text:
    Tuerk Hydraulic Power Company, Resp’t v. Frederick W. Tuerk, Jr., et al., App’lts.

      (Supreme Court, General Term, Fourth Department,

      Filed December 26, 1895.)

    1. Injunction—Trade marks.
    The plaintiff, whose name is known to the trade as the Tuerk Water Motor Company, is entitled to enjoin the use by the defendants of the name “The Tuerk Water Meter Company,” and the purposes in respect thereto adopted bv the defendants, whe’e they lead to confusion arising from its similarity "to the name of the motor of the plaintiff, and the similarity is such as to cause persons dealing in the articles to suppose it to be the same.
    2. Same.
    In such case, the omission to 'find damages against the defendants furnishes no reason for withholding an injunction.
    Appeal from a judgment for plaintiff, entered on report of a referee. °

      In thq judgment it is adjudged: “That the defendants Frederick W. Tuerk, Jr., John Hunter, and James G. Hunter, and each of them be, and 'they are hereby, perpetually enjoined and restrained from using the name of ‘The Tuerk Water-Meter Company,’ or any other substantial imitation of the name ‘ The Tuerk Water-Motor Company,’ and from printing, publishing, issuing, or circulating any of the cuts, pictures, prints, or printed matter used by the plaintiff in its catalogue or circular prior to the formation of the defendant’ firm, or any substantial imitation therefore; ” which judgment is in accordance with the conclusion of law found by the referee. The referee found as matter of fact: “ That the ■adoption by the defendants of their said firm name, their location at Syracuse, and. using and circulating of the said circulars and cards were for the purpose and were intended or calculated to represent to the public that the motors sold by the defendants were those of the plaintiff, and to confound the identity of the business carried on by the plaintiff and that of the defendants; that the similarity of the name of the plaintiff as known to the trade—-uch name being ‘The Tuerk Water-Motor Company’—and that adopted by the defendants is sufficient to deceive or mislead the ordinary purchaser in the exercise of ordinary care and caution ; that the used by the defendants of the copartnership name adopted by them would tend to falsely represent the manufacture or proprietorship of the goods manufactured by them and to confuse the same with those of the plaintiff.” No damages were allowed to the plaintiff. An injunction was authorized in the language substantially found in the quotation already made from the judgment, with costs of the action.
    Wilson, Kellogg & Wells, for app’lts;

      William B. Ellison, for resp’t.
   Hardin, P. J.

Having carefully read the evidence found in the appeal book, the conclusion is reached that the findings of fact made by the learned referee are sustained by the testimony offered before him at the trial. We think the evidence indicates very clearly that the use by the defendants of the name “ The Tuerk Water-Meter Company,” and the practices in respect thereto adopted by the defendants, led to confusion arising from its similarity to the name of the.motor of the plaintiff, and that the similarity was such as to cause persons dealing in the articles to suppose it to be the same. In Manufacturing Co. v. Spear, 2 Sandf. 599, it was held that every manufacturer has an unquestionable right “ to distinguish the goods that he manufactures or sells by a peculiar mark or device, so that they may be known as his in the market, and he may thus secure the profits which their superior repute as his may be the means of gaining.” In Colman v. Crump, 70 N. Y. 573, it was said:

“ It is not necessary that the. symbol or device complained of should be a facsimile of the genuine trade-mark, or. so close an imitation as to be distinguished only by an expert or upon critical examination by one familiar with the original. If the resemblance is such as .to deceive a purchaser of ordinary caution, or if it be calculated to deceive the careless and unwary, and thus to injure the sale of the goods of the proprietor of the trade-mark, it is a violation of his property rights therein, and he maintain an action to restrain such violation, and to recover damages therefor.”

A similar doctrine was stated in Tallcot v. Moore, 6 Hun, 106. In Popham v. Cole. 66 N. Y. 69, it was said that:

“ When ordinary attention on the part of customers will enable them to discriminate between the trade-marks of different parties, the court will not interfere.”

We think the evidence in this "case warranted the referee in finding that the case before him came within the rule of law, which the cases we have referred to support. We think the contention of the defendants is not aided by the case of Forney v. Engineering News & Publishing Co., 32 St. Rep. 1122, as in that casq there was no evidence showing actual confusion in any instance from the claimed similarity in names. The referee found that prior to the spring of 1886 Frederick Tuerk was in the employ of the plaintiff, and had charge of the preparation of catalogues and circulars for the plaintiff, and that he frequently used as an illustration the picture of a girl seated by an open window, operating a sewing machine with the help of a motor; and in connection with this picture a statement purporting to have been made by a government official at Washington, that women should not be permitted to run sewing machines in the ordinary way. Thereafter the referee found that in the spring of 1886 Frederick W. Tuerk severed his connection with the plaintiff, and entered into a partnership with the defendants, under the style of “ The Tuerk Water-Meter Company,’' and that the partnership.had its place of business at Syracuse, N. Y.; and that, although the partnership was organized for the purpose of manufacturing a water meter, invented by Tuerk, no meters were actually made or sold; and that some time prior to December, 1886, the copartnership began the manufacture of a water motor similar in general appearance to that of the plaintiff. After such facts were found by the, referee in his report, we think it was entirely proper, upon the evidence before him, to find that the defendants soon thereafter issued and circulated to the public illustrated catalogues advertising the manufacture and sale by the Tuerk Water-Meter Company of a water motor called “ Tuerk’s Hew Water Motor,” and that upon the motor itself it was designated as the “ Tuerk Motor, Syracuse, H. Y.” ; that in the circulars issued there appeared a cut or picture of a girl at a sewing machine beside a window, with a motor bearing the name “ Tuerk Motor,” so similar to that theretofore used by the plaintiff and heretofore mentioned “ as to be indistinguishable without comparison”; that these circulars wese followed by several others, also issued and published by the defendants, and-containing the same picture and testimonial. Upon the facts found by the learned referee we think his conclusion of law was correct wherein he states that the plaintiff was entitled to judgment “ restraining the defendants, and each of them, from using the name of The Tuerk Water-Meter Company,’ or any other substantial imitation of the name ‘The Tuerlc Water-Motor Company,’ by whieli the plaintiff is generally known, or from printing, publishing, issuing, or circulating any of the cuts, pictures, prints, or printed matter used by the plaintiff in catalogues or circulars, prior to the formation of the defendants’ firm, or any substantial imitation thereof.” Newman v. Alvord, 51 N. Y. 189; Manufacturing Co. v. Garner, 54 How. Prac. 298; Gebbie v. Stitt, 82 Hun, 93; 63 St. Rep. 393; De Long v. Hook & Eye Co., 10 Misc. Rep. 577; 65 St. Rep. 326; Higgins Co. v. Higgins Soap Co., 144 N. Y. 463 ; 63 St. Rep. 724.

We are of the opinion that the omission of the referee to find damages against the defendants furnishes no reason for withholding an injunction. The same conclusion was stated in Manufacturing Co. v. Garner, supra, near the close of the opinion. Nor do we see any error available to the appellants in the refusals of the referee to find in accordance with certain requests made by the defendants. Crim v. Starkweather, 136 N. Y. 635; 49 St. Rep. 68; Galle v. Tode, 56 St. Rep. 851.

Several excéptions were taken during the trial to the referee’s admission and rejection of evidence. After careful attention to them, we have discovered none which require us, under the rule applicable in equity cases, to interfere with the conclusion reached by the referee. Galle v. Tode, 74 Hun, 542; 56 St. Rep. 851. The action was on the equity side of the court, and in Donovan v. Clark, 138 N. Y. 631; 52 St. Rep. 358, it was said:

“ In such cases exceptions to evidence should be disregarded, unless the appellant can show that injustice has been done upon the whole case, or that the ruling complained of may have affected the result.”

The foregoing views lead to an affirmance.

Judgment affirihed, with costs.

All concur.


source: Caselaw Access Project

author: O’Brien, J. Follett, J.

license: Public Domain

text:
    New Britain National Bank, App’lt, v. A. B. Cleveland Company, Limited, et al., Resp’ts.

      (Supreme Court, General Term, First Department,

      Filed December 18, 1895.)

    1. Corporations—Mortgage.
    A mortgage by a business corporation of all its real property to secure its creditors does not violate chapter 394 of 1888.
    3. Same.
    It is not foreign to the lawful business and objects of a corporation to secure payment of its debts by, way of mortgaging its real property
    3. Same.
    The restraint as to mortgaging personal property is still in force.
    4. Same—Insolvency.
    A mortgage, made by a corporation to secure its creditors when its officers and creditors believe that it is solvent, cannot be avoided, as in violation of section 4, chapter 18, title 4, part 1 of Revised Statutes, by a corporation creditor whose president assented to the mortgage subject to the approval of its directors, where, for three years after its execution, the directors of such creditor, knowing of its president’s assent, never repudiated his action.

      5. Same.
    The mere fact that obligations are due and unpaid, is not conclusive upon the question of insolvency, or the question as to whether or not the mortgage, when made in that condition of the company, was one executed in contemplation of insolvency.
    6. Same—Assent by oueditobs.
    Where a business corporation, to secure its creditors, mortgages all its property in violation of chapter 394 of 1888, the mortgage cannot, after the foreclosure sale thereunder, be voided, on the ground that it violates the statute, by a creditor who assented thereto, where all the stockholders and all the other creditors but one assented to it.
    7. Same.
    The fact that the mortgage was a transfer by the corporation of all its property and assets, and thus virtually effected a termination of its regular business, is no reason for nullifying the mortgage, where the intention of the parties was to continue, arid not to terminate, the business of the corporation.
    Appeal from a judgment dismissing the complaint on the merits.

