text:
    William H. Arnoux, Resp’t, v. Amy C. Phyfe et al., App’lts.

      (Supreme Court, General Term, First Department,

      Filed June 14, 1895.)

    Evidence — Fraud—Mortgage.
    On the issues of fraud in- procuring a mortgage, want of consideration and non-execution, evidence to show that the mortgage debt was paid before the execution of the mortgage, is admissible.
    Aefeal from a judgment in favor of plaintiff.

      Henry B. Johnson and Joseph N. Tuttle, for app’lts; C. N. Bovee, Jr., for resp’t.
   Parker, J.

It seems to us that the appellants are clearly right -in their assertion that the court excluded evidence which they were entitled to have considered in passing upon the issues presented by the pleadings. The issues raised by the answer were that the mortgage Was never executed, was without consideration, and obtained through the fraud of the plaintiff. It was proved that the mortgage was executed by the mortgagor, but whether there was a consideration for the mortgage, and whether procured through fraud, there was conflicting evidence. The learned trial judge, having had before him all of the parties and the witnesses, 'reached the conclusion that the consideration was ample, and that there was no fraud; the bond and mortgage instead having been executed with full knowledge on the part of the person executing it and all others interested. If all of the material and relevant testimony offered by the defendants had been received, we -would then be called upon to say whether the determinations of fact have such support in the evidence as entitle them to stand. As we think it very clear, however, that all of the evidence was not received, which should .have been, by the court, bearing upon such questions, a discussion of them is neither called for nor proper. The bearing of the evidence excluded will be readily appreciated from a brief statement of the principal'facts-affecting the issues.

William Campbell djed in April, 1888, leaving a will, by which he devised the' property covered by this mortgage to his executors in trust, the income and profits, during the life of testator’s wife, to be used by the executors in maintaining and carrying on his household and supporting his family as it then existed. The executors were further empowered to sell and dispose of any of the testator’s real estate upon such terms as they should deem best. The executors desired to raise $14,000 upon the property covered by this mortgage, to be used for purposes connected with the estate, and they were advised that they had not the power under "the will to mortgage the property for any such purpose, but did have full authority to sell it. So a relative — this defendant Amy 0. Phyfe — consented to appear in the role of a purchaser from the executors, and to thereafter execute a bond and mortgage for the amount of the loan, which plaintiff had agreed to procure for them from one of his clients, and then to reconvey the property to the executors. A search was made under the direction of the person in charge of' the real-estate department in plaintiff’s office, who as well prepared the deed and bond and mortgage and all other papers executed or prepared for the purpose of passing title, giving bonds and' mortgages, and revesting the executors with title. There were two bonds and mortgages, however, executed by the grantee at about the same moment of time, — one tó Miss Morss • for $14,000, for a loan of like amount made; and the other to this plaintiff for $15,153. The alleged consideration for the latter mortgage was the payment by the plaintiff to the Chemical National Bank of a judgment in form against William Campbell for a sum which, with interest added, equaled the face of the mortgage. The plaintiff and Mr. Foster, who prepared the papers, testified that the execution of this mortgage was talked about and understood as fully by all the parties present as was .the execution of the mortgage to Miss Morss. On the other hand, Amy C. Phyfe, this mortgagor, testified that she never heard of any such mortgage; that the papers were laid,down before her for signature by Mr. Foster, and she signed them without inquiry; and she was corroborated by her father, John D. Phyfe, Joseph Campbell, and Martha Campbell, who were also present, the two last named being executors of the will of William Campbell. As affecting the question of consideration, it was proved that the plaintiff had taken an assignment from the Chemical National Bank of the so called “ judgment” against William Campbell. The judgment is thus referred to because it was not in fact entered until after Campbell’s death, when it was entered as if he were living. The defendants through ■questions put to various witnessess, offered to prove that the note indorsed by William Campbell and' guaranteed by this plaintiff was made by Phyfe and Campbell to enable them to obtain money to be used in completing the Plaza Hotel, in which William Campbell had no interest whatever, his relation to the makers being that of an acoinmodation indorser. This was followed by an attept to show that this plaintiff was a pártner in the venture of Phyfe and Campbell, and to that end a writing signed by them and- the plaintiff was offered in evidence and excluded. By questions asked of the plaintiff while under cross-examination it was attempted to show that he had an interest in the venture which absorbed the moneys obtained from the note which Campbell indorsed for the accommodation of the firm. This in turn was followed by an attempt to prove that a settlement was had with the plaintiff after the judgment was entered, and before the making of this mortgage, by which there was conveyed to him certain property on Ninety-eighth street in satisfaction of his claim under this judgment and other claims. This will more clearly appear from the following questions, which were asked of John D. Phyfe, all of which were objdcted to, and excluded by the court, the defendant excepting:

“Q. You have heard the statement with regard to some money obtained, — a loan obtained from the Chemical National Bank,— have you ? A. I have heard part of it. Q. Who obtained the money ? Did you make any arrangement with Mr. Arnoux with regard to the procuring of that money before it was procured ? Q. Were you also the party who was building the property in Ninety-eighth street, subsequent to this occasion ? Did you-make any arrangement with Judge Arnoux for the payment of the judgment after it was transferred to him by the Chemical Bank ? Q. What did you agree to pay him in satisfaction of that judgment? Q. Did you agree to give him two of the houses in Ninety-eiglith street in payment of his claim, including his claim against the estate of William Campbell ? Q. State whether, after that agreement was made, and in pursuance of that, you procured the transfer of the title to that property in Ninety-eighth street to Judge Arnoux in satisfaction of that agreement.”

We take from the record certain questions tending in the same direction, which were asked of Jane Phyfe, and excluded by the court under plaintiff’s objection, and to which defendants took exceptions:

“ I reside at No. 249 Lexington avenue, Brooklyn. I am a daughter of William Campbell, deceased, formerly of 62 South Fifth avenue, and sister of these executors. Q. Did you ever have the title to the Ninety-eighth street property that has been testified to ? Did you ever make a deed of that property ? Q. Did you ever have a conversation with the plaintiff, William H. Arnoux, as to making a deed of Ninety-eighth street property ? Q. Was anything said by Judge Arnoux to you in regard to taking the property in Ninety-eighth street in payment of a judgment of the Chemical Bank which had been assigned to him, or any portion of it ? Q. What was that statement ? Q. Did you, in pursuance of that conversation, convey that property to Judge Arnoux? Q. Was that conveyance made prior to the 10th of June, 1892?”

It may well be that the witnesses would not have testified as the questions indicate, but, as they were not permitted to answer, because of plaintiff’s objection, we can only consider whether the defendants were entitled to make proof of the character called for by the inquiries. That they were entitled to is clear. The answer put In issue the consideration for the mortgage, and if the fact were that prior to the date when the mortgage was executed the plaintiff had received the Ninety-eighth street property in full payment of the judgment, and al]§ claims against William Campbell, then there was no consideration whatever for this mortgage. The defendants were also entitled to have this evidence considered by the court upon the question of fraud. The plaintiff, on his. cross-examination, was asked what became of the proceeds of this-note ; whether he was interested in the partnership which constructed the Plaza Hotel; and further:

“ Q. Did you receive any collateral or securities for your guarranty of those notes, or either of them ? Q. Did you receive a, conveyance of property in Pennsylvania at the time your guaranty, and as a consideration for it? ”

if the testimony of the Phyfes and Campbells were true, that-nothing was said to them, or in their hearing, about this mortgage at the time of its execution, and that they knew nothing of it, then the defense pleaded would have been' established. But the court found that it was not true, that they knew all aboutit, and the-bond and mortgage was executed with a full understanding of the situation. Whatever there was of corroborative evidence upon that issue, therefore, the defendants were entitled to. Would it not have corroborated them -to some extent to have proved that the plaintiff had been paid in full? Do parties interested as executors and beneficiaries usually give mortgages upon the.property with the management of which they are charged, or in which they are beneficially interested, without getting anything in return? Is that the usual and ordinary course of human action ? If not, then the silence of these parties when executing a mortgage corn stituting a gratuity equal almost to the value of the property over and above the first mortgage tended strongly to corroborate their testimony that they had no intention of doing it, and did not know that it was being done. It may be that the fact wot not as defendants attempted to prove, but we must assume otherwise, and, so assuming, the conclusion reached seems to be required.

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

All concur.


source: Caselaw Access Project

author: Follett, J.

license: Public Domain

text:
    Lydia Katz, App’lt, v. Celia Schnaier et al., Resp’ts.

      (Supreme Court, General Term, First Department.

      Filed June 14, 1895.)

