text:
    Jacob Ringle et al., Resp’ts, v. Wallis Iron Works et al., App’lts.

      (Supreme Court, General Term, First Department,

      Filed April 11, 1895.)

    Mechanic’s lien — Foreclosure—Judgment.
    In an action to foreclose a mechanic’s lien, a claimant is, under section 15, chap. 342 of 1885, entitled to a personal judgment in addition to a judgment of foreclosure.
    Appeal from a judgment in favor of plaintiff.

      Wm. G. Wilson, for app’lt; E. L. Collier and Thomas G. Ennever, for resp’t.
   O’Brien, J.

In this action, brought for the foreclosure of a mechanic’s lien, and resulting in a judgment for the plaintiffs, the grounds, amoug others, urged for reversal, are that there is no evidence to support the finding that the plaintiffs performed their contract, or that the defendant ever accepted what the plaintiffs did as a full and complete performance thereof, either of which it was essential to prove, to entitle the plaintiffs to the judgment. The plaintiffs were subcontractors of the Wallis Iron Works, under a contract made by the latter with the J. L. Mott Iron Works to do certain work on a boiler house. As to whether the subcontractors completed their -work, there was some evidence tending to show that they completed it in the latter part of November, 1891, one of the plaintiff’s testifying: “I saw this work after it was completed ; saw that it was completed.” Upon the question of whether it was accepted or not By the Wallis Iron Works, we have the letters of the latter, written to the J. L. Mott Iron Works, in one of which they state that their superintendent visited the works, and “the work was all finished and in first-class condition ” And, in answer to the complaint of the J. L. Mott Iron Works that it was not properly or completely finished, the second letter was written by tbe Wallis Iron Works, in which they say, “ Upon investigation, we find that the trouble is not due to any neglect on our part, but is caused by putting the steam pipes through the roof by other parties, after the completion of our work.” These questions of fact, therefore, having been, resolved in plaintiff’s favor, such findings should not be disturbed where, as here, they cannot be said to be against the weight of evidence, or that the evidence was so clearly preponderating in defendant’s favor as to justify with reasonable certainty the conclusion that the court below erred. _

The only additional question pressed upon our attention is the claim that the judgment is erroneous, in that it assumes to award botli judgment for the enforcement of a lien and a personal judgment against the Wallis Iron Works. It is doubtful if the question is before us for review, because no exception was taken to the form of the judgment, either at the time of the entry or subsequently. But, upon tbe merits, we do not think the contention is good. The statute reads:

Whenever, in an action brought under the provisions of this, act, any claimant shall fail for any reason to establish a valid lien, he may nevertheless recover therein judgment against the party or parties to the action for such sum or sums as may appear to be due to him and which he might recover in an action upon a conti’act against said party or parties.” Laws 1885, chap. 842, § 15.

The construction sought to be given to this section by the appellant is that the only ease in which a claimant can recover such a judgment as he might recover in an action upon a contract is where he fails to establish a valid lien, and that where there is a judgment upholding the lien, as valid, in that case no personal judgment can be granted. Such a construction, we think, is too narrow. When a claimant establishes a valid lien, he is entitled to a judgment in form commensurate with the relief to which he thus shows himself entitled, which not only raises a personal claim against the one primarily liable, but also against the property upon which the work has been done. To. some extent the judgment is thus assimilated in form to a judgment upon the foreclosure of a mortgage, wherein the right to proceed against the land is accompanied by a judgment against the principal debtor for any deficiency. There is nothing in the section quoted which prevents one establishing a lien from obtaining his full relief,, which includes his right to enforce it, not only out of the property agains.t which the lien is filed, but for any deficiency against the person who for the amount thereof is indebted to the claimant. Without discussing this question further, however, we think it has been disposed of in the action between these same parties, decided at the March term of this court.

We think the judgment was right, and that it should be affirmed, with costs. All concur.


source: Caselaw Access Project

author: Lewis, J.

license: Public Domain

text:
    Theron Hovey, Resp’t, v. Charles Bromley, App’lt.

      (Supreme Court, General Term, Fifth Department,

      Filed April 12, 1895.)

    Conversion — Demand.
    Before a person, who receives property from a third person in good faith; in ignorance of his want of title, can be made liable for conversion, a demand and refusal are necessary.
    Appeal from a judgment entered on a verdict in favor of plaintiff, and from an order denying a motion for a new trial made on the minutes.

      George E. Towne, for app’lt; J. M. Congdon, for resp’t.
   Lewis, J.

This action was commenced in justice’s court to recover damages for the alleged wrongful conversion by the defendant of a mule, the property of the plaintiff. The answer was a general denial. Plaintiff recovered a verdict of $60 ih the justice’s court. An appeal was taken from .the judgment to the county court of Brie county, where the case was retried. The court charged the jury that the only question for them to determine was the value of the mule. To this ruling the defendant duly excepted. The jury rendered a verdict for the plaintiff for $55 damages.

There was evidence tending to show the following facts: The plaintiff was the owner of two mule teams, and on the 18th of July, 1892, he put them to work upon the railroad, at a distance of about ten miles from his home. He hired one Hopson to drive and care for one team, known as the “ large mules,” and one Prentice to drive and care for the other, known as-the “small mules.” The plaintiff arranged a place for the drivers and teams to board, and returned to his home. The driver Hopson, on the first day of August, went to the home of plaintiff with one of the large mules, leaving the other one in the barn, in charge of Prentice. The defendant was also working upon the railroad with two of his own teams. . He boarded at the same house with plaintiff’s teamsters. One of his horses having a sore neck, he hired of Prentice the large mule left in the barn, to work with his horse. He worked him during the forenoon of the 2d of August, and in the afternoon of that day the mule became lame and sick, and laid down, and refused to work. The defendant sent word to Prentice that the mule was sick, and during the afternoon he cared for and doctored the animal. Prentice sent word to the plaintiff. The plaintiff arrived in the evening of that day, and found the mule lying upon the grass unable to get up. He took charge of the mule, administered to him remedies, and, with the help of the defendant, on the morning of the 3d of August, drew him to the barn, where he died during the day. The evidence tended to show that the mule was carefully used by the defendant, and that nothing that he did with him in any manner corn tributed to his sickness or death. The defendant did not know that the plaintiff owned, or had any interest in, the mule. He supposed it belonged to Prentice. The- latter had no right to allow defendant to use the animal. The trial court held, upon these facts, that as a matter of law the defendant had converted • the mule, and was liable for its value. We fail to find in these facts evidence of conversion. Having received him from Prentice in good faith, in ignorance of his want of title, before the defendant could be made liable for conversion a demand and refusal were necessary. Defendant was not shown to have made any claim or to have exercised any dominion over the animal to the exclusion of the plaintiff’s rights. Ho intentional wrong on the part of the defendant was proven. When the plaintiff arrived, he took possession of his property, and remained in possession ' until it died. It will appear from an examination of the authorities to which we are referred by the respondent’s counsel that the ' defendants were either shown to have exercised dominipn over the property to the exclusion of the true owner, or to have disposed of it so that it could not be returned to to the owner, or to have b,een guilty of some tortious act in reference to it. It was held in the case of Piano Manuf'g Co. v. Northern Pac. Elevator Co., 51 Minn. 167, that to maintain trover against one who received property in good faith, ignorant of the want of title of the one from whom he received it, a demand and refusal must be shown. The mere purchase of goods from one who did not own them, and has no right to sell them, does not constitute conversion, Unless the buyer afterwards refuse to return them to the owner on demand, or has converted them to his own use, so that he cannot return them if requested. Valentine v. Duff, 34 N. E. 453. If one purchase stolen-goods in good faith, a demand and refusal are necessary to establish conversion. If, however, the goods be sold by the defendant, no demand would be necessary. The act of selling would, in such a case, constitute the conversón. The purpose of the demand is to turn an otherwise lawful possession into an unlawful one. Pease v. Smith, 61 N. Y. 477. If one in possession of property as the apparent owner sell it to another, trover does not lie in favor of the true owner against the purchaser, unless the latter assume dominion over the property after notice of the plaintiff’s title. An intention must be shown on the part of the defendant to take to himself the property in the goods, or to deprive the owner thereof. Parker v. Middlebrook, 24 Conn. 207; 2 Hil. Torts, 97.

If the plaintiff had made a case showing a conversion of the property, still this judgment should not be allowed to stand, for the reason that the damages are excessive. There is nothing in the case tending to show that the use of the mule by the defendant in any way tended to its sickness or death. The evidence was that he was kindly and properly used by the defendant, and without any apparent cause he became sick and died; and yet, with this evidence undisputed, the jury found a verdict for $55 damages. The plaintiff’s witnesses, it is true, testified that the mule was worth even more than the amount of the verdict, but they obviously based their opinion as to value upon the assumption that the mule, when it came in the defendant’s possession, was well. They must have assumed that its use by the defendant in some way caused its death. Such an assumption was not-justifled by the facts. Had the plaintiff established a technical conversion, he was not entitled to recover anything more than his actual damages, which, under the circumstances, were nominal.

