text:
    ROBERT NICHOLS, Respondent, v. CHARLES TOWNSEND and THOMAS GILCHRIST, Appellants.

      Contract — evidence—when admissible to prove a breach of warranty, for the purpose of a recoupment of damages — but not for a rescission.

    The plaintiff sold defendants a quantity of potatoes; the defendants, after loading a part of them on their boat, refused to take the remainder. The plaintiff brought an action to recover the contract-price of all the potatoes sold. The defendants, upon the trial, offered to prove that the plaintiff represented, at the time of the sale, that the potatoes were good, merchantable and sound, and that they were then ignorant of their condition in that regard; tliat a large portion of them were unsound, and their actual condition was not discovered until they had loaded a quantity of them into their boat, and mixed them witli others of good quality, when they immediately informed the plaintiff of that fact, offered to take such as were good, and offered to pay full contract-price for those taken, hut the plaintiff insisted that if they took the good ones they must take all, and forbid the taking of any more unless they would take all. Whereupon the defendants took no more.
    This evidence the court refused to receive, on the ground that tho defendants could not rescind the contract in part, but in toto, which could only be done by returning the potatoes, or offering to return them. Held, that the refusal to receive such evidence was erroneous. That even admitting that it was no ground for the defendants, as regarded a rescission of the contract and consequent discharge from liability for the potatoes not taken by them, still the evidence should have been admitted according to the offer, as a case would have been made out for the jury on the subject of the warranty; and whether the contract was one of present sale, or was executory, made no difference as to the defendants’ rights upon the alleged breach of warranty, for. if the defendants were held to answer for the purchase-price under the contract of sale, they could insist on the breach of warranty by way of recoupment of damages therefor, without return of, or offering to return, the potatoes taken.
    Appeal by the defendants from a judgment against them, rendered on the verdict of a jury.
    The action was brought to recover for a quantity of potatoes, alleged to have been sold and delivered by the plaintiff to the defendants in November, 1874. The defense was: (1), a general denial; (2), a breach of warranty as to the condition and soundness of the potatoes; and (3), a non-joinder of a party defendant.
    On the trial, the plaintiff proved the sale of the potatoes to the defendants, to wit: of 474|f bushels at the agreed price of fifty cents per bushel, the potatoes then being on storage near the canal, ready for removal to market by boat; and that the defendants took and loaded on to their-boat about 100 bushels of them, and refused to take the remainder.
    The defendants then offered to prove that the plaintiff repre- • sented, at the time of the sale, that the potatoes were good, merchantable and sound ; that they were then ignorant of their condition in that regard, and that their true condition could be ascertained only by cutting them; that a large portion of them were unsound, not merchantable, and worthless; that their actual condition was not discovered until they had loaded a quantity of them on to their boat, and thus mixed them with others of good quality, when they immediately informed plaintiff of the facts; offered to take such as were sound and merchantable: and, further, offered to pay full contract-price for those taken. But the plaintiff informed them that if they took the good ones they must take all; and forbid the taking of any more unless they would take all. This closed the matter, and the defendant took no more.
    To such offer of proof the plaintiff objected, on the ground that the defendant could not rescind the contract in part, but must rescind in toto, if at all, which could only be done by returning the property received under the contract, or offering to return it.
    The court sustained the objection, and overruled the offer, to which ruling the defendants’ counsel excepted.
    Thereupon the court directed a verdict for the plaintiff for $241.74, the full contract-price; and judgment was entered therefor, with costs.
    From such judgment the defendants appealed to the General Term.

      James G. Rogers and Robert Armstrong, Jr., for the plaintiff.

      A. D. Wait, for the defendants.
   Bockes, J.:

No question on the pleadings can be here raised, as the ruling was put on the law applicable to the facts offered to be proved. Besides, as the case is here presented, an amendment of the answer would be allowed, if necessary, to meet the merits of the case on the offer of proof. This would be but to conform the pleading to the facts.

The question before the court is one of law purely: Whether the facts stated in the offer present a defense to the action in whole or in part. The offer, in substance, was to prove a warranty, on the sale, as to the condition and quality of the property ; a breach of such warranty, and resulting damages — that is, the defendants offered to recoup damages growing out of a breach of warranty. The offer may have been intended to go further, so as to make it a case for rescinding the contract in toto; but, if good as a recoupment, the evidence offered could not be rejected, for in that case the defense would have been good in part. Let it be admitted that the sale became an executed one by reason of the taking of part of the potatoes by the defendants, so that the plaintiff had a right of action for property sold and delivered, and the right of the former to damages for a breach of warranty remained to them. If it was an executed contract the defendants had no right to rescind. This was so held in Rust v. Eckler (41 N. Y., 488). It was there held that, on an executed present sale of an article, with warranty as to quality, it was neither necessary nor allowable to rescind the sale ami return the property sold on account of a breach of warranty ; but the right to damages for the breach of warranty remained to the vendee. To the same effect is the decision in each of the following cases: Muller v. Eno (14 N. Y., 597); Gillespie v. Torrance (25 id., 306). The rejection of the proof offered in the case at bar, and the holding of the defendants to payment of the full purchase-price, were based, doubtless, on the decision in Reed v. Randall (29 N. Y., 358) and other kindred cases. It was there held that the acceptance of the property and its retention by the vendee amounted to an admission, on his part, that the contract had been performed by the vendor; hence that the former could not insist on a bi'eaeh of warranty on the sale. But this decision was based on the assumption that the acceptance and retention of the property were with knowledge, on the part of the vendee, of the defect complained of, or that its acceptance was under circumstances which bound him to such knowledge. This ease has been repeatedly commented on and explained ; and it has been held that, in many instances, where the contract is executory, even the vendee may receive the property and hold his claim for a breach of warranty, without returning or offering to return it. It was so decided in Day v. Pool (52 N. Y., 416). In this case the defect was discovered by the vendees while the property was being delivered, yet it was held that they might retain and use it, and have their remedy upon the warranty. So in Parks v. Morris Ax and Tool Co. (54 N. Y., 586), it was held that where there was a warranty of property as to its intrinsic quality, not determinable by mere observation or insjiection, the vendee could, after receiving it, have his remedy on the warranty, without making return of it or offering to return it; and further, that a return or its equivalent offer, was only necessary where a rescission was sought. In this ease the decision in Reed v. Randall (supra), was remarked upon and explained. Again, in Dounce v. Dow (57 N. Y., 16), it was held that the vendee, where there was a warranty, was not bound, upon the receipt of the property, to apply tests before using it, but that if there were defects, not open and visible, and thereafter discovered, which amounted to a breach of the warranty, he had his remedy thereon. Here, again, Reed v. Randall was commented on, and explained. And again, in Gurney v. The Atlantic and Great Western R. W. Co. (58 N. Y., 358), the decision was in accordance with the last two cases cited. All four of the cases alluded to were cases of executory contracts. Now in the case at bar, the warranty, according to the offer of proof, was as to the intrinsic quality of the property contracted for by the defendants, not discoverable by mere observation or inspection; therefore, whether the contract was one of present sale or was executory, made no difference as to the defendant’s rights upon the alleged breach of warranty. If held to answer for the purchase-price under the contract of sale, the defendants could insist on the breach of warranty, by way of recoupment of damages therefor, without returning or offering to return the property. If these considerations be sound, and it seems they are fully sustained by the Court of Appeals, the rejection of the evidence offered and the directing of judgment for the plaintiff for the full amount of the purchase-price, was erroneous. Had the evidence been given according to the offer, a case would have been made out for the jury-on the subject of warranty, even admitting that there was no ground for the claim insisted on by the defendants as regards a rescission and consequent discharge of liability for the part not taken by them.

