author: BARRETT, J.

text:
    Mayor, etc., of City of New York v. Ashbel Fitch et al.

    (Supreme Court, Appellate Division, First Department.
    October 23, 1896.)
    Trusts—Equitable jurisdiction—Instructing trustee.
    The rule permitting trustees to seek the advice of the court on doubtful questions does not authorize an action by New York City to obtain an adjudication as to who was the highest legal bidder at a sale by the comptroller of a street-railroad franchise, or a decree instructing the comptroller as to his duty in the premises, since the relation of the city as trustee of the streets is only nominal.
    Appeal from special term, New York County.
    Action by the mayor, aldermen, and commonalty of the city of New York against Ashbel P. Fitch, comptroller of the city of New York, and others, for an injunction. From an order continuing an injunction pendente lite, defendant People’s Traction Company appeals.
    The injunction restrained the defendant Fitch, as comptroller, from, continuing the sale of the franchise of constructing,, maintaining, and operating a certain street-surface railway in. the city of New York, and from entertaining, receiving,, or accepting any further bids at such sale. It also restrained the1 three corporations defendant from making any further' bids afc such sale, or from receiving or accepting an award! of such, franchise upon any bid heretofore made by either of them.. The sale was pursuant to a resolution of the common; council, and in accordance with the railroad law. It was adjourned to-the 9th day of October, 1895. Upon such sale, after two; very* small bids, the North New York City Traction Company bidl 39-í-f per cent. Immediately thereafter the People’s Traction Company bid 97 per cent, for the first five years, and; 95 per cent, thereafter. All such bids were additional to- the percentage required by the railroad, statute, namely, 3; per cent, for the first five years and 5 per cent, thereafter- Therefore the aggregate bid of the People’s Traction Company was 100 per cent, of its gross receipts. The defendant theNorth New York City Traction Company immediately thereafter bid 101 per cent., and the People’s Traction Company at once protested against the reception of any further bid. beyond its bid of 100 per cent., claiming that no legal bid could he made to pay any percentage greater than 100 per cent. The protest was overruled, and the bid of 101 per cent, received, ánd thereupon the People’s Traction bid 1,000 per cent. The bidding continued until the close of business hours, the last bid being 6,975 per cent, by the defendant the North New York City Traction Company; and thereupon the auction sale was suspended, and an announcement made that it would be continued on the next day, October 10th, at 12 o’clock noon, at the same place. The Southern Boulevard Company made no bid after 3-’- per cent. On the 10th day of October, 1895, before the hour fixed for resuming the sale, an action was commenced in the supreme court by the Southern Boulevard Company, as plaintiff, against the People’s Traction Company, the North New York City Traction Company, and Ashhel P. Fitch, comptroller. In said action an order was granted by a justice of the supreme court enjoining further continuance of the sale until further order of the court. Subsequently the action was tried, and a judgment was entered therein dismissing the complaint of the Southern Boulevard Company upon the ground that it had no grievance to be redressed, because its bid of 3|- per cent, had been largely exceeded by subsequent bids made in good faith by the two competitive companies. This judgment was subsequently affirmed by this appellate division, 39 N. Y. Supp. 266. On the 13th day of June this action was commenced, and the injunction order under review was obtained and served upon the respective parties on the same day. The relief demanded in the present complaint is as follows : (1) If the court finds that the bidding had passed beyond all reasonable and valid bids, that the court determine in such case Avhich is the highest legal and valid bid, and direct the comptroller to award the franchise accordingly ; or (2) direct that the biddings be canceled, and the proceedings be adjudged to be null and void, and direct a resale under such terms and conditions as may be lawful; and (3) that the court render such judgment as will protect the plaintiff’s interest in said franchise, and instruct the said defendant Ashbel P. Fitch, comptroller, aforesaid, as to his official duty in the premises, and that the court in the meantime restrain and enjoin said corporation defendant from purchasing said franchises, and said Ashbel P. Fitch from awarding said franchise to either of the bidders at said auction sale, until the hearing and determination of this action.
    B. F. Tracy, for appellant People’s Traction Co.; F. M. Scott, Corp. Counsel, in pro. per.; W. F. Sheehan, for respondent North New York City Traction Co.; J. M. Tierney, for respondent Southern Boulevard r. Co.; George E. Mott, for respondent Fitch.
   BARRETT, J.

