherwood, 8 Conn. R., 122. Lloyd v. Maund, 2 T. R., 762. Rucker v. Hanney, 4 E., 604, n. Wooster et al v. Butler, 13 Conn. R., 309.
    4. That the case, without this vote, shows that the plaintiffs are entitled to recover, and that a new trial would result in a similar verdict. In such a case, even if the vote were improperly admitted, no new trial should be granted. White v. Bailey, 14 Conn. R., 271. Branch v. Doane, 17 Conn. R., 403; 18 id., 311.
   Ellsworth, J.

We perceive no cause for a new trial.

The first ruling of the couit, which was objected to, relates to the admission of the record book of the defendants, containing the votes of the 19th of April, 1849, and of the 7th of May, and 4th of December folloyving. These votes were clearly admissible, to prove the acts of the defendants ; especially, their approval of the conduct of Mr. Merchant, their president, in leasing and underleasing the chambers in New York.

We do not feel the force of the objection, that the meeting of the 19th of April was not regularly held, and its doings not obligatory ; but if we did, it could make no difference in the end ; for those proceedings were approved and ratified, at the subsequent meeting of the 7th of May.

The vote of the 4th of December is not, as claimed by the defendants’ counsel, an offer of compromise, and, on that' account, inadmissible; but it is, apparently, an acknowledgment of the truth of the main fact in controversy. It was proper evidence to go to the jury, for their consideration.

The vote of the 14th of May, offered by the defendants, in connection with the votes of the 19th of April and 7th of May, to rebut the presumption of a ratification of the said vote of the 19th of April, (which was the only claim made which we can now regard,) is not legitimate evidence, for the purpose claimed. The defendants could not make evidence for themselves.

Nor do we see anything wrong in the charge of the court. The judge correctly held, in accordance with the defendants’ claim, that the verbal lease of Mr. Merchant was ineffectual ' and void, as an executory contract, not being to be executed within a year ; nor was this evidence offered to prove any such contract, but as a part of the executed contract, viz., the use and occupation by the sub-lessee of the defendants, under the license and permission of the defendants. The case was properly left to the jury, upon the question of actual occupancy, which was held to depend, very much, upon the fact, whether Mr. Ogden, the tenant, was the lessee of the defendants, or was in possession without their permission, or co-operation. The jury was satisfied that he was the tenant of the defendants.

We do not advise a new trial.

In this opinion the other judges concurred, except Hinman, J., who tried the cause in the court below, and was disqualified.

New trial not to be granted.


author: Church, C. J.