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

All concur.


author: Merwin, J. Martin, J.

text:
    William E. Dorwin et al., Resp’ts, v. John B. Westbrook, App’lt.

      (Supreme Court, General Term, Fourth Department,

      Filed May 4, 1895.)

    1. Evidence — Declarations.
    In an action by the contractor against the railroad company for work in the construction of a railroad, the declarations of the engineer, tending to show that he knew that his final estimate was wrong, are competent on the issue as to his fraudulent intent.
    3. Estimate op engineer. — Fraud.
    The estimate of the engineer, in case of bad faith and fraud on his part, is not conclusive.
    3. Evidence — Contemporaneous acts.
    Contemporaneous acts of fraud are not admissible on the question of intent, where they call for the investigation of a subject outside of the issue and which the party is not supposed to be prepared to meet.
    4. Release — Fraud.
    The finding that the plaintiff was induced to sign the release by fraud was held not to be sustained by the evidence.
    Appeal from a judgment entered on a verdict in favor of plaintiffs, and from an order denying a motion for a new trial, made on the minutes.

      Thomas D. Husted and S. D. Halliday, for app’lt; Martin S. Lynch, for resp’t.
   Merwin, J.

After the decision of this case on a former appeal (71 Hun, 405; 54 St. Rep. 380), the complaint was amended bji adding allegations that the final estimates of the chief engineer Roberts were inaccurate and false to his knowledge, and so made for the purpose of cheating and defrauding the plaintiffs, and that the defendant refused to appear with plaintiffs before the engineer for the purpose of obtaining correction of the same. The main issues litigated at the trial now under review were whether the action of the engineer was in bad faith and fraudulent, and whether the release of 8th April, 1892, signed by the plaintiffs was operative. Both of these issues were found in favor of the plaintiffs. The defendant claims that, as to the release, the verdict is against the évidence, and he also claims that the court erred in admitting in evidence declarations of the engineer as to the character of the excavation in controversy, and also his acts in regard to classification of other excavations. The declarations of the engineer tending to show that he in fact knew tháfr his final estimate was wrong would seem to be competent on the issue as to his fraudulent intent.

■ His acts as to other excavations with which the defendant was not connected present a different question. The plaintiff called as a witness one Harvey, an engineer, who testified that in 1891, he was engaged on the railroad, though not at the particular place in question, and had been on the road, and examined the cuts and borrow pit in question; that he knew what classification the engineer Roberts placed upon similar material to that taken out of this piece on other parts of that line; and the witness was then allowed to state, over the defendant’s objection and exception, that Roberts classified similar cut as sold rock. This is claimed to be competent on the subject of the intent of the engineer in the classification of the plaintiffs’work afa less rate for solid rock. It, however, called for the investigation of a subject outside of defendant’s contract, and which defendant would not be supposed to be prepared to meet. It did not appear that the contracts under which such classification was made were similar to the contract here. In some cases other contemporaneous acts of fraud are admissible on the question of intent. The rule is one that needs to be carefully applied, especially when the rights of third persons are involved. We think it should not be applied here, and that the evidence objected to was improperly admitted. Hor ■can we properly say that it was harmless.

The defendant also claims that the court erred in declining to charge that “the plaintiffs cannot recover by reason of any fraud or dishonesty of the chief engineer in the final estimate, without connecting the defendant with that fraud.” . In Sweet v. Morrison, 116 N. Y. 19; 29 St. Rep. 445, which was a case quite similar to this as to the situation of the engineer it was said, at page 34,116 N. Y., that “in the absence of proof of corruption, bad faith, or misconduct on his part, or palpable mistake appearing on the face of the estimate, neither party can be allowed to prove that he (the engineer) decided wrong as to the law or facts.” The inference would be that, if bad faith and fraud on his part were shown, the estimate would not be conclusive. An award may be attacked for fraud on the part of the arbitrator. Masury v. Whiton. 111 N.Y. 679; 19 St. Rep. 141; Hoffman v. De Graaf 109 N. Y. 638; 15 St. Rep. 197; Perkins v. Giles, 50 St. Rep. 232; Morse, Arb. 539. If an architect’s certificate is refused in bad faith or unreasonably, a recovery may be had on proof of performance; Bowery Nat. Bank v. Mayor, etc., 63 N. Y. 336; Doll v. Nodle, 116 id. 233; 26 St. Rep. 629. We think that the court did not err in declining to charge as requested. If, for any reason, in order to protect the rights of the defendant with the railroad company, the latter should be made a party to the litigation over the estimate of the engineer, the defendant should have taken the proper steps to have brought the company in. No defense on that line is set up.

Upon the subject of the release, the claim of the plaintiffs, in substance, is that its execution by the plaintiffs was fraudulently procured by the defendant or his agents. The plaintiffs were partners, and the release was signed by the plaintiff W. E. Dorwin, in the name of the firm, and no question is made about his authority to sign for the firm such an instrument. • It was under seal, and that, as the court charged, and as we must assume, was conclusive •evidence of consideration. Gray v. Barton, 55 N. Y. 71. Dorwin testified that he did not know the contents of the paper; that he was told that it and other papers he there signed were receipts, and signed them on that supposition. The court charged that “if Mr. Dorwin knew it was a release he was signing, or if Mr. Dorwin was not deceived by the statement made to him that it was a receipt, did not rely upon that statement, might as easily have read it as not, but was deterred from reading it only by the fact that he relied upon the statement that it was a receipt, it was his duty to know what he was signing, and he is barred by this paper”; that “he has got to satisfy you that he did not understand that he signed that paper knowing it to be a release, but that he was deceived purposely and intentionally by those parties who called it a receipt, and directed his attention from the true condition of affairs, and thereby got a discharge of the claim without his knowing it. The burden of proof is with him to satisfy you upon all those facts.” The jury in effect, therefore, found that Dorwin did not know that, he was signing a release, and that the defendant or his agent purposely deceived him, and by artifice obtained his signature. The transactions between the parties on the Sth April, 1892, related to two contracts for railroad work. As So one there appears to have been no complaint at any time about the final estimate of the engineer. The other was the contract on which this action is based. Upon that occasion the plaintiff W. B. Dorwin signed eight papers, four as to each contract; there being as to each a receipt in full, a release under seal, a surrender in writing of the original contract, and an affidavit of no outstanding claims against the property. The papers were prepared by Mr: Husted, who was present, acting as attorney for the defendant, and the release, affidavit, and receipt of each set were attached to the original contract upon which the surrender was written. The receipt and surrender were signed, “ W. E. Dorwin & Co.;” the release, “W. E. Dorwin & Co., by W. E. Dorwin;” and the affidavit, “W. E. Dorwin.” The releases were acknowledged and the affidavits sworn to before Mr. Husted, as notary public. A week or two before this. Mr. Dorwin called on the defendant, and, as Mr. Dorwin testifies, claimed that the estimate of the engineer was not correct, and wanted the defendant to go to the engineer, and have it corrected, to which defendant replied that “he could not go, and told me to go and do the best I could, and he would be satisfied with whatever I did.” Dorwin saw Roberts the next day, but he refused to change the estimate. At the interview on the 8th April, nothing, so far as appears from the testimony of Dorwin, was said about his interview "with Roberts. They figured up the amount due on the basis of the engineer’s estimate, and then the defendant, at the request of Dorwin, drew and gave him eleven checks for different amounts, being amounts that plaintiffs owed to different parties. A statement of the account was prepared and given to Dorwin. This was headed, “W. E. Dorwin & Go., in Acc. with John E. Westbrook and the first item was a credit: “Mch.- 29. By balance rendered, $7,431.70.” The eleven checks were then charged, each being described, and amounting in the aggregate to $6,286.81; and the last entry was: “By balance, $1,144.89.” This balance, as it seems to be conceded, was held by defendant to await the discharge of two liens understood to have been filed. After the checks were drawn, then, as Dorwin testifies, “Mr. Husted handed me over some papers, with one hand on the papers, and said, ‘Sign those receipts,’ and took the other hand, and turned them up, and showed me what to sign, and I read nothing and saw nothing read.' There was not one-single word read to me on that day. * * * I signed a number of times,.because I was receiving a number of different checks. * * * Mr. Hus'ted didn’t take any acknowledgment from meat that time, and I didn’t swear to any affidavit. * * * When I signed those papers, I had no knowledge ' of what the papers contained. I never had read them oil heard them read, and their contents was not stated to me in any way. * * * .1 believed I was signing receipts for the money that I got for the several checks." On the part of the defendant, it was shown by the testimony of the defendant himself, his clerk who drew off the account, and Mr. Husted, that all the papers, including the releases, were read over to Mr. Dorwin, and that there was then a complete and full settlement of both contracts. Taking the version of Mr. Dorwin to be correct, nothing was done to prevent his reading the papers. They were called receipts, but nothing was said that they were only receipts for the checks or the money represented by the checks. Dorwin made no reservation of his claim for wrong classification. The defendant testifies that Dorwin said had concluded to settle on the basis of the estimate as made, and his acts, as testified to by himself, render that probable ; and, besides, he does not deny that he made the statement as the 'defendant testified. The defendant had other railroad contracts, and Dorwin, prior to this occasion, had, as he admits, knowledge of the custom of defendant, on the settlement ol his contracts, to require the execution of releases such as were executed here. He then must have known that, as to the undisputed contract involved in this transaction, the defendant would be apt to require such at release. Dorwin says he supposed that all the papers he signed 'were ordinary receipts for the moneys represented by the checks, but the truth of this supposition is shaken by the fact that he signed in different ways. He was a business man of long experience. This supposition is also shaken by the fact that, in calling-'by letter on the 4th May following for the balance of the money reserved, he referred to it as being already receipted for.