    1. Will — Probate—Vacation.
    Where no real estate passes under the will, an action to vacate the probate, begun more than one year after the will wa.s proved, cannot be maintained.
    3. Same — Election to take under the will.
    A party, who has elected to take under a will, cannot maintain an action to set it aside.
    8. Same — Direction op verdict.
    It was intended that the trial, in an action brought under section 2653a of the Code, Should be conducted pursuant to existing laws and rules regulating trials by jury.
    Appeal from a judgment dismissing the complaint.
    June 30, 1890, Jennette Gerstje executed her last will and testament, by which she directed her executrix to pay to Lydia Katz, during life, the income on $9,000, and on her death to divide said $9,000 among her children. The executrix was also directed to pay to Rebecca Sanger, during life, the income on $9,-000, and on her death to divide said $9,000 among her children. She also bequeathed $3,000 to be divided equally among the daughters of her son Robert At the death of the testatrix, Robert had three daughters, Sadie, Horma and Rubie, all minors. The testatrix gave the remainder of her estate to Celia Schnaier, Robert Grerstle, and Ralph Grerstle, to be divided equally among them. January 2, 1891, the testatrix died, leaving, her surviving, two Sons, Robert Grerstle and Ralph Grerstle, and three daughters, Celia Schnaier, Rebecca Sanger, and Lydia Katz, her only heirs and next of kin. These children are the legatees mentioned in the will. Shortly after the death of the testatrix, and before her will was probated, her son Ralph Grerstle died, leaving a will, which was duly probated, by which he gave his estate to his surviving brother Robert, and sisters Lydia, Rebecca, and Celia, to be divided among them. In January, 1892, a petition asking for the probate of the will was duly filed, and citations thereon were issued to and duly served on the four surviving children, — Ralph having died,— and the three daughters of Robert. Upon the return of the citation, Rebecca Sanger appeared and filed an answer alleging that the will was not the voluntary act of the testatrix, that she was of unsound mind, and that it was not executed in conformity with the statute of this state relating to wills. April 23, 1892, the four surviving children entered into a compromise ' agreement, executed under their hands and seals, in which the execution of the will, the death of the testatrix, and the proceeding taken to probate the will, were recited, and the agreement concluded as follows : “How, this agreement witnesseth: That, in consideration of one dollar and other good and valuable consideration, in hand paid by the parties of the first part to the party of the second part, the receipt whereof is hereby acknowledged, the party of the second part agrees to take all necessary steps to discontinue and withdraw any and all proceedings, answers, and objections by her made, or made in her behalf by Hastings & Gleason, attorneys at law, in the surrogate's court for the city and county of Hew York, and the party of the second part further agrees to waive, bar, and estop herself and her assigns from ever making any objections or answers to said last will and testament, questioning the validity of said will for any cause whatever, and it is further agreed between the parties hereto that the executors proceed to probate the last will and testament of Jennette Gets tie without further notice.” May 24,1892, the will was admitted to probate, and letters testamentary issued to Celia Schnaier, who qualified and entered upon the discharge of her duties, Robert Gerstle, who was nominated as the executor in said will, renounced. The testatrix left a personal estate amounting to about $39,000, but left no realty. The plaintiff has received from the executrix, on account of income on said $9,000, the following sums: May 26, 1892, $750 ; January 24, 1893, $127.84; July 24, 1893, $201.33. She has also received towards her share of the interest of her deceased brother Ralph in the testatrix’s estate, $1,812.39. This action to annul the probate of the will, pursuant to section 2653a of the Code of Civil Procedure, was begun September 23, 1893.

      George S. Hastings, for app’lt; Milton Mayer, for resp’t
   Follett, J.

— No real estate passing under this will, and this action to vacate the probate having been begun more than one year after it was proved, the action cannot be maintained. Long v. Rodgers, 79 Hun, 441; 61 St. Rep. 462. Again, the plaintiff, having elected to take under the will, cannot maintain this action to set it aside. Caulfield v. Sullivan, 85 N. Y. 153; Lee v. Tower, 124 id. 370; 36 St. Rep. 344; 1 Jarm. Wills (6th Am. ed.) 415. Every objection raised to the will in this action was raised by the plaintiff’s sister in the surrogate’s court, and the plaintiff consented in writing that the will should be proved and has received the income upon the $9,000 since it was proved, with full knowledge of the facts and circumstances attending its execution, and of her mother’s condition when executed.

Apart from these legal defenses the plaintiff failed to establish a cause of action on the merits, or to present a question of fact for the jury. The will on its face appears to be wise and equitable in every respect. The testatrix had an estate amounting to $39,-000. She directed that the income of $9,000 be paid to each of two married daughters during their lives, and the remainder to their children. Had the estate been divided equally among the five children, each would have received but $7,800. The reason why the legacies to the two daughters were tied up during their lives is fully explained by the evidence. They had, as it appears, improvident husbands. The evidence is entirely insufficient to justify an inference that the testatrix was capable of making a will or that she was unduly influenced, and it was proved to have been executed strictly in conformity with the statute. It is urged on the part of the plaintiff that, in an action brought under section 2653a of the Code of Civil Procedure, the court has no power to direct a verdict. This question has been determined adversely to the plaintiff's contention in Hawke v. Hawke, 82 Hun, 439; 64 St. Rep. 789. We think it was well held in the case cited that the intention of the .legislature was, not that the questions sought to be raised in such an action should be submitted to and determined by the jury without regard to whether the evidence was sufficient to raise a question of fact, but that it was intended the trial should be conducted pursuant to existing laws and rules regulating trials by jury.

The judgment should be affirmed, with costs.

All concur.


author: Parker, J.

text:
    Shreve, Crump & Low Company, Resp’t, v. Edward Holbrook et al., App’lts.

      (Supreme Court, General Term, First Department,

      Filed June 14, 1895.)

    1. Estoppel — In pais.
    The party to a contract with a corporation was held, under evidence in this case, not to have been misled by the misrepresentations of members of the board of directors that the board would modify the contract.

      2. Interest — Jujdgment.
    A judgment, allowing interest from a time prior to that from which it is asked for in the complaint or contended for on the trial, is erroneous.
    Appeal from a judgment in favor of plaintiff.

      George M Pinney, Jr., for app’lts; Albert Stickney, for resp’t.
   Parker, J.

— This suit was brought to compel an accounting by the defendants for certain property which came into their hands as trustees under a deed of trust. In November, 1889, Theron J. Blakeslee made a general assignment for the benefit of his creditors to John J. Connolly. During the following month of December, Edward Holbrook, was substituted as assignee under such assignment, in which plaintiff was preferred as a creditor. July 23,1890, Holbrook, together with Norton and Crump, took possession of the assigned estate, in pursuance of the terms of a trust agreement entered into by all interests, including the creditors of Blakeslee. This trust instrument provided for the continuance of the business of importing, selling, and dealing in oil paintings for the period of three years. Prior to the failure of Blakeslee, he was conducting at his store, in addition to his business of dealing in paintings, a bric-a-broc department, which was carried on by him under a written agreement for consignment entered into between himself and this plaintiff. Briefly, the agreement provided that plaintiff should consign bric-a-broc to Blakeslee, and allow him $3,000 per annum towards the payment of the rent of the store, in consideration of which Blakeslee was to sell goods at his own expense, and guaranty payment of all sales, and to divide the gross profits equally with the plaintiff. After the making of the general assignment, the business was carried on by the substituted assignee in precisely the same way. Immediately upon taking possession under the trust instrument, Holbrook, one of the trustees, informed Mr. Crump, another trustee and the general manager of the plaintiff, that if the bric-a-broc business should be continued there should be a division of expense, and if that could not be done it should no longer be continued. Conversations and correspondence between the parties followed this statement of Holbrook, from which it is fairly to be gathered that it was the opinion of plaintiff's general manager that the request was reasonable, and one likely to be granted as soon as there could be a meeting of the board of directors. The board of directors never did meet, or, at least, if they did, no affirmative action was taken accepting the suggestion or proposition of Holbrook as to the basis upon which should be conducted the bric-a-broc business. Whether there should be a division of the expenses incurred by the trustees in the bric-a-broc department constituted the first counterclaim of the defendants.

It is not questioned that the acceptance of the original contract between plaintiff and Blakeslee, the proceedings thereunder by Holbrook as substituted assignee, during the term he was in possession of the property in such capacity, the acceptance of the trust by the trustees, by which rights under the original contract with plaintiff were transferred to the trustees, and their subsequent action in receiving the benefits of the contract, operated to continue in force the original contract; unless there was a modification of it, either by positive agreement or by such action as would estop one of the parties from denying the modification alleged by the other. The appellants insist that the evidence establishes their claim of a modification upon both grounds. It would seem, however, from the testimony of Trustee Holbrook that he did not understand that there was such a modification of the original agreement as was binding upon the plaintiff. He testifies that, while he was substituted trustee, he made thepoint that the*expenses, as well as the profits, should be divided equally, but nothing was done about it; that when he became trustee under the trust instrument, he brought the matter up at the first meeting of trustees, but that there was no resolution or formal action taken on the subject. The matter was discussed, and Mr. Crump, who was one of the trustees, as well as manager for the plaintiff, committed himself personally to a modification of the agreement as proposed by Holbrook, and promised to lay it before the company and recommend it to the board of directors. Holbrook does not claim that Crump promised to do more than recommend it to his board, and says that he understood perfectly at; the time that, in order to bind the parties, there would have to be action taken by the plaintiff’s board of directors ; and, as we have already observed, such was never taken. Nor does it appear that any agent of the plaintiff, having authority to do so, united with the trustees in a modification of the original contract. Under this head, then, the question remaining is, whether appellants are right in their assertion that the plaintiff is estopped from denying that there was a modification of the agreement, or a new agreement in the terms contended for by the plaintiff.

It is apparent from what we have said, in discussing the alleged agreement for a division of profits and expenses, that the defendants, in effect, seek to estop the plaintiff from denying the existence of such an agreement on the ground that they were led to believe that it would be made. Of course, we are not expected to sanction any such position, and it is due to the learned counsel for the appellants to say that he does not express in words what we say he contends for in effect. He urges that they were misled by the plaintiff's acts and silence into believing that the modification of the agreement had been made. But in this position he is not supported by the testimony; for, while Holbrook asked for a modification, and Crump agreed to recommend it, and Shreve wrote, “We will hope to arrive at some satisfactory agreement,” and again, “While no action has been taken by our board of directors, which cannot get a quorum together since Crump’s absence, the conversation incident to it has all seemed to be indicative of a feeling to accept it substantially as you propose,” still there was no- meeting and no formal acceptance, as the defendants well know. The defendant Holbrook testified that he understood that there could be no agreement until formal action was taken ; by the plaintiff’s board of directors. He was not misled, therefore; into supposing that the agreement had been modified as he had requested. He merely expected that it would be. His expectation was founded on the expressed opin'ons of two of plaintiff’s offi■cers, but he knew that they could not bind, and were not attempting to bind, the plaintiff, — that they, as well as he, were waiting for the formal action of the board, which was never taken. Upon ■such a foundation there cannot be predicated an estoppel.