text:
    Leach vs. Beardslee.
    In the absence of clear stipulations in contracts, usage of trade or business is often proved, to show the actual intent and purpose of the parties; and a general usage, affecting any branch of business, furnishes good evidence of what is regarded as right and reasonable in that respect; so that negligence or misconduct can not be imputed to a party who conforms to such usage.
    The plaintiff delivered to the defendant, who was a drover, certain oxen, to be driven to the city of New York, and there sold, for a commission, in the usual and customary manner. The defendant, having sold said oxen, re. ceived one note, for the price both of them, and of his own oxen, sold at the same time, and which he retained in his own possession. Before the maturity of such note, the makers thereof became insolvent. Held, 1. that, in the absence of specific instructions, as to the manner of selling such oxen, the implied undertaking of the defendant was, to sell them in the customary manner. 2. That the custom of drovers, in the city of New York, in reference to such sale, might be shown,—not for the purpose of contradicting or controlling the terms of the contract, definitely expressed, but, to show the extent of the duty and obligation of the defendant. 3. That the taking the note in question, did not,per se, render the defendant liable to the plaintiff, for the price of the oxen, and, if he had conformed to such custom, he incurred no liability thereby.
    This was. an action on the case, brought to recover the value of certain oxen, delivered by the plaintiff to the defendant, as a drover.
    The cause was tried before the jury, at Danbury, October term, 1852. On the trial, the plaintiff claimed, that the defendant had received his oxen, to be by him sold on commission, in the city of New York, for the plaintiff, with instructions from the plaintiff, to sell for cash only, and not on credit,—that they were, by the defendant, sold, not for cash, but on credit, contrary to the plaintiff’s instructions ; and that the price for which they were so sold had never been paid to the plaintiff, although the same had been demanded of the defendant, prior to the commencement of the suit.
    The defendant claimed, that he had proved, that he was a drover, engaged in the business of driving fatted cattle, from this state to the city of New York, and there selling them to butchers, on commission, and that he had been so employed, for a period of more than fifty years,—that the usage and custom of such drovers was, to sell to butchers, on a short credit,—and that, generally, cattle could not otherwise be sold to them; that the plaintiff’s cattle were delivered to him, to be driven to the city of New York, and there sold on commission, without any instructions whatever, as to the manner in which they were to be sold, or as to the credit to be given on the sale,—that he accordingly drove them to the city of New York, and there sold them to Loverius & Leonard, butchers in said city, then in good standing and credit, for the sum'of $107.50, upon a credit of twenty days,—the usual credit given on such sales,—that, at the same time, he sold to them another ox belonging to himself, for the sum of $65.75, upon the same credit, and took the note of Loverius & Leonard, for the sum of $173, the price of the three oxen, payable to himself, or order, twenty days from date, which was the 14th day of February, 1848; that, before said note became due, the makers thereof failed and became bankrupt, and that no part of the note had ever been paid. There was no discrimination made, in the note, between the price of the plaintiff’s oxen, and that of the defendant’s ox.
    The defendant further offered evidence, to prove that it was the usage of said drovers, when they sold to one butcher, cattle belonging to different persons, or one firm of butchers, to take but one note for the aggregate amount, payable to the drover selling them, that he might collect the- amount; and pay over the same to the different owners of the cattle ; and that it was never their practice, to take separate notes for the cattle, so sold. To the admission of this evidence, the plaintiff objected, but the court admitted the same. There was no evidence, that the defendant ever offered said note to the plaintiff, or that the plaintiff ever demanded it of the defendant. But the defendant testified, that, after it was protested for non-payment, he informed the plaintiff of what had been done, and told him that he would do the best he could to collect the note; and that the plaintiff should have the first money collected on the note ; to which the plaintiff made no reply; that he afterwards told the plaintiff, that he had seen the makers of the note, and had collected nothing from them ; that the plaintiff said, “ You have never given me a note,”—to which the defendant replied, “ You ought not to have it, as the price -of one of my oxen was included in the note.” In a subsequent conversation between the parties, the plaintiff informed the defendant, that the instructions were to sell for cash; and payment was demanded.
    The plaintiff claimed, that, even if the jury should find, that the defendant was not limited to a sale for cash, yet, upon the facts claimed by the defendant, he, in selling the cattle upon a credit, and taking a note for the same, had made himself liable to the plaintiff, for the price of the cattle ; and that the plaintiff had a right, in this action, to recover the same ; especially, as the defendant had never transferred, or offered to transfer, said note, or any interest therein, to the plaintiff, or give him any control or management thereof; and requested the court to charge the court accordingly. The court did not so instruct the jury, but did instruct them, that, if they found, that the plaintiff delivered his oxen to the defendant, as a drover, to be by him driven to New York, and there sold upon a commission for the benefit of the plaintiff, without any instructions as to the mode and manner of selling them, the implied undertaking of the defendant was,' to sell them, in the usual and customary manner. And that, if it was the general usage and custom of drovers, to sell cattle, belonging to different persons, to one person or firm, and take one note for the same, payable to himself, for greater convenience in collecting the money, the defendant, in taking the note in the manner proved, did not, thereby, render himself liable to the plaintiff, in the present action,—provided that, in so doing, he had not departed from such general usage and custom.
    The jury having returned a verdict for the defendant, the plaintiff moved for a new trial; and ■ the questions arising thereon, were reserved for the advice of this court.

      Hawley, for the plaintiff,
    contended, 1. That the defendant, by taking the note in his own name, embracing, without discrimination, moneys due to himself, with those arising from the sale of the plaintiff’s oxen, became personally liable to the plaintiff. He thereby disposed of the proceeds of the plaintiff’s cattle, in a way to which he never assented, and deprived him of the power of calling on the purchaser. The plaintiff had no control of the note.
    2. That the defendant was liable, for having mingled the proceeds of the plaintiff’s oxen, with his own claim, so that they could not' be distinguished,—like a trustee who unites a trust fund with his own,—or an executor, who takes, for a debt due to his testator, an obligation in his own name,— or an agent, who takes, for a debt due his principal, a note" specially endorsed to himself. 12 Pick., 376. 1 Sto. Eq., 468. 2 id., 1270. Floyd v. Day, 3 Mass. R., 403. Holmes Drake v. DeCamp, 1 John., 34. 14 E. C. L., 20. Paley’s Agency, 27, 44.
    3. That any usage, inconsistent with this doctrine, would be void. Frith v. Barker, 2 John., 335. 1 Hall, 602. The usage, to be good, must be general, uniform, and known to the plaintiff. Chitt. Con., 20. Hall v. Wood, 11 E. C. L., 313. 1 Stark., 487. 2 Sumner, 377.