In this view, that is, holding the defendants bound to answer for the contract-price, the same as on a sale and delivery, with the right of recoupment for breach of warranty, it can make no difference that they saw fit to leave a part of the property in the storehouse unremoved. If lost it would be their loss, but their right of recoupment would remain the same.

The above considerations present the best possible view for the plaintiff that can be taken of the case, under the offer of proof made by the defendants, and this necessarily leads to a reversal of the judgment.

An examination of the case on the question, whether the facts contained in the offer would establish a case for a rescission of the contract as regards the potatoes not taken by the defendants, here becomes-unnecessary. There must be a new trial, and this question may not arise on the facts then disclosed.

Judgment reversed, new trial ordered, costs to abide the event.

Learned, P. J., and Boardman, J., concurred.

Ordered accordingly.


source: Caselaw Access Project

author: Bockes, J.:

license: Public Domain

text:
    LE ROY MOWRY and others, Appellants, v. JESSE K. SANBORN, Respondent.

      Ejectment — Title, based on statutory foreclosure — affidavits must be executed and recorded — defects in— cannot be supplemented by oral proof.

    In an action of ejectment, tlie plaintiffs founded their title on a statutory foreclosure, in which the service of notice of foreclosure on the mortgagors was by mail, and it did not appear, except on information and belief, that the mortgagors resided at the place to which the envelopes containing such notices were addressed and mailed. Held, that the proceedings in foreclosure were defective.
    On the trial the plaintiffs offered oral proof supplementary to the affidavits, to the effect that the mortgagors actually resided at the place to which the notices mailed were addressed at the time they were so mailed, as stated in the affidavit. Held, that this evidence was inadmissible.

      Bryan v. Butts (27 Barb., 503) followed.
    On a foreclosure and sale by advertisement under the statute, there is no transfer of title, sufficient to authorize an action of ejectment by the purchaser, until ail necessary affidavits have been made and recorded. The recorded affidavits operate as the statutory transfer of title.
    Appeal from a judgment entered at the Circuit on the decision of the judge, without a jury, trial by jury having been waived by the parties in open court.
    This action was commenced March 16, 1871.
    The action was tried at a Circuit Court held in November, 1871, and a verdict was rendered for the plaintiffs. Judgment was perfected on this verdict, and an appeal was taken to the General Term where the judgment was affirmed. From this judgment an appeal was taken to the Court of Appeals. The cause was transferred to tbe Commission of Appeals, which court reversed the judgment and ordered a new trial. The cause was duly brought on for trial, and tried at a Circuit Court, held in and for the county of Washington, June 29,1875, by Mr. Justice Landon without a jury.
    As part of their claim of title, plaintiffs produced and offered in evidence notice of foreclosure and sale of the mortgaged premises, together witb affidavits of publication, etc., all of wbicb were recorded in the clerk’s office of said county July 22, 1868. Among which was the following:

      “ STATE OF NEW YORK, j . “Washington County, )
    “ David A. Boies, of the town of Greenwich, in said county, being duly sworn, says, that on the nineteenth day of June, 1868, he served a copy of the annexed printed notice on each of the several persons and corporations next hereinafter named, by inclosing a copy of said notice in an envelope, and in a proper and ordinary letter form, and sealing the same, and addressing such envelopes severally on the outside to the several persons next hereinafter named, and at and to the post-offices set opposite to their names respectively, as hereinafter stated, by depositing all of said notices so inclosed and addressed as aforesaid in the Greenwich post-office, at said town of Greenwich, and paid the postage on each of them, and at that time each of the said persons resided, as this deponent is informed and believes, at the respective places to which their said notices were so addressed; that the names of said persons and corporations, and the address of said notices to them as aforesaid, were respectively as follows, viz.: Jesse K. Sanborn, Sandy Hill, Washington county, N. Y. * * *
    “DAYID A. BOIES.
    “ Sworn to before me and certified by me 1 this eighteenth day of July, 1868. Í

      “ E. M. Andrews, Notary Public.”
    To which objection was offered on the following grounds among others:
    There is no sufficient proof of service of the notice on the mortgagors at their place of residence. That the affidavit only stating their residence “ as he is informed and believes,” is insufficient and no proof of service.
    Plaintiffs’ counsel offered to prove by parol, in connection with the affidavits, that, at the time of service of the notice as stated in the affidavit, the mortgagors did in fact reside at Sandy Hill, N. Y. Defendant’s counsel objected to the evidence.
    That no parol evidence is competent to supply defects in recorded affidavits.
    Affidavits made since the commencement of the action cannot be given in evidence.

      Although a regular foreclosure bars the equity of redemption, it does not convey the legal title to purchaser.
    It is only the making and recording the affidavits that passes the legal title.
    And until made and completed, no title will vest in. the purchaser.
    And there is no transfer of title, so as to authorize an action of ejectment, until all the necessary affidavits have been made and recorded.
    It is the recorded affidavits that operate as the statutory transfer of title.
    The objections were overruled, and defendant excepted ; and plaintiffs called William H. Kincaid, who was sworn, and testified that the defendant Sanborn and wife resided in Sandy Hill in 1867, 1868 and 1869. The said notices and affidavits were then read in evidence, and defendant excepted.
    The cause was submitted to the court on written arguments, and the court afterward made its decision in writing, on which judgment was entered for the defendant, and the plaintiffs appealed to this court.