Appellants make the further point that the trustees were entitled to an accounting of the profits made by the plaintiff on two Mo iticelli paintings purchased in France during the summer.of 1890, on the advice of Watson, whose salary the trustees were paying. This claim constituted defendants’ second counterclaim. The decision of the trial court necessarily founded upon a determination of fact that the Monticelli paintings were not purchased by Watson, or any one else, for the defendants. There is evidence that the discovery of the Monticellis was made by Mr. Fenwick, the agent in Paris and Europe of the Shreve, Crump & Low Company, who consulted Mr. Watson about it, and was by him advised to purchase. The only other connection that Watson seems to have had with the pictures was, that he privately exhibited them in Hew York to a Mr. Lambert, who subsequently became the purchaser. There are some features of the evidence which suggest that, had the purchase of the Monticellis not turned out to be very profitable, the trustees might have been permitted to bear the loss or accept a moderate price. While this is so, there is evidence of a substantial character that the paintings were bought by Fenwick in the first instance for his own account, and afterwards sold by him to the plaintiff. The finding of the trial court, therefore, has such support in the evidence as requires its affirmance.

The further position is taken by the appellants that they are entitled to a modification of the judgment, so that it will provide that the costs and expenses of administering the trust shall be paid out of the proceeds of the trust estate before the judgment in question shall be paid. Ordinarily the position would be right, and it was our first impression that the modification requested should be granted, because in accordance with a proper construction of the trust agreement. But, on examining the record, we find a stipulation by appellants’s counsel, made in open court, “that the assets were $81,801.62, while the liabilities were only $26,166.46, — that is, liabilities in the execution of the trust.” We cannot conceive that the stipulation had any other purpose than to assure the court that the assets were ample to defray the expenses of the trust, and afterwards pay such sum as plaintiff should recover in full. As the stipulation carried that assurance to the court, and must have been intended to do so, we do not think appellants at this time are ■entitled to a modification of the judgment in such respect.

We think the appellant’s claim that the judgment was wrong, in so far as it allowed interest to plaintiff from October 20, 1891, to April 4, 1898, is well founded. The prayer for relief in plaintiff’s complaint demanded interest from April 4, 1893. There was no amendment of the complaint during the trial respecting the allegations as to the interest. There was no suggestion, as far as we have observed, during the progress of the trial that plaintiff was entitled to interest prior to the termination of the trust. The suggestion of respondent’s counsel to the court, as appears from the record, was distinctly otherwise. He said : “We would be entitled to interest at the expiration of the three years, is our contention.” The three years did not expire until about July, 1893. Whether the plaintiff could have recovered interest for any period prior to that time, had it been in a position to ask for it, is not passed upon. It was not entitled to recover interest prior to April 4, 1893, because it did not demand it in its complaint, and permitted the trial to close without altering its position.

The judgment should be modified by deducting therefrom interest on $5,636.68 from October 20, 1891, to-April 4, 1893, and, as modified, affirmed, without costs to either party.

All concur.


author: O'Brien, J.

text:
    Henry Julian, Pl’ff, v. Mary A. Woolsey, Def’t. Rebecca Julian, as Administratrix, etc., App’lt.

      (Supreme, Court, General Term, First Department,

      Filed June 14, 1895.)
    Judgment — Yacation.
    A judgment, entered by default, will be set aside eighteen years after-wards on the ground that defendant was not served with process, where the service of the summons without' the complaint was claimed to have been made by a person who had never seen the defendant, and to whom she was not introduced or identified, and it does not appear that she ever knew that judgment had been entered against her, or any steps taken till within the last couple of years for its collection, though she had resided in the-state during that time.
    Appeal from an order, granting a motion to vacate a judgment, taken by default, against the defendant.

      George C. Genet, for app’lt; George J. Greenfield, for resp’t.
   O'Brien, J.

— In 1893 a motion was made to vacate a judgment, entered by default on the 24th day of December, 1875, against. Mary A. Woolsey, on the ground that the said defendant had never been served with the summons in the action. As appears from the judgment roll, the affidavit of service was made by one John Casey, who swore that he served the defendant, Woolsey,. with a summons without the complaint on the 29th day of November, 1875. It is claimed that, at the time of the alleged service, Mary A. Woolsey was not at Staten Island, nor within this state, but was at the town of North Bast, Pa.; and his claim is supported by several witnesses, the credibility of whose testimony is only affected by the circumstance that they related to or connected in some way with Sarah J. Wood, who, upon the death of Mary A. Woolsey, became her executrix and beneficiary, and who made the motion to vacate the judgment. The original plaintiff and defendant, as well as the plaintiff’s attorney, are-deceased, and the contest is now between the personal representatives of the two former. The plaintiff died October 8, 1893 ; the-defendant died in the month of March, 1891. It was shown by the deposition of Casey that he had never, before or since the-alleged service, seen or know the defendant Woolsey, and that she had not been introduced or identified to him by any person. After the entry of judgment, no execution was issued, or, so far as appears, notice given to Mrs. Woolsey. In fact, no steps whatever appear to have been taken to collect this judgment from 1875 to 1891 — a period of over sixteen years — although during all that time Mrs. Woolsey resided in Staten Island, and had means out of which the judgment could have been collected. It is claimed that, in the fall of 1889 (fourteen years after the judgment), plaintiff put the matter in the hands of his lawyer; and the latter states that in 1891 he attempted to obtain leave to issue execution, but was unable to serve Mrs. Woolsey, owing to her absence from Staten Island. It does not appear that Mrs. Woolsey ever had any knowledge of the existence of the judgment or-notice of the proceeding to obtain leave to issue execution.

Upon turning to the complaint annexed to the judgment roll, we find that the claims which are the basis of the judgment were; First, mutual dealings had between the parties prior to January 1, 1890, and an accounting on or about that date between them, upon which there was found to be due the plaintiff a balance of $471.67; and, second, that prior to June 1, 1870, the defendant became indebted upon an account for horses and for cash advances in the sum of $193.14. It will thus be seen that, as to the larger part of this claim, five years and eleven months had run — withi n less than a month of the time when it would have been outlawed unless sued upon. As to these accounts between the parties, no dates or items are given, and it is conceded by plaintiff that the summons was served without the complaint; and, in connection with the doubt that has been created as to the validity of any claim in favor of Henry Julian, it is to be noticed that while he was still alive, and after this motion was made, Mrs, Wood, the executrix of Mrs. Woolsey, made a pointed allusion to the absence of any specifications with rbspect to this claim in her affidavit, which reads as follows:

“Icall attention to the fact that Mr. Julian, in his affidavit, fails to state what were the dealings and transactions between himself and Mrs. Woolsey which resulted in the judgment, nor does the complaint in this action give any more satisfactory statement.”

Notwithstanding the challenge thus made to the good faith and validity of this claim, neither in the answering affidavits nor in the proceedings before the referee was any information given. The failure to meet the charge thus pointedly made, that the claim itself was without foundation, naturally creates suspicion, which when coupled with the failure for years to demand payment from Mrs. Woolsey, or to notify her of the entry of judgment, or to do anything towards enforcing it, properly throws upon the plaintiff the necessity of supporting the validity of the judgment. As against the assault thus made, the appellant confidently relies upon the presumption which arises in favor of the judgment itself, a.nd by evidence which was introduced, tending to show that the testimony given by certain of the defendant's witnesses was erroneous.

There is force in the suggestion of plaintiff that a judgment which appears to be valid is presumptively so until successfully assailed ; and there are provisions of the Code which prevent advantage being taken of irregularities in judgments after a certain period. The claim here made, however, is not that the judgment is irregular, but that it is void, because the court never obtained jurisdiction by service on the defendant. Such an objection is not to an irregularity, but goes to the validity of the judgment, and may be taken at any time; and where, as here, the judgment was so vigorously assailed, and the service which was the basis of the judgment was supported only by the affidavit and deposition of .a man who had never seen, did not know, and had never been introduced to the defendant prior to the alleged service, more is required than a reliance upon the fact that the judgment appears to-have been properly entered. In other words, upon the showing made by the moving party, to vacate the judgment, and before the referee, the question of whether the defendant was served was fairly open as a question of fact; and, after an examination of the record and the conclusions of the referee and the learned judge, we .see no reason to differ with them.

In discussing the merits of the original claim, and the failure to furnish any information in reference thereto, we do not hold that this is in any way controlling or important upon the crucial question as to whether the summons was actually served. But, where, as here, the claim is made that the whole course of the plaintiff, resulting in the entry of the judgment against Mrs. Woolsey, was fraudulent, it is a circumstance to be considered in connection with the judgment as to whether or not the latter had for its basis any real and just indebtedness.

Our conclusion is that the order should be affirmed, with $10 costs and disbursements.

All concur.


author: O’Brien, J.

text:
    Rodgers, Pl’ff, v. Adriatic Fire Insurance Company, Def't. In the Matter of the Petition of Arianna E. Scammon, etc.

      (Supreme Court, General Term, First Department,

      Filed June 14, 1895.)

    Corporation — Dissolution—Judgment.
    Actions, pending in the courts of another state against a domestic corporation, are ended by a judgment of dissolution, and unless, by authority of the court appointing a receiver, he intervenes so that jurisdiction is continued, a valid enforceable judgment against the company or its receiver, or one enforceable against the assets or property within this jurisdiction, cannot be maintained.
    Appeal from an order, denying an application to compel the receiver of an insurance company to pay certain judgments.