      C. Bainbridge Smith, for app’lt;

      Hamilton Wallis, for resp’ts A. B. Cleveland Co., Limited, and others;

      Charles F. MacLean, for resp’t C. N. Jordan;

      H. Aplington, for resp’t H. K. Thurber.
   O’Brien, J.

The court having rendered a decision which does not state separately the facts found, we are required to review all questions of fact and of law, and award to either party such j ndgment as such party may be entitled to. Code Civ. Proc. § 1022. This action was brought-by a judgment creditor, after the return of executions unsatisfied, to set aside, pursuant to sections 1781 and 1782 of the Code of Civil Procedure, an alienation of all the property of the A. B. Cleveland Company, Limited, to three-trustees, and by the latter, through an intermediary, to the Cleveland Seed Company. On "the 17th of April, 1889, the A. B. Cleveland Company, Limited, made and issued 425 $1,000 bonds in order to secure certain debts and obligations it had incurred in and about its business. Contemporaneous therewith, it conveyed and transferred all its property of every nature and kind to three trustees. The mortgage contained the usual clause that, in default of payment of principal and interest, the trustees were to take possession of the lands and property, and sell and dispose of the same, and, after defraying expenses, to pay over the proceeds to and among the parties holding the bonds. That this or some other action by the company was necessary is evident from its condition at that time. A few days prior to the execution of the mortgage the president had disappeared, leaving the company’s affairs in confusion. Thereafter suits were commenced on the company’s obligations, and in addition it was threatened with other suits, involving damages to a large amount, which were based on alleged fraudulent practices of the president, for which the persons injured claimed that the company was liable. Notwithstanding these latter were never enforced, the stockholders were alarmed, and steps were taken to place the company’s property in such a position as to afford security for the legitimate creditors. With this end in view, it was proposed that all the legitimate creditors should. pool their claims, including expenses of litigation, and should be paid pro rata out of the proceeds of the company’s property, which should be set aside for this purpose. To carry out this plan, the mortgage assailed was made, and an agreement, signed by all the creditors save one, was entered into, under which the property was to be turned over to • the three persons named as trustees, with the conditions already referred to. With others, the signature of the plaintiff was made by its president, “subject to the approval of the board of directors.” Under this arrangement, the property was turned over to the trustees, who entered upon their duties; and among the others presenting claims was the plaintiff, which does not appear to have received the bonds, though they were tendered, and many of the other creditors holding claims to a large amount did receive them. Although the substance of the agreement was known to the board of directors of the plaintiff, and talked over, no action was taken, but it was kept informed from time to time, through communications from the trustees, of what was being done, and the necessity for changes being made in the original plan.

An examination of the books of the company prior to the making of the agreement exhibited the company as solvent, its affairs showing assets, all told, of about $557,000, and liabilities of $425,-000, leaving a surplus of $131,000; and that all the parties, from such examination, believed the company solvent, we think, is evident, although it appears that at that time at least $31,000 of its paper had gone to protest. Subsequent to the execution of the mortgage, an effort was made to realize on the assets, and a further examination was made into the affairs of the company by the trustees, and there then developed a situation entirely different from what had been expected or shown at the time the mortgage was made. Many of the bills receivable which were included in the statement of the assets were found to be uncollectible, and, according to one of the witnesses, the losses which the company sustained in an attempt to.realize on the assets amounted to about $200,000. This, in addition to the inability of the trustees or officers to carry on the business profitably, necessitated a change in the original plan, and a new one was proposed by a circular letter of November 1, 1889, which, as it was not accepted by the creditors, or acted upon, need not further be referred to. Thereafter, and on February 28, 1890, the trustees sold to two persons the entire plant, property and business of the company for the sum of $100,000, for the purpose of transferring and conveying the same to the Cleveland Seed Company of New Jersey, which prior to that time, was organized. The trustees, in their letter to the creditors under date of February 15,1890, giving the reasons that induced the sale, after stating that the liens on the seeds in their hands, which were about to be foreclosed, amounted to $115,000, and referring to the necessity of prompt action in order that the largest amount might be realized from the stock, say:

“To this end we have sold the assets of the company for $100,-000 (the purchasers to arrange for the payment of the advances), out of which sum, after paying part of the expenses incurred by the trustees, there will remain in our hands a dividend of twenty-five cents on the dollar for the principle of your churas, which dividend will be paid the creditors on proof of claims.”

The only other facts necessary to be referred to are that the plaintiff commenced two actions on promissory notes held by it,— one on or about the 18th day of April, 1889,' in which judgment was rendered on August 7th, 1889, and in the second action it recovered a judgment in this court on the 5th of October, 1894; the summons in this action now before the court bearing date December 9, 1892, and having been tried in November, 1894.

The validity of the mortgage made to the trustees, and of the sale by them to the Cleveland Seed Company, are assailed upon the ground of fraud and illegality, the plaintiff contending (1) that the mortgage is void on its face; (2) that it is void because executed in violation of chapter 394 of the Laws of 1888, which prevents a corporation from issuing bonds or mortgaging its real estate for any other than the legitimate purposes of its business; (3) that it is void, within the meaning of the Revised Statutes (l Rev. St. p. 603, pt. 1, tit. 4, chap. 18, § 4), in that it was made by the A. B. Cleveland Company, Limited, in contemplation and with knowledge of its insolvency ; (4) that such transfer, being in fact a termination of the regular business of the corporation, and so accepted by the transferees, is illegal as against the creditors of the corporation.

With respect to the first ground, that the mortgage is void on its face, most of the vices assigned to the mortgage are disposed of by the case of Brackett v. Harvey, 91 N. Y. 214, wherein will be found a discussion and disposition favorable to the defendants of the questionable provisions in the present mortgage, except one,which we will discuss in connection with the second ground of illegality assigned, that the mortgage is one made with a purpose foreign to the lawful business and objects of the corporation. The mortgage itself recites, and it is so made to appear, that the issuing of the bonds as originally intended, and the making of the mortgage to secure them, were acts done in order to secure certain debts and obligations incurred in and about conducting and operating business of the company. That it is not foreign to the lawful business and objects of a corporation to secure payment of its debts by way of mortgaging its property, has been determined in the case of Carpenter v. Mining Co., 65 N. Y. 43. It was therein said:

“ Corporations, unless restrained by their charters, have the power to mortgage their property to secure borrowed money or their debts. But in this connection attention is called to chapter 40 of the Laws of 1848, which is the general act to authorize the formation of corporations for manufacturing, mining, mechanical, or chemical purposes, and the second section of which provides that while such a company shall be capable in law of purchasing, holding, and conveying any real and personal estate whatever which may be necessary to enable it to carry on its operations, it shall not mortgage the same or give a lien thereon.”

As therein shown, this clause was modified so as to enable a corporation to mortgage all or any part of its real estate to secure the payment of any debt, upon the assent of at least two-thirds of the stockholders. As therein farther said:

“ This provision removes the restraint as to mortgaging real estate, leaving the restraint as to mortgaging personal property still in force.” ' •

By chapter 394 of the Laws of 1888 it is provided that corporations such as the defendant here may—

“ Borrow money for the legitimate purposes of such corporation, and for such purpose to issue bonds, * * * or to mortgage any real estate which it may have or possess, * * but the amount of such bonds and such mortgages outstanding at any one time shall not exceed one-half of the value of the corporate property of such corporation.”

Then follows a provision that any issue of bonds beyond the amount specified—

“ Shall render every director voting the same personally liable to any holder of such bonds or such mortgages for any damage caused by such overissue to such holder.”

While, therefore, the power of corporations to mortgage their real estate has in some respects been enlarged, “ the restraint as to mortgaging personal property is still in force.” It will be noticed that, by the terms of the mortgage here involved, not only the real estate, but the personal property, which constituted the great bulk of the assets of this corporation, was transferred to the .trustees as collateral security for the payment of the bonds. For this we can find no warrant or authority in law; and unless, by assenting to the plan by which such personal property was transferred to the trustees, or by way of estoppel, the plaintiff is prevented from raising the question, we must conclude that the attempt to mortgage the personal property was void. Whether the plaintiff was estopped, either by participating or assenting, or by failing to protest until the rights of other creditors had intervened, thus being guilty of laches, will be considered after we have disposed of the other grounds of invalidity assigned by plaintiff, which in the order, would bring us to the third, that it is void because made in contemplation of insolvency.

Upon this ground we think the plaintiff should fail, it appearing by fair preponderance of the evidence (if we might not be justified in saying it was uncontradicted) that at the time the mortgage was executed the officers and trustees and creditors who participated in the plan all believed that the company was solvent and able to pay its debts. The fact that subsequently, upon the attempt to realize upon the assets, and by a .further examination, this belief was shown to be erroneous, does not color with illegality an act which, when done, was perfectly legal. It is true that certain notes of the company had gone to protest, but “the refusal of a corporation to pay its debts, notes, or obligations at' maturity is generally a suggestion of insolvency; but whether such refusal results from the disability of the corporation to meet its obligations, or is based on other will be best known to the officers and stockholders. Throop v. Hatch Lithographic Co. 125 N. Y. 530; 35 St. Rep. 816. Here there was sufficient to> justify all those in interest in believing that the failure to meet the company’s obligations at maturity was not due to lack of assets, but the bad management and misconduct of the president, who after getting possession of certain of its moneys, had absconded, leaving the affairs of the company in utter confusion.