The claim of the plaintiffs is, in substance, that the release and surrender were procured by fraud. The evidence does not, we think, sustain this claim. Written instruments, signed by parties-have full opportunity to know the contents, should not be stricken, down unless the evidence is reasonably clear that in obtaining their execution, a fraud has in fact been committed. The verdict in this case, to the effect that the defendant or his agents purposely deceived Mr. Dorwin, and by artifice obtained his signatures, and that he did not understand the true character of the papers, is, we think, against the weight of evidence.

Judgment and order reversed, and new trial ordered; costs h> abide the event.

Hardin, P. J., concurs.

Martin, J.

(dissenting). — The recovery in this action is obviously just. That the defendant was indebted to the plaintiffs to' ah amount at least equal to the amount of the verdict clearly appears from the evidence. . The jury was warranted in finding that the work performed by the defendant was incorrectly classified by the engineer in charge, and that he acted fraudulently and in bad faith in making such classification. The classification having been found to be fraudulent and made in bad faith, it was not binding upon the parties.

I think the evidence of the witness Harvey, which showed that the engineer in charge had classified similar material taken out on the same line as solid rock, while he classified that taken out by the plaintiffs as only forty per cent, solid rock, was admissible to show that the engineer was acting in bad faith in making such, classification.

Nor was the finding of the jury that the signatures to the releases signed by the plaintiffs were obtained fraudulently so far against the weight of evidence as to justify us in granting a new trial. The question whether the plaintiffs’ signatures to such releases were obtained by artifice, and by the fraudulent representations of the defendant that they were only receipts for the money which he had paid to the plaintiffs, or whether as claimed by the defendant, that they were read over to the plaintiff Dorwin, and understood by him, was a question of fact for the jury. While upon that question the defendant had the greater number of witnesses, yet the plaintiffs’ testimony was corroborated by circumstances which tended to render it improbable that he would have signed the releases in question unless the alleged fraudulent representations had been made. Upon that question the testimony was conflicting, and it was properly submitted to the jury. It is not emougli that this court might have reached a conclusion adverse to the jury as to the force and weight of the evidence. A verdict should be set aside, on the ground that it is against the' weight of evidence, only where it is so clearly and manifestly against the preponderance of evidence as to furnish proof in itself that the jury was influenced by passion, prejudice, corruption, ignorance, or mistake. Applying that rule to this case, it becomes quite obvious that the verdict should not be disturbed. Moreover, if the court were of the opinion that the discretionary power granted to the trial judge to set aside the verdict, as against the weight of evidence, was not properly exercised,'and that a new trial should be granted upon that ground, it should be granted only upon the payment of costs by the appellant.

Í think the j udgment should be affirmed, or if a new trial is to be granted, on the ground that the verdict is against the weight of evidence, it should be upon the payment of costs by the defendant.


author: Merwin, J.

text:
    George Alden, as Receiver, etc., Resp’t, v. Edward K. Clark. et al., App’lts.

      (Supreme Court, General Term, Fourth Department,

      Filed May 4, 1895.)

    Pleadings — Amendment. An amendment, which substantially changes the defense set up in the answer, is not permissible.
    Appeal from a judgment in favor of plaintiff.

      Edward K. Clark, in pro. per.; Leroy Bennett, for resp’t.
   Merwin, J.

This action is in the nature of a creditors’ bill, brought by the plaintiff, as receiver appointed in proceedings supplementary to execution upon a judgment in favor of Halsey "YY. Noyes, against the defendant John La Grange, recovered January 12, 1891. The object of the action is to set aside, as fraudulent and void as to plaintiff and the debt and judgment he represents, a chattel mortgage given by La Grange to Clark, November 30, 1889, but not filed until January 30, 1891, and no possession taken until January 20, 1891. The relief asked in the complaint is that the mortgage be set aside, and the property covered by it be subjected to the payment of the claims of the judgment creditor, and the costs and expenses incurred, and for such further judgment or relief as may be equitable. The defendant Clark answered, but on demurrer it was held, on appeal to the general term, that his first and second defenses were insufficient in law upon the face thereof. That left, of the answer only an allegation, under the head of a third defense, that the defendant on the 20th January, 1891, took possession of the property covered by the mortgage,- and has since continued in possession. Upon this allegation or so-called defense no particular point was made at the trial, or any request by the defendant to find in regard to it.

The chattel mortgage was given to Clark to secure indorsements, and one item of the property covered was “ interest in Diebold safe.” It appeared that in March, 1888, La Grange purchased this .safe of one Butler for the price of $255, payable in six months, under an agreement that the title should be in Butler until the price was paid. It was alleged in the complaint, and not denied in the answer, that previous to December, 31, 1890, all of the price had been paid except the sum of $102, and that on or about the 31st December, 1890, La Grange paid, or caused to be paid, the sum of $102 in full of the price. It was also alleged in. the complaint, and not denied in the answer, that the plaintiff, before the commencement of the suit, called on Clark with reference to the mortgage, arid that Clark then insisted that the mortgage was valid, and said he claimed the .property, and had nothing to do with the plaintiff. On the trial the plaintiff proved that after the commencement of this action Clark sold and delivered the safe to one Freeman for the sum of $197.50. Mr. Clark then, over the objection of plaintiff that it was not admissible under the pleadings, gave evidence tending to show that on the 31st December, 1890, he purchased of Butler the contract for the safe, paying him therefor either the sum of $102 or $127, and thereafter, on 20th January, 1891, he took possession of it. At the close of the evidence, the defendant Clark asked the court to cotnform the pleadings to the proof, and this the court declined to do, on the ground that it had not the power to do so. It is claimed that this was reversible error.

By section 723 of the Code, power is only given to conform the pleadings to the proof in a case “ where the amendment does not change substantially the claim or defense.'* Apparently, under the •evidence given, Clark claimed that he had, though his purchase from Butler, an absolute title to fhe safe. As his answer stood, it was insufficient as a defense. The amendment sought, if it amounted to anything, would substantially change the defense set up in the pleading, and so would not be admissible. If the amendment was not material, then the defendant has not been hurt. The defendant, on the decision of the demurrer, had been given leave to amend, but had not availed himself of the privilege. We are not persuaded that the court erred in its ruling.

Besides, if all the evidence given be considered, the decision is substantially correct. The most that Clark would be entitled to under the evidence would be to be subrogated to the right of Butler as it was when Clark paid him. That right was to receive the balance of the price. In the decision Clark is allowed the amount he paid Butler and the expenses of removing the safe. For the balance of what he received upon the sale by him a personal judgment is awarded against him. This he cannot complaint of Martha v. Curley, 90 N. Y. 376 ; Campbell P. P. & Manufacturing Co. v. Damon, 48 Hun, 509 ; 16 St. Rep. 133. He refused before suit to recognize the rights of plaintiff, and after suit he sold the property, and he only accounts for what he has received. He claimed an item for office rent, but the court properly refused to allow it. The court correctly held that the safe was not shown to be exempt. There is no doubt that the plaintiff was in a position to attack the mortgage, Mandeville v. Avery, 124 N. Y. 385 ; 36 St. Rep. 338 ; Stephens v. Perrine, 143 N. Y. 476; 62 St. Rep. 843; and that as to him, and the debt and judgment he represented, it was void. Karst v. Gane, 136 N. Y. 316; 49 St. Rep. 740 ; Thompson v. Van Vechten, 27 N. Y. 568, so far as the safe was concerned. Ho other item in the mortgage was in dispute. We find no good reason for reversing the judgment, and it therefore should be affirmed.

All concur. Judgment affirmed, with costs.


text:
    William Goodwin, Resp’t, v. John C. Schreiber, App’lt.

      (Supreme Court, General Term, Fourth Department,

      Filed May 4, 1895.)

    Judgment — Confobmity to verdict.
    Where the judgment, as entered, does not in fact conform to the verdict,, the proper remedy is by motion to correct, and not by appeal.
    Appeal from, a judgment entered on a verdict in favor of the plaintiff, and from an order denying a new trial, made on the minutes.

      Jones & Townsend, for app’lt; Matteson & De Angelis and William Kernan, for resp’t.
   Merwin, J.