      Charles B. Alexander, for app’lt; Oliver P. Buel, for resp’t.
   O’Brien, J.

— In the year 1874, J. Young Scammon, petitioner’s testator, held two matured policies issued at Chicago, Ill., by the Adriatic Fire Insurance Company, a Hew York corporation. In July, 1875, the insured property having been destroyed by fire, actions were brought against the company on each policy within the time required by their terms. The company was duly served with process of the court of general jurisdiction of the state of Illinois, and appeared and defended each action. Suits were also brought by Scammon against a number of other insurance companies upon other policies issued upon the same property. While these actions were pending, stipulations were-entered into by which in effect it was provided that all the suits should abide the event of Scammon’s suit against the Commercial Union Assurance Company. In 1879 an action for the dissolution of the Adriatic Fire Insurance Company was begun in the. supreme court of this state, and thereafter one William A. Sea ver, president of the company, and owner, as is claimed, of all the stock, was made receiver; and it is alleged that he assumed control of the defense of the two actions of Scammon against the company, and in fact, though not in name, was connected with such defense as receiver until his death, when one Helson Gf. Bodgers was appointed receiver in his stead, and continued as such until June, 1883, when he was removed, and the Metropolitan Trust Company of Hew York was substituted, and continued as such receiver, pursuant to the judgment of dissolution, which was entered against the company in August, 1883. The Metropolitan Trust Company thereafter conducted the defense until notified in February, 1887, of the decision of the case of Scammon v. Commercial Union Ins. Co., the event of which action, as stated, the actions against the. Adriatic Company were to abide, when it paid the counsel appearing in the.actions, and stated to them that it would not continue to be represented in the litigation, and thereafter counsel did not appear. It is claimed that neither .the petitioner’s testator nor his attorneys had any notice of the proceedings for the dissolution of the company, and that, they did not know of such proceedings, or that any orders had been made thereunder until after judgments had been taken by default against the company in 1889. In 1884 a referee was appointed to take and state the receiver’s account. The referee advertised for claims, and thereafter reported to the court, and by order the receiver was directed to retain in its hands a sum to await the final disposition of the Scaminon claims, and it is to reach the sum so retained, and upon the strength of the judgments obtained by default in Illinois in 1889, that the petitioner seeks the. aid of the court.

If the Illinois judgments are illegal and uninforcible against the receiver in this state, then the order appealed from was right. The crucial question presented, therefore, is, were the judgments entered in favor of the petitioner’s testator valid, notwithstanding the previous dissolution of the corporation? Their validity is claimed upon the ground that the Illinois court having general jurisdiction and having the right, regardless of the dissolution of the corporation, to proceed during the. term of two years, by such statute of Illinois as well as by the stipulations made in the suits pending in that state,, the judgments entered were valid both in Illinois and Hew York. In regard to the stipulations, all that need be said is that the first, by its terms, expired on the reversal' of the judgment in the case of the Commercial Union Assurance Company; and the second, which was made subsequent' to the dissolution of the corporation, was entered into without authority.

This brings us to the question as to the effect of the Illinois statutes, and upon the view taken by the Illinois courts as to the construction of their own statutes, no more instructive case can be found than that of Association v. Fassett, 102 111. 315. As therein said:

“From this and other provisions of the statute it clearly appeal’s that it is a pare of the settled policy of the state, as least so far as domestic corporations are concerned, that upon their dissolution, however that may be effected, they shall, nevertheless, be regarded as still existing for the purpose of settling up their affairs and having their property applied for the payment of their just debts; and we see no sufficient reason why the same policy should not, so far as practicable, be extended to foreign corporations that have property here, and are located among us for business purposes.”

It will thus be seen that the extent to which that decision goes is in holding that the dissolution of the corporation shall not take 'away or impair a remedy given against such corporation previous to its dissolution as respects assets or property in that state. As-said in another portion of the opinion in that case :

“Whatever may be the effect of a decree of dissolution in the state creating the corporation, it may, nevertheless, be regarded as at least a de facto corporation here for the purpose of enabling creditors to reach its effects in this state.”

And, again:

“It is not denied or even questioned that by the common law a corporation which has been dissolved absolutely for all purposes whatsoever stands upon the same footing as a dead person in respect to any power in the courts to enter a valid judgment against it.”

We do not find, therefore, either in the language of or the construction given to the statutes of Illinois, that the judgments so entered after the dissolution of the company were valid for any purpose except to reach assets of the company which might be in that state. If, however, there was a statute that went as far as claimed by appellant, we do not think it would give the judgments validity in this state. It must be remembered that the Adriatic Fire Insurance Company was a creature of our own statutes, and the judgment dissolving it pursuant to our statutes put an end to its existence ; and it was not in the power of the legislature or the courts of any other state to impair the force of the decree of dissolution in New York. Neither the constitution of the United States nor any principle of comity goes to the extent of permitting such interference.

The suggestion that full faith and credit shall be given to the judgments of other states is thus answered by Story in his Conflict of Laws, section 609, in commenting on article 4, section 1, of the constitution :

“ But this does not prevent an inquiry into the jurisdiction of the court in which the original judgment was rendered to pronounce the judgment, nor an inquiry into the right of the state to exercise authority over the parties or the subject-matter. * * * The constitution does not mean to confer any new power upon the states, but simply to regulate the effect of their acknowledged jurisdiction over persons and things within their territory. It does not make the judgments of other states domestic judgments to all intents and purposes, but only gives a general validity, faith and credit to them as evidence.”

. That no such force should be given to the statute of another state when in conflict with the law of our own is well exemplified by the effect the adoption of such a view would have in the case at bar.' Under our own law, upon the dissolution of the corporation, creditors could not proceed and enter judgment against it as though it were still alive. And yet, if creditors in another state might thus obtain judgments that would be valid in New York, the result would be to deprive our own citizens, suing in our own courts, of a right or advantage conceded to strangers suing in the courts of a foreign state. It would permit the legislature' and the courts of every other state to override the statutes of New York and the judgments of our supreme court.

We think the injury, therefore, must be directed, not to what may be the force and effect of an Illnois judgment, but to whether, under our statutes, the parties in Illinois, after the judgment of dissolution here, could proceed and take judgments against the corporation by default.

In Sturges v. Vanderbilt, 73 N. Y. 384, where a statute of New Jersey was sought to be availed of, it was said:

“ It is not material to refer to the New Jersey statute as to the mode of continuing an action, as that is a matter of practice which must be governed by our own laws; and in the present case there was no attempt to continue the action pursuant to the laws of either state.”

So far as our own state is concerned, we must regard the law as settled in favor of the view that by the judgment in 1883, dissolving the company, that corporation ceased to exist, and all suits pending against it, including the suits brought by Scammon in Illinois, abated. No valid judgment thereafter could be rendered against it, and the judgments obtained by default in 1889 are null and void so far as being enforceable in this state, whatever validity they might have as against property or assets of the company in Illinois.

In McCulloch v. Norwood, 58 N. Y. 566, it was said:

“ We feel constrained to differ from the learned court below on the question of the validity of the judgment rendered in the Ohio court against the corporation of which the defendant is receiver. '* * * At that time the corporation was not in existence, it having been dissolved by a judgment duly rendered in the supreme court of this state. * * * And, the defendant having been appointed the receiver of its property and effects, the corporation had no longer any legal existence or capacity to be sued, or any property which could be subjected to a judgment to be rendered against it. All authority to appear in the case had been withdrawn from the attorneys who had formerly represented the dissolved corporation.”

In the case of People v. Knickerbocker Life Ins. Co., 106 N. Y, 619 ; 11 St. Rep. 165, suit was pending in Tennessee ; and after a judgment against the company, and while upon appeal to the supreme court of the United States, aud after dissolution, the receiver appeared through counsel on the argument. The judgment was reversed, and a new trial ordered, and thereafter a judgment was entered by default against the company. The court then referred to and approved the principle decided in McOullobh v. Nor-wood, supra, and, in addition, disposed of the question of the effect of the receiver’s appearance upon the appeal as validating the judgment. It was therein held that' the dissolution of the company put an end to the action, and at the time of the rendition of the judgment, it had no property against which the judgment could be enforced; that the receiver could not be affected by it unless he had by some action under the direction of the court appointing him made himself responsible for the final result; that the intervention in the United States supreme court did not make him so responsible, as it was simply for the purpose of protecting the assets in his hands from an incumberance which had no con nection with the subject-matter of the litigation., and the reversal of the judgment ended his connection with the action, and the parties litigant were thereby restored to the same position in which they were prior to its rendition ; that the United States court acquired no jurisdiction over him, or over the funds sought to be reached by its adjudication ; and that, therefore, the receiver was not estopped by the judgment.

It is useless to multiply th¿ cases, because by those of In re Norwood, 32 Hun, 197; Sturges v. Vanderbilt, 73 N. Y. 384, and Martine v. Insurance Co., 53 N. Y. 339, and others that might be cited, the same principal has been affirmed; so that, as stated, we must regard the rule as settled that actions pending in the courts of our own or of another state against a domestic corporation are ended by a judgment of dissolution, and unless by authority of the court appointing the receiver, he intervenes, so-that jurisdiction is continued, a valid enforceable judgment against the company or its receiver, or one enforceable against the assets or property within this jurisdiction, cannot be obtained. The reasons for this rule are not hard to find. A court has no more authority to render judgment against an artificial person after dissolution than it has against a natural person after death. Such dissolution, pursuant to the laws of the state creating the corporation, operates as its legal death in any other state in which it may be doing business ; and it must be assumed that every person contracts with the corporation with knowledge that the state under whose authority it was created may arrest its franchises, and dissolve it^ and wind up its affairs.