The mere fact, therefore, that obligations were due and unpaid is not conclusive upon the question of insolvency, or the question as to whether or not the mortgage, when made in that condition of the company, was one executed in contemplation of insolvency. “The statute makes the question depend upon what was passing' in the minds of the officers of the company when the nportgagewas executed.” Pauldiny v. Steel Co., 94 N. Y. 341. The act “must be in anticipation or in view of that condition. In other words, the act must have been done because of existing or anticipated insolvency, or else it is not prohibited. It is not enough that insolvency and the act coexist.” Id. 339 “ Contemplation of insolvency ” must also mean something more than mere expectation of its occurrence. It must include provision against its results, so far as -transferee is concerned, and that can only be applicable where he is already a creditor, and the object is to take-, his debt out of the equal, ratable distribution of the assets of the company when insolvent. Heroy v. Kerr, 8 Bosw. 200. We do not think the evidence would warrant the inference that this mortgage was made in contemplation of insolvency. When made it was with the consent of all the creditors except one; and though there are some variations been the agreement as entered into by the creditors and the terms of the mortgage itself, these are not material, in view of the fact that, after execution, it was approved by the creditoas.

It is true that the plaintiff’s assent was to some extent qualified, . because, although signed by its president, there was a statement that it' was subject to the approval of the board of directors. It is not claimed that the board of directors ever repudiated the action of the president, although the matter, as already stated, was discussed, the board, as such, remained passive; and there is no question but that the bank and its officers had knowledge respecting the making of the mortgage, and that the president had assented thereto. Knowing full well that other creditors were likewise interested, and it appearing that others subsequently signed the agreement to which the plaintiff’s name was attached, it seems to us it was plaintiff’s duty if it was intended to repudiate -the agreement, to have done so promptly, and before the rights of others had intervened. Although it be conceded that this mortgage is voidable, we think it was capable of confirmation, either by assent at the time, or by subsequent ratification; and it is difficult to predicate fraud of acts which are done with the assent and full knowledge of the person who subsequently assails them. Bump, Fraud. Conv. p. 464; Phillips v. Wooster, 36 N.Y. 415. Here the plaintiff has slept on its rights for at least three years subsequent to the making of the mortgage, and during all that period,- with full knowledge of what was going on, it stood by while the trustees, whose good faith in endeavoring to realize on the assets of the company for the creditors is not brought in question, were doing the best they could, and when the result of their efforts did not realize the expectation of the plaintiff and the other creditors, the plaintiff, brings this suit in equity for the purpose of undoing all that has been done regardless or the rights of the , other creditors, who, with the trustees, have in the meantime gone on, relying, as they had a right to do, upon the supposition that the plaintiff had assented •to the acts now complained of. We think, apart from any other questions in the case, that the length of time which the plaintiff allowed to elapse, and its active participation in the plans which were tried to realize on the assets of this company for the benefit of creditors, should prevent the plaintiff from obtaining any relief in this action.

With regard to the claim that this mortgage was in contravention of chapter 394 of the Laws of 1888, all that need be said is that, even though the amount of bonds issued was more than the corporation could lawfully issue, this would not render the instrument void, but as shown from the wording of the statute, would render the directors liable for such overissue at the instance of any holder of the bonds; and in this action the plaintiff is not suing as a bondholder. It may be that, in addition to an action by a bondholder, any creditor or stockholder could prevent the issue of an amount of bonds in excess of that allowed by statute, and if such amount were issued, could set the transaction aside provided he had not assented to the same or was not estopped. The language of the statute is:

“ But the amount of such bonds and such mortgages outstanding at any one time shall not exceed one-half of the value of the corporate property of such corporation. Any issue * * * beyond the amount * * * shall render every director voting the same personally liable to any holder of such bonds or such mortgages for any damage caused by such overissue to such holder.”

The fact of an overissue of bonds would not, in the light of decisions, render such action absolutely void, so that at río time and under no circumstances could it be recognized; but, under the authorities, we think it would be voidable in favor of those who, as we have shown, could question the corporate action.

In, Kent v. Mining Co., 78 N. Y. 185, it is said:

“ In the application of the doctrine of ultra vires, it is to be borne in mind that it has two vices,—one where the public is concerned ; one where the question is between the corporate body and the stockholders in it, or between it and its stockholders and third parties dealing with it and through it with them. When the public is concerned to restrain a corporation within the limit of the power given to it by its charter, an assent by the stockholders to the use of unauthorized power by the corporate bodv will be of no avail. When it is a question of the right of a stockholder to restrain the corporate body within its express or incidental powers, the stockholder may in many cases be denied relief on the ground of his express assent, or his intelligent, "though tacit, consent to the corporate action. If there be a departure from statutory direction, which is to be considered merely ■a breach of trust, to be restrained by a stockholder, it is pertinent to consider what has been his conduct in regard thereto. A corporation may do acts which affect the public to its harm, inasr much as they are per se illegal, or are malum prohibitum. Then no assent of stockholders can validate them. It may do acts not thus illegal, though there is want of power to do them, which affect only the interest of the stockholders. They may be made good by the assent of the stockholders, so that strangers to the stockholders dealing in good faith with the corporation will be protected in a reliance upon those acts. The instance put in Bissell v. Railroad Co., 22 N. Y. 269, is illustrative. A bank has no authority from the state to engage in benevolent enterprises, and a subscription, though formally made, for a charitable object would be out of its powers; but it would not be otherwise an illegal act. Yet, if every stockholder did expressly assent to such an application of the corporate funds, though it would still, in one sense, be ultra vires, no wrong would be done, no public interest harmed, and no stockholder could object, or claim that there was an infringement of his rights, and have redress or protection." Such an act, though beyond the power given by the charter, unless expressly prohibited, if confirmed by the stockholders, could not be avoided by any of them to the harm of third persons. This arises from the principle that the trust for stockholders is not of a public nature.”

So with respect to the issue of bonds here, there was no express prohibition in the statute making an overissue of bonds void, the language being susceptible of the construction that a corporation such as the defendant should not have the power to issue in excess of a certain amount of bonds, and this is coupled with a remedy afforded to any one aggrieved as against those who should engage in the unauthorized act. The case from which we have quoted (Kent v. Mining Co.) has been approved in many subsequent cases. Thus, Martin v. Niagara Falls P. Manufacturing Co., 122 N. Y. 165; 33 St. Rep. 318, is authority for the proposition that:

“ If the officers or trustees of a manufacturing corporation do an unauthorized act, or incur indebtedness, which would not create a corporate liability, the stockholders may subsequently ratify, and so validate, the transaction.”

In that case, the question was as to the validity of a mortgage given to secure notes which it was claimed were issued without authoritjr, and which were subsequently ratified by the stockholders. It was therein said:

“ The stockholders are the equitable owners of the corporate property, and if the officers or trustees do an unauthorized act, or incur indebtedness which would not create a corporate liability, the stockholders may subsequently ratify the acts, and validate the originally unauthorized transaction.”

In Skinner v. Smith, 134 N. Y. 240; 47 St. Rep. 528, which was an action by a trustee of a manufacturing corporation to set aside certain transfers of its property, alleged to have been made or authorized by the trustees, as such, to themselves individually, Mr.-Justice Follett, quoting with approval the case of Kent v. Mining Co., supra, says:

“A contract entered into by a corporation, by the authority or direction of its trustees, with themselves, and for their benefit, or a transfer of its property, by the authority of the trustees, to themselves, may be set aside,'in case it injures any public interest, or the private interest of any shareholder or creditor, even though the contract or transfer was executed in good faith 'by the trustees. But this rule is not broad enough to condemn as void, on the ground of public policy, all contracts and transfers executed by a purely private business corporation with or to its trustees, in good faith, in case no public or private interest is harmed thereby. Such contracts are not void, but voidable, at the election of those who are affected by the fraud.”

And Morawetz, in his work on Private Corporations, in speaking of the effect of general statutory prohibitions against the unauthorized exercise of corporate powers, says (page 626):

“Statutes have frequently been passed expressly prohibiting corporations from exercising any powers except those conferred by their charters. Sometimes these prohibitions are enacted in the form of general laws, applicable to all corporations, and sometimes they are incorporated in special charters, applicable to particular corporations only. Prohibitions of this description are merely declaratory of the general common-law prohibition against any exercise of corporate powers which has not been authorized by the legislature; and there is no reason for supposing that the legislature, in enacting such a prohibition, intends to give it any greater force or effect than the common-law rule. There are very strong reasons why such a prohibition should not be construed as rendering absolutely null and unenforceable corporate acts and contracts which are in excess of the company’s chartered powers. A statutory prohibition against 'every unauthorized exercise of corporate power would apply with equal force to every act and contract made by a corporation without proper authority; and if it were construed to render any particular act or contract absolutely void in legal contemplation, the same rule would be applicable in every case. Such a result would be productive of great injustice,- as well as inconvenience. The slightest informality would become fatal to the validity of a corporate transaction, and it would be almost impossible to deal with a corporation with any degree of safety.”

And the same author, in speaking of .the validity of corporate acts, at page 650, says:

“It does not follow that, because the exercise of corporate powers is prohibited by the common law, any corporate acts performed in violation of this prohibition will not be recognized by the law as corporate acts. An illegal or prohibited transaction may or may not be recognized at law. It may subject the parties to a penalty, and nevertheless be recognized by the courts, and be given effect after it has been consummated.”