On the 16th day of September, 1892, the defendant, as of the county of Oneida, an against the property of.Enos Boutilier and Alexander M. Hubley, composing the firm of Boutilier & Co., levied upon 410 bales of rags-then being in the possession of the plaintiff. On the 20th September, 1892, a similar levy was made by defendant under another attachment; and on the 2d February, 1893, the property was sold, by the defendant under executions issued on judgments recovered in the actions in which the attachments were issued. The plaintiff was a dealer in rags, and the property levied on consisted of his. entire stock- in his storehouse. The sheriff took possession of the storehouse, and so remained about a month, when he removed the-goods. This action is brought to recover damages for the conversion of the goods taken by the defendant, and for damages to the premises and business of the plaintiff. The vei’dcit is for the value of the goods. The claim of the defendant is that all the goods taken were sold by Boutilier & Co. to the plaintiff under such circumstances as indicated an intention on the part of Boutilier & Co. to hinder, delay, and defraud their creditors, and that the plaintiff participated in the fraud. The plaintiff claims .that a considerable portion of the goods were purchased by him of other parties, and that what he purchased of Boutilier & Co. were purchased in good faith, for a valuable consideration, and without any notice of any fraudulent intent on the part of Boutilier & Co.

Boutilier & Co. had for several years been engaged in the business of buying, selling, sorting and grading rags, to the extent of about $300,000 a year, though they apparently did not have capital of- any very large amount. In the spring of 1892 they met with some large losses, but they continued in business, making large purchases and sales, and using the proceeds in their business, until about the 6th September, 1892, when the crisis came,, the immediate cause being the refusal of further discounts at the banks at which they did business. The event showed that they were largely insolvent, and evidence was given on the part of the defendant tending to show that may purchases were made by them when they knew that they were insolvent, and would not be able to pay the price when it became due. These purchases, however, so far as the property in controversy is concerned, are not repudiated by the sellers, as the property here is sought to be reached by the defendant as the property of Boutilier & Co. The issue here is over the character and purpose of the sales from Boutilier & Co. to plaintiff. The plaintiff commenced the business of buying, sorting and selling rags the latter,part of May, 1892. He had then in money, according to his testimony, the sum of $700, and he soon afterwards borrowed of his father, and used in the business, the sum of $2,450. From the time he started, up to the 6th September following, at various times, he purchased goods of Boutilier & Co., to the amount of about $23,‘700, paying therefor, in cash and merchandise, as the evidence tends to show, ■about the sum of $7,000, and the balance by notes, the most of which were on four months’ time, though there were some at two and three months. He purchased goods of other parties to the extent, as he testifies, of eleven or twelve thousand dollars. The notes given to Boutilier & Co. were used in their business, and those that became due prior to the seizure by the defendant of the property seem to have been paid. After- September 16th and prior to January 1, 1893, notes to the anount of about $2,900 seem to have been paid; and the balance of the indebtedness for goods is, in amount about equal to the value of the property in controversy. The plaintiff, after obtaining possession of -his storehouse, continued to carry on the business, and was so engaged at the time of the trial, in October, 1893.

At the trial the court charged the jury that the questions for them to consider were: First, did the firm of Boutilier & Co. transfer their property to the plaintiff with the intention of defrauding their creditors ? and, secondly, did the plaintiff accept the transfer, either, knowing of that intent, or having reasonable cause to believe that the intent existed, — and that if either of these questions was found in the negative the plaintiff was entitled to their verdict. The defendant does not complain of this presentment of the questions, but does claim that the verdict for the plaintiff is against the evidence. The question of fraud was one to be determined from a large number of circumstances, the bearing and effect of which might seem to be different to different minds. The fact, standing alone, that a large number of the sales to plaintiff were on credit, although plaintiff may have known that Boutilier & Co. were in failing circumstances, did not establish fraud. Loeschigk v. Bridge, 42 N. Y. 421 ; Ruhl v. Phillips, 48 id. 128. The jury had a right to believe from the evidence that the plaintiff, had he been let alone, would have paid for all that he bought, and that the price he agreed to pay for the goods was as much as, at the time, they were reasonably worth, and that all the proceeds were being used by Boutilier & Co. for the payment of their debts, without any reservation for their own individual benefit. The absence of any such reservation or expectancy would be a material element on the question of fraud, as well as of notice to plaintiff. The evidence, to say the least, does not make it clear that the plaintiff had any design to furnish Boutilier & Co. any secret benefit, or assist them in getting rid of their debts. The plaintiff, at the trial, presented an explanation to many of the circumstances upon which defendant relied as being suspicious, or as pointing towards fraud. The weight or force to be given these explanations was peculiarly within the province of the jury to determine, as they saw the plaintiff, and heard him testify, as well as the witness Baxter, who was said to-have been the chief assistant of the plaintiff in the transactions. We have carefully examined the evidence, and we are of the opinion that there is no such preponderance in favor of the defendant as would justify us in disturbing the verdict. 4 Rev. St. (8th ed.) p. 2593, § 4; Bulger v. Rosa, 119 N. Y. 459; 29 St. Rep. 678.

The defendant claims that the court erred in allowing the plaintiff to testify as to the. reason why his brother-in-law, Baxter, helped him to keep his books. This, however, was proper, by way of explanation in regard to what had appeared on the cross-examination of the plaintiff by the counsel for the defendant.

A witness for the defendant, after having testified that he assisted in the weighing and appraisal of the stock in plaintiff’s warehouse in October, 1892; that the stock was piled in the rooms, and not classified according to grades; that there was no-order observed as to the classifying of them at all; that he was accustomed to the manner of keeping goods of that character in storehouses, and knew how it is done in the trade, — was asked the question : “ What is the custom in the trade in that respect ?”’ This was objected to. by the plaintiff as incompetent, and excluded, and exception taken. This is claimed to be error. It hardly needed evidence to show that the orderly conduct of the business required proper classification. The facts on the subject fully appeared, and it is not clear how any custom in the trade would make the matter better or worse. Besides, it had been previously shown by the defendant, without objection, that it was customary for rag dealers to have the different grades of rags placed together by themselves in the storehouse; and it was sub- * sequently shown by defendant, without objection, by another witness, who was a rag dealer, that “ we try to keep the grade together, as much as we can, when we pile up the bales. ” There was no dispute on the subject. We fail to see, in this ruling, any good ground for a reversal. Our attention is not called to any other rulings. There was no exception to the charge, and there was no motion for a nonsuit.

It is suggested that the verdict was for the sum of $11,448.76, and that the judgment was entered on the basis that the verdict was for the sum of $11,948.76. A correction of the judgment is asked for. The verdict, as it appears in the appeal book in the clerk’s minutes of the trial, is the sum of $11,448.76. In the order denying the motion, on the minutes, for a new trial, it is recited that the verdict was for the sum of $11,948.76, and it is so recited in the judgment. It is also so stated in the statement in the printed case, under rule 41. At the sheriff’s sale on February 2, 1893, the property sold for $11,449, and under the charge the jury were allowed to take that as the measure of damages, with interest from February 2, 1893, to the time of the rendition of the verdict on October 24, 1893. This would made the verdict substantially as entered in the judgment. If the judgment, as entered, does not in fact conform to the verdict, the proper remedy is by motion to correct, and not by appeal. Leonard v. Navigation Co., 84 N. Y. 48, 56, and cases cited.

Judgment and order affirmed, with costs.

All concur.


author: Per Curiam.

text:
    John D. Elwell, etc., Resp’t, v. Ronald T. McDonald et al., App’lts.

      (Supreme Court, General Term, First Department,

      Filed January 18, 1895.)