      Dutton, for tiie defendant,
    contended, 1. That the charge was correct, and the evidence of usage was admissible. Barber v. Brace, 3 Conn. R., 9. Custom is evidence of the intention of the parties. The plaintiff assented, in the present case, to sell oxen on the usual terms.

      2. That it was for the interest of both parties, that the note should be given as it was.
    3. That the plaintiff sustained no injury by this. He employed the defendant, as an agent, to sell in the usual and customary manner; and there is always a presumption, that men are acquainted with a general usage.
    4. That the rule, referred to by the plaintiff, as to the duty of an agent, applied only to cases, not affected by agreement or usage. «
   Church, C. J.

We infer, from the verdict of the jury,

that the claim of the plaintiff, that his instructions to the defendant were, to sell for cash, and not on credit, was not sustained by the proof. This leaves the case, as it was submitted by the judge to the jury, in the charge, “ that the implied undertaking of the defendant was, to sell the cattle, in the usual and customary manner.”

The defendant claimed, that there was a well known usage and custom in the city of New York, where this sale was to be made and was made, for drovers to sell, on short credit, and to receive notes, in their own names, for the price, and that he had conformed to this custom, in the sale of the defendant’s cattle.

■ In the absence of clear stipulations in contracts, usage of trade or business is often proved, to show the actual intend and purpose of the parties, though not expressed. Such usage must be lawful and reasonable, and so certain and general, in the place where the business is to be done, or the contract performed, or among those engaged in such business, that the parties to the contract may reasonably be supposed to know it, and to act in reference to it. In such case, it may be taken, that the usage entered into, and became part of, the contract.

A general usage, affecting any branch of business, furnishes good evidence of what is regarded as right and reasonable, in that respect, and when it is conformed to, negligence or misconduct can not be imputed. Barber v. Brace, 3 Conn. R., 9. Casco Manufacturing Co. v. Diwon et al., 3 Cushing, 408. Chitty Con., 20. 1 Sw. Dig., 10.

Proof of the general usage, claimed by the defendant to exist in the city of New York, where the plaintiff intended the sale of his cattle should be made, furnished strong evidence, that he not only assented, but empowered his agent, the defendant, to sell on the usual credit, and in the usual manner. And, although commission merchants, in the absence of instructions or custom, must generally sell for cash, yet, if there be an usage modifying the course of business, in this particular, or in other respects, and the sale is made in the usual and customary way, the agency is legally performed. Story on Agency, § 60, 77, 96, 110, 189, 209, 199, 226. 2 Kent Com., 622. The usage here offered to be proved, and which was proved, was not to contradict or control the terms of a contract definitely expressed, as it would have been, if positive instructions to sell for cash down, had been proved; but only to show the extent of the duty and obligation of the defendant, in a matter not thus expressed, but inferable from the nature of the business in which the defendant had long been engaged, and the well known manner in which such business had been usually conducted. Usage can not control or vary the clear and unequivocal stipulations of a contract, but will be controlled by them. Taylor v. Briggs, 2 C. & P., 525. Smith v. Wilson, 3 B. & A., 728. Blackett v. Royal Exchange Ins. Co., 2 C. & J. 244. Yates v. Pym, 6 Taun., 446. Glendale Man. Co. v. Protection Ins. Co., 21 Conn. R., 19. 1 Greenl. Ev., § 292. The usage proved in this case not only extended to a credit sale, but to the manner of sale, which the defendant followed, in taking the note for the price of the plaintiff’s cattle and his own, in his own name.

But, if no custom regarding this had existed, we could not say, as it was asked of the judge at the trial, to say, that the circumstance of taking the note, payable to himself, would subject the defendant to this loss. The plaintiff was not injured by this,—the purchasers failed, before the time of credit expired, and it was therefore, immaterial, whether a note had been taken or not, or who retained the possession of it. Nothing is more common, than for factors to buy, sell and sue in their own names. If the isolated fact, that one takes a note in his own name, furnishes prima facie evidence, that a sale was made on his own account; yet, when explained, as it may be, and shows a mere agency,—only a mode of doing the business for the principal, the responsibilities are not thereby varied. Corlies v. Cumming, 6 Cowen, 181. And yet, if a sale be made, and a credit given, without authority, and a note taken for the price, payable to the agent personally, he has been holden liable for the amount. Hemenway v. Hemenway, 5 Pick., 389. And so, if, after the time of credit has expired, the agent shall then give further time, by a note payable to himself. 2 Kent Com., 622. Hosmer v. Bebee, 14 Martin, 368.

In this opinion, the other judges concurred, except Waits, J., who tried the cause in the court below, and was disqualified.

New trial not to be granted.