Having reached the conclusion, therefore, that, so far as the receiver here and the assets in its hands are concerned, the judgments obtained in Illinois by default after dissolution are null and void, the court below was right in denying the petition requiring the receiver to pay-the amount of such judgment.

Order accordingly affirmed, with $10 costs and disbursements. All concur.


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    Thomas Adams and Company, App’lt, v. Nicholas Albert et al., Resp’ts.

      (Supreme Court, General Term, First Department,

      Filed June 14, 1895.)

    1. Partnership — Estoppel.
    A person, who loans money to a firm, cannot he affected by the representations of such firm to the effect that such loan constitutes apart of the capital of the firm, if knowledge of such representations did not come to him.
    2. Judgment — Confession.
    A party, who finds a judgment in his favor for a debt lawfully due, an execution issued thereon and a levy thereunder, may stand upon the rights thus acquired, where it does not appear that the judgment debtor confessed such judgment as a part of a fraudulent scheme, to cheat and defraud his creditors, or that he himself is guilty of any act which in equity should deprive him of the rights of an ordinary judgment creditor.
    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.

      W. W. MacFarland, for app’lt; James L. Bishop, for resp’t Nicholas Albert.
   Parker, J.

— This is a suit in equity, brought to procure an adjudication that a judgment recovered by the plaintiff against the defendant Henry C. Albert, December 29, 1895, for the sum of $38,480.32, and the levy and execution thereunder, be declared to be a lien upon certain goods belonging to the defendant Henry 0. Albert, prior and superior to the judgment, execution spiel levy of the defendant Nicholas Albert, recovered December 23, 1893, for $51,445. To prevent a sacrifice incident to a sale of the goods at public auction, an agreement was entered into by which the goods were sold in the usual way, and the proceeds deposited in the Farmers’ Loan & Trust Company; such proceeds to be treated as a substitute for the goods, for the purpose of determining the rights of the parties. The claim of the plaintiff upon the trial was, and now is: (1) That the sum for which Nicholas Albert obtained judgment was in fact part of the capital of the firm, and therefore subject to a lien in favor of firm creditors; (2) that, if it were not a part of the capital, Nicholas Albert is es-topped from asserting that it was not; (3) that the evidence established a trust in favor of the plaintiff arising ex maleficio, and an equitable lien in favor of the plaintiff superior to any right of Nicholas Albert.

Nicholas Albert came to this country in 1854. In 1867 he became a partner in the firm of Oscar De Lisle & Co. In December, 1872, the firm was dissolved, and a new partnership was formed to carry on the business, consisting of all the members of the old firm except De Lisle, and the firm name being Albert, Haager & Walburger. During the existence of this firm, Nicholas Albert resided in St. Gall, Switzerland, his duties as a member of the firm consisting in the purchase of goods to be shipped to New York for salé. That firm was dissolved December 31, 1885. The day following, a new firm was organized, the members being Haager, Walburger, and Henry C. Albert, a son of Nicholas. Nicholas Albert’s capital-in the firm at the time of the disolution was $115,385.96. Of that amount he loaned $50,000 to his son, to be employed in the business of the firm as Henry C.’s contribution to the firm's capital. Of the rest of his capital he left $50,000 with the firm. The plaintiff says he left it as a part of the capital, while the defendant Nicholas Albert insists that it was a loan to the firm. Thereafter he received thereon from the firm interest at the rate of five per cent, for three years, and after-wards at the rate of six per cent. From time to time, as he needed it, he drew certain amounts from the firm, with the result that at the day of the entry of the judgment, December 23, 1893, there remained unpaid of the original capital, plus a small amount of interest, over $51,00Q. The learned judge at special term reached the conclusion that the only part of Nicholas Albert’s capital which found its way into the capital of the new firm was the sum of $50,000 which Nicholas loaned to his son, Henry 0., in order to enable him to contribute towards the capital of the firm the sum agree upon between him and his partners; the .residue being a loan to the firm. The rule which should govern this court in reviewing findings of fact of a trial court clearly protects this from reversal. But we also think it should be said that, while there is evidence tending to support a contrary inference, after a careful examination of it we have reached the conclusion that the proper inference of fact was drawn. But, in view of the very full discussion -had at special term, we do not feel justified in doing more than to record our approval of the decision in such respect.

The next question is whether Nicholas Albert was estopped from asserting that the $50,000 for which he recovered judgment was not capital. Under this head two grounds of estoppel are assigned by the plaintiff. In the first place, it invokes the rule that, where a man holds himself out as a partner, or allows others to do it, he is thereby properly estopped from denying the character of that which he has assumed, and upon the faith of which creditors may be presumed to have acted. The appellant also quotes from T. Parsons on Partnership, p. 495, the following:

“ If, therefore, this person, instead of permitting himself to be held out as a partner, permits his property to be held out as the property of the firm, and as forming a part of the foundation on which its credit rests, the very same reason which held him personally in the first case with all his property, would now hold that part of his property so permitted to appear as the property of the firm.”

The word “ permitted ” is used by the learned author in the sense of “allowed,” “suffered,” or “acquiesced in.” If a person loans money to a firm, he, of course, cannot be affected by the representations of that firm to the effect that such loan constitutes a part of the capital of the firm, if knowledge of such representations do not come to him. Aside from a conversation had with a representative of the plaintiff, Mr. Carver, to which reference will be made under the second head, we are unable to find any evidence in this record that Nicholas Albert knew, or had reason to believe, that the- money due to him was held out by any one as constituting a part of the property or capital of the firm. He never saw the books of the new firm of which his son was a member, and it appears from his testimony, which is uncontradicted in such respect, that he never asked for an account or statement of the business of the. firm, and never received one. Nowhere in this record can we find any evidence pointing in the direction of either knowledge or suspicion on the part of Nicholas Albert that the $50,000, which he says he loaned to the firm was held out by them, or any one of them, as a part of the capital of the firm.

The appellant further insists that the representations made by Nicholas Albert to a representative of the defendant, about the 15th of July, 1891, upon which plaintiff relied, and subsequently acted, brings into operation another rule of estoppel, to wit,, that where a man makes a representation to another, which he intends shall affect his action, and the representations are of such a character as a man would take to be true, and believes that it was intended that he should act upon it, and does so act, the party making the representations is precluded from contésting its truth. Continental Nat. Bank v. National Bank, 50 N. Y. 575. About the 15th of July, 1891, the firm of Albert & Haager were indebted to this plaintiff in the sum of about $45,000 for goods sold and delivered to them. A Mr. Carver, the manager of the plaintiff, called upon Mr. Henry 0. Albert, who was at that time at St. Grail, Switzerland, for some assurances touching the condition of the affairs of the firm of which he was a member. Later in the day he called upon Mr. Nicholas Albert at his residence, and had an interview with him in the presence of Henry C. Albert. The court finds that the statement made to Mr. Carver by Nicholas Albert at that interview was as follows:

“ You need not have any fear at all. That is all right. Your firm won’t lose anything, because, as much as I know, the business over there is good. I have over $100,000 capital in the business —$50,000 as a loan to my son, and the remaining part to the firm — so you need not be afraid at all. That is all right.”

Had Nicholas Albert concluded his representations with the statement, “ I have over $100,000 capital in the business,” it might be urged that it was reasonable for Mr. Carver to have inferred from that statement that Nicholas had $100,000 in the capital of the firm-; but that phrase constituted only a part of a sentence, which, when completed, makes it entirely clear that he intended to give no such assurances, but, on the contrary, intended that Mr. Carver should understand what the fact was, to wit,, that $100,000 of his original -capital was employed in the -business, $50",000 being-loaned to the Arm.. This expresses the exact situation, and was-not calculated to mislead an ordinarily prudent man. As to so-much of the statement as we have quoted, there is no substantial dispute, but Carver claims that Nicholas Albert further said -that, in the event of tire non-renewal of the contract of partnership between Hanger and his son, which money would not be withdrawn-until plaintiff’s claim .should be -paid; and that it was understood, between the parties at 'that interview that Nicholas Albertis statement should be reduced to writing, and presented to Carver, which Carver says was done. Nicholas Albert positively denies that at. that conversation any such assurances as that were given, or that there was any understanding that the conversation should be reduced to writing; and further, that he never heard of the existence of any such writing until after the commencement of this action. The judge at special term-credited this statement, and we see no-reason to differ with him. The son did write and deliver to Mr. Carver a statement, which reads as follows:

“St. Gall, July 15th, 1891.
“Mr. Garter — Hear Sir: Referring to our conversation of today, and wishing to set your mind entirely at ease concerning out indebtedness to your Arm. I wish to say that my father had a capital of about one hundred thousand dollars in the business, half of which is at the business risk and the balance loaned to me; and that, in the event of the -nonrenewal of the contract between Mr. Haager and myself, you ea,-n rest assured of being paid in full before the withdrawn of said capital.
“Sincerely Yours, H. C. Albert.” '

It will be observed that -this statement purports on -its face-only to be an assurance of Henry O. Albert on 'his own behalf. It refers to a -conversation had with Mr. Carver on that day, and it appears beyond controversy that he did 'have a conversation with Carver prior to the meeting between Carver, bis lather, and himself. The form of the statement; the fact of the previous interview between Henry 0. Albert .and Carver; the testimony tif Henry C. Albert that it was written by him, and delivered to Carver before the.meeting of the three at Nicholas Albertis house ; and the circumstances attending its writing, together with the testimony of Nicholas Albert that he never authorized any such statement, and did not know of it until after the commencement of this action, — was sufficient to justify the trial court in believing, as he did, that Nicholas Albert was not a party to the statement in any manner whatever. That being so, it is entirely unnecessary to consider how the statement would have affected the rights of the parties, had it been made upon the authority of Nicholas Albert.