    Pleading — Misjoinder of causes of action.
    A complaint, which alleges the execution of a contract and the prevention of its performance by the defendant, that, in consequence thereof, the contract “became rescinded,” and demands judgment only for the damages sustained but bases no relief on the alleged rescission, is not subject to the objection that it improperly joins a cause of action for a rescission of the contract with another for the breach thereof.
    Appeal from an interlocutory judgment overruling a demurrer.
    The amended complaint is as follows:
    The plaintiff respectfully shows unto the court:
    (1) That the Duplex Street Railway Track Company, hereinafter called “Duplex Company,” was duly organized as a corporation, uuder the laws of the state of West Virginia, in the year 1891, for the purpose of manufacturing and selling street railway track material, and in the building and construction of street railways, and also in the building of street-railway track, and continued to be such a corporation from the date aforesaid to the time of its assignment to the plaintiff for the benefit of creditors on the 17th day of July, 1893, as hereinafter set forth.
    (2) That on or about the l8th day of August, 1892, the said Duplex Company and the said defendants entered into an agreement in writing, at the city of Fort Wayne, in the state of Indiana, whereby the said Duplex Company agreed to furnish certain specified material to, and to construct for, said defendants, at the city of New Orleans, in the state of Louisiana, a double and single track railroad in certain streets' in and about the said city, and named in said contract,.at and for certain prices, also named therein, as will more fully appear by said contract, of which a copy is hereto annexed, marked “Exhibit A, ’ and which the plaintiff prays may be taken as a part of this complaint. That in the month of October following the execution of the contract aforesaid, and after the said Duplex Company had furnished and delivered to .the said, defendants at the said city of New Orleans, in accordance with said contract, a large quantity of said railroad material for the construction of said railroad, to wit, sufficient for seven miles of the track thereof, and had already constructed twenty-seven thousand and seven hundred (27,700) feet of the said railroad track, in accordance with the provisions of said contract, there was commenced and prosecuted an action by Newton Buckner and others, owners of real estate fronting upon or lying contiguous to Coliseum street, in said city of New Orleans,-between Louisiana avenue and Race street, against the said defendant Judah Hart, the civil district court for the parish of Orleans, in the state of Louisiana aforesaid, the said court having full jurisdiction of the subject-matter and of the parties thereto, in which the said defendant Judah Hart, his representatives, agents, and assigns, were asked of said court to be' wholly prohibited and enjoined from building any street railway on Coliseum street, between Louisiana avenue and Race street, in said city, upon the ground, among others, that the grant by the said city of New Orleans to said Judah Hart for the building of said street railway in said city was invalid and void , and such proceedings were thereafter had in stich action that on or about the eighteenth day of November, 1892, the said defendants and the said Duplex Company, by the judgment of said court in said action, were wholly enjoined in the further prosecution of the work of building said railway tracks, under the said contract so made by and between the said Duplex Company and the said defendants as aforesaid, on Coliseum street within the limit aforesaid; the said court at the same time adjudging that the entire grant by said city of New Orleans to said Judah Hart to build street railroads in said city, and upon which grant alone the said contract was based, was invalid and void. That the said enjoinment of work was wholly the fault of the said defendants, and was not by reason of any acts, omission, or default of the said Duplex Company, save in the latter constructing said railroad, according to the terms of said contract, upon the streets therein named, and in all which said streets the said defendants claimed to the said Duplex Company that they had the right to build the same, and in which they authorized the said Duplex Company to build the ■same as their servant. That the said court, in the action aforesaid, ■adjudged that the said defendants did not have said right or authority ; and that the said Duplex. Company, at the time of making the said contract, and until the decision and judgment of said court in said action, was wholly ignorant of their not possessing the same. That the said Duplex Company by reason of the said judgment of the said court, and by the demand of the said defendants, was wholly stopped from the further continuance of their work of constructing said street railway, -and that said stoppage and discontiuance of said work continued for the space of three months, to the damage of the said Duplex Company in the sum of ten thousand dollars ($10,000).
    (3) And the said plaintiff further shows unto the court that, after the decision and judgment of the court as aforesaid, the said defendants were permitted by the said city of New Orleans to build the said street-railway tracks in part upon certain other streets in said city, but only in fractional portions thereof, and at different named times, in place of building the same continuously, as provided in said contract. That the said Duplex Company, at the request of said defendants, con- . tinued the work of construction aforesaid in the said newly-de-signated streets and portions thereof, and in so doing were frequently stopped by said defendants, to await the designation of the ’ place to continue their work, and were obliged also to remove the material for said tracks, which had been distributed by it along the lines of the streets named in said contract, to the new-designated locations, and also their tools and machinery for said work, to the cost and damage of the said Duplex Company of seven thousand dollars ($7,000).
    (4) That, during the continuance of said work on said newly-designated streets, the said defendants, at divers times, for the purpose of obtaining stoppages of the same, and thereby gaining time for negotiating with the said city of New Orleans for changes in route of said street railway, and to obtain license from the said city to contract the same upon other streets than those named in said contract, made frivolous and unfounded complaints to the workmen of said Duplex Company as to the materials furnished by it for said street railway; and also as to said workmen’s construction work thereon. That said defendants thus wrongfully demanded of said workmen, and induced them, to stop their said work at divers times, to the damage of said Duplex Company of six thousand dollars ($6,000).
    (5) That the said defendants, during said construction work, failed to furnish the roadbed therefor, as they had agreed to do, whereby the work of said Duplex Company was greatly hindered and delayed; and, also, they so carelessly and incompletely performed said roadbed work that the said Duplex Company was obliged, in order to carry forward its superstructure work thereon, to finish and complete the same, to the damage of the said Duplex Company, of twelve thousand dollars ($12,000).
    (6) And the said plaintiff further shows unto the court that he is informed and believes that, down to the date of complete stoppage of said construction work by the said Duplex Company, to wit, the date of its general assignemt for the benefit of creditors to the plaintiff, on the 17th day of July, 1898, the said defendants had not obtained permission or license from the said city of New Orleans, or legal authority, to construct said street railway upon the streets named in said contract, or upon a sufficient length of other streets in said city, to use the material provided and delivered by the said Duplex Company to said defendants under the contract aforesaid and required by the terms thereof, and that said Duplex Company was, therefore, unable to finish and complete said contract according to its terms by reason of the same. That, in addition also to the breaches of said contract hereinbefore set forth, the said defendants .wholly failed and refused to make their payments to the said Duplex Company according to the terms thereof, and failed to accept or pay the drafts drawn upon them by said Duplex Company for the price of said material, in compliance with the terms of said contract, and that they failed to pay although the same was demanded, nineteen (19) cents per foot for the construction work of said street railway performed by said Duplex Company, as provided in said contract. That by reason of the said breaches of the said contract by the said defendants, the said contract, at the time of the occurrence of each breach thereof, became rescinded, and the said defendants became immediately indebted and liable to pay to the said Duplex Company the value óf all the material thus furnished and delivered to them, and the value of all construction work done for them by said Duplex Company, what said material and work were worth; and also became indebted and liable to pay said Duplex Company all damages and expenses which said delays, extra work, and changes of route caused to the said Duplex Company. That the said Duplex Company, in accordance with the terms of said contract, had prior to the 1st day of February, 1893, furnished and delivered to the said defendants, at the said city of New Orleans, all of the said railroad materials, and the special work connected with the same, stipulated for in said contract, and sufficient to build all of the street-railway tract provided for therein, and delivered the same along the streets of said city'where said railroad was to be built, so far as the said Duplex Company could learn and ascertain the routes thereof from said defendants, and subsequently thereto also furnished and delivered to said defendants, in place of certain cast-iron chairs stipulated for in said contract, and at request of said defendants, steel chairs in place thereof, and that said Duplex Company has also, in accordance with the terms of said contract,, built and constructed for said defendants, on the streets designated by them in the said city of New Orleans, seventy thousand (70,-000) feet of said railway track. That the value and worth of the said material thus furnished and delivered to the said defendants-were the sum af $135,801.70, and that the value and worth of the said work thus performed by the said Duplex Company in building said railway track for the said defendants were the sum of $13,300, and that the sums thus named as the value of the materials and work aforesaid are the same also, and do not exceed that, so agreed to be paid by the said defendants therefor to the-said Duplex Company. That the amount due to the said Duplex Company from said defendants, at the time of its assignment to the plaintiff, for the said materials and work, as above mentioned, and now due to the said plaintiff, over and above all credits and payments thereon, is the sum of $65,259.25, and that the defendants neglect and refuse to pay the same. And the plaintiff further shows unto the court that on the 17th day of July, 1893, the said Duplex Company, by its deed,- duly executed and under its seal, assigned and transferred to the said plaintiff the several claims and demands against the said defendants heretofore set forth, for the benefit of its creditors.
    Wherefore the said plaintiff demands judgment against the said defendants for the damages for breaches of contract, and for the-value of said work and materials, as above set forth, in the sum of one hundred thousand two hundred and fifty-nine and 25-100 dollars ($100,259.25), with interest from the ,17th day of July, 1893, besides the costs of this action.

      G. W. Seligman, for app’lts ; E. Conway, for resp’t.
   Per Curiam.

Judgment affirmed on opinion of court below. The opinion of Mr. Justice Ingraham at special term is as'follows:

The objection to the complaint raised by this demurrer is that there are two causes of action alleged, — one for a rescission of the contract, and another for a breach thereof by the defendants. It is plain, however, there is no cause of action for a rescission of the contract. The complaint alleges the execution of a contract, and certain acts of the defendants which it is claimed prevented the plaintiffs assignor (a construction company) from fulfilling the contract; and the plaintiff asks for a judgment for the damages sustained in consequence of the breach on the part of the defendants, so that the company could not complete the contract. It is alleged that in consequence of certain specified breaches of the contract by the defendants the contract became rescinded; but just what the pleader intended by this allegation is not apparent. Certainly, no distinct cause of action is based upon any rescission oE the contract by the company, or any acceptance by it of any option to rescind the contract given to it by the acts of the dedendants. No relief based upon such rescission is demanded. The complaint alleges one cause of action for a breach by the defendants of the contract. Several acts, each of which in itself would constitute a breach of the contract, are alleged, and the complaint also alleges the various items of damage that the company sustained in consequence of the breach by the defendants of their obligation under the contract;, and a sum of money is demanded as damages sustained by the plaintiff in consequence of the defendants’ failure to comply with the contract on their part. .The demurrer, therefore, must be overruled, and judgment ordered for - plaintiff, with costs, with leave to the defendants to answer upon: payment of costs.


text:
    Seneca Duell et al., Resp’ts, v. Sarah R. McCraw, App'l

      (Supreme Court, General Term, Fourth Department,

      Filed May 4, 1895.)