With respect to the transaction here complained of, it was made, not only with the assent of all the stockholders, but with the assent of all the creditors save one; and as those who participated were the persons entitled to all the corporate property, and as the purpose' sought to be effected was to secure this to them, no right of any third person was invaded or affected. Nor should the court, after the transaction has gone through various . stages, so that the mortgage has been foreclosed and the property sold to another corporation, adjudge the corporate action void at the instance of one who, in view of his conduct, must be regarded as having tacitly assented to it. And we cannot, in this connection, refrain from again quoting from Kent v. Mining Co.:

“ Where third parties have dealt with the company, relying in good faith upon the existence of corporate authority to do an act, there is not needed that there be an express assent thereto on the part of the stockholders to work an equitable estoppel upon them. Their conduct may have been such, though negative in character, as to be taken for an acquiescence- in the act, and when harm would come to such third parties if the act were held invalid, the* stockholders are estopped from questioning it. We suppose acquiescence or tacit assent to mean the neglect to promptly and actively condemn the unauthorized act, and to seek judicial redress, after knowledge of the commital of it, whereby innocent third parties have been led to put themselves in a position from which they cannot be taken without loss. It is the doctrine of equitable estoppel, which applies to members of corporate or associated bodies, as well as to persons acting in a natural capacity.”

For these reasons we think that the issue of an amount of bonds in excess of that allowed by statute should not be declared void at the instance of this plaintiff.

As to,the remaining ground, that the mortgage was a transfer by the corporation of all its property and assets, thus virtually effecting a termination of its regular business, and for this reason illegal, it is only necessary to say that this was not the intention of any of the parties. The whole plan, as shown by the agreement and the provisions of the mortgage, was to continue the business of the corporation, which it was thought could be profitably done, and realize for the creditors the full amount of their claims. There was no intention of preventing it from carrying on the business for which -it was incorporated. On the contrary, the intention ■was just the opposite, and the fact that in this all were disappointed is no reason for nullifying the mortgage. Notwitstauding the claim, therefore, made by plaintiff, that a great wrong has been perpetrated upon it by the defendants, we think, as already stated, that, having remained silent, knowing of each step taken, and waiting until the rights of other persons had intervened, it should not be accorded relief which will injure other bona fide creditors, whose rights have been acquired' since the execution of the instrument assailed,'and who would suffer loss because of an honest effort to protect all the creditors of the corporation alike.

The judgment should be affirmed, with costs.

Van Brunt, P. J., concurs in the result.

Follett, J.

(dissenting). January 16, 1885, the A B. Cleveland Company, Limited, was incorporated under chapter 611 of the Laws of 1875 (Business Corporation Act) with a capital of $65,000, divided- into shares of $100 each. The stock was all issued for realty and personalty, no cash being paid in. By chapter 394 of the Laws of 1888, section 13 of the act of 1875 was amended so as to read as follows:

“ Sec. 13. It shall be lawful for all such corporations to borrow money for the legitimate purposes of such corporation, and for such purpose to issue bonds with or without coupons attached thereto, or to mortgage any real estate which it may have or possess, and bearing interest not exceeding six per centum per annum ; but the amount of such bonds and such mortgages outstanding at any one time shall not exceed one-half of the value of the corporate property of such corporation. Any issue of such bonds and such mortgages beyond the amount herein specified, shall render every director voting the same, personally liable to any holder of such bonds or such mortgages, for any damage caused by such overissue to such holder. No such mortgage or mortgages shall be issned however, without first having obtained the written assent of its stockholders owning more than two-thirds of the stock of said corporation.”

Bv this section a business corporation is authorized to mortgage its real estate” for an artfount not exceeding one-half of the value of its corporate property. April 17, 1889, the president and treasurer of the corporation assumed to execute a mortgage to Conrad N. Jordan, Horace K. Thuvber, and Peter W. Crallaudefc upon all of the property of the corporation, real and personal, to secure the payment of $425,000, represented by 425 bonds of $1,000 each, and thereafter it immediately discontinued its business. Twelve days later the trustees took possession of all of the property of the corporation under said conveyance. In November, 1889, the trustees rep >rted that the value of the entire assets of the corporation was $327,621.81. The value of its real estate, -included in the above, was $45,530. December 1,1890, the value of its assets had been reduced to $298,999.25, which included $45,000 of real estate. It is conceded that, when this mortgage was executed, the corporation was hopelessly insolvent, but it is asserted that it was not known to be so by its directors and officers. This assertion does not seem to me to be sustained by the record. I think the mortgage should be declared void on two grounds: (1) That it was given in contemplation of insolvency ; (2) that it covered all of the personal property of the corporation, and that it was given for more than twice the value of the corporate property of the mortgagor. In the prevailing opinion it is conceded that the corporation had no power to mortgage its personalty, but it sustains the judgment dismissing the complaint on the ground that the plaintiff was estopped. I am unable to find any evidence in the record upon whiph an estoppel can be based. I cannot assent to the proposition, contained in the opinion, that the power of a corporation to issue bonds is not limited by the section above quoted, nor can I concur in the position that the only remedy for an overissue is an action by a bondholder against the directors for his damages. This section-was designed for the protection of shareholders and creditors of such corporations, and they may resist the validity of a mortgage given in violation of its provisions. Any creditor or shareholder of a corporation has the right to maintain an action to set aside any securities given or conveyances made in violation of the statute, and if the corporation is insolvent any shareholder or creditor has the right to have it wound up in accordance with the provisions of the statute, even though every other creditor and shareholder think a better way than the statutory one has been devised.

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


author: Per Curiam.

text:
    Fish’s Eddy Chemical Company, Resp’t, v. Julia Stevens, App’lt.

      (Supreme Court, General Term, Fourth Department

      Filed December 26, 1895.)
    1. Justice of the' peace—Attachment for witnesses—Adjournment.
    Where warrants of attachment to secure the attendance of the plaintiff’s witnesses were not actually issued until the court had decided to adjourn the trial until the next day, the court has authority to grant such attach- , ments.
    2. Statutes of frauds—Sale.
    A verbal contract for the sale of wood is not invalid under the statute of frauds, where the wood has been measured by the parties and partially delivered, and the .vendor is given credit for the amount of the part delivered on an open account due from him on the purchaser’s books,
    Appeal from a judgment of the county court, affirming a-judgment of the justice’s court in favor of plaintiff.

      Henry J. Williams, for app’lt:

      I. L. Brayman, for resp’t.
   Per Curiam.

The first question presented on this appeal is whether the justice before whom the action was tried had authority to adjourn the trial until the return of the warrants of attachment that were issued to secure the attendence of the plaintiff's-witnesses whom it had subpoenaed, but who did not appear. The contention of the appellant is that, because such warrants were not" actually issued until the court had decided to adjourn the trial until the next day, it had no authority to grant such adjournment. We think this contention is too narrow and technical to be upheld. The appeal book shows that upon proof an application was made for attachments for two witnesses, that it was granted, and the trial adjourned until the next day, to enable the plaintiff to secure the attendance of its witnesses. We think this was authorized by section 2967 of the Code of Civil Procedure. The fact that the' defendant was physically unable to attend, or, if not unable, that she convinced the officer that she was, does not render the adjournment irregular. After a careful examination of the evidence contained in the appeal book, without referring to it in detail, we are of the opinion that it was sufficient to justify the jury in finding that the defendant’s husband was her agent, acting for her, and with her consent, in making and carring into effect the contract for the sale of the wood in question, and in preventing the plaintiff from removing it. The appellant’s contention that the contract was void under the statute of frauds is not, we think, well taken. The'evidence discloses that a contract between the parties was made for the wood in question. After it was ready for delivery, it was measured by the parties, and, as far as possible, was delivered to the plaintiff at that time. The portion thus delivered was paid for by giving the defendant actual credit for the amount upon a debt then owing by the defendant to the plaintiff, and by entering such credit upon its books. Under these circumstances, we think the contract as to the wood thus delivered and paid was Valid. We have examined all the other questions to which our attention has been called by the defendant’s brief, but find no error that would justify a reversal of the judgment.

Judgment affirmed, with costs.


text:
    The People, Resp’t, v. David G. Orr, App’lt.

      (Supreme Court, General Term, Fourth Department,

      Filed December 26, 1895.)

    1. Evidence—Corroborative—Seduction.
    Upon the trial of an indictment for seduction under the promise of marriage, the evidence required must he corroborative of the promise of marriage and the carnal connection, and need not extend to the facts that the female seduced was of previous chaste character or unmarried.
    3. Same—Proofs of intercourse. ,
    The testimony of a physician that he examined complainant at a certain time and found her in a certain condition is admissible to corroborate her testimony as to the time when the alleged intercourse occurred.
    3. Same—Admission and declarations.
    Upon the trial of such indictment, the declarations of defendant in regard to the condition of the prosecutrix, and evidence that defendant tried to induce plaintiff to have an abortion performed, are properly admitted.
    Appeal from a judgment convicting defendant of seduction under the promise of marriage.

      Hoyt & Farrington, for app’lt;

      B. J. Shove, Dist. Att’y., for resp’t.
   Per Curiam.

defendant was indicted and convicted of the crime of seduction under promise of marriage. The statute which defines and regulates that offense provides :

“ A person who, under promise of marriage, seduces aud has sexual intercourse with any unmarried female of previous chaste character, is punishable by imprisonment for not more than five or by a fine of not more than one thousand dollars, or by both. No conviction can be bad for the offense specified in section two hundred and eighty-four, upon the testimony of the female seduced, unsupported by other evidence.” Pen. Code, §§ '284,i 286.

That the evidence of the complainant, if properly corroborated, -was sufficient to justify the conviction of the defendant is unquestioned. But the defendant contends that the evidence of the complainant was not corroborated to the extent required by section 286, and, consequently, that the defendant should have been acquitted. It seems to be settled iu this state that the evidence required most be corroborative of the promise of marriage and the carnal connection and need not extend to the facts that the female ■seduced was of previous chaste character, or unmarried. Kenyon v. People, 26 N. Y. 203; Boyce v. People, 55 id. 644; People v. Kearney, 110 id. 188 ; 17 St., Rep. 165 ; Armstrong v. People, 70 N. Y. 38, 44. In the latter case it was also held that, as to the promise of marriage, the provision of the statute is satisfied by proof of circumstances which usually attend an engagement of marriage, and that as to the illicit intercourse, and the inducements which led to consent, evidence of opportunities, and that the relations of the parties were such as indicated that confidence in and affection for the accused, on the part of the female, which Tendered it probable that the act may have been done, are sufficient. See, also, People v. Gumaer, 80 Hun, 78; 61 St. Rep. 768, and Kenyon v. People, supra. Proof of circumstances legitimately tending to establish the material facts are sufficient to authorize a ■conviction. People v. Plath, 100 N. Y 590.