We shall not discuss the proposition that the fund in question is subject to a trust in favor of the plaintiff, arising ex maleficio,. further than to say that there is no substantial basis for it in the evidence. The $45,000 which was owing the plaintiff by the firm of Albert & Haager, in July, 1891, was paid; but other indebtedness was contracted from time to time during the year and a half following, by the firm of Albert & Haager, or Albert individually, so that there was due plaintiff at the time it obtained judgment, in December, 1893, something over $30,000. But there was no fraudulent conduct on the part of Nicholas Albert. He trusted his son fully down to the last moment. The $50,000 which Nicholas loaned him to put in the business has disappeared in losses. It is not pretended that he has even received any part of the $100,-000, of which half was loaned to the firm and half to the son ; or that it is possible for him to receive anything on account of that indebtedness other than the money in the Farmers’ Loan & Trust Company, which is the subject of this controversy. It is true that the son confessed judgment in favor of his father without his father’s having knowledge that he intended doing so, or that there was any occasion for it; but surely that does not tend to show wrongdoing on the part of Nicholas Albert. And we find nothing in the record which indicates to us that he intended at any time to deceive or wrong any one, or that he had any suspicion even that the business was insolvent. Finding a judgment in his favor for a debt lawfully due, an execution issued thereon, and a levy thereunder, he stands upon the rights thus acquired to secure to him the little that is left of what he once regarded as a substantial fortune. Tiiis he may do if he chooses, inasmuch as it does not appear that his judgment debtors confessed the judgment as a part of a fraudulent scheme to cheat and defraud his creditor or that defendant is guilty of any act which in equity should deprive him of the rights of an ordinary judgment creditor.

The judgment should be affirmed, with costs.

All concur.


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    Abraham Davis, Resp’t, v. Guardian Assurance Company, App’lt.

      (Supreme Court, General Term, First Department,

      Filed June 14, 1895.)

    1. Insurance — Appraisement—Defense.
    The fact that no appraisement was made pursuant to the requirements of the policy, where, by reason of an improper proposal by the company’s appraiser to" the insured’s appraiser, the insured refused to allow them to proceed with the appraisement, and no new appraisers were appointed, is not a defense to an action on the policy.
    2. Same — Damages—False statement.
    A considerable discrepancy between the sum 'claimed in the proofs of loss and the sum awarded on the trial does not ordinarily amount to proof of a fraudulent overvaluation, and whether the difference between the amount claimed and the amount awarded is so great as to -justify the court in setting aside the verdict, depends upon the facts of each case.
    3. Appeal — Discretion.
    Whether the trial court will, or will not, submit specific questions to the jury, rests in its sound discretion, and its determination will not be reviewed unless it appears that its discretion has been abused.

      Appeal from a judgment, entered on a verdict in favor of plaintiff, and from an order denying a motion for a new trial, made ou the minutes.
    This action was begun March 4, 1892, to recover from an insurer damages caused by fire. The defendant by a writ ten policy insured the plaintiff from June 27, 1891, to June 27, 1894, against loss or damage by fire, not exceeding $1,500, on his household furniture, clothing, stores, and supplies, situate at No. 141 First avenue, in the city of New York, where the plaintiff and his family resided. Between six and ten o’clock in the evening of November 3, 1891, a fire occurred in the premises, damaging some, and destroying some, of the property insured. November 19,1891, the plaintiff verified and delivered to the defendant proofs of loss, in which he stated that the damage caused to his property by the fire amounted to $2,154.15. Annexed to and forming a part of the proofs was a schedule of the property lost and insured, which consisted of about 250 items. The policy contains the following provisions: “This entire policy shall be void * * * in case of any fraud or false swearing by the insured touching any matter relating to this insurance or the subject thereof, whether before or after a loss. * * * In the event of disagreement as to the amount of loss, the same shall, as above provided, be ascertained by two competent and disinterested appraisers, the insured and this company each selecting one, and the two so chosen shall first select a competent and disinterested umpire. The appraisers together shall then estimate and appraise the loss, stating separately sound value and damage, and, failing to agree, shall submit their differences to the umpire, and the award in writing of any two shall determine the amount of such loss. The parties thereto shall pay the appraiser respectively selected by them, and shall bear equally the expenses of the appraisal and umpire. * * * No suit or action on this policy for the recovery of any claim shall be sustainable in any court of law or equity until after full compliance by the insured with all the foregoing requirements." November 23, 1891, the parties executed an agreement submitting to appraisers the question of the amount of damages caused by the fire to the plaintiff’s property. Marks Levy was selected by the plaintiff and Carl E. L. Hinriehs by the defendant. November 25th the appraisers took and subscribed the usual oath, and appointed, in writing, Louis Alexander as umpire. On Friday, November 27th, the appraisers met and began their work, and after appraising a number of articles they adjourned until Sunday, November 29th, when they again met and resumed work. The plaintiff on this occasion expressed dissatisfaction with the conduct of the appraisers, and Levy withdrew and refused to continue to act as appraiser, and, December 7th, executed a written resignation addressed to the defendant. The appraiser selected by the defendant went on with the umpire, against the plaintiff’s objection, and completed the appraisement, assessing the damages at $420.70.

      Benno Loewy, for app’lt; Samuel Greenbaum, for resp’t.
   Follett, J.

— Only two defenses are set up in the answer: (1) That the plaintiff refused to permit the damages to be appraised, pursuant to the terms of the policy, and (2) that the plaintiff falsely and fraudulently overstated in his verified proofs of loss the value of the property destroyed and injured, and the damage to the property injured. On the trial, no objection being interposed that such a defense was not pleaded, the defendant gave evidence which, it insisted, required the jury to find that the plaintiff fraudulently set, or caused to be set, the fire which occasioned the damages. On the trial Marks Levy, the appraiser selected bythe plaintiff, testified that, on the last day that he acted as an appraiser, ho and Hinrichs went to a saloon and drank together, “ and that Mr. Hinrichs said to me — told me that ‘We get through easy with this job; the adjuster has got places to appraise; some in the country, and we will go there; in Newton, and we will go there.’ I answered, ‘I will see how the time will be with me, if I can spare it.’ That is all.” Hinrichs denied that he made any such statement to Levy. The plaintiff testified that the fact that this conversation had occurred was brought to his knowledge, and that thereupon, and for that reason, and because he was dissatified with the damages agreed upon for the articles appraised, he refused to allow the appraisers to continue. The court instructed the jury that, if they found that such a proposition was made, it was a sufficient justification for the plaintiff to refuse to permit tfhe appraisers to continue the appraisement. That this instruction was proper is apparent, as the plaintiff was under no obligation to permit his damages to be appraised by an appraiser who would make such a proposition, or by one who would listen to it, without! disclosing the fact. The plaintiff testified that after Levy resigned he called on Mr. Meserole, the defendant’s assistant manager, and told him that he was ready to appoint another appraiser. Meserole testified that the plaintiff called on him and wanted another appraisal, bnt did not think the plaintiff used the words, “that he was ready to appoint a new appraiser.” The jury having found that an improper proposal was made by the defendant’s appraiser, and new appraisers not having been appointed, the fact that no appraisement was made, pursuant to the requirements of the policy, is not a defense to the action.

In respect to the second defense, it is insisted that the verdict of the jury, assessing the damages at $1,000, the plaintiff having sworn in his verified proofs of the loss that his damages were $2,154.15, is proof that the plaintiff falsely overestimated the damages to his goods and that the court erred in not setting aside the verdict on this ground; that the verdict for $1,000 damages is inconsistent with the verdict that the plaintiff did not falsely overstate in his proofs of loss the damages done to his property. In support of this contention the defendant cites Sternfeld v. Park Insurance Co., 50 Hun, 262; 49 St. Rep. 333. In that case the insured, by his verified proofs of loss, stated his damages to be $23,342.47. The appraisers appraised the damages at $4,'321.53, making an overestimate of $19,020.94. The jury by their verdict found that the damage to the property was $5,000, making an overestimate by the plaintiff of $18,342.47. In discussing the case the court said that there was no evidence that “ tétided to explain this difference on the ground of any mistake dr misapprehension concerning either of facts upon which • the proofs were made and verified ; and as there was no ground from which it could be inferred that the loSs had been ovérstated in this maimer by mistake, there was reason for assuming" that it had be'en fraudulently made, to defraud the insurance company out of the other half of the amoutit of the policy. Such an inference necessarily follows from so great a difference;” The amount of the loss sustained was found to be léss than one-fourth of the amount claimed. In that case the judgment" and the order denying a- motion for a new trial were reversed, updn the ground that it Was clear, from the verdict of the jury, that the plaintiff had fraudulently overestimated the damages. In other words, that the verdict that the plaintiff had not falsely overestimated the damage to his property was inconsistent with the finding, that the1 damage did not exceed $5,000. In- Furlong v. Agri. Insurance Co., 45 St. Rep. 856, the insured, in his verified proofs of loss,- s-wore that the damages caused to his personal, property were $1,161.60. The jury assessed the dathages on" the personál property at less than $80,— less than one-fourteenth of the claim, — and it was held that the jury’s valuation of the damages at $80 was inconsistent with the finding that the insured had not,-in swearing they were $1,161.60, falsely overstated the dámages in his proofs of loss, and the judgment and order were reversed. In Unger v. Insurance Co., 4 Daly, 96, the insured, in his verified proofs of loss, claimed that the injury to h"is property amounted to- $16,336;23. The cause was" referred, and the referees found that the loss was $9,172.88. It was held, on an appeal from the judgment entered on the report, that the discrepancy between the amount of the claim and the amount awarded by the referees was not proof- that the plaintiff had sworn falsely in his proofs of loss. In Dolan v. Insurance Co., 22 Hun, 396, the insured, when the policy was obtained, represented that the building, was worth from $3,500 to $4,000, , and in his proofs of loss he stated that the injury to his building by the fire amounted to $1,01-7.64. The appraisers appraised the damages to the building at $694, which was held to be the amount of damages recoverable for its loss-.- The jury found that there was no fraudulent overvaluation of the damages- in the proofs of loss, atid the court held that the discrepancy between the amount claimed and the amount awarded did not -require the court to- bold, as a matter of law, that the plaintiff bad fraudulently overstated his damages. Many cases have arisen over like clauses in fire insurance policies, which are c-ited in 2 May, Ins. (3d ed.) 477, and 1 Bid. Ins. 446 et seq. The cases cannot be harmonized, and an analysis of them will serve no useful purpose. The result of a majority of the decisions is that a considerable discrepancy between the amount claimed in the proofs of loss- and the amount awarded on the trial i's evidence of a- fraudulent overvaluation, but that it does not ordinarily amouh'tto proof of a f-randulent overvaluation, and that a verdict or finding that the damages sustained by the insured are much less than those claimed in his proofs of loss, is not necessarily inconsistent, and whether the difference between the amount claimed and the amount awarded is so great as to justify the court in setting aside the verdict depends upon the facts of each case.