    1 Contracts — -Building—Architect.
    Power to dispense with the requirements contained in the specification, is conferred upon the architect by a provision in the contract that, in case any dispute should arise in respect to the true construction or meaning of the drawings or specifications, the matter should he decided by the architect, and his decision should be final and conclusive.
    2. Same — Waiver.
    The requirement of the contract as to the final certificate of the architect was held to have been waived by the subsequent understanding and arrangement between the parties.
    Appeal from a judgment in favor of plaintiffs.

      Curtis & Newell, for app’lt; Millard & Stewart, for resp’ts.
   Merwin, J.

This action is brought to recover a balance claimed to be due on a building contract. On the 24th October, 1890, the plaintiff Duell and the defendant entered into a contract, in writing, for the erection by Duell, on or before April 1, 1891, of a store and tenement block on a lot of defendant on State street, in the city of Binghampton, Specifications and drawings were attached that were made by an architect, Mr. Reynolds. The work was to be done under his direction, to his satisfaction, and to be testified by his certificate. The price was $7,150, of which $400 was payable when the foundation was completed, $500 when the frame was up and sheathed, $1,000 when the brickwork was finished, $1,000 when the block was inclosed, $1,000 when the block was plastered, $1,000 when the block was cased and trimmed, and the balance, of $2,250, when the block was completed, “ provided that in each of. the said cases a certificate be obtained from the architect that the payment is due.” The sixth clause of the contract wakas follows :

“ Sixth. Should any dispute arise respecting the true construction or meaning of the drawings or specifications, the same shall be decided by the architect, and his decision shall be final and •conclusive; but, should any dispute arise respecting the true value of extra work or work omitted, the same shall be valued by two competent persons, — one employed by the owner, and the other by the contractor, — and those two shall have power to name an umpire, whose decision shall be binding on all parties.”

The tenth or last clause was as follows:

“Tenth. The last payment on this contract shall not. be paid until all charges for extra work and allowances for ommissions have been rendered, agreed to, and certified by the architect”

Soon after the contract was executed, the work was commenced, the plaintiff Carrington having, by transfer from Duell, with consent of defendant, become owner of a one-half interest. The rear of the lot was low ground,' and in the specifications there was the following clause:

“ The ground being soft where rear of building is located, it will be necessary to dig a trench four feet deep and six feet wide, and fill with concrete two feet deep, composed of broken stone and the proper proportions of Howe’s cave cement, and as directed by architect. The water in the cave will have to be drawn back and kept pumped out until the foundation is complete. Concrete foundation to be extended forty feet on either side of building, if considered necessary by architect.”

It was soon found that the character of the ground where the rear wall was to be located was such that the concrete foundation specified in the specifications would not answer the purpose. The plaintiffs so informed the defendant, who replied that they must consult the architect about any changes in the foundation. Thereupon the architect, at the expense of the -defendant, caused rows of spiles to be driven as á basis for the rear foundation wall, and upon these the plaintiffs, by direction of the architect, built the wall; and it was agreed between the plaintiffs and the architect, acting for the defendant, that the sum of $65 should be allowed by the plaintiffs to the defendant out of the contract price for the concrete "not used under the rear wall, as,called for by the specifications. The work proceeded, and on or before January 26, 1891, the foundation walls were completed, and soon thereafter they were inspected, measured, and accepted by the architect; and on the 27th March, 1891, he issued his certificate No. 1, stating that $500 was due the plaintiffs. This amount included the first payment of $400 on the contract, and the delay in issuing the certificate was occasioned by the filing of a lien by the mason who constructed the walls. On this certificate the defendant paid $485. On the 21st February, 1891, the architect issued his certificate Ho. 2, for $500; on March 1, 1891, his certificate Ho. 8, for $1,000 ; and on March 24, 1891, his certificate Ho. 4, for $1,000. And the defendant paid the plaintiffs the full amount of these certificates. After the issuing of these, certificates, a dispute arose between defendant and one Lee over the materials furnished by him for the plastering in the building, and the architect issued no certificate for the payment due when the plastering was completed, and has never issued any further certificates. It is not claimed that the plaintiffs are responsible for the contest with Lee. The defendant afterwards, without a certificate from the architect, paid the plaintiffs, on the 18th April, 1891, the sum of $500 ; on April 30th, $1,000; on May 10th, $245 ; on May 13th, $125; and on May 23d, $600. These payments amounted to $5,455. Adding thereto the amount of the claim of Lee, $579.35, which the defendant assumed, also the sum of $65 allowed, as hereinbefore stated, on account of not using concrete, and the sum of $105, agreed to be deducted from the contract price on account of changes made soon after the execution of the contract, there remained of the contract price the sum of $945.65. The building was not completed by April 1st, but the delay, as the referee properly finds, is not chargeable to plaintiffs, as it was mainly occasioned by the change in the basis of the foundation wall. The main controversy at the trial was in relation to the settling of the rear, side, and center walls, its cause, and the consequent injury to the building, and also over the question of acceptance.

There is no doubt that the walls settled to some extent, but the evidence is conflicting as to how much, and also as to the effect. The defendant claimed that the settling was mainly due to the improper foundation of the side and center walls, and the failure to bind the center to the rear wall; while the claim of the plaintiffs was that the settling was attributable to the manner in which the piling was placed by the defendant under the rear wall, and the failure to place it to some extent under the other walls. The main defect claimed to exist in the foundation of the side and center walls was the failure to lay a concrete basis. This was not required by the architect, and the defendant suggests that he had no discretion to dispense with it under the terms of the specification on that subject above quoted. We are, however, inclined to think that he had. That was his interpretation of the provision, and under the contract, in case of doubt in the construction or meaning of the drawing or specifications, he was the arbiter. He accepted the walls knowing the concrete was not there.

It is also claimed' that the base course under the side and center walls does not conform to the specifications. It is, however, in effect, found that they were constructed under the direction of the architect, and that when he gave the certificate Ho, 1, which covered the first payment, he knew that the base course was not in all respects such as was called for by the plans and speeificatians, and he knew the general- character, size, and quality of the base courses complained of. The defendant claims that, in regard to these base courses and their foundation, the plaintiffs were guilty of concealment and fraud; but the referee declines to so find, and this finding should not, we think, be disturbed. It is also found that the building was constructed under the direction of the architect, who was also employed and paid by the defendant to superintend its construction; that, as the work progressed, the original plans and specifications were departed from in many respects, but such departures were either authorized by defendant or the architect, or were waived and excused, and the work accepted after it was completed; that there are numerous defects in the construction of the building, but they are not of such a character as to pervade the whole work, and the most serious defects did not arise from and were not caused by any wilful acts of the plaintiffs, and are susceptible of remedy ; that the plaintiffs substantially performed the conditions of the contract before the commencement of the action, except such as were modified, waived, or excused, and the plaintiffs intended in good faith to comply with the terms of the contract. These findings are challenged by the defendant, but in view of the acceptance to be hereafter referred to, and the allowances made by the referee for defects, we find no good reason for the defendant to complain.

It is suggested that the architect had no authority from the defendant outside of that given by the contract, and, at one period in the course of the trial, it seems to have been so conceded. Still, afterwards it was proved, without objection, that defendant em,ployed the architect to overlook and superintend the building, and the finding of the referee on the subject is fully supported. It is quite clear that the plaintiffs, from the conduct of the defendant, had the right to believe that the architect had authority from her to consent to modifications in the character or manner of laying the foundation walls. Thomas v. Stewart, 132 N. Y. 580; 43 St. Rep. 881.

The architect, in certifying that the payment was due which by the contract was payable “ when the foundation is completed,” in effect certified that the foundation was built according to the contract. Ordinarily this would be conclusive, except for fraud or mistake. Wyckoff v. Meyers, 44 N. Y. 143; Anderson v. Meislahn, 12 Daly, 149. The referee finds that the architect, when he gave his certificate as to the basement, did not know of the manner in which one of the side walls was laid over a portion of a stump, and, to remedy this defect, the referee allowed the defendant the sum of $90. He also found, quite favorably to the architect, that he did not know of the failure to bind a portion of the center wall to the rear wall, and to remedy this defect, he allowed the defendant the sum of $220. To remedy minor defects in other portions of the building, the referee allowed the defendant the sum of $111, making in the aggregate the sum of $421 allowed for remedying defects.

Upon the subject of acceptance, the referee finds : said architect, went to said building where plaintiffs were at work, and requested plaintiffs to allow defendant to move a family into said building. In reply to such request, the plaintiff Buell stated to the defendant and said architect, in substance, that he was unwilling to permit defendant to move into said building unless she would accept the building as far as the work had been completed; whereupon said architect, in the presence of defendant, said to plaintiffs, in substance, that they were satisfied with the work as far as it was completed except the plastering, and that, if plaintiffs would allow them to take possession of said building, defendant would pay plaintiffs, when they finished the building, for the balance unpaid on the contract, including extra work, except the sum of $579.35 (the amount of Lee’s claim) for materials used in plastering. That, relying upon the statements made by defendant and said architect, plaintiffs then and there consented that defendant might move into the building, and on that day she moved a tenant therein, and the plaintiffs surrendered up to her the possession of said building, since which time the defendant has been in possession and occupancy of said building. That on said 2d day of May, 1891, when defendant took possession of said building, plaintiffs had nearly completed the same, there remaining to be done some work on the stairs, the hanging of a few doors in the rear of the building upon the lower floor or floors, the putting of two or three windows in the cellar, and some painting upon the •inside in the rear of said building. That, within a few days thereafter, plaintiffs subsequently completed what remained to be done upon said building, and called upon defendant for the balance of their pay.”