Without attempting to state the evidence in detail which was corroborative of that given by the complainant, a careful study of the proof contained in the appeal book leads us to the conclusion that under the authorities in this state bearing upon the question the evidence of corroboration was sufficient to justify the •submission qf the case to the jury. On the trial, after the complainant had testified that the offense was committed on February 4, 1894, and that when committed her vagina was lacerated, that there was a flow of blood, and that Dr. Kinne had treated her, the people called Dr. Kinne as a witness, who, under the defendant’s objection and exception, testified to having examined the complainant, either late in the winter or early in the spring of the jyear 1894, and that such examination, revealed a wounding and inflammation of the soft tissues, a swelling and laceration of the mucous membrane of the passage of the vagina, with evidences of bleeding, and that he prescribed for her at that time. We think this evidence was admissible as showing a circumstance which tended to corroborate the evidence of the complainant as to illicit intercourse, and that the defendant’s objections and exceptions ■were not well taken.

Dr. McKemna was also called as a witness for the people, and after testifying that he knew the complainant, he testified that he first met her at his office between the 20th and 25th of October, 1894. He was then asked :

You may state whether or not you made an examination of her at that time. (Objected to as incompetent, improper, immaterial, and heai'say, and too remote and in no sense a corroboration of any fact to be established in "this case. Objection overruled. •Exception taken by defendant’s counsel.) A. Yes, sir. I saw this defendant, David Orr, I think the next day after that. Q. Now, what occurred at that time, doctor ? Go right on and tell what he said and what you said. (Objected to on the same grounds, incompetent, inadmissible, improper, and irrelevant. Objection overruled. Exception taken by defendant’s counsel.) A. He came to my office and wanted to'know if there was a lauy up there the previous day. I said there was, and he said he wanted to know if she was in a family way. I said she was about four months and a half along. He said. ‘ Are you positive ?’ I said, 1 am pretty sure of it.’ He then said : ‘ That leaves me in a pretty fix. I would like to get help out of it.’ I asked him if he saw the girl the previous evening. He said he did. I asked him if she agreed to everything he said, and he said she did. Well,’ I said ‘you had better see the girl again.’ So he left my office.”

The defendant contends that the admission of this evidence was -error, and cites the case of People v. Kearney, 110 N Y. 188 ; 17 St. Rep. 165, as sustaining that contention. In that case the defendant was indicted for seduction, and the complainant testified that the offense was committed in J uly, and that the defendant had frequent intercourse with her until December. The prosecution was permitted to show, under -objection and exception, that she had a child in August of the next jmar. This was held error, as it did not tend to show illicit intercourse thirteen months before the birth of the child. That case is very clearly distinguishable from this. The purpose of the evidence in that case was only to show the fact that the complainant was pregnant in November, while the seduction took place in the preceding July. If the evidence objected to in the case at bar had been only to the effect that the complainant was pregnant in October, the doctrine of the case cited might apply. In this case no such evidence was in fact admitted. The proof here was that the witness examined the ■complainant, and that the next day he saw the defendant and had :a conversation with him. The doctor did not even testify that complainant was pregnant. The testimony which he gave was cf a conversation between Mm and the defendant, in which he told the defendant that the lady who visited him on the previous ■day, who was the complainant, and about whom the defendant inquired, was in the family way, four and one-half months along. To that statement the defendant replied: “That leaves me in a pretty fix. I would like to get help out of it.” That the evidence of this conversation was admissible we have no doubt. Its admission was not in conflict with the decision in the Kearney Gase. We think the exception was not well taken.

Nor do we think the court erred in admitting the evidence of the prosecutrix and Dr. McKenna tending to show that the defendant tried to induce the former to have an abortion performed. The proof was of conversations with the defendant in regard to the condition of the prosecutrix, and included a proposition by him that an abortion should be procured. This was, we think, so far a part of the transactions between the prosecutrix and the defendant as to render the conversation between them admissible. It tended, at least, to corroborate the statement of the prosecutrix as to the relations which existed between herself and the defendant and show that he sought to prevent publicity of her condition which resulted from a course of action commenced by the perpetuation of the crime charged. People v. Murphy, 135 N. Y. 450; 48 St. Rep. 426; Hope v. People, 83 N. Y. 418, 427; Pierson v. People, 79 id. 424.

We have carefully examined all the remaining exceptions to which our attention has been called by the appellant’s brief, but have found none that would justify a reversal of the judgment, or that require special discussion. It follows that the judgment should be affirmed.

Judgment of conviction of the court of sessions of Onondaga county, and order appealed from, affirmed. After the judgment is entered in the judgment book, a certified copy of the entry shall be forthwith remitted to the clerk of Onondaga county, with whom the original judgment roll is filed, in accordance with the-provisions of section 547 of the Code of Criminal Procedure.


author: Hardin, P. J.

text:
    Elizabeth A. O’Gorman, App’lt, v. James R. O’Gorman, Resp’t.

      (Supreme Court, General Term, Fourth Department,

      Filed December 26, 1895.)

    Deposition—Discovert and inspection.
    Where no good reason is shown why plaintiffs bank book should not be inspected, an order for that purpose will not, in the absence of an abuse, of discretion, be disturbed on appeal.
    Appeal from an order granting an inspection of plaintiff’» bank books.

      D. P. Lester, for app’lt;

      W. G. Robinson, for resp’t.
   Hardin, P. J.

There was some conflict in the affidavits used at the special term, and the judge presiding has resolved the conflict in favor of the petitioner. It appears that the plaintiff had an account in the respective banks mentioned in the petition, and that the pass books used in connection with the account have been returned to the savings banks, and that the banks have a custom of retaining pass books after closing accounts with a customer, and are disinclined to allow inspection of such pass boobs without-the consent of the party in whose favor they were made while the account was current. The bank officers’ affidavits furnish no good reason why the pass books should not be inspected. It is apparent fro.m the affidavit of the plaintiff that she has no serious or important objection to the inspection of the pass books, or to a copy being delivered thereof. The special term was called upon, under all the proofs before it, to exercise its discretion in respect to whether an inspection should be ordered. We are not prepared to say that the special term exceeded its discretion in the premises. Sibley v. N. Y. Times Publishing Co., 80 Hun, 561; 62 St. Rep. 537; Finlay v. Chapman, 119 N. Y. 404 ; 29 St. Rep. 579.

We think the order should be affirmed, with $10 costs.

Order affirmed, with $10 costs and disbursements.

All concur.


author: Titus, C. J. Hatch, J.

text:
    George Reichert, Resp’t, v. Buffalo Spring and Gear Company, App’lt.

      (Buffalo Superior Court, General Term,

      Filed December 23, 1895.)

    Master aitd servant—Negligence—Contributory.
    Where the party complaining-has knowledge that the machinery is out of repair, or has the same knowledge as the master that there are defects which render it unsafe to use such defective machinery, he assumes the risk of his employment, and, if he is willing to use defective machinery, knowing it to be such, he cannot recover, because his own negligence and want of care are the cause of the injury. So held, in case of an operator of an elevator whose doors were automatical, where he, knowing that the door on the fourth floor is out of order and will not close of itself, fails to Close it, and, while in the elevator, on a lower floor is injured by articles thrown into the shaft through the open door by an employe who supposes that the elevator is at that floor.
    Appeal from a judgment in favor of plaintiff, and an order denying a motion for a new trial.

      Box, Norton & Bushnell, for app’lt;

      C. S. Crosser, for resp’t.
   Titus, C. J.

This action is brought to recover damages which the plaintiff sustained, while in the employ of the defendant, in having a load of carriage seats thrown down upon him by one of the employes of the defendant. The accident occurred on the 10th day of September, 1892. The plaintiff was employed to run the elevator in the defendant’s factory, and bad been employed every day since the 31st day of May preceding. The elevator shaft was entirely inclosed with doorways opening onto each floor. These openings were provided with automatic double sliding doors, and opened as the elevator approached the floor, either ascending or descending, and closed as the elevator left the floor. When the elevator was. on the level of a floor, the doors were fully opened, and as the elevator passed three or four feet either up or down, the doors closed, coming together in the center of the opening. The elevator was used for carrying material from one floor of the building to another. There is some proof in the case that the plaintiff was in the habit of opening the doors, and then tying them back, or blocking them, so they would not close without loosening the fastenings; but we do not think this is important, in the view taken of the case, as there is no evidence that the plaintiff on this occasion fastened the doors open. An employe on the fourth floor, having occasion to send a truck load of material to the floor below, pushed the truck' towards the elevator, and, seeing the door open, and supposing the elevator was at that floor, ran his truck into the opening, and dumped the truck and twenty-five carriage seats into the elevator shaft, and they fell upon the plaintiff, who was in the elevator, unloading wheels at the third floor, the one next below, and caused the injuries of which he-now complains. It appears further that on the morning in question the doors opening on to the fourth floor had got out of order,, and the plaintiff notified the head engineer of the defendant, and the master mechanic of the shop was sent to fix them. He put on a new rope, and then the plaintiff, went up and down past these doors in the elevator a few times, to see if they would work. They did not work well. According to the plaintiff’s testimony, they would not shut quick enough, and jerked. He says he “told the man fixing them the doors were not right; they would not shut;, and that he would have to fix them; ” and he was told “that it was dinner time. It is all-right. They will do. If something is wrong, I will fix it some other time. It is twelve o’clock now.”' Nothing further was done to fix the doors, and the plaintiff ran the elevator in the afternoon until about three o’clock. Not having business on the fourth floor, he did not open the doors until he came down at that hour with the foreman, when he opened the doors at this floor, and let the foreman out, and did not stop the elevator, nor did he look to see whether the doors closed as the elevator passed on down, as they would have done if in good working order. Before the elevator had passed four feet below the level of the floor, he would have known, had he looked, that the doors did not close, but stood wide open, and remained in this-condition until the accident. The witnesses Hoover and Hands-borough were the first ones at the door after the accident, and before the plaintiff had been rescued from the elevator. Hoover says that the doors were open and he “took the door and pulled it a little, and it closed up.” The door at this time was not.blocked or tied back, but had from some cause stuck in the pocket, and would not close of itself.