—The learned judge at special term aptly said that this action is brought by the plaintiff, as trustee of the streets, to ascertain which of the defendants is the highest bidder ” for the franchise in dispute. The question is, can such an action be maintained ? If it can, it is entirely proper to preserve the existing status by injunction until the plaintiff’s supposed doubts are resolved upon the trial. If it cannot, then the injunction pendente lite should, of course, be dissolved. The equity of the complaint rests avowedly iqion the plaintiff’s trust relation to the streets of the city. But for this trust relation, it is not contended that such an action as the present would lie. In fact, it is not the province of a court of equity to act as a general adviser, nor to settle people’s disputes by resolving their own or other people’s doubts with regard thereto. A man who owns property, and puts it up at auction, may be greatly interested to know whether the sale was legally conducted, and who made the highest valid bid. -But, even if there were no statute of frauds, he could not well come into a court of equity to have this ascertained for him, and, upon its being ascertained, to obtain such judgment as against all the bidders, defendants, as might be appropriate. Except in interpleader or some similar and Avell-recognized head of equity, a party must decide for himself as to his rights. Having thus decided, he may assert those rights, and submit the issues arising from their denial by his adversary to the arbitrament of a court regularly constituted to hear and determine disputed questions of fact and law.

The question, then, is, does the plaintiff come Avithin the rule which permits a trustee to ask the opinion of the court upon a doubtful question ? To answer this satisfactorily. Ave must haAre a clear understanding of the precise nature of the advisory jurisdiction, and of the reason why trustees are permitted, under given circumstances, to seek instruction and direction from the court. Primarily, the jurisdiction is incidental to that over trusts (Bailey v. Briggs, 56 N. Y. 407); that is, over express trusts created by some appropriate instrument. The trustee thereby appointed cannot be expected to incur risk in the distribution of the trust fund, or responsibility resulting from an erroneous construction of the trust. This; risk and responsibility are such as attach to the trustee in his relation to the cestuis que trustent. But even then there must be some doubt or obscurity as to ivhat the law is, and what his conduct ought to be under it, to entitle the trustee to the advice and instruction of the court. In re Brewer, 43 Hun, 600. This advisory jurisdiction will not be exercised where the power has been wholly and plainly confided to the trustee (Id.); nor even in construing a will, where the estate devised is a legal one, and the questions raised are also purely legal (Perry, Trusts, 476a; Chipman v. Montgomery, 63 N. Y. 221). The circumstances which will justify the trustee’s application for advice are those which relate to the terms of the trust itself, and to the rights of the beneficiary thereunder. They are not such as relate to the conduct of the trustee in his dealings with third parties. There may, for instance, be a close question, upon the face of the trust instrument, whether the trustee should utilize trust funds in improving vacant lots. He may well be justified in asking instructions upon that head. But he would have no right to ask a court of equity to advise him as to what architect or builder he should employ, or what course he should adopt with regard to a dispute between rival claimants to the building contract; still less with regard to a dispute between himself and those Avith AArhom he had contracted. All such doubts and difficulties Avould be foreign to the trust proper. They would not come within the purview of the court’s advisory jurisdiction. As to these matters the trustee would have to- decide for himself what his proper course should be. He Avould have to come into court, Avhether in equity or at law, in the same way as any other suitor; in no other way. He would, in fact, be subject to the ordinary rule that, to put a court of equity in motion, there must be an actual litigation in respect to matters Avhich are the proper subjects of the jurisdiction of that court. Chipman v. Montgomery, 63 N. Y. 230. In the present case there is no such trust as the rule invoked by the plaintiff contemplates. The city of Nbav York is a trustee in but a general sense; that' is, a trustee not for its citizens alone, but for the public at large. This is nothing more than saying that the fee of the streets is. in the corporation, subject to public use. It is quite clear that such a nominal trust furnishes no ground for the exercise of advisory jurisdiction. There is no trust instrument to be construed, and there are no cestuis que trustent to be considered. The defendants certainly are not the beneficiaries under the public use trust. They are simply rival claimants to a franchise which the city is authorized to grant upon certain statutory terms and conditions. The city, as technical trustee for the public use, incurs no risk as trustee, no matter how the franchise may be disposed of. As between itself and the public, it is a matter of no direct pecuniary consequence how it or its comptroller reads the statute, or acts upon the circumstances which attended the bidding. Whatever loss the city may here incur by a false move will be its own direct loss. Indeed, it is so averred in the complaint. It will not be its loss, as trustee, resulting from its error in a trust capacity. LTor will it be charged with any such loss by a wronged cestui que trust. It is quite plain that the circumstances under consideration have nothing whatever to do with even the city’s nominal trust. They are foreign thereto, both inherently and in their application to the defendants.