“ That on the 2d May, 1891, the defendant, in company with

The evidence is sufficient to sustain these findings. The defendant afterwards made payments to the extent of $970, the items being above stated, and no certificate was asked for. The defendant took upon herself the adjustment of the Lee claim, and the amount of it was, by consent, deducted from the contract price. The controversy over the Lee claim seems to have been the occasion of the architect’s stopping his certificates. Inferentially, the dispute between Lee and the defendant continued after this suit was commenced. The plaintiffs, before commencing suit, applied to the architect for a final certificate, which he declined to give. The referee allowed extras to the amount of $127.19. The evidence fully sustains this allowance, but the amount was not agreed to by the parties, or the value ascertained in the manner specified in the sixth clause of the contract. It is found, however, that the plaintiffs, before suie, proposed to the defendant that the same be valued by two competent persons, one- to be appointed by the plaintiffs, and the other by the defendant, they to have power to name an umpire, but the. suggestion was not entertained by defendant, and she omitted and neglected so to do. Smith v. Alker, 102 N. Y. 87.

The referee held that by the agreement of May 2, 1891, followed by the taking of possession by defendant, there was a waiver by defendant of an architect’s certificate as to the final payment, or for the extra work and materials. The authorities sustain the referee in this conclusion., Flaherty v. Miner, 128 N. Y. 382, 390; 33 St. Rep. 681; Smith v. Alker, supra; Fallon v. Lawler, 102 N. Y. 228; Nolan v. Whitney, 88 id. 648.

An item of $200 was allowed the plaintiffs by the referee in regard to which some question is made. The plaintiff, Duell, soon after the making of the contract, discovered that he had made a mistake of $300 in his figuring on the brickwork. He informed the defendant of this mistake, and then, as the referee finds, it was agreed between him and defendant that he should go. on and complete the building, and, when completed, he should ' exhibit to defendant his bills, showing the cost of constructing the building, and, if if appeared that he had not made anything upon the contract, the defendant would allow him the sum of $200, in addition to the amount specified in the contract. The cost of construction was in fact, $7,428.39. It is found that after the building was completed, and before suit, the plaintiffs, at different times, demanded of defendant a settlement and payment, and were ready and willing to show defendant their bills and what they' had paid out in erecting the building, and asked defendant to fix a time when she would look over their bills; but defendant neglected and omitted so to do, or to pay plaintiffs the balance unpaid on the contract. It is not claimed that there was not a sufficient consideration for the agreement of the defendant, Munroe v. Perkins, 9 Pick. 298, 305; Lattimore v. Harsen, 14 Johns. 330 ; Stewart v. Keteltas, 36 N. Y. 892 ; 3 Am. & Eng. Enc. Law, 836; but it is claimed that the plaintiffs did not exhibit their bills. They seemed to have been ready to do it, but the defendant did not care to settle. We think the item was properly allowed. At the trial, one of the questions in dispute was whether the defendant in fact, made a certain payment which the plaintiffs denied. This was clearly a question of fact, and the conclusion of the referee should not be disturbed.

We have thus considered what appear to be the main features of the case. The more important issues were on questions of fact. In view of the acceptance and promise and subsequent occupancy by the defendant, a case is presented where strict performance ini every particular should not be deemed a condition precedent to the plaintiffs’ right of action on the contract; but the rule as to substantial performance, Woodward v. Fuller, 80 N. Y. 312; Murphy v. Stickley Simonds Co., 82 Hun, 158; 63 St. Rep. 744, and cases cited, should be applied, and the plaintiffs be allowed to recover the balance of the contract price,' less the damages from defects attributable to the plaintiffs, and not waived by the defendant. The referee has proceeded on this basis, and we find no good reason for disturbing the result.

Judgment affirmed, with costs.

All concur.


text:
    J. Martin White et al., Resp’ts, v. John C. Schreiber, App’lt.

      (Supreme Court, General Term, Fourth Department,

      Filed May 4, 1895.)

    Evidence — Competency.
    The testimony of a witness, who has known a person and been associated with him in business for a number of years, as to his knowledge of the latter’s having any property, is competent upon the question of his financial standing.
    Appeal from a judgment entered. on a verdict in favor of plaintiffs, and from an order denying a motion for a new trial,, made on the minutes.
    The áction is brought to recover the possession of a quantity of hop sacking. It is alleged by the plaintiffs that on the 20th August, 1892, they were the owners of the property, and entitled to its possession, and that on that day the defendant wrongfully took the same, and detains it, although demanded by the plaintiffs ; that on the 23d March, 1892, and the 19th April, 1892, the-plaintiffs sold and delivered the property on credit to the Sheridan Scotch-Cap Company, a domestic corporation doing business-at Utica ; that said company was then to its own knowledge insolvent, but concealed that fact, and obtained the goods, with the preconceived design and intent at the time not to pay for the-same, and with the intent to cheat and defraud the plaintiffs; that the sale was fraudulent and void, and no title to the goods passed ; that on or about the 20th August, 1892, the defendant, as sheriff of Oneida county, levied on the same under an execution against the company in favor of one Shaughnessy. The-answer was a general denial and a justification under the execution. The verdict awarded the possession to the plaintiffs, and fixed the value at $881.

      W. E. Lewis, for app’lt; Jones & Townsend, for resp’ts.
   Merwin, J.

No point is made by the on the facts. It is, however, claimed that the court erred in three of its rulings on the admission of evidence.

1. James P. Sheridan, who was the president of the company,, and its business manager, was called as a witness by the plaintiffs, and, among other things, he was asked with reference to the pecuniary responsibility of one Monokton, who was the treasurer of the company, and a director, the following question: “Did you know of his having any property outside of his interest in this stock in 1891 ?” This was objected to “as incompetent and immaterial,” and objection overruled, and exception taken, and the answer was: “Mo, sir; I did not. I have not known of his having any property besides his interest in this stock in the past three years.” The suggestion on the part of the defendant is that, conceding that it was proper for the plaintiffs to show the financial responsibility of Mr. Monckton, the method of doing it permitted by the court was improper, and that the negative evidence of Sheridan was not admissible. It appeared that Sheridan had known Monckton for ten or twelve years, apd had been associated with him in business for several years. The objection was, we think, properly overruled. The weight of the evidence was for the jury. The circumstances as to Monckton’s responsibility the plaintiffs had a right to show. No report had been filed by the company in January, 1892, so that the directors were personally liable to a certain extent..

2. One W. T. Noyes was called as a witness by the plaintiffs, and testified that he was the superintendent in Utica of the Bradstreet Company, an agency which was organized for the purpose of reporting the financial standing of business firms and corporations and others doing a mercantile business, and had offices in all the principal cities in the United States; that he knew the plaintiffs’ firm, and knew Sheridan, and had a conversation with him on the 19th February, 1892, at the office of the Sheridan Scotch-Cap •Company. The question was then asked : “Will you state the conversion?” This was objected to “¿is incompetent, immaterial, and irrelevant, and there is no foundation laid for it.” The court replied, “I think it is competent as the declaration of an offier in •charge of the company’s business,” and the objection was overruled, and .exception taken. The witness answered:

“I called on Mr. Sheridan, and I first informed him that I had not found any certificate showing their condition filed with the county clerk. He informed me that they had not filed any. Then I stated: ‘If that is the case, your company is.in better condition now than before, and that practically 'makes your directors liable for all the debts of the concern.’ And he says: ‘Yes, I understand so.’ Then I says: ‘If that is the casé, I will change the rating from what it was before, — a capital of $5,200.00, — and give you a Uglier credit rating.’ And I says : ‘If there has been no change in the directors or officers of the company, of course they would be personally held liable for the debts.’ He said there had been no change. So, on the information received from Mr. Sheridan, I rewrote the report. I asked him if Mr. Callahan was still a director. He said-that he was ;■ that there had been no change in the directors. I always j udged Mr; Callahan to be a man of financial responsibility.”

The following then occurred:

“Q. Did this information go into your book which is issued? (Objected to that witness should not be permitted to state what when into the book. Objection overruled. Exception taken by defendant). A. The rating on which this report is based went into the book. Counsel for Defendant: I ask to write out what this witness has testified to, and the whole of it, — all that he states as having occurred between him and Mr. Sheridan. The Court: That I refuse. (Exception taken by defendant.) ”

It is claimed that the court erred in admitting the testimony of Noyes, and that the motion to strike out should have been granted. The argument is that it did not appear that any creditor or any person ever saw or received any information from the rating put into the report. This objection was not taken, and, if it had been, it may be that it might have been obviated. The company was evidently getting a good deal of credit about the time. Besides, it does not seem to be entirely settled that enough was not shown to make it proper as a contemporaneous act reflecting on the question of intent. The statement that Mr. Callahan was still a director was not true. It already appeared that he was the only responsible man connected with the business, and Mr. Sheridan, for the company, was willing a rating should be based on his responsibility, and it was so entered. In Hersey v. Benedict, 15 Hun, 282, 287, Judge Talcott says:

“The same principle upon which the evidence of cotemporaneous frauds is admitted, as bearing on the intent of the party in committing the fraud principally in question, would lead to the admission of evidence of an attempt to commit a similar fraud, at about the same time, by similar means, whether successful or not.”