      U. G. Paris, for the appellants.

      Hughes & Horthup and H. C. Moak, for the respondent.
   Bockes, J.:

When this case was in the Commission of Appeals, it was decided that the proof of foreclosure offered by the affidavit of publication, and of service of notice and of sale, recorded in the county clerk’s office, did not have the effect to divest the defendant of title. This decision must now be accepted as the law of this case, notwithstanding the very clear and logical dissenting opinion of Commissioner Earl. The decision was put on the ground that the affidavit of service of notice of foreclosure was fitally defective in this : that the service being by mail, it did not appear that the envelopes containing the notices were directed to the mortgagors at their residences, except on information and belief. The notices intended for the defendant and his wife, were addressed to them at “ Sandy Hill, Washington county, New York.” The statement in the affidavit as to residence was this: that, “ at that time each of the said persons resided, as this deponent is informed and believes, at the respective places to which their said notices were so addressed.” Such proof was held to be insufficient, and the attempted foreclosure a nullity. The judgment in favor of the plaintiffs was reversed on that ground and a new trial was granted. On the retrial further proof was given on this point with a view to meet this difficulty. It was then proved orally that the mortgagors, the defendant and wife, in fact resided at Sandy Hill, at the time the notices of sale were served as above stated. The judge held that such oral proof did not relieve the case from the decision in the Commission of Appeals, and directed judgment for the defendant. The question now is, whether the plaintiff’s title was made good by the oral proof given on the retrial. The question is an open one, in so far as the former decision in this case has application to it. Commissioner Reynolds, in giving the opinion of the court, remarked: “It is not necessary for us to determine whether or not, if the plaintiffs had given oral proof that the defendant did in fact reside at Sandy Hill, when the notice as directed was mailed to him, the case would have been altered ; as no such proof was given or offered.” As to the defendant this proof is now supplied, and the question before left undetermined in the case is here, presented. This point has been heretofore considered in several cases, if not in fact directly decided. We will now give attention to those cases.

When this case was formerly in the General Term of this court on appeal, Mr. Justice Balcom remarked (62 Barb., 223-229), that he was “of the opinion that the plaintiffs might have been permitted, on the trial, to prove positively by witnesses, or by new affidavit, that the mortgagors resided' at Sandy Hill when the notice of sale was directed to them at that place.” This remark, it will be observed was entirely obiter, as was also the remark of the same learned judge directly the reverse, as regards oral proof in Howard v. Hatch (29 Barb., 297), where he says: “ It seems however, that there must now be affidavits of the service of the notice of sale on the mortgagor * * * to make the evidence of sale and foreclosure complete” (page 302). As regards these cwo cases, then, they stand balanced, as to the point under examination. An unreported case is referred to, by Mr. Justice Balcom (page 229), wherein the requisite proof was allowed to be supplemented on the trial, but as stated, that was by affidavit. No reference was made in either of these eases to Bryan v. Butts (27 Barb., 503), hereafter considered. Nor is the case of George v. Arthur (9 Sup. Ct. [2 Hun], 406) directly in point. In this case the affidavit was full as to the service according to the requirements of the statute. The supplemental proof was merely as to the identity of the persons served. The decision in Howard v. Hatch (supra), it should be observed goes no further than to hold that the affidavits need not be recorded before suit in ejectment, based on the foreclosure. Such was the decision also in Bunce v. Reed (16 Barb., 347), but in neither of these cases was it intimated that oral proof instead of proof by affidavit would answer the requirements of the statute. The remark of Robertson, J., in Chalmers v. Wright (5 Rob., 713), that it was not necessary to rely on the affidavits filed as proof of such steps having been properly taken, since it may be derived aliunde, from evidence, was also obiter and without reference to any authority. If the learned judge intended the observation to apply to a case where a redemption was claimed, perhaps the opinion was sound ; but if to cover the case of a party seeking to recover in ejectment under statutory foreclosure, the observation is in direct conflict with the opinion of other eminent judges, and as we think with the decisions of the court. In none of the cases above alluded to, has the question under examination been directly determined by adjudication. Let us now turn our attention to several others, in some of which the point was directly before the court for decision. In Arnot v. Mc Clure (4 Den., 41), it was held that tire affidavits took the place of a conveyance, and that if they did not show a sale of the mortgaged premises, the foreclosure was not complete; and further, that without either a common law or a statute conveyance the title did not pass. In the Cohoes Co. v. Goss (13 Barb., 144), it was said by Mr. Justice Cady, that the affidavits were a substitute for a deed, and until made and recorded no title passed. This observation, like those above cited to the contrary, was obiter; but in Layman v. Whiting (20 Barb.. 559). it was expressly decided at Special Term, by Mr. Justice Green, that the affidavits took the place of a statutory conveyance, and if not made until after the commencement of the action in ejectment, based on. the foreclosure, there coaid be no recovery; that in such case the plaintiff would fail to show title in himself at the time the suit was commenced, hence must be nonsuited. It was also further held,, that the making and recording of the affidavits after the commencement of the action would not vest the title in the purchaser by-relation, as of a time previous, so as to enable him to recover. This-ease was cited with approval by Judge Davies, in Tuthill v. Tracy (31 N. Y., 157), as were also Cohoes Co. v. Goss (supra), and. Bryan v. Butts (27 Barb., 503), hereafter alluded to. In this case .Judge Davies says: “It is to be observed that no time is fixed by statute for the making and recording of any of the required affidavits. In the absence of any such requirement, it may well be that so long as the purchaser did not wish to assert affirmatively his title, he might omit to have made and recorded these affidavits which are declared by statute the substitute or equivalent of a conveyance by the mortgagor ; ” and he adds, “ the cases are numerous which hold that the legal title is not transferred to the purchaser, so that he may maintain ejectment for the premises, until the affidavits, required by statute as a substitute for the conveyance, have been made and recorded.” For aught that appears to the contrary these remarks received the approval of every member of the Court of Appeals, and, if not a direct decision of the question before us by that court, should be treated with the utmost respect, for, however it may be in our own court, it is not to be admitted that the Court of Appeals will permit loose writing in the opinions which receive its sanction. The point was not decided in Dwight v. Phillips (48 Barb., 116), although it was remarked that the plaintiff must fail on a new trial, unless allowed to amend the affidavit so as to show that the persons served by mail with notice.of sale, respectively resided at the places to which the notices were directed ; and it was suggested that it was questionable whether such amendment (that is, by affidavit) could be allowed by the court, but that new affidavits might perhaps be filed and recorded, which would lay the foundation of another action. Here, however, the question under examination was not before the court; but in Bryan v. Butts (27 Barb., 503) the question under examination was considered and expressly decided at General Term. The action was ejectment. The plaintiff claimed title as purchaser under proceedings for a foreclosure of a mortgage, pursuant to the statute. The proceedings were all regular, except that the affidavits did not show service of notice on the mortgagor. On the trial the plaintiff supplemented the requisite proof by oral evidence, as was done in the case at bar; and also produced and read in evidence an affidavit, which had been duly recorded,, but made on the day of the trial, showing due service of the notice. The plaintiff was nonsuited, and the General Term held the nonsuit well directed. On reference to the opinion in that case it will be seen that this court, at General Term, determined the precise question, holding that, on a foreclosure and sale by advertisement under the statute, there was no transfer of title, so as to authorize an action in ejectment by the purchaser, until all necessary affidavits have been made and recorded; that the recorded affidavits operated as the statutory transfer of title. This case was precisely like the one in hand, •except that in the reported case, in addition to the oral proof, a recorded affidavit, made on the day of the tidal, was also read, supplementing the omitted fact. But it was held that neither the oral proof nor the proof by affidavit, made and recorded after the suit was commenced, answered the objection. As above suggested, this case was cited with approval in Tuthill v. Traoy, in the Court of Appeals, as was also Layman v. Whiting, which latter case was affirmed at General Term, as indicated by Mr. Justice Johnson in Bryan v. Butts (p. 505). Thus it seems we have two cases, where the precise question before us has been determined by this court, both of which have been cited with approval by the Court of Appeals, with only obiter dieta intimating to the contrary of the rule declared in those decisions. Undoubtedly we must abide by the decisions so solemnly pronounced in this court, standing as they •do neither reversed or overruled. The question, it seems, is not an open one. Thus it was in obedience to express adjudications ” that the learned judge held in this ease, that the oral proof given on the retrial did not relieve it from the objection declared by the Commission of Appeals to be fatal to a recovery. This conclusion renders the examination of all other questions in the case unnecessary.