It is the duty of the master to furnish a safe place for Bis servants to work, and supply them with proper and safe tools and appliances, and to keep them in a reasonable condition of repair; and, if he fails in this respect, he is liable to the servant for any injury which he has received through the master’s neglect. Wright v. Railroad Co., 25 N. Y. 562; Laning v. Railroad Co., 49 id. 521; Flike v. Railroad Co., 53 id. 549; Cone v. Railroad Co., 81 id. 206; Benzing v. Steinway, 101 id. 547; Murray v. Usher, 117 id. 543; 27 St. Rep. 928; Cregan v. Marston, 126 N. Y. 568; 38 St. Rep. 428. But this rule has no application where the party complaining has knowledge that the machinery is out of repair, or has the-same knowledge as the master that there are defects which render it unsafe to use such defective machinery. In such cases the servant assumes the risks of his employment, and, if he is willing to use defective machinery, knowing it to be such, he cannot recover, because his own negligence and want of care are the cause of the injury. In Marsh v. Chickering, 101 N. Y. 396, in speaking of the duty of the master; Judge Miller, in the opinion of the court, says:

“ The rule stated, however, is not applicable in all cases, and, where the servant has equal knowledge with the master as to the machinery used or the means employed in the performance of the work devolving upon him, and a full knowledge of the existing defects, it does not necessarily follow that the master is liable for injury sustained by reason of the use thereof. * * * He fully comprehends that the instrument which he employs is not perfect, and, if he is thereby injured, it is by reason of his fault and negligence.”

In Hart v. Naumburg, 123 N. Y. 641; 33 St. Rep. 607, the court of appeals reversed a judgment in favor of- the plaintff for injuries received while running an elevator in the defendant’s manufactory, for the reason that the servant had the same means of ascertaining the defective condition of the elevator as the master, and he could not recover for injuries received from such defective condition. In Davidson v. Cornell, 132 N. Y. 228; 43 St. Rep. 887, the court of appeals, in reversing a judgment in favor of the plaintiff for injuries received from the use of defective machinery while in the defendant’s employ, held that where a servant enters into hazardous employment he assumes the risks of the service, and those which are apparent to ordinary observation; and when he accepts or continues in the service with knowledge of the character or structures from which injury may be apprehended he also assumes the hazard incident to the situation. In Cregan v. Marston, supra, the court held that the general rule that the master owes to the servant the duty of keeping machines and appliances in repair does not apply to defects arising in the daily use of the machine, and of which the servant has as much knowledge as the master, and which can be easily remedied by the workmen with material supplied for that purpose by the master. Many other cases might be cited to the same effect, that when the defect in a machine is as apparent to the servant as to the master, or when a defect exists of which the servant has full knowledge, and, while continuing to use such defective machinery, receives an injury; or when the defect is one occurring from the daily use of machinery, and one not permanent in character, but such as can be easily remedied by the workmen, and to repair which proper materials are provided by the master,—in these cases the servant cannot recover for any injury received, because it is attributable in law to his own .negligence in the use of defective machinery, the condition of which he knows, or ought to know, as well as the master. Considering the facts in this case, and measuring them by the standard adopted by the courts as suggested above, the plaintiff cannot recover in this action. According to his own testimony, he knew that the doors to the fourth floor were out of repair, and would not automatically close, as he had run the elevator up and down that morning for the very purpose of determining that fact, and told the workman who made the repairs that it would not do; that the doors would not close; and yet, knowing this, and that there was a constant liability that-the workmen on that floor would use the elevator, he recklesak^ and heedlessly, in passing down, permitted the doors leading into the elevator shaft on the fourth floor to remain open. He must have known they were open, for, it they had been in working ■order, they would have been closed before he passed by the opening, and in full view. He must have known it, because the last time he opened the doors before the accident' he saw the doors would not close, and he had no reason to suppose the defect had been repaired.

We do not think it necessary to consider any. of the other questions raised by the counsel for the defendant on this appeal. We rest our decision on the sole ground that the plaintiff was guilty of negligence in not seeing to it that the door to the elevator shaft was closed, having full knowledge of the fact that the door was -out of repair, and would not automatically close.

The judgment and order appealed from should be reversed, and a new trial ordered, with costs to abide the event.

Hatch, J.

(concurring). In this case I agree fully with the conclusion reached by Judge Titus, and the ground upon which he places his decision. But I am also of the opinion that defendant’s negligence was not established, and that plaintiff took the risk of the situation which led to his injury.


author: Hatch, J.—

text:
    Harrison D. Folinsbee, Resp’t, v. George P. Sawyer, App’lt

      (Buffalo Superior Court, General Term,

      Filed December 23, 1895.)

    1. Brokers—Commissions.
    A broker, who procures the execution of a contract for the sale of land, is entitled to commissions, though the contract is not finally consummated, and notwithstanding any vagueness in its terms.
    3. Same—Burden of proof.
    In an action for broker’s commissions for procuring a contract for sale of land, the burden of proving that the contract was signed conditionally is on the defendant.
    Motion for a new trial of exceptions, ordered to be heard at general term in the first instance.

      Norris Morey, for pl’ff;

      Ansley Wilcox, for def't.
   Hatch, J.—

The action is brought to recover commissions for procuring the execution of a contract for the purchase of real estate. When this case was before this court on an appeal from the judgment, we said, respecting the obligation resting upon plaintiff to entitle him to recover:

.“The mind must meet upon the contract to sell and the terms upon which it is made. When this is accomplished, it matters not what those terms are, or whether carried out or not, or whether the failure to finally consummate it is due to the act of the vendor or vendee, for the broker has then fulfilled all that his contract of employment called for. * * * It is not of the essence of the contract that the agreement of sale should be valid and enforceable. It may be verbal or written, plain or obscure in its terms, loaded with conditions or free from any ; it may raise a complete barrier to its fulfillment, if objection to some of its provisions be made; but all are unavailing to defeat the broker’s right, he acting in good faith, if the parties have, with full knowledge, met upon a common ground, and accepted what is offered as expressive of their minds. This point was objective when the broker started, and, having reached it, nothing more remained for him to do; and with all difficulties which thereafter arise out of the meeting of the minds of the principals he has nothing to do,—is affected thereby no more than an uninterested third party, as far as his legal relations thereto are concerned.”

And this must now be considered the law for the disposition of this motion. The present disagreement of counsel, like their former attitude, relates mostly to a question of evidence. Upon the former trial the evidence tended to establish that the contract as agreed was conditionally signed in two specified particulars. First, that there was reserved the right of withdrawal by Weill, in which event there was to be no contract whatever; second, if Weill did not exercise the right of withdrawal, then a contract was to be prepared which should constitute the agreement of the parties. As bearing upon the latter proposition, and in connection with Weill’s testimony, the court submitted the contract as evidence, and we held such ruling proper. There was nothing in this ruling which authorized the inference that, if the parties deliberately adopted the option contract as constituting their agreement, it was not binding upon them, even though it was indefinite, and incapable of inference, or did not provide for all details, or provided that details should be thereafter settled; and this, for the reason that it was competent for the parties to so_ contract, and that was all that plaintiff had contracted to bring about. In fact the contract provided that the details should be settled, not by any different arrangement, but in conformity with the agreement. The present record eliminates the second of these propositions, and presents as the sole question the reserved right of Weill to withdraw. That question was properly submitted to the jury, and the jury, by their verdict, have found that Weill reserved no such right, but that in fact he signed and delivered the contract as expressive of the terms upon which he agreed to purchase. The other parties having also signed and delivered with reservation, the instrument then constituted their agreement, in consequence of which there was no question relating to the contract for submission to the jury, but the effect of such act was left as a question of law, and we find no error in the rule adopted by the court. It is true that Weill testified that the contract was not binding, and was too indefinite and vague. But his statement that it was not binding cannot avail when it was signed and delivered by him; nor does the fact that it was indefinite and vague relieve from whatever effect it had. This testimony furnishes reasons why he ought not to have signed, but it is hot effective to destroy the effect of what he did. We are therefore of opinion that the rulings and submission of the trial court in this respect were correct.

The exception to the charge that the defendant held the affirmative of the question of Weill’s conditional signing is unavailing. The court correctly charged the jury, in effect, that plaintiff was required to satisfy them by a fair preponderance of evidence that he had procured a purchaser. This left with the plaintiff the burden of proof to establish his cause of action, and, having proved the contract, defendant would be cast in judgment unless he answered it. The burden of proof was not shifted, but, as defendant claimed the execution of the contract was conditional, he was required to establish it by a fair preponderance of proof. Fairly construed, this is the effect of the court’s charge. Heilman v. Lazarus, 90 N. Y. 672; Farmers' L. & Trust Co. v. Siefke, 144 id. 354; 63 St. Rep. 662.