We are not satisfied that there was any such error in admitting the evidence, or in denying the motion to strike out, as would properly call for a reversal.

3. After it was proved on the part of defendant that he acted under an execution against the company, and a valid levy was conceded the plaintiffs called the defendant as a witness, and asked the question, “Were you indemnified in this case?” An objection to this as “incompetent, irrelevant, and immaterial” was overruled, and exception taken. This ruling is claimed to be erroneous. This, strictly speaking, may be so, but it is a little difficult to see how the defendant was harmed. The real controversy was between the plaintiffs and the judgment creditor whom the defendant represented, and the defendant had no personal interest in the matter. Without the evidence on the subject, the jury would very likely have inferred that the sheriff was in fact indemnified.

We are of the opinion that no sufficient reason for reversal appears, and that the judgment should be affirmed. Judgment and order affirmed, with costs. All concur.


author: Martin, J.

text:
    George A. Lance, as Temporary Receiver, etc., Resp’t, v. Patrick J. Shaughnessey, App’lt.

      (Supreme Court, General Term, Fourth Department,

      Filed May 4, 1895.)

    1 Evidence — Judgment.
    When the issues in an action have, been adjudicated in a former action between the parties, the judgment in the former action is proper as evidence of the facts established thereby, though not pleaded and, as evidence, is conclusive in an aettion between the same parties.
    2. Former adjudication — Findings.
    The findings of a court in a former action upon the precise point involved in a subsequent action between the same parties constitutes no bar, unless followed by a judgment based thereon.
    3. Same — Immaterial pacts.
    A judgment does not operate as an estoppel in a subsequent action between the same parties, as to immaterial and unessential facts, even though put in issue by the pleadings and directly decided.
    Appeal from a judgment entered on a verdict in favor of plaintiff, and from an order denying a motion for a new trial, made on the minutes.

      William E. Lewis, for app’lt; Jones & Townsend, for resp’t.
   Martin, J.

The sole purpose of this action was to recover of the defendant sum of $1,500 interest, upon the ground! that it was paid to the defendant by an insolvent corporation, with* the intent of giving him a preference over its other creditors. The action was based upon the provision" of section 48 of the stock corporation law (Laws 1892, c. 688), which declares :

“No conveyance, assignment or transfer of any property of any such corporation by it or by any officer, director or stockholder thereof, nor any payment made, judgment suffered, lien created or security given by it or by any officer, director or stockholder when the corporation is insolvent or its insolvency is imminent, with the intent of giving a preference to any particular creditor over other creditors of the corporation shall be valid. Every person receiving by means of any such prohibited act or deed any property of the corporation shall be bound to account therefor to its creditors or stockholders or other trustees. * * * Every transfer or assignment or other act done in violation of the foregoing provisions of this section shall be void.”

At the time of the payment the defendant held a note of $4,000' against the Sheridan Scotch-Cap Company, a domestic corporation organized under chapter 40 of the Laws of 1848, and subsequent acts amendatory thereof and supplemental thereto. That corporation was in fact insolvent at the time. The note held by the defendant was given July 14, 1892, dated on that day, and made payable ten days after its date. A suit thereon against the corporation had been commenced more than twenty days before the payment was made, and the corporation had made default in answering, so that a judgment might have been properly entered! upon that day. After the payment, and on the following day, the defendant entered a judgment for $4,523.84, being the amount of the defendant’s note, interest, and costs, less the $1,500 so paid thereon. Upon the same day (August 20th), proceedings were instituted by a majority of the stockholders for a voluntary dissolution of the corporation on the ground of insolvency, and the > plaintiff was subsequently appointed tetaporary receiver. An examination of the evidence given upon the trial of this action renders it quite obvious that it was sufficient to sustain the finding of the jury that the payment in question was made when the corporation was insolvent, and with the intent of giving a preference to the defendant over its creditors.

The sole question presented upon this appeal relates to the validity Of the defendant’s exception to the ruling of the court in excluding the judgment roll in a former action by the plaintiff against the defendant and the sheriff of Oneida county. The judgment roll which was offered in evidence shows .that that action was brought by the plaintiff "against the defendant and John 0. Schreiber, as sheriff of Oneida county, to set aside the judgment obtained by the defendant against such corporation, and also to set aside and vacate a levy which had been made by the defendant sheriff upon its property under and by virtue of an execution issued upon such judgment. The ground upon which, in that action, the plaintiff sought to set aside the judgment, was that the corporation was insolvent, and that the judgment was suffered to be taken by default by the officers of the corporation in contemplation of its insolvency, and by collusion with the defendant. The relief asked therein was that the judgment and levy be set ■aside and vacated, and that the property so levied upon be awarded to the plaintiff. The defendants in that action interposed ■answers which, so far as material here, put in issue the allegations of the complaint that such judgment was permitted to be taken by default by the officers of such corporation, in contemplation of insolvency, or by collusion between the defendant and such officers. The issues in that case were tried at a special term, and the court, among other matters, found that the payment in question in the present action was made in good faith, that the officers of the corporation did not act in collusion with the defendant in the matter of such payment, and that it was not made with the intent of giving a preference to the defendant over other creditors of such corporation. The judgment entered in pursuance of such findings adjudged that the plaintiff had failed to make out a cause of action against the defendant, and that the defendant Schreiber, as such sheriff, pay over to the defendant Shaughnessy the proceeds of the sale upon such execution, but contained nothing in relation to the payment under consideration. The court having in the former action found in the defendant’s favor upon the precise question at issue in the present case, the question is whether the judgment in that case was conclusive evidence against the plaintiff. The claim of the respondent that this ruling should be sustained ■upon the ground that the former judgment was not set up in the answer as a bar to this action ought not, we think, to be upheld. An examination of the appeal book discloses that the judgment roll was offered in evidence, and objected to as inadmissible and incompetent under the pleadings, when the "court remarked: “ The -only purpose of it is upon the ground of estoppel, is it not?” To which the counsel for the defendant then said: “ Yes, sir; our idea is that the judgment is evidence, and conclusive evidence. We do not have to plead it.” Although the defendant’s counsel answered the question of the court in the affirmative, from what he added it is manifest he was seeking to introduce the judgment roll as conclusive evidence against the plaintiff, and not to establish a technical estoppel, and the court must" have so understood it. The court however, sustained the objection, and the defendant excepted. 1 If this judgment was conclusive between the parties as to the question in issue in this case, we are clearly of the opinion that the court erred in excluding it; for although the record of a former judgment is not admissible, as constituting a bar or an estoppel to an action, without being pleaded, yet, when the issues in an action have been adjudicated in a former action between the parties, the judgment in the former action is proper as evidence of the facts established thereby, although not pleaded, and, as evidence, is conclusive in an action between the same parties. Krekeler v. Ritter, 62 N. Y. 372.

Thus we are led to the consideration of the question whether the former judgment was a bar to this action. As we have already seen, the sole purpose of the former action was to set aside the judgment obtained by the defendant and the levy made by the sheriff. The judgment entered in that action was to that effect only. It contained no adjudication as to the validity of the payment made to the defendant. Under such circumstances, we think the former judgment was not conclusive evidence against the plaintiff, and in no way affected his rights of recovery. The findings of a court in a former action upon the precise point involved in a subsequent one between the same parties constitutes no bar, unless followed by a judgment based thereon. The judgment is the bar, and not the preliminary determination of the court. Springer v. Bien, 129 N. Y. 99 ; 38 St. Rep. 848. It is only the material, relevant, and necessary facts which are decided in an action that are conclusively determined thereby. A judgment does not operate as an estoppel in a subsequent action between the parties, as to immaterial and unessential facts, even though put in issue by the pleadings and directly decided. It is final as to such facts as are litigated and decided therein which have such a relation to the issue that their determination was necessary to-the determination of that issue. Stannad v. Hubbell, 113 N. Y. 530; 34 St. Rep. 413; House v. Lockwood, 137 N. Y. 259; 50 St. Rep. 787. Applying the doctrine of these cases to the question before us,' it becomes apparent that the judgment roll offered in evidence was not evidence upon the questions at issue in this action. In the former action, the question whether the $1,500 was paid with or without an intent to give the defendant preference over the other creditors of the corporation was immaterial and unessential to the determination of the question of the validity of the defendant’s judgment, and the subsequent proceedings under it. It follows, therefore, that the court committed no error in rejecting the judgment roll offered which would justify us in reversing the plaintiff’s judgment. As no other questions are raised by the appellant, it follows that the judgment -should be affirmed.

Judgment and order affirmed, with costs.

All concur.