The judgment must be affirmed with costs.

Boardman, J., concurred. Learned, B. J., concurred on the ground that the question involved has been decided in this court in Brycm v. Butts.

Judgment affirmed with costs.

       In 62 Barb.— [Rep.


text:
    PATRICK FLYNN and MAURICE B. FLYNN, as Administrators, etc., of the Estate of JOHN H. FLYNN, Deceased, Respondents, v. THE EQUITABLE LIFE ASSURANCE SOCIETY OF THE UNITED STATES, Appellant.

      Life insurance — medical examiner of company — agent of — false statement made through his advice — effect of on ly'Hdity of policy.

    Where the application, for insurance contained the usual interrogatories, and specially referred to diseases which the assured had had, and also required the name of his usual medical attendant to be given, and he named as the latter a physician who had attended him during the past three years, who was also the medical examiner on the part of the company in this case, who interrogated the assured as to all the matters required to be answered and stated in the application; explained in regard to them, and himself filled the blanks by inserting therein the answers; and it appeared that the assured gave his answers truthfully, so far as it was deemed important by the medical examiner, and that whatever of mistake, omission or fraud occurred in the answers and statement, were through the action of the doctor, and from his explanation and advice:

      Held, that although the answers and statement were untrue, yet, as the medical examiner, under whose advice they were made, was the agent of the company, they were bound by his acts and could not set up the untruthfulness of the answers and statement as a defense. That if the medical examiner had been guilty of fraud, yet there being no evidence of collusion on the part of the assured, the company were liable.
    Appeal by the defendant from a judgment entered on the verdict of a jury.
    The action was brought on a policy of insurance, dated April 25, 1871, issued by the defendant to the plaintiff’s intestate, and upon his life, in the sum of $5,000. The assured died intestate April 9,1873; and the plaintiffs are his personal representatives.
    The application for insurance, signed by the party, contained the usual interrogatories, and among them the following: Whether the applicant ever had “ disease of the kidneys, disease of the bladder, * * * diseases of the brain and nervous system, * * * any serious illness or local disease.” The answer was, “ whooping cough, measles; no effects from them.” The application also contained a direction for him to give the name and residence of his usual medical attendant; and to state “ on what occasions and for what diseases” he had “required his attendance and advice.” Ilis answer was: “Ransom H. Yedder, Chatham Centre; nothing but debility and slight bilious difficulty.” The application also contained the further interrogatory, whether he had “ consulted any other medical man ; if so, for what, and when ? ” The answer was “No.” It was further made a condition of the insurance, that any untrue or fraudulent answers, or any suppression of facts in regard to the health of the party, should render the policy null and void. It appeared on the trial that, in 1866 and 1867, the assured had some serious disease of the bladder or urinary organs, with, perhaps, cistitis, and had been operated upon therefor in the hospital in New York; and that he had also consulted doctors not named by him in his application ; also that, in 1869, he had given indications of brain difficulty or disease, which, however, it would seem, was of short duration. To meet and answer these facts, it was proved, on the part of the plaintiffs, that Doctor Yedder was the defendant’s medical examiner, and examined the assured in this ease; that he interrogated the latter as to all the matters required to be answered and stated in the application; explained in regard to them, and himself filled the blanks by inserting therein the answers; and, further, that the doctor had been for ten years previously his attending physician. It also appeared that, on the examination, the assured gave his answers and statements to Doctor Yedder truthfully and fully, in so far as it was deemed important by the doctor; and that whatever of mistake, omission or falsehood occurred in answers and statements, appearing in the application, arose through the action of the doctor, and from'his explanations and advice.
    The ease was submitted to the jury on the facts, with the ruling that if they should find from the evidence, that the assured made a substantial statement to Doctor Yedder of the difficulties under which he labored, and which had been proved in the case on the part of the defense, then the company could not set up the untruthfulness of the answers entered by him, as a defense; that if the company, with a knowledge of the truth, advised (through its agent), the insured that the answers written would be the truth, and the right answers to be given to those questions, then it could not take advantage of the untruthfuluess in the answer. The jury found for the plaintiff, and judgment was entered on the verdict. The defendant moved for a new trial upon the minutes of the court. The motion was denied, but it does not appear from the case before the court that an appeal was taken from the order denying such motion. The appeal is from the judgment.

      Alexander & Green and Ashbel Green, for the defendant.

      Robert Payne, for the plaintiffs.
   Bockes, J.:

According to the terms of the contract the company had a right to insist in this case on truthful answers and statements, as to all matters to which the attention of the assured was specifically called in the application for insurance, and as to which he was required to speak. Nor would it make any difference whether or not they were material to the risk, or had any connection with the cause of death. The parties agreed that any untrue or fraudulent answers, or any suppression of facts in regard to the health of the applicant should render the policy null and void. Thus the statements became warranties, and the company might insist that they should be absolutely true. (53 N. Y., 603; 30 id., 136, 163; 49 id., 211; 35 Conn., 225 ; 18 N. Y., 376; 55 id., 240, 244; 59 id., 557.) Nor were the statements in this ease relieved from the strict rule applicable to warranties by any explanation or declaration contained in the application, as in the last case cited. So it must be conceded that if the rule applicable to warranties is to have application here, the judgment is erroneous, for it cannot be disputed, and is not, that several of the statements contained in the application were untrue. But it is insisted that the company is estopped from insisting upon the breach of the agreement and warranties as to those false statements by reason of explanations, advice and assurances given by its agent, the examining physician, who, as is alleged, was correctly and fully informed of the truth of the case, and who himself inserted the answers and statements, declaring to the applicant that they were the right statements to be made by him under the facts as they existed in his case.

That Doctor Yedder was selected by the company to make the medical examination, stands undisputed. The papers as well as the oral proof establishes this fact, and it is also proved that he was requested by Corry, the accredited agent of the company, to take the application. If this be so, and I think this must be assumed from the evidence and the finding of the jury thereon, and especially as the transaction consummated through Doctor Yedder was adopted by the company, then Doctor Yedder held the relation of agent for the latter, and the case must be examined in that view as a matter of fact. This conclusion, if sound, brings the case within the decisions holding that the insurer will be estopped from showing a breach of warranty by proof of errors in the statements inserted in the application under the advice and by the direction of the .agent having knowledge of the facts as they really existed. It was held in Rowley v. Emp. Ins. Co. (36 N. Y., 550; also reported in 4 Ct. App. Dec., 131, with opinion by Davies, J.; also 4 Keyes, 557), that notice to the agent of an insurance company who was authorized to take applications for insurance was notice to the company, and that such agent, in filling up the blank application for insurance, acts, as the agent of the company, rather than of the applicant; and further, that misstatements made therein by him not induced by the instructions of the applicant, would not avoid the policy. So in Plumb v. The C. Co. Mut Ins. Co. (18 N. Y., 392), Judge Pratt remarked that he could not discover why the doctrine of estoppel would not apply to a case like this, where the party, through whose acts and representations the other party was induced to enter into the contract, claimed the right to show that the facts were different from what he represented them to be, for the purpose of showing a breach of the warranty, and thus avoiding what would otherwise be a binding contract. Rowley’s Case and Plumb’s Case above cited were commented on by Judge Grover, in Owens v. Holland Purchase Ins. Co. (56 N. Y., 565, on pages 570, 571), and the soundness of the decision in the former is questioned by that learned judge; but it is remarked at the conclusion, that none of the other judges concurred in that portion of Judge Grover’s opinion questioning Rowley v. The Empire Ins. Co. Thus it may be assumed that this case still stands as settled law in this State. It may be remarked also that it is in perfect accord with the decisions in several of the other States. Now the rule laid down by the court for the guidance of the jury, in the case at bar, was the correct one, according to those decisions. It appeared that Doctor Tedder was instructed to obtain the application. He was made the defendant’s medical examiner in the case. He had known the applicant for many years, and had been his attending physician. ' He made the inquiries propounded in the application, and received the answers. They were given him by the applicant, as the jury have found, truly and fully. He explained and advised the answers, declared them to be the proper answers and statements to be given under the facts of the applicant’s case. It ivas correct for the court to charge the jury, under the facts proved, that if they should find from the evidence that the assured made a substantial statement to Doctor Tedder of the difficulties under which he labored, and which had been proved before them on the part of the defense, then the company could not set up the untruthfuluess of the answers entered by him in the application as a defense; that if the company with a knowledge of the truth, advised the insured that the answers as written in the application would be the truth and the right answers to be given, then it could not take advantage of their untruthfulness. Such instruction was demanded by common honesty and fairness. It is suggested that here was a palpable fraud on the part of Doctor Tedder, and we are cited to the case of The Nat. Life Ins Co. v. Minch (53 N. Y., 144), as an authority that the company were not bound by his acts. But that was a case of collusive fraud between the examining physician and the applicant, to cheat the company. So it was there held that when there was collusion by one party with the agent to cheat the principal, the latter was not responsible for the acts or knowledge of the agent. The case at bar is not one of collusion with the agent. It is put on the assumption that the assured acted honestly,, and made no false statement or suppression of fact in his case. Tin conclusion we are of the opinion that the record discloses no error, and that the judgment should be affirmed with costs.

Learned, P. J., and Boakdman, J., concur.

Judgment affirmed with costs.


author: Learned, P. J. : Bockes, J.:

text:
    ALBERT O. WHITTEMORE, Respondent, v. JAMES B. FARRINGTON, Appellant.

      Exchange of lands •— Quit-claim deed — no remedy under, to recover price, where there is no deceit or fraud — Equitable interference — Rescission of contract.

    The plaintiff and defendant agreed, orally, to exchange- lands. The defendant gave plaintiff a quit-claim deed, which he accepted, and expended some $1,800 on the land. Afterward he discovered that there was a recorded mortgage for $850 on the land; there was, however, no evidence that either party knew of it; nor was there any proof of any fraud or deceit on the part of the defendant.
    When the plaintiff sought to have the contract rescinded, he could not restore actual possession, having leased his land, and the lessee being in possession.

      Held, 1. That the plaintiff had no remedy in equity to recover back the price, there being no deceit.
    3. That the moneys expended on the land by the plaintiff could not be recovered of the defendant, there being no concealment, surprise or imposition, the mistake or ignorance, whether mutual or unilateral, giving no foundation for equitable interference.
    8. That the court could not replace the parties as they were before the contract, and therefore erred in giving a judgment, which, instead of being a rescission, altered the original contract, and enforced it as altered.
    Appeal from a judgment of the Special Term in favor of the respondent and against the appellant.
    The complaint in this action alleges, in substance, that the plaintiff agreed, orally, to give the defendant two pieces of land and $300 in exchange for a piece of land on which was a saw-mill, the .$300 to be secured by the plaintiff’s note; that this agreement was with the understanding that the defendant would give plaintiff a •good title to the saw-mill property, free and clear of all incum’brances, for a good title to plaintiff’s pieces of land; that the defendant directed the plaintiff to go on the land and make ¡improvements as he desired; that he did go on and make improvements to tbe extent of $1,300 or more; that the defendant sent plaintiff a quit-claim deed'; that the plaintiff objected; that the defendant alleged that it gave him a perfect title; that in that belief the plaintiff had it recorded; that the plaintiff gave the defendant warranty deeds for his two pieces ; that afterwards the plaintiff discovered a recorded mortgage pn the saw-mill property, executed by an owner prior to defendant, on which there is due $850 ; that he then applied to defendant for a warranty deed, which defendant refused ; that he has leased the property, and cannot deed back except subject to the lease and with the improvements, which he is willing to do on equitable terms. He asks for a rescission of the contract; that the whole transaction be set aside as a fraud and surprise ; or that the defendant discharge the lien, or for other relief.
    On the trial of the action, the facts were found substantially as follows: That the plaintiff conveyed the two pieces of land, in consideration that the defendant would convey him the saw-mill property; that the defendant gave plaintiff only a quit-claim deed ; that the plaintiff gave the defendant warranty deeds ; that neither before, nor at the timé when the plaintiff received the quit-claim deed, did either of the parties know or mistrust that there was any mortgage on the property; and that both parties believed, when the quit-claim deed was given by defendant and received by plaintiff, that it conveyed a perfect title, and that there was no mort-. gage on the laud; that, in fact, there was a mortgage thereon executed by a prior owner, and duly recorded prior to the agreement, on which a balance is due; that there was mutual ignorance and mutual mistake.
    The court adjudged that the defendant might reconvey, by warranty deed, the two pieces of land ; and, if he should do so, then the plaintiff should quit-claim the saw-mill property; and then that there should be a reference to decide how much the defendant should pay the plaintiff for the improvements put on by him, and the plaintiff should have judgment therefor.
    That if the defendant should not, within the time prescribed, execute the reconveyances to the plaintiff, then that the plaintiff should have judgment against the defendant for a specified sum, being the difference between the amount due on the mortgage and the $300 still unpaid on the agreement of exchange.
    The defendant appeals.

      Hart <& MoGuwe, for the appellant.