In the case at bar the property lost and damaged consisted wholly of household furniture, clothing, stores and supplies. The plaintiff asserted in his proofs of loss that the damages caused by the fire amounted to $2,254.15, while the amount awarded by the jury was $1,000. There is no class of property in respect to the value of which persons will so widely differ as articles of household furniture and clothing. Such property always is deemed to be of greater value by its owner than by any other person. A carpet and articles of furniture possess more value to the owner than to a dealer who estimates their value at what they will sell for as second-hand articles. So in respect to personal clothing. It has little or ho market value, though unworn, while it may be worth to its owner substantially what it cost. Considering the nature of the property, we do not think that this court would be justified, as a matter of law, in setting aside the verdict and granting a new trial, because the plaintiff claimed the damages to be a little more than twice the amount awarded. The •evidence given on the trial, if believed, justifies the verdict which was returned, and might have justified a larger one, or, if the jury in its discretion had believed the evidence of the defendant’s witnesses, who evidently testified to the salable value of the articles as second-hand property, a verdict for a less sum would have been justified. The question of the extent of the plaintiff’s damages, and whether the plaintiff falsely overestimated his loss, were fairly submitted to the jury by the learned trial judge, and, while the case may be a close one, we think the verdict should not be overturned as against the weight of ■evidence.

The hour at which this fire occurred, and the circumstances under which it occurred, were such that the jury were entirely justified in finding that it was not fraudulently set or caused by the plaintiff. At the close of the evidence the plaintiff asked the court to submit eight specific questions to the jury, pursuant to Section 1187 of the Code of Civil Procedure. Whether the trial court will or will not submit specific questions to the jury rests in its sound discretion, and its determination will not be reviewed unless it appear that its discretion has been abused. It wss not proper to ask that eight questions be submitted to the jury in this case, there not being so many issues of fact, and no error was committed in declining to submit the questions proposed.

After looking at the exceptions taken to the admission and exclusion of evidence, arid at those taken to the charge, we find none 4hat seem to be erroneous, or so'close as to require discussion.

The judgment and order should be affirmed, with costs.

All concur.


author: Bradley, J.

text:
    John A. Mann et al., Resp’ts, v. National Linseed Oil Company, App’lt.

      (Supreme Court, General Term, Fifth Department,

      Filed June 25, 1895.)

    1. Contract — Construction.
    A provision in a contract for the sale of oil, that the oil tendered should be in good cooperage, does not require it to be in wooden barrels at the time of the tender, but it is sufficient if put in barrels when shipping instructions are received.
    3. Same — Breach—Rb-saue.
    Where the purchaser refuses to accept, a re-sale, in order to charge him,, need not be made at auction or on notice to him.
    Appeal from a judgment, entered on a verdict in favor of plaintiff's, and from an order denying a motion for a new trial, made on the minutes.
    On September 20, 1892, the parties entered into a contract whereby the defendant, an Illinois corporation, during the period ending September 1, 1893, agreed to receive from the plaintiffs (who were engaged in the manufacture and sale of linseed oil at Buffalo, R. Y.) all the linseed oil manufactured by them, which should not within that time be sold by them to others, and pay for it within ten days the then Chicago market price,in car-load'lots, less two per cent., and less two and three-quarters cents per gallon commission, provided (1) that the defendant should not be required to receive in any one month more than 60,000 gallons, to be delivered in lots of 20,000 gallons or less; (2) that the oil tendered to the defendant should be pure raw linseed oil, well settled, and in good cooperage, f. o b. cars at Buffalo; (3) that the sale by the plaintiffs to other parties should not be made at better terms, or at less than the then established market price of like quality and quantity in the district where sold ; (4) that upon all oil sold by the plaintiffs to others they should allow to the defendants one-fourth of one cent, per gallon. The plaintiffs delivered and the defendant received 60,000 gallons monthly up to and including June, 1893, and thereafter received none from the plaintiffs, who, in July and August, tendered, in lots of 20,000 gallons each, 100,-000 gallons to the defendant, which he refused to receive. In this action founded upon an alleged breach of contract, the plaintiffs recovered $8,837.20 damages.

      A. Rebadow, for app’lt; Franklin D. Locke, for resp’ts.
   Bradley, J.

The obligation assumed by defendant to receive linseed oil from the plaintiffs was dependent upon a tender of it by them. It was by the contract provided that the oil tendered should be in good cooperage, f. o. b. cars at Buffalo. Did this necessarily imply intent that to render a tender effectual the oil should be in wooden barrels at the time the defendant was notified that the plaintiff was ready and offered to make the delivery?The oil was by the plaintiffs kept in iron tanks, from which it was taken and put into barrels or other vessels required for use in its It that wooden barrels are not suitable to

contain linseed oil in storage, as it will more or less escape by leakage from them. The parties, however, recognised and adopted such a construction of the contract as did not require the plaintiffs at the time of the tender, nor until instruction for shipment was given them, to put the oil so tendered into barrels. This was the method adopted by the plaintiffs at the outset, and understood by the defendant. By its letter to plaintiffs of date June 15, 1893, the defendant says: “ Under the contract you have the right to deliver when we send you instructions, but we are not bound to receive on your tender.” By its letter of a later date it adds : “ Under our construction of the contract, we are at liberty at any time during the month to give you shipping instructions according to our convenience. Therefore all that is necessary for you is to give us notice of the quantity that you intend to tender; then in due time, and at our convenience, we will tell you what to do with it.” Soon after the contract was made, the defendant expressed a desire to have oil shipped in oil-tank cars, which the plaintiffs consented and made preparations to do, and considerable quantity of oil in that manner was delivered to the defendant, and shipped to such places as the defendant directed. The tank cars were furnished by it or under its direction. By its letter to the plaintiffs of date June 23, 1893, the defendant, after referring to the fact that a tender of 20,000 gallons had been made, says: “ Please have the amount above named 20,000 gallons put in first-class cooperage.” Then follow some further instructions. It thus appears that it was contemplated by the parties, and such was the practical construction of the contract, that it was only requisite that the plaintiffs have their oil in their tanks ready to be put into vessels for transportation at the time of the tender or offer to deliver. And, inasmuch as the plaintiffs had on hand, ready for delivery, the several quantities of 20,000 gallons each, which they tendered in July and August, 1893, and constituting the 100,000 gallons, which they also had on hand for delivery, the tender to the defendant was effectual. Not only the reasonable construction of the contract, but that practically given to it by the parties in the progress of its performance, was such as not to require that the oil be in cooperage at the time of the tender. The readiness at that time to put it in barrels when notified of the defendant’s acceptance was all that was essential to give effect to the offer to deliver. Hayden v Demets, 53 N. Y. 426. The defendant, by its refusal to receive the oil, was pu.tin default, and became liable at the election of the plaintiffs, to pay for it, or to pay such damages as they sustained by the breach of the contract on the part of the defendant. In due time after the default of the defendant, the plaintiffs proceeded to sell and sold that oil on the account of the defendant, and, assuming, as the evidence permits, that they sold it fairly, and for the best price they could get for it, the plaintiffs were entitled to recover the deficiency; that is to say, the amount less, derived from sale, than that to which they were entitled by the contract. Dustan v. McAndrew, 41 N. Y. 72; Mason v. Decker, 72 id. 595. Nor was it necessary

that the sale be at. auction, or upon notice to the defendant) although, as bearing upon the question of fairness of a sale- in such case, it is usually prudent to give such notice. Pollen v. Le Roy, 30 R. Y. 549; Van Brocklen v. Smeallie 140 N. Y. 70; 55 St. Rep. 263. The- contract provided that the defendant should receive all the linseed oil manufactured by the plaintiff “which shall not be sold by them to other parties.” It is now urged on the part of the defendant that the plaintiffs did not show upon the trial that they had made any effort to sell the oil tendered before it was offered to the defendant. Ro such questions was specific-silly raised upon the trial. If it had been, and such fact had been deemed essential, it may be that it would have been supplied by proof. It may be observed that by the contract the sales other than to the defendant were so restricted as not tó permit the plaintiffs to sell to others “on better terms or at less than the established market price,” which,, it seems, was- practically regulated by the defendant’s circulars. While it was contemplated by the contract that the plaintiffs would, under such restrictions, make sales to •others, it did not, in terms, impose upon them an effort to do so. The apparent purpose of the contract was to-give to the defendant the control of the market for the oil manufactured by the plaintiffs, and with a view on the part of the defendant to realize a, profit from its performance. The contention that the want of evidence of an effort to sell the oil in question to others before the tender to the defendant is in the way of the plaintiff’s recovery is not supported by the record of this review. The contract provides for the sale of raw linseed oil only. After the default of the defendant, a portion — less than one-third — of the oil, was, for the purposes of the sale, boiled; It is insisted on the part of the defendant that the part of it subjected to that process was thereby taken from the operation of the contract, and therefore the defendant is mot chargeable with the deficiency arising from the sale of that portion of the oil. It is true that the defendant cannot be charged to its prejudice by the conversion from raw into boiled oil. It appears to have been, no detriment to the defendant. The evidence tends to prove that there was a demand.for raw oil after it was. boiled, and that this was boiled to facilitate the sale. The price for which it sold was three cents per gallon more than that "for raw, unboiled oil, and such increased price was just the expense of boiling the oil. The result, in which the defendant is •concerned, was the same as if a market could have and had been found for it unboiled. The pbjection relating to the sale of the oil which was subjected to that process for market, and'founded upon that fact, is not, as matter of law, tenable. This waS deemed by the plaintiffs necessary to render it readily marketable, and to •enable them to consummate the sale which they, by reason of the •defendant’s default, were permitted to máke on its account