There are other objections to the complaint, notably the failure to aver doubt, and the contrary averment with respect to bids above 100 per cent, of the gross receipts. We prefer, however, to place our judgment upon the distinct ground that the city cannot come into a court of equity for instruction and direction as to the course which- it would pursue under the circumstances disclosed. The complaint is demurrable, and the court upon the trial will be required to dismiss it.

It follows that the order appealed from should be reversed, with $10 costs and disbursements, and the motion to continue the injunction denied, with $10 costs, and the temporary injunction dissolved.

All concur.


source: Caselaw Access Project

author: MoADAM, J.

license: Public Domain

text:
    Isaac Kafka v. Louis Levensohn.
    (Supreme Court, Appellate Term, First Department.
    October 29, 1896.)
    1. Appeal—Objections not raised below.
    An objection that plaintiff in an action on an assigned claim proved no assignment cannot be first taken on appeal.
    2. Pleading—Variance—Waiver.
    In an action to foreclose a workman’s lien under Code Civ. Proc. § 1737, on goods of defendant retained by plaintiff, a motion to-dismiss on the ground that the goods were relinquished by plaintiff on the trial was properly denied where the goods were delivered to defendant pursuant to a direction of court given without objection, and the summons and complaint were by consent amended so as to set up a claim for labor performed, and the trial proceeded on the amendment.
    3. Motion to dismiss—Sufficiency of grounds.
    A ground of motion to dismiss a complaint, that plaintiff failed to prove the cause of action alleged, is too general to be available.
    4. Partnership—Actions—Proof.
    Where the firm title of defendant was merely a name which he used in conducting an individual business, plaintiff was not required to prove a partnership.

      5. Appeal—Review—Objections.
    Defendant cannot urge on appeal that the judgment was without evidence, or against the weight of evidence, where no motion was made on the close of the case to dismiss.
    •8. Same—Weight oe evidence.
    Where the issue was sharply litigated, the decision thereon of the trial justice will not be disturbed on appeal.
    .7. Bailment for hire—Liability for loss.
    One to whom cloth was delivered to be made up into coats is not liable for the loss of the coats by a burglary of his rooms, committed after he had notified the owner to call for them.
    S. Same—Effect of loss on bailee’s rights.
    One to whom cloth was delivered to be made np into coats is entitled to recover for his services though the coats were stolen from his rooms, where he was without fault, and after he had notified the owner to take thenj avray.

      S. Same—Deposit for redelivery—Forfeiture.
    One to whom cloth was delivered to be made up into coats was entitled, on finishing the coats, to recover a deposit left by him with the owner as indemnity against loss resulting from his own misconduct respecting the property, though the coats were lost through a burglary of his rooms, he being without fault.
    Appeal from fourth district court.
    Action by Isaac Kafka against Louis Levensohn. There was a judgment in favor of plaintiff, and defendant appeals.
    Benno Loewy (Thomas Darlington, of counsel), for appellant ; A. H. Sarasohn, for respondent.
   MoADAM, J.