      M. M. Mead, for the respondent.
   Learned, P. J. :

We must first notice that the court does not find, as alleged in the complaint, that there was an agreement to give a warranty deed. It is found only that there was an agreement to exchange the two pieces of land for the saw-mill property, and to pay $300. And that there was mutual mistake and ignorance of the existence of the mortgage. Nor is it found that the plaintiff refused to accept the quit-claim deed.

Nor is it suggested that there was any fraud or misrepresentation on the defendant’s part. The defendant had bought the premises at a foreclosure sale only a few days previously, and had taken a sheriff’s deed.

The negotiations between the plaintiff and the defendant began before the sale, when the defendant was only the holder of the mortgage under which the property was to be sold. And it was suggested, when the agreement was made, that the plaintiff should take the sheriff’s deed. The plaintiff had also a mortgage on the same premises, subsequent to that which was foreclosed, and under which the defendant purchased. And the plaintiff hoped by this exchange to save something on his mortgage.

It is well settled, that where the title to real estate fails the purchaser has no remedy in equity to recover back the price, unless there was fraud or deceit in the same. If he has taken the precaution to require covenants as to his title, before paying the price, his remedy is in the courts of law.” (Banks v. Walker, 2 Sand. Ch., 344; 2 Kent Com., 473.) “ Where the purchaser has neglected to take such covenants, and there is no fraud or misrepresentation in the case, he has no remedy to recover back the purchase money upon a subsequent failure of title.” (Bates v. Delavan, 5 Paige, 300.) The same doctrine is found in Tallmadge v. Wallis (Ct. of Er., 25 Wend., 106).

Again, it was decided in Bumpus v. Plainer (1 Johns. Ch., 218) that there could be no case for relief, where possession had passed and continued without eviction under a paramount title. In the present case the plaintiff is still in possession and undisturbed, so that he would have no cause of action, even if the deed to him contained covenants of warranty.

The plaintiff urges that a contract made under an injurious mistake, is voidable and will be set aside. But the cases whicli he cites are not analogous to the present. Boyd v. De la Montagnie (8 S. C. N. Y. [1 Hun], 696), was a case of misrepresentation by the husband to the wife. Gillett v. Borden (6 Lansing, 219), was a case where in the written contract, by mistake, forty-four feet instead of fifty-four were reserved. The contract was reformed so as to express the agreement of the parties. Nevius v. Dunlap (33 N. Y., 676) was the case of reforming a contract. In Baverly v. Becker (4 N. Y., 169), the defendant, in consideration of the conveyance to him by Dietz, agreed to pay a judgment owing by Dietz to the plaintiff'. The parties had supposed it to be a lien when it was not. The plaintiff recovered, for the defendant was bound to pay the consideration of the conveyance. In Graves v. Brinckerhoff (6 N. Y. S. C. R., 630), there had been a sale at so much per acre. The surveyor had made a mistake in the computation of the number of acres. The plaintiff had therefore paid too much, which he was allowed to recover back, as money paid by mistake. In Belknap v. Sealey (14 N. Y., 113), there was a contract to purchase, for a definite sum, land said to contain eight acres. It proved to contain only four. The contract was set aside, no deed having been executed, and the plaintiff was allowed to recover back the part of the purchase money which he had paid. One ground of the decision given by the court is, that the contract was still executory.

Now, it will be seen that not one of these cases is opposed to the doctrine of Banks v. Walker (ut supra), and of the cases similar to that. The cases cited by the plaintiff are those where, for mistake, an executory contract has been set aside, or reformed, or where money paid by mistake has been recovered back, or where there has been some fraud. No case is cited where after a conveyance has been executed, and in the absence of fraud or deceit, the grantee has recovered the purchase money on a failure of title, unless by action upon covenants in the deed.

There is another difficulty in this case. The plaintiff seeks to have the contract rescinded. This means to replace the parties as they were before the contract; but the judgment does not do this; he has recovered a judgment against the defendant for over $500, so that instead of rescinding the contract, the court is altering the original contract and enforcing it as altered. But the plaintiff may say that the decision gave the defendant the option to rescind. Not at all. It gave him the option to exchange back again the parcels of land, and to pay the plaintiff for the improvements lie had put on the saw-mill. But the defendant may not wish for these improvements, he may not be able to pay for them, they may be useless to him, or even worse than useless. It is no reinstating the parties in their former condition, when one is compelled to pay the other some $1,300. Furthermore, when this action was commenced, the plaintiff had leased the property, and the lessee was in possession ; and the plaintiff could not restore actual possession. And to see that this would be inequitable, we must remember that the defendant has been guilty of no concealment, fraud or deceit. Why should he be punished ? As is said by Judge Story : “ Where each party is equally innocent, and there is no concealment of facts which the other party has a right to know, and no surprise or imposition exists, the mistake or ignorance, whether mutual or unilateral, is treated as laying no foundation for equitable interference.” (1 Story Eq. Jur., § 151.) “A like principle applies to cases, where the means of information are open to both parties.” (Id., § 149.) A recorded mortgage is as open to one party as the other.' Again, there was no binding contract between these parties, except the deeds themselves. Every thing before the deeds was oral. What, then, is to be reformed? The quit-claim deed? But the plaintiff knew it was a quit-claim; objected, and then accepted it. The defendant says that the plaintiff had agreed to take the sheriff’s deed, which would have been only, in effect, a quit-claim, and that, therefore, he accepted the quit-claim of the defendant. At any rate, it was accepted knowingly. Can the court now reform it, or compel the defendant to give a warranty deed, a thing which he never agreed to do? I think not. If the plaintiff had felt unwilling to carry out the oral contract, unless he could have a warranty deed from the defendant, he should have put himself on that ground. It is now too late for him to ask the court to give to the quit-claim deed, which he accepted, the effect of a warranty.

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

Bockes, J.:

The judgment directed by the learned judge at Special Term cannot, I think, be upheld. Even admitting that it was expressly agreed between the parties that the plaintiff was to have a warranty deed, and if the defendant be held to answer as if his deed to the plaintiff contained a covenant of warranty as to title, still there has been no eviction. The plaintiff has not yet been disturbed in his possession, nor has he been compelled to pay any sum whatever to secure and retain his possession. There was no ground, therefore, for a money judgment against the defendant. Nor was it, nor is it, practicable to frame a decree, recognizing the defendant’s rights and yet compelling him to pay the plaintiff for his improvements, put on the premises since he entered into possession. Eor those improvements the defendant cannot, in any view of the case, be compelled to pay. They were put on without his privity by the plaintiff, and at the peril of the latter, in so far as he can have a right to claim compensation for them from the defendant. The most that the plaintiff can claim is to have his title to the land assured to him. The details of the judgment are, therefore, manifestly erroneous. The only question is, whether justice and equity may not be worked out by a modification of the decree. According to the findings of the court at Special Term (and these findings, I think, are supported by the proof), the parties contracted in mutual ignorance of the mortgage which rested on the defendant’s lands, and with the understanding, on the part of both, that the plaintiff should have a good title from the defendant, free from incumbrances. The agreement to exchange property, and its execution in so far as it was executed, were based on this understanding. The deed from the defendant to the plaintiff was accepted by the latter with the understanding, on the part of both, that it did convey such title. Otherwise the defendant was guilty of a gross fraud. If that be so it was equivalent to an agreement, on the part of the defendant, that the plaintiff should have such title; and the defendant now holds and insists'upon retaining all he acquired under it. Now should he not be held to performance on his part? lie has in no way been discharged from this understanding, which has, under the circumstances, the binding force of an express agreement.