The further question has relation to sales of oil made by the plaintiffs to the Rew York, Lake Erie & Western Railroad Company in the period covered by the contract. It is insisted that such sales were made for less than the established prices, and in violation of the contract. It seems that the prices were deemed fixed by the schedules or circulars issued from time to time by the defendant, and that those were the prices of the oil delivered at the places where the buyers accepted it, and, when transported to them they took it at those prices, less, the freight charges upon it; in other words,«the freight was deducted from such prices, l'he sales made to the railroad company were made for delivery at certain points on the line, and, although it was taken by that company upon its cars at Buffalo, the oil was transported upon its road to the several points designated, and to treat the oil as delivered at those points at the established price the freight was deducted from it. This practically placed the railroad company, as a purchaser, on the sanie footing as that of other purchasers. The oil sold to the- company amounted to only about $3,000, and if it had been treated as delivered at Buffalo at the established price only a small sum more than was Would have been realized from those sales. There seems to be no substantial feason for the charge that the plaintiffs' in the sales to the railroad company failed in the observance or performance of the contract on their part. The motions in behalf of the parties at the close of the evidence for the direction of nonsuit and verdict raised questions of law only, and,- as no request was made to submit anything to the jury, the entire case, was left to the consideration of the court, and in the direction of the verdict for the plaintiffs the court is deemed to have determined adversely to the defendant^ whatever questions of fact there were for- consideration. Ormes v. Dauchy, 82 N. Y. 443; Dillon v. Crockroft,. 90 id. 649. No other question requires consideration.

The judgment and order should be affirmed.

All concur.


text:
    Catharine E. Beeman et al., Resp’ts, v. Charles Beeman et al., App’lts.

      (Supreme Court, General Term, Fifth Department,

      Filed June 21, 1895.)

    Tkust — Cheati on.
    Where a father deeds- land to several children and takes’ back mortgages to himself, which contain the condition that, after his death, a certain amount of the mortgaged debts should be paid to his other children, no trust is Created, in the absense of any consideration for the condition or any declaration of trust at the time.
    Appeal from a judgment in favor of plaintiffs.
    The facts, as they must be here assumed, are that on March 20, 1880, Lyman Beeman made deeds of his lands, in distinct parcels, to his children, the defendants Charles Beeman, Henry S. Beeman, and Eunice Eldred, respectively, and took from each of them a mortgage thereon, in which Lyman Beeman was named as mortgagee, containing, the condition for the payment of the sum of $62.72 to the party of the second part annually during, his life, and for the payment of $533.35 in one year after his death, and one year’s interest to Catherine Beeman, wife- of his son William, and Betsy Swift, “heirs of said Lyman Beeman, in equal shares; ” that Lyman Beeman retained the mortgages in his possession,, and caused that of Henry S. Beeman to be recorded ; neither of the others was recorded; Lyman Beeman died February 26, 1891; and that some time before his death he destroyed the mortgages so made by Charles Beeman and Eunice Eldred. The purpose of the action was the establishment of the lien of the" mortgage of the defendant Charles Beeman. Judgment to that effect was directed and entered. 1

      Frank Brundage, for app’lt; E. O. Farrar, for resp’t.
   Bradley, J.

— The view of the trial court was that by the execution and delivery of the mortgages to Lyman Beeman an irrevocable trust was created in behalf of the plaintiffs. It would have been so if a trust to that effect had been expressly declared in the instruments. Martin v. Funk, 75 N. Y. 134; Schulter v. Bowery Sav. Bank, 117 id. 125; 26 St. Rep. 922; Beaver v. Beaver, 117 N. Y. 421; 27 St. Rep. 405; Id., 137 N. Y. 59; 50 St. Rep. 69: Bank v. Albee’s Estate, 64 Vt. 571. And when the trust is not, in words, declared in the instrument, it is entitled to-that character if such clearly appears to have been the intention of the donor. Mabie v. Bailey, 95 N. Y. 206, McPherson v. Rollins, 107 id. 316; 12 St. Rep. 488. In the mortgage made by the defendant Charles Beeman to Lyman Beeman, no trust was expressed, nor, so far as appears, did any declaration of trust, attend the making of the conveyance and mortgage. And unless something further than the terms of the instruments themselves import arises out of the transaction, or otherwise appears to so characterize it, a trust was not impressed upon it in favor of the plaintiffs, but, as to them, it would be treated as in the nature of a testamentary provision. Townsend v. Rackham, 143 N. Y. 516; 62 St. Rep. 851. The condition in the mortgages in behalf of the plaintiffs was without consideration on their part, and was the result of the voluntary direction of the mortgagea In such case it was said in Beaver v. Beaver, 117 N. Y. 428 ; 27 St. Rep. 405, that “ to constitute a trust there must be either an explicit declaration of trust, or circumstances which show beyond reasonable doubt that a trust was intended to be created.” It was there held that no trust existed. And on the review of the second trial the same reason was given for a like result On that trial the evidence warranted the finding made, that the money in question was deposited by the father “ with the purpose and with the intent that such moneys should thereafter remain the property ” of his son named. It was held that this new fact did not alter the legal situation, or warrant the inference of a trust 137 N. Y. 65; 50 St. Rep. 69. In none of the cases cited by counsel, other than McPherson v. Rollins, was it held that a trust was created without the declaration to that effect by the donor at the time of the transaction out of which it was claimed to have arisen. And the main distinguishing feature of that case from Townsend v. Rackham, as mentioned by the court in the latter, is in the fact that the payment of the annuity to the beneficiary was not postponed until after the death of the donor, while in the Townsend Case, and the one at bar, the plaintiff could take nothing during the life of the mortgagee. It is deemed unnecessary to further consider the significance of that distinction. It may be inferred, as found by the trial court, that the conveyances to three of his children, and their mortgages containing the condition for the ultimate payment of certain sums to the plaintiffs, were made and taken by Lyman Beeman for the purpose of making a division of his property among his children. He took and held the mortgages. He could have effectually imposed, in favor of the plaintiffs, a trust upon such provision for payment to them. The mortgages were made without their knowledge. When the fact was afterwards ascertained by them, they undoubtedly expected to derive from them the benefit of such provision, if they survived their father. And it may be assumed that when the father caused the instruments to be made he intended that such provision should be available to them after his death. It does not, however, appear that he at any time made any expression to the effect that he held the mortgages in trust for them, to any extent. An intent to give, ineffectual as a gift, is not for that reason a trust. Young v. Young, 80 N. Y. 422. The difficulty is that the intent of Mr. Beeman, at the time the mortgages were taken, to give the plaintiffs, and that they should finally have, the amount so provided by them, was not supplemented by any expression to the effect that they were taken and held by him in trust for the plaintiffs. There is, therefore, wanting an explicit declaration of trust, and, within the rule announced by the court in the Beaver Case, there is a want of circumstances appearing, requisite to impress that character, in favor of the plaintiffs, upon the mortgages in the hands of the mortgagee. The view of the court, as there expressed, is that when the inquiry is dependent upon circumstances they must be such as to permit no reasonable degree of uncertainty of the purpose of the alleged donor to create a trust, to render them effectual for its support as such. Since the Townsend Case, that of McPherson v. Hollins cannot be relied upon to support the present one; and, although it is there distinguished by the court, it seems quite evident that, upon the subject of a trust, it is so limited by the doctrine of that and the other cases hereinbefore cited as to render it of little value as authority.

It is not seen that there is anything essential bearing upon the question in the fact that four years after the conveyances, etc., were made, the five children of Mr. Beeman joined with him in the release of their contingent interest in the estate of their grandfather, for the discharge of a mortgage to the latter, and held by his personal representative, upon the land so conveyed, and covered by the three mortgages. This release by the plaintiffs may have been founded upon their expectations, which good faith on the part of the father should have i nduced them to observe, but this release does not appear to have been given upon any agreement or declaration creating a trust in their behalf. It is unnecessary here to inquire what other remedy the plaintiffs may have, arising out of that transaction, if they finally fail to support their legal claims upon the mortgage made by the defendant Charles Beeman. The conclusion follows thst no trust appears to have been created in behalf of the plaintiffs, and that if Lyman Beeman, .during his life, purposely destroyed that mortgage, his act in doing so must be deemed a invocation by him of the provision contained in dt for payment tp them after h-is death.

The judgment should be reversed, and a ¡new trial granted; costs of this appeal tp abide the final award of costs.

All concur.