—The action was originally brought to recover for work, labor, and services in making up 488 men’s coats at the agreed price and of the reasonable value of 50 cents per -coat, making §244. On account of this sum the plaintiff received §82, and this, together with §2.43 for insurance, having been deducted, left a balance of §159.57, the amount originally sued for. It appeared that the 488 coats came in four lots, of 221, 100, 50, and 117, respectively ; that the two first lots liad been delivered, while the third lot had been stolen from the plaintiff after the goods were made up ready for delivery; that the defendant threatened to hold plaintiff for the 50 coats, whereupon the plaintiff retained the fourth lot by virtue of his common-law lien as a workman, and by the action he undertook to foreclose this lien, according to section 1737 of the Code. While the cause was on trial the justice adjourned the further hearing, with instructions to the plaintiff to deliver the goods in his possession to the defendant. No one objected to this course. Indeed, it seems to have been assented to by both parties, for the plaintiff acted on the instruction by delivering the 117 coats to the defendant, and the latter acted upon it by accepting the delivery; and on the adjourned day the summons and complaint were by consent amended by claiming for work, labor, and services, and increasing the amount asked for to $250, to embrace a second cause of action for the recovery of $100 deposited with the defendant at the time the work was received, for the faithful performance of the plaintiff’s contract and the return of the property. The trial thenceforth proceeded under this amendment, so that the justice might adjudicate upon all the differences between the parties. The answer is a general denial, with a counterclaim for $175.50 for detention of property, which on consent was also increased by amendment to $250. The $100 referred to was deposited under an agreement in the following words :

New Yobk, November 7,1895.
“ Deceived $100 deposit from Jacob Kafka, for Isaac Kafka, for work which he will make for us, and that such work must be delivered all on premises before the returning of the above. Furthermore, any damages caused by Isaac Kafka, for whom this deposit was placed in my hands, be responsible with Jacob Kafka, and be deducted from deposit unless he has such money due him, from which it can be deducted.”

The plaintiff alleged an assignment to himself from Jacob Kafka, but on the trial no assignment was proved. No objection, hoAvever, was taken at the trial, and none can be taken noAV. Walton v. James, 11 Wkly. Dig. 508; Austin v. Burns, 16 Barb. 643.

When the plaintiff rested his case the defendant moved to •dismiss the complaint upon the grounds—First, that, since the goods had been relinquished by the plaintiff, the action to foreclose the lien failed; second, that the plaintiff had failed to prove a cause of action; and third, that the plaintiff had failed to prove the partnership of the defendant.

1. It is unnecessary for us to consider Avhether the plaintiff, after haAdng surrendered the coats, could foreclose his lien upon them. McCaffrey v. Wooden, 62 Barb. 316 ; BigeloAV v. Heaton, 4 Denio, 496 ; Kailroad Co. v. Sage, 35 Hun, 96. The parties, by their amendment and by their subsequent conduct in the proceedings, concluded themselves, and in effect assented that the action proceed as if the 117 coats in respect to Avhich the lien was claimed had been delivered before the commencement of the action. The trial proceeded upon a money demand, and the justice rendered a money judgment only. It has been established by a series of decisions that: (1) Where a party, by not objecting or otherwise, consents to litigating questions not technically Avithin the issues, he Avill not on appeal be heard to complain that the recovery Avas not upon the cause of action specifically alleged in the complaint. Hoff v. Coumeight (Com. Pl.), 35 N. Y. Supp. 1052; Cowing v. Altman, 79 N. Y. 167; Wellington v. Morey, 90 N. Y. 656; Knapp v. Simon, 96 N. Y. 284; Tarbell v. Shipping Co., 110 N. Y 170; 17 S. R. 153 ; Frear v. Sweet, 118 N. Y. 454; 29 S. R. 972; Wells v. Association, 120 N. Y. 630, 633; 30 S. R. 909 ; Berner v. Kay, 14 Misc. Rep. 1; Balz v. Shaw, 13 Misc. Rep. 181; 67 S. R. 861; Orvis v. Curtis, 12 Misc. Rep. 434; 67 S. R. 363 ; Hamilton v. Dinniny (Sup.), 30 N. Y. Supp. 519; Curtis v. Manufacturing Co., 7Misc. Rep. 316; 27 N. Y. Supp. 901; Dauscha v. Brower, 72 Hun, 221; 55 S. R. 435. (2) Facts assumed are regarded as proved or admitted. Todd v. Nelson, 109 N. Y. 316; 15 S. R. 270; Wait, Law & Prac. (3d ed.) 636. (3) The appellant is bound by the course of trial below, and cannot on appeal be permitted to assume an attitude inconsistent therewith. Fay v. Muhlker, 1 Misc. Rep. 324; 48 S. R. 699 ; Witmark v. Railroad Co., 149 N. Y. 393, 399 ; Werner v. City of Rochester, 149 N. Y. 563, 565 ; McKeon v. See, 51 N. Y. 300.

The Code (section 2943, made applicable to district courts by Consolidation Act, § 1347) provides that “a variance between an allegation in a pleading and the proof, must be disregarded as immaterial, unless the court is satisfied that the adverse party has been misled thereby, to his prejudice.” See, also, Baylies, Trial Prac. 212. A question of variance not raised at the trial cannot be considered on appeal. Laughran v. Smith, 75 N. Y. 205, 211.

2. The second ground assigned for dismissal, that the plaintiff has failed to prove the cause of action alleged, is too general to be available. It fails to point out any specific defect in the proofs. Baylies, Trial Prac. 226; Flandrow v. Hammond, 148 N. Y. 129; 42 N. E. 511; Knell v. Stephan (Sup.), 20 N. Y. Supp. 393.

3. The final ground is the failure to prove the partnership of the defendant. This is without merit, for the reason that the defendant testified that the firm title, “H. Friedlander & Co.,” was a mere name, which he used in conducting an individual business of his own, and that he alone was the firm. In other words, the defendant composed the partnership, and no one could have been joined as a co-defendant with him.

No motion to dismiss was made on the close of the case, and the defendant cannot be heard to allege on appeal that the judgment was without evidence, or against the weight of evidence. See cases collated in Baylies, Trial Prac. 220; Sullivan v. Brooks, 10 Misc. Rep. 368; Dearing v. Pearson, 8 Misc. Rep. 269 ; 28 N. Y. Supp. 715.

The question was sharply litigated whether the plaintiff was entitled to recover the reasonable value of the work done, or whether there was a special contract to do it at a lower sum than the plaintiff charged. The justice saw the witnesses and observed their manner of testifying, and was best qualified to judge of their credibility, aided by the inherent probabilities of the case. He found that there was no contract price, and awarded the plaintiff the reasonable value of the services. The case comes within the rule laid down in Baird v. Mayor, etc., 96 N. Y. 567, 577, as to the effect which should be given by an appellate tribunal to the special adaptation of the trial court to weigh the conflicting statements and inferences where there is evidence on both sides. See, also, Coldwell v. Sullivan, 3 App. Div. 361; 38 N. Y. Supp. 291. In Layman v. Anderson, 4 App. Div. 128, 38 N. Y. Supp. 886, the court said:

“ Upon an examination of all the evidence we may say that we would have been better satisfied had the verdict been the other way. The balance of probabilities impresses us as inclining in favor of the defendant’s claim. But the final preponderance in its favor upon all the evidence is not so great as to bring the case within therule which permits a verdict to be set aside only when it is reached through partiality, passion and prejudice.”

The defendant’s counterclaim was fully litigated, and proved to be substantially without merit. It related chiefly to the detention of the property by the plaintiff, and to some few items of work alleged to have been improperly done. The plaintiff’s claim as established was $259.57, and the judgment was for $250 ; the difference of $9.57 being disallowed either because the established claim exceeded the monetary jurisdiction of the court, or because the difference was necessary to cover some small items of the counterclaim which the justice found to be sustained.

Two points require particular consideration,—one relating "to the 50 coats stolen from the plaintiff, and the other as to the right to recover the deposit money.

As to the fifty coats: As a general rule, when a bailee fails on demand to deliver to the bailor property to which the latter is entitled, the presumption of liability arises, and if the goods ■cannot be found it furnishes the imputation of negligence as the cause. Fairfax v. Railroad Co., 67 N. Y. 11. But such prima faeie case may be overcome when it is made to appear that the loss was occasioned by some misfortune or accident not within the control of the bailee. Then the onus continues ■on the bailor to prove that it was chargeable to the want of •care of the bailee. Claflin v. Meyer, 75 N. Y. 260 ; Mills v. Gilbreth, 47 Me. 320; Stewart v. Stone, 127 N. Y. 506 ; 28 N. E. 596. The work on the 50 coats was completed February 24,1896, at half-past two, and the defendant’s expressman who generally brought and took away the work from the plaintiff’s shop was notified to call for that lot at 3 o’clock. He neglected to call, and during the night the room was broken into and the coats stolen. It was a taking by force, and the thieves also stole property from rooms of other occupants of the same house. It appeared that on leaving for the day the plaintiff liad securely locked his rooms, and that there was no want of diligence on his part. These facts completely exonerated the bailee. Edw. Bailm. 147, 446 ; Lawson, Bailm. § 43. Certain legal consequences follow such a loss. If it had occurred through the negligence of the plaintiff, he would have been answerable to the defendant for the value of the property taken, but, as it happened without his fault, he is entitled to recover for the work clone. Halyard v. Dechelman, 29 Mo. 459. The rule is that if while work is doing on a thing belonging to the employer, and the thing perishes by internal defect or inevitable accident, without any default of the workman, the latter is entitled to compensation to, the extent of his labor actually performed on it, unless his contract import a different obligation; for the maxim is, “ Res perit domino.” Story, Bailm. § 421 ; 2 Kent, Comm. 590, 591; Schouler, Bailm. § 111. And see IIayes v. Gross, 9 App. Div. 12. In Cohen v. Moshkowitz, 17 Misc. Rep. 389, it appeared that the employer was in a hurry for his goods ; that the workman promised to send them to his employer at an appointed time, but neglected to-keep his agreement, and the goods were subsequently destroyed on the workman’s premises. The loss was in consequence attributed to his neglect, and on that account it was neld that he could not recover for the work done. That feature is not only absent here, but the evidence points to the neglect of the defendant’s expressman as a responsible cause of the loss which subsequently happened. The evidence on that subject is not clear, yet, in view of the finding of the justice, may bear that interpretation.

As to the deposit money: The $100 was left with the defendant to indemnify him against any loss resulting from misconduct on the part of the plaintiff respecting the defendant’s property. It was made in lieu of a bond for the performance of the plaintiff’s duties as employé, and must be treated in the same manner as if a bond had been given. Its chief purpose was to secure a return of the property; that is, such a return as the plaintiff was by law bound to make. It was not intended as an insurance against fire, robbery, or vis major. The plaintiff having returned all the property to the defendant, except the 50 coats that were stolen, and in respect to which delivery is excused by law, it follows that the purpose of the deposit has been fully satisfied, and the money should be returned. Any other interpretation would involve a forfeiture of the deposit,—a result the law does not favor. While it is true that a contractor is generally not excused from performance by accident or misfortune, unless lie has protected himself from such contigency by stipulation in the contract, it is equally true that there may be in the nature of a contract an implied condition by which he will be relieved from such unqualified obligation, and when in such case, without his fault, performance is rendered impossible, it may be excused. Stewart v. Stone, 127 N. Y. 507 ; 40 S. R. 314. The parties knew that their contract was one of bailment, and, having stipulated for nothing to the contrary, must have contemplated that it was to bo interpreted by the rules which regulate the performance of such contracts, and determine the rights and duties of parties the.-eunder, and it should be construed the same as if those regulations had been contained within it. The rulings made at the trial excluding evidence of the damages suffered by the defendant by the non-delivery of the 50 coats became of no consequence, because the plaintiff incurred no liability in regard thereto. As to the rulings respecting the 117 coats, the plaintiff had a lien upon them, and the right to detain them until the lien was discharged by payment or tender. Edw. Bailm. §§420-424; Story, Bailm. § 440 ; Trickett, Liens, § 731; Overt. Liens, §§ 43, 44. Ho tender was made, and, as the labor on the 117 coats had not been paid for, the defendant was in no position to claim damages for detention or non-delivery. The rulings excluding evidence as to damages for non-delivery could not, therefore, have prejudiced the defendant in his defense. Smith v. Cowan, 3 App. Div. 234; 73 S. R. 638; Crim v. Starkweather, 136 N. Y. 637; 49 S. R. 68. An error in admitting evidence of a conversation in relation to undisputed facts, and hence not material, is no ground for reversal. Sykes v. Temple, 69 Hun, 448 ; 52 S. R. 779. Hor are errors in excluding testimony wholly immaterial. Wright v. Reusens, 133 N. Y. 306 ; 31 N. E. 217. Errors which are immaterial and harmless afford no ground for reversal. Fay v. Muhlker, 1 Misc. Rep. 321 ; 48 S. R. 699. Where a plaintiff appealed from a judgment entered on a verdict in favor of the defendant, the court held that he could not be heard to complain of the verdict, because he had no cause of action and ought to have been non-suited. Jaquiss v. Hagner, 72 N. Y. 605.

The case was tried on conflicting evidence which warranted the justice in deciding as he did. The exceptions are without merit, and the judgment must be affirmed, with costs.

All concur.


author: DALY, P. J.

text:
    Richard Lathers v. Foster Coates.
    (Supreme Court, Appellate Term, First Department,
    October 29, 1896.)
    1. Landlord and tenant—Eviction—Foul odors.
    Foul odors arising from defective plumbing, which are a menace t» the health and comfort of the tenant and his family, the cause of which the landlord refuses to remedy, render the premises “untenantable,” within Laws 1860, c. 345, authorizing the tenant to abandon the premises.
    3. Same—Delayed repairs—Effect.
    The landlord, after failing to use reasonable diligence to restore the premises to a tenantable condition on notice from the tenant of his intention to abandon the premises as soon as he can make arrangements, cannot, by commencing the delayed repairs before the tenant has in fact abandoned the premises, deprive him of the right to abandon the same.
    Appeal from eleventh, district court.
    Action by Bichard Lathers against Foster Coates for rent for the months of March, April, and May, 1896, under a lease date! September1 9, 1895, for the term of one year from October 1, 1896, of an apartment in house Ho. 324 West Fifty-Seventh street, in the city of New York. The answer sets np as a defense that defendant was induced to lease the apartment by false representations as to the sanitary condition of the plumbing; that plaintiff negligently permitted the premises to become unténantable, whereby defendant was evicted. There was a judgment in favor of defendant, and plaintiff appeals.
    Joseph Wamsley, for appellant; Albridge C. Smith and Smith & White, for respondent.
   DALY, P. J.

—The justice found that the proof clearly established the presence, for a considerable period, of foul and offensive smells and odors in the defendant’s premises, and in the halls of the building in question, which were a menace to the health and comfort of the defendant and Ms family, and justified him in abandoning the premises; that the extent of these nuisances was admitted by the plaintiff’s own witnesses; that they seriously interfered with the beneficial enjoyment of the premises, and could have been easily cured by the plaintiff by the application of proper remedies, which he did not attempt with reasonable diligence; and as the premises became unfit for occupancy, and their condition made it necessary for defendant to remove, the defense of eviction was made out,—citing Tallman v. Murphy, 120 N. Y. 346 ; 31 S. R. 483. It is not possible to see how the justice could have come to any other conclusion. The defendant moved about the middle of February. Odors first became noticeable in November or early in December, and repeated complaints were made by the tenant to the superintendent. “ Disinfectants,” so called, and perfumes, were resorted to without effect. Finally the board of health intervened, and extensive repairs were made upon the plumbing throughout the building. Holes large enough to be visible were found in the pipes in the tenant’s apartments, and defects Avere found in the soil line, the Avaste lines, and the joints.

While the question as to Avliat amounts to an untenantable condition is essentially one of fact, depending in each case upon the particular circumstances shoAvn, there is, nevertheless, value in former decisions Avhieh may be compared in their facts Avith the special case in hand. In Tallman v. Murphy, supra, an odor of coal gas sufficient to make the tenants sick, and smoke in some of the rooms, and loud explosions Avhieh shook the building, Avere held sufficient to constitute an eviction. In Tallman v. Earle, 3 Misc. Rep. 76, 51 S. R. 755, the smell of burning Avood, so continuous and marked as to cause apprehensions of fire, was held sufficient. -In Thalheimer v. Lempert (Sup.), 1 N. Y. Supp. 470, a stench arising from defective plumbing, coupled Avith the Avant of a cold-air box connected Avith the furnace, Avas deemed