Ho error being found, the exceptions are overruled, and the motion for a new trial denied, with costs.-


author: Hatch, J.

text:
    Charles A. Diffin, Resp’t, v. William Reid, App’lt.

      (Buffalo Superior Court, General Term,

      Filed December 23, 1895.)

    1. Evidence—Contract—Services.
    In an action on a contract for an alleged balance due plaintiff as salary for services rendered defendant, it appeared that plaintiff had been in defendant’s employ several years and that he claimed that, at the beginning of the last year, defendant promised to pay him $2,500, and that he had received only $2,100, evidence that, when he was first employed, defendant loaned him money with which to move from a foreign state to defendant’s place of business, is improper.
    2; Same.
    Where the defendant claims that he is to pay plaintiff $2,500, only if the business is prosperous and turns out well, evidence is admissible to show that defendant’s business during such year resulted in loss, the-amount of such loss, and whether it resulted from bad debts or from the conduct of the business aside from such debts.
    Appeal from a judgment entered on a verdict in favor of plaintiff, and from an order denying his motion for a new trial.

      D. N. McNaughton, for app’lt;

      George Wing, for resp’t.
   Hatch, J.

Upon the trial of this action, plaintiff gave evidence tending to establish that he was employed by defendant as a salesman, and had been for some years prior to January, 1893. The salary paid at the beginning of the service was $1,200 per year, and this sum had been increased from year to year until in 1892 he received $1,800. Defendant’s principal place of business was at Detroit, Mich., and lie had a branch store located at Buffalo. Plaintiff was employed as a traveling salesman, and was connected, with the Buffalo branch. In February or March, 1893, he called upon defendant at Detroit, and applied for a raise in salary, stating that he wanted $2,500 per year. In reply to this, plaintiff testified that defendant “ said he would give me twenty-one hundred dollars a year for the year, at the rate of $175 a month, and that he would give me a credit memorandum at the end of the year that would meet with my idea of price. I said that was satisfactory, I did not have any conversation with him after that in regard to salary, at all.” Plaintiff continued in defendant’s employ until February 10, 1894, when he was discharged. When plaintiff’s employ began he was living at Meadville, Pa., and defendant loaned him sufficient money at that time to remove, with his family, to Buffalo. At the time when the salary was adjusted this loan was represented by notes of plaintiff, which defendant held, then amounting to $350, and it was then agreed that $25 per month should be retained from salary to apply on this debt. The debt was never paid, and in July, 1894, defendant recovered a judgment against plaintiff, for $394.68, which judgment he pleaded as a counterclaim herein, and demanded judgment for the amount, with interest. It was upon this testimony that plaintiff sought to recover a balance of unpaid salary at the rate of $2,500, a year, he having unlv been paid at the rate of $2,100. No credit was ever made him of $400 at the expiration of the year, or at any other time, or of any other sum. Defendant testified, respecting the salary adjustment, that he told plaintiff “I will make the salary $175 per month, or $2,100 for the year, commencing January 1st, and that, if the business was prosperous and turned out well, I would give him a further credit at the end of the year.” It appeared that no formal demand was ever made by plaintiff for payment of the claimed unpaid salary prior to the commencement of this action. Several letters were written by him prior and subsequent to the discharge. One under date of May 10, 1893, on account of increased living expenses, asks' for the $25 per month which was to be retained, and says, “If you insist on it, I will allow $25 per month to apply on the notes from May 1st, and try to make ends meet until the end of the year, when you promised an increased amount.” One under date of February 28, 1894, ' admits the indebtedness upon the notes, offers to give a new note, pay interest, and holds out an expectancy of being able to pay the whole, or at least half the principal, the coming year. This letter also contains a statement of salary account, showing a balance, in his favor of $108. No mention or claim is made of the credit of $400 to which he was entitled, and, when questioned with respect to this matter, he said, as the only explanation, “ I wanted the $108 right then, to use.” Prior to this, and under date of January, 7, 1894, he had written: “In our talk last March, $2,100 was the agreed price, with a cr. men. at the end of the year. Is there to be any cr., or is that off?” On March 6,1894, defendant wrote, claiming balance due on notes of $306.62, asking for transfer of certain lots, and repudiating claim for salary. In answer to this letter, plaintiff replied, questioning amount due, but admitting an indebtedness of $175.69, and says: “ When I speak of short turns, I refer to the cr. memo, which you promised at expiration of last year. * * * I will insist on cr. memo. $108.00 salary.”

In view of this testimony and the letters, it is quite evident that plaintiff’s case rests upon quite slender supports, and, while his present position is not so entirely inconsistent with his former attitude as to require us to say that the verdict does not find some support in the evidence, it docs require that we should look with care to see that defendant’s case was in no wise prejudiced by any ruling of the trial court. Such examination leads us to the conclusion that in two particulars there is sound basis for complaint in the reception of evidence in one case, and its rejection in another. Evidence was permitted to show the circumstances surrounding the removal of plaintiff from Meadville to Buffalo. This was not material to any right of plaintiff. Its only possible materality was to show the basis of indebtedness represented by the notes. Yet after plaintiff had been examined and cross-examined, his counsel asked.:

“ Did you have a conversation in Buffalo, with Mr. Reid, in regard to your moving to Buffalo? Something in regard to your house in Meadville? If so, state the conversation.”

This was objected to as immaterial and incompetent, the objection was pverruled, defendant excepted, and witness answered:

“ I had a conversation with Mr. Reid one time, when he was here, in regard to my moving. I had a lease on my hands at Meadville from the 1st of April to the following April, and I said I would have to pay something to get released from that. He said I could probably do it for a reasonable amount. I went on and made an arrangement, and bought off the lease for $75.”

The whole of this answer was properly characterized by the objection. It was entirely immaterial to the issue, as it did not have the remotest bearing upon whether the contract sought to be enforced was made, two or three years later, upon which fact alone the basis of liability is found. It was incompetent, as it was neither adequate nor sufficient, in any sense, to support plaintiff’s cause of action, and was very likely distinctly prejudicial to defendant. The agreement by which plaintiff left Meadville, and what it cost him, were matters which existed long before the present arrangement was made; and the fact that plaintiff was required to pay a sum of money to another, in order to enter plaintiff’s employ, ought not to be permitted to be used for the purpose of creating a right to now take money from the defendant, ór to allow the jury to speculate upon or contemplate the hardships which plaintiff endured as a result of his engagement with defendant. Defendant was not required to move to strike out the testimony after it was given. His objection was to the question. That was immaterial and incompetent. The answer was the same,— one part as much as another,—and may have tended to defendant's prejudice. Defendant testified:

“ We had some very heavy losses in Buffalo territory in 1898, and the net result was $10,000 loss. By Mr. Wing: I object. It is not important what the amount of the loss was. By the Court: Strike that out,—the last part. I do not think the loss in the business resulting from poor debts, or anything of that kind, woud have any influence upon the question at all The question would be whether the business was profitable or not, not whether they lost debts or not. Q. What was the general result of the business in Buffalo for the year 1893? By the Court: That is admitted only relating to the business, not the loss by bad debts'; not what the losses were. A. The result was bad. Q. I ask you further what was the amount of the loss of the Buffalo business for that year? Mr. Wing: 1 object. By the Court: You mean the general balance of accounts, after they got the bad debts and everything? Mr. McWaughton: Yes. (Ruled out and exceptions taken.)”. ,

' The court, by its first ruling, took the position that loss by bad debts could not be shown, and struck out the answer for this reason. By inference, it would seem that it held proper to show what the loss was in the conduct of the business in other respects. If this be the rule, it was not followed. The answer stated the net result was a loss of $10,000, in no wise limited to bad debts; nor, from anything that appeared in the answer, could it be said to include them. The objection was to showing any amount of loss from any source, and such was the final ruling of the court, as that embraced “bad debts and eveything.” We think this testimony was competent, whether it included or excluded losses by bad debts. Defendant’s testimony was that he was to give no credit unless “ the business was prosperous and turned out well.” Whether it was prosperous and did turn out well became, therefore, a pertinent and material fact. If goods were to be sold on credit, and thereafter, when the day of payment arrives, the debtor is found insolvent and unable to pay, or if, from any cause, the seller loses the price of the goods, it cannot be said, in terms, as we understand it, to be a prosperous transaction, at least for the seller, nor can that transaction be said to have turned out well in a business sense. The evident construction to be placed upon the language used is that if in the course of the business of the year, from all sources, it had been found that the business made a profit, then it might be said to have been prosperous and turned out well, at least in a degree, and, dependent upon the profit side, would be the degree of, prosperity. If this view of the contract to be taken by the jury, then it became of importance for them to know what had been the amount of profit or loss, in order to find whether, within fair meaning, the business had been prosperous, or the reverse. To limit the statement that the result was bad did not give to the defendant all to which he was entitled. He had the right to lay before the jury how much he had lost, if any, the sources of his loss, and all facts properly connected therewith, in order that they might see that plaintiff had no right to require of defendant any further sum.

It follows from these views that the judgment and order should be'reversed, and a new trial ordered, costs to abide event.


author: Brows, P. J.

text:
    In the Matter of a Proceeding for the Probate of the Will of Jesse A. Davis, Deceased.

      (Supreme Court, General Term, Second Department,

      Filed December 2, 1895.)

    Wills—Capacity.
    Testimony that the testator was irrational at intervals other than the time of execution of will is not sufficient to show want of testamentary capacity. So held, x/here the testimony of the two attesting witnesses, one of whom was testator’s physician, is that at the time it was executed he was of sound mind though he was irrational at intervals at other times.
    Appeal from a decree admitting the paper to probate as the will of the decedent.