It was held in Johnson v. Hathorn (3 Keyes, 126), that a vendee, who accepts a conveyance in pursuance of an oral agreement, is bound, on his part, to comply with the terms of such agreement, though it might otherwise have been invalid under the statute of frauds; and further, that an executory contract, whether written or oral, is not merged in a subsequent writing by way of partial execution, unless the latter is accepted in substitution or in full performance of the original contract. The plaintiff accepted the deed (holding him to an acceptance) with the understanding, on the part of both parties, that it carried good title. The defendant received full consideration and still holds it, on the faith of such understanding. He is therefore bound in justice and equity to make it good. Then how can this result be effected? It may be effected by a modification of the decree, so as to require the defendant to give a warranty deed of the premises, as of the date of his quit-claim, and, by its terms, to have effect as of that date. It can be readily drawn thus to limit its effect. But this can be required only on the payment to him by the plaintiff of the $300, and interest to be computed from that time. The delivery of the deed and the payment of the money were, in so far as we are able to see, to be simultaneous acts. It may be said that this will leave the plaintiff without indemnity against the mortgage covering the property, save under the warranty deed. But this was all he contracted for, and is all the court can give him. All he can claim is that he have a deed with covenant of warranty, or its equivalent. He must look to that for his indemnity.

In my opinion the judgment should be modified as above suggested.

Present — Learned, P. J., Bookes and Boardman, JJT.

Judgment reversed, new trial granted, costs to abide event.


author: Bockes, J.: Learned, P. J.

text:
    WELLINGTON P. MYNARD and WILLIAM F. BLANK, Respondents, v. THE SYRACUSE, BINGHAMTON AND NEW YORK RAILROAD COMPANY, Appellant.

      Common carrier — right of, to make a special contract for t/’ansportation of merchandise— can exempt himself, by contract, from liability for any degree of negligence — Federal and Stale courts— Go-ordinate jurisdiction — conflict in decisions of. a
    The defendants carried cattle over their road for the plaintiffs, at less than one-half the usual rate, under a special contract with the plaintiffs for exemption from liability, as follows: “In consideration.that the said company have, at our request, agreed to transport said stock at said reduced rate, we do hereby agree to, and do hereby release and discharge the said company from all claims, demands and liabilities, of every kind and character whatsoever, for or on account of, or connected with, any damage or injury to, or loss of said stock, or any portion thereof, from whatsoever cause arising.” The cattle were injured by reason of the negligence of an employe of the defendants, in leaving the door of the car, in which stock were, open.

      Held, 1. That the agreement was on valid consideration, and embraced an injury through negligence, which was the cause of damage in this case.
    2. That a common carrier in this State can limit his liability by contract even for gross negligence.
    3. That although in Lockwood's Oase (17 Wall., 357) the law is held otherwise, still, on this subject, the federal and State courts have co-ordinate jurisdiction, and the State courts can adhere to their own conclusions and decisions.
    Appeal by the defendant from the judgment of tbe County Court of Cortland county, affirming a judgment rendered by a justice of tlie peace, in favor of the plaintiffs.
    The action was brought to recover tbe value of a steer, alleged to have been injured and lost through the defendant’s negligence, when being transported over its road. The loss occurred by reason of the omission of the defendant’s employes to fasten the door of one of the cars, in which the plaintiffs’ cattle were being conveyed. Tbe cattle were carried by the company at less than one-half the usual rate, under a special contract with the plaintiffs for exemption from liability, as follows :
    “In consideration that the said company have, at our request, agreed to transport said stock at said reduced rate, we do hereby agree to, and do hereby release and discharge tbe said company from all claims, demands and liabilities of every kind and character whatsoever, for or on account of, or connected with any damage or injury to, or the loss of said stock or any portion thereof, from whatsoever cause arising.”
    The justice held that the company was not relieved by the agreement, from liability growing out of the negligence of its servants; and rendered judgment in favor of the plaintiffs, which judgment was affirmed, on appeal, by the County Court. The case is in this court on appeal from such judgment of affirmance.

      Huger & Jénney, for the appellant.

      W. H. & L. E. Warren, for the respondents.
   Bockes, J.:

The plaintiffs’ agreement, exempting the company from liability, was on valid consideration, and embraced the cause of injury and damage for which the recovery was allowed. Of this, I think there can be no question. The consideration of the agreement for exemption, was the greatly reduced rate accepted for the transportation of the property; and the exemption stipulated for was as broad and comprehensive as could well be expressed. By it the company was discharged “from all claims, demands and liabilities of every kind and character whatsoever” growing out of the transportation of the stock, “from whatsoever cause arising.” General terms of exemption, as at the owner’s risk, have been held, in some cases, not to embrace injuries and damage resulting from the negligence and misconduct of the carrier (4 Keyes, 108), for the reason that it would not be presumed that the parties intended to contract for such exemption, and this, although the terms employed were broad enough in their general import for that purpose. (But see McCauley’s Case, 4 Eng. Rep. [Moak’s Notes], 218; 8 Q. B., 57 [L. R.].) Such narrow construction, however, grew out of a repugnance to recognize any right whatever in the carrier, to limit his common-law liability. But, after such right was established by the decisions of the court, the terms of contracts with carriers, for exemption from liability, were construed according to their fair import, the same as when employed in contracts with parties, other than common carriers. In Bissel's Case (25 N. Y., 442) the contract exempted all claims for damages for “ injury from whatever caused This was held by the Court of Appeals to protect the company against negligence. True, the notice on the back of the ticket, delivered with the contract, was to the effect that the company should not be liable under any circumstances, whether of negligence of its agents or otherwise; but it will be seen on examination of the opinions of the judges in this case, that the exemption of injuries ‘'from whatever cause ” was deemed sufficiently specific and comprehensive to cover all injuries from negligence, for which the company would be otherwise liable. In Chipindale's Case (7 Eng. Law and Eq. R., 395), the contract for exemption was, that the company should- not be liable “ for any injury or damage however caused.” These terms were held to embrace an injury to live stock through negligence. In Carr's Case (14 Eng. Law and Eq. R., 340), the action was grounded on negligence while carrying a horse under a contract for exemption like the one last cited. The court held in accordance with the former decisions; and in McCauley's Case (supra), it was held that “ at his own risk,” must be taken to exclude all liability, on the part of the company for any negligence for which it otherwise would have been liable. This construction, however, is more liberal than any adopted in this State, barring Steer's Case (57 N. Y., 1), which seems to uphold a similar construction. This subject is now under statute regulation in England. (See act of Parliament of 1854, known as the Railway and Canal Traffic Act.) The stipulation in the case at bar is very broad and comprehensive in its terms. It provides for exemption from all claims, demands and liabilities of every kind and character, growing out of the transportation of the property, from whatsoever cause arising. Thus, according to its fair and necessary import, it embraces every description of accident, casualty and risk, attending the carrying of the property over the defendant’s road. It embraces within its fair import every injury which the property might receive, however occasioned, while being transported to the place of destination, except, perhaps, those resulting from willful acts of violence. I am of the opinion, therefore, that the learned county judge was in error in holding that the contract for exemption did not embrace an injury through negligence; which was the cause of the damage in this case.

The remaining question is, whether a common carrier can lawfully stipulate for exemption from liability for the negligence of his agents and servants. This question is answered in the negative-by the decision in Lockwood’s Case (17 Wallace, 357). The subject was then fully examined by Mr. Justice Bradley, both on principle and authority. The cases bearing on it in England as well as in this country are there cited, and many of them are commented on by that learned judge; and it may be safely asserted that the subject is there completely exhausted; although a difference of opinion may remain as to the correctness of the conclusion declared in that case. The decisions in the courts of this State to that time (1873), which had been then reported, then received particular attention; and it was conceded that, by the settled laws of this State, a common carrier might exonerate himself by special contract, from liability, even for gross negligence; but the court held that on a question of general commercial law the federal courts, in administering justice, had equal and co-ordinate jurisdiction with the courts of the State of New York-; and the law, as declared by the Court of Appeals in this State, on the question here under discussion, was repudiated. If we were to rest on the authority of this decision, the judgment here appealed from should be affirmed. But the Court of Appeals in this State, to whose decisions we must conform our action, does not recognize the case cited as binding authority, and exercises its right, on this question of commercial law, as a court of co-ordinate jurisdiction with the federal courts, to adhere to its own repeated decisions. The rule laid down and adhered to by the Court of Appeals is to the effect that a common carrier may, by special contract, limit his common-law liability so as fully to protect himself from responsibility for the negligence of his agents and servants (51 N. Y., 61), and this even to the extent of protection against their gross negligence. In the case last cited (Cragins Case), Judge Earl says: “In this State it is well settled that a carrier may, by express contract, exempt himself from liability for damages resulting from any degree of negligence on the part of his servants, agents and employes;” and he adds: “In some of the States it is held that the carrier cannot be exempted from responsibility for gross negligence. But so long as the freighter can insist that the carrier shall carry his property under the common-law responsibility, there can be no reason-, founded in justice, convenience or public policy, why he may not voluntarily enter into a contract, founded upon sufficient consideration, exempting the carrier from all responsibility for any degree of negligence, whether it be gross or slight.” For aught that appears, these remarks received the approval of every member of the court. This case was not referred to by Mr. Justice Bradley in Lockwoods Case / perhaps it was not reported when that case was argued. This rule has been declared in very many eases in the Court of Appeals. Among those wherein this subject has been considered in that court are the following: 4 Keyes, 108; 8 N. Y., 375; 24 id., 196, 206, 222; 25 id., 442; 49 id., 263; 51 id., 61; id., 166; 57 id., 1. In the citation of authorities on this question, the very recent case of Nicholas v. N. Y. C. and H. R. R. R. Co. (11 N. Y. S. C. [4 Hun], 327), in this court, should not be passed over without notice. Mr. Justice Smith there remarks, that if the Supreme Court of the United States is right in the view as stated in one of the conclusions in the case of Lockwood, that it is not just and reasonable in the eye of the law for a common carrier to stipulate for exemption from responsibility for the negligence of himself or his servants, the law-can now only be changed in this State by an act of the legislature, as it has been in England by an act of Parliament. The rule so repeatedly declared in the Court of Appeals must be deemed to be the law in this State, until that court shall declare a different rule, or until changed by legislation; even although it may be in conflict with the law as declared in the federal courts. On this question of commercial law, the federal courts and the State courts have co-ordinate jurisdiction, hence the latter are at liberty to adhere to their own conclusions. Being subordinate to the Court of Appeals, we are bound by its action. It follows therefore, that the judgment now under review, is erroneous, inasmuch as it appears that the company contracted for exemption from responsibility for the injury and damage for which the recovery was allowed, as it lawfully might.

The judgment of the County Court and of the justice must be reversed, with costs.

Boardman, J., concurred.

Learned, P. J.

(dissenting):

I cannot agree with the conclusion of my brethren.

If the contract signed'by the plaintiffs is to be construed literally and without any qualification, it would seem that the defendants might open the car doors and let all the cattle loose, without incurring any liability. For the language is that the defendants are released from demands of every kind on account of the loss of stock, from whatsoever cause arising. Although our courts have gone far in permitting common carriers to avoid liability, yet I am not aware that an entire freedom from any obligation to the bailor has yet been sanctioned. “ If it be desired,” says Judge Johnson, that a clause shall cover losses by negligence, it is not too much to say that the purpose must be clearly expressed.” (Magnin v. Dinsmore, 56 N. Y., 168.) For these contracts are practically, as the judge there says, under the control of the carriers. And any one can understand the meaning of the pretended reduced rate.

In the case just cited, it is said that the contract will not be deemed to except the losses occasioned by the carrier’s negligence, unless that be expressly stipulated. This must mean not that the general words of exception shall be used, but that the parties shall expressly except any liability for negligence. And for the support of this doctrine the learned judge cites Steinweg v. Erie Railway Co. (43 N. Y., 123), and several other recent cases in the Court of Appeals. Steinweg v. Erie Railway Co. holds that a release of a carrier “ from damage or loss to any article from, or by fire or explosion of any kind,” does not release him from damages resulting from fire, by his own negligence. So, too, in the case of Guillaume v. H. and A. R. R. Co. (42 N. Y., 212), a contract of exemption, full as broad as that in the present case was held not to apply to gross negligence.

It is not to be thought, without express language to that effect, that the carrier is to be released from damages occasioned by his actual wrong-doing.

This subject is very carefully examined in Railroad Company v. Lockwood (17 Wall., 357). In that case it was held that the carrier could not stipulate for exemption from responsibility for the negligence of himself and his servants. That case arose in this State, and the cases here decided are carefully reviewed in the elaborate opinion. And, while the result is, perhaps, in conflict with some decisions of our courts, yet it is said in that opinion, just as is held in the cases above mentioned, that a contract, general in its terms, has never been held, even in this State, to exonerate the carrier from the effects of his own negligence. And, in the present case, as the carrier did not expressly contract for the privilege of neglecting his duty, he should pay the damage occasioned by such neglect.

The judgment should be affirmed with costs.

Judgment of County Court and of Justice’s Court reversed.