      Benno Loewy, for app’lt;

      Charles W. Culver, for resp’t.
   Brows, P. J.

The substantial and material facts in this case are undisputed. The contestant is the son of the testator, and the proponent of the will is his widow. The deceased was upwards of seventy years of age, and had married the proponent about six months prior to his death. He had been sick with heart disease for about a" month prior to the execution of his will. A good part of the time he was unable to lie down, or to take sufficient nourishment, and at times he was flighty and light-headed. The will bore date of December'7, 1894, and was executed on the evening of that day. It was witnessed by his family physician, Dr. Winter, and a neighbor, Mrs. Neidhart. It had been prepared by his lawyer, Mr. Wright, who had for a long time been his personal friend. At the request of the testator, the will was read to him by Dr. Winter twice. After the second reading he said: ‘-‘That is correct. That is just what I want it to be.” Dr. Winter testified that at the time of executing the will the testator was of sound mind and memory, and Mrs. Neidhart testified that she considered he was of sound mind at the time. She said, “ He seemed to me to be just as sound as he had been on previous occasions when I had seen him, only he was weak." The contestant called one witness, who saw the testator the day after the will was executed, who testified that he was then irrational. Another witness saw him three times between the 8th and the 23d of December, when he died. At such times he was irrational. Another witness saw him after December 13th, and he was irrational. Mr. Wright, who drew the will, testified that he called on him on the afternoon of December 7th; that he was then irrational, and he would not allow him to execute the will. There was no evidence to support the charge of undue influence, and, upon the testimony which I have quoted, we are of the opinión that the surrogate properly decided that the testator was competent to execute the will. The irrational conversations which were testified to by- the contestant’s witnesses did not prove that the .testator was insane. They were manifestations of the progress of the disease from which he suffered, and indicated a weak mind, as the result of suffering from lack of rest and proper nourishment. These periods of irrational action and lack of sound mental control were temporary, and when they had passed the testator was able to attend to business, and to understand the nature and character of his acts. They were fully explained by his physician, and there was absolutely no testimony to contradict the statements of Dr. Winier and Mrs. Neidhart that when he executed the will his mind was clear.

The decree must be affirmed, with costs to be paid by the appellant.

All concur.


author: Brown, P. J.

text:
    Lewis Tuttle, Resp’t, v. Richard W. Robinson et al., App’lts.

      (Supreme Court, General Term, Second Department,

      Filed December 2, 1895.)

    1. Pleading—Judgment.
    Where a complaint sets up a judgment rendered in a district court oí the city of New York, and neither alleges that the judgment was “ duly-given,” as required by section 533 of the Code, nor complies with the rule of the common law, it is fatally defective.

      % Creditor's action—Complaint.
    In an action brought by a judgment creditor to set aside a conveyance of real estate, a complaint, which does not show a judgment recovered in the county where the real estate is situated, nor docketed in that county, nor an execution issued by the clerk of such county, nor the residence of the judgment debtor in said county, is insufficient.
    Appeal from an interlocutory judgment, entered on an order overruling a demurrer to the complaint.

      Timothy F. Griffing, for app’lts;

      George F. Stackpole, for resp’t.
   Brown, P. J.

This action was brought by the plaintiff, a judgment creditor of the defendant Eichard W. Eobinson, to obtain a judgment setting aside a conveyance of real estate from said Eobinson to the defendant Marguerite De-P. Eayuor. The first two allegations of the complaint are as follows :

“ That on or about March 3, 1894, in a justice’s court, in which Eichard W. Eobinson was defendant, the plaintiff recovered judgment against said Eichard W. Eobinson for the sum of fifty-one ■dollars and ninety-five cents.
“ That on the fifth day of March, 1894, .a transcript of said judgment was filed in Suffolk county clerk’s office, and an execution thereon was on the same day issued to the sheriff of Suffolk county, New York, and the same was thereafter returned by said sheriff wholly uusatisfied.”

The objections taken to these allegations are, we think, well founded. The common-law rule was that in pleading judgments of inferior courts of special and limited jurisdiction a general averment of jurisdiction was not sufficient. The facts upon which jurisdiction depended were required to be stated, and it was necessary to show that the court acquired jurisdiction of the person as well as that it had jurisdiction of the subject-matter. Dakin v. Hudson, 6 Cow. 221: Bowman v. Russ, id. 234; Thomas v. Robinson, 3 Wend. 267; Cleveland v. Rogers, 6 id. 438 : Turner v. Roby, 3 N. Y. 193. The Code modified this rule, and it is now provided (Code Civ. Proe. § 532) that in pleading a judgment or other determination of a court of special jurisdiction it is not necessary to state the facts conferring jurisdiction, but the judgment or determination may be stated to have been “ duly given or made.” The plaintiff has not set out the facts showing that the judgment against Eobinson was recovered before a justice having jurisdiction to render the same, nor has he followed the rulé of the Code, The statement that the judgment was “ duly given ” is one of substance, and the omission to allege it is fatal to the complaint. Hunt v. Dutcher, 13 How. Prac. 538; Wheeler v. Dakin, 12 id. 537; Gutting v. Massa, 15 St. Rep. 316. In other respects, the complaint is defective. It does not appear that the judgment was recovered in this state, nor in .Suffolk county, nor that it was. ever docketed in that county, nor that the execution was issued by the clerk. Neither does it appear whether the judgment" debtor was a resident of this state, and, if he was, that he resided in Suffolk county. In view of the plain provisions of section 1872 of the Code, the omission to allege the facts in this regard is fatal to the pleading.

The judgment must be reversed, with one bill of costs of appeal, and the demurrer sustained, with one bill of costs of trial, with leave to plaintiff to amend his complaint within twenty days on payment of costs. All concur.


text:
    Elliott J. Smith, App’lt, v. William Nicoll, Resp’t.

      (Supreme Court, General Term, Second Department,

      Filed December 2, 1895.)

    Bbokees—Commissions.
    Where the owner of real estate employed a broker to sell his farm for & stipulated commission, but wrote to the prospective purchaser, apprising him of the amount of the commissions to be divided between the broker and the purchaser’s agent, which caused the purchaser to withdraw from the transaction, the broker has not procured a purchaser on the owner’s, terms and is not entitled to commissions.
    Appeal from a judgment dismissing the complaint.

      George H. Bruce, for app’lt;

      Timothy M. Griffiing, for resp’t.
   Brown, P. J.

We are of the opinion that this case was properly disposed of at the circuí. The action was to recover commissions upon a sale of real estate. The parties do not differ about, the rule of law applicable to the case, and the only question is whether the plaintiff procured for the defendant a purchaser ready and willing to purchase the land upon his'terms. The plaintiff testified: That defendant asked him to find a purchaser for his farm. That thereafter he had negotiations with Mr. George 0. Taylor, with the result that .on October 22, 1894, Mr. Taylor, through one Treadwell, made an offer of $160 per acre for three-islands in Great South Bay, called “ Fire Islands.” The plaintiff thereupon called on the defendant, and reported the offer to him, and told him the brokerage would be $8,000, and upon the basis of 220 acres, the sale would net him $27,200 ; that Mr. Taylor desired his own agent, Treadwell, to have one-hálf of the commis-j sions; and that Treadwell was to have $4,000. Defendant orally accepted the offer, and a contract having been prepared, expressing the terms of the sale, it was signed by defendant and delivered to the plaintiff, to procure Taylor’s signature. Plaintiff delivered the contract to Taylor, but before he signed it he received from, the defendant a letter, of which the following is a copy :

October 27th, 1894.
“ George 0. Taylor, Esq., Islip, L. I.—Dear Sir: I had a call a few days ago from Messrs. Elliott J. and Eugene E. Smith, who (came to make a proposition to me regarding the sale of the islands in the Great South Bay. They informed me that you were willing to purchase the property at $160 per acre, but demanded for themselves and Mr. Treadwell a commission of $8,000, which they said was to be divided between them. They assured me that you knew of and approved this arrangement, and that the sale could not be made on any other basis. I therefore prepared and signed a contract, and gave it to Smith. I do not wish you to sign the contract without being fully aware of the disposition to be made-of the purchase money, and take this means to assure myself that, you are informed of the exact facts in the case. If you see nothing objectionable to the arrangement, I have nothing to say, as the contract is perfectly satisfactory to me, and I have no wish to withdraw from it.
“ I remain, very truly yours, Wh. Nicoll.”

Taylor was called as a witness by the plaintiff, and testified upon his cross-examination that he knew nothing about the arrangement that Treadwell should have half of the commission, that he thought it was an outrageous piece of business, and that, after receiving defendant’s letter, he declined to have anything further to do with the matter.

Upon these facts it is clear that the plaintiff did not procure a purchaser on the defendant’s terms. The.terms of the sale were for the first time fixed in the written contract; and it was essential to plaintiff’s right to recover that he should have procured Mr. Taylor’s assent to that contract, or proven that he was prevented from so doing by the defendant. It was not an unlawful interference for the defendant to have written the letter I have quoted. No -terms or conditions were by that letter attached to the sale, except such as were expressed in the written contract; and defendant expressed his satisfacsion with the contract, and that he had no desire to withdraw from it. In our judgment, it was eminently proper that Mr. Taylor should have been informed of the extraordinary commission which the agents of the parties demanded, and of the large sum which his agent, Treadwell, expected to receive from the sale, and the defendant performed a commendable act in giving him that information. It had the effect to prevent the sale, the plaintiff has no legal cause of complaint. The condition was one created by himself, and one which, both principals were entitled to know.

The judgment must be affirmed, with costs.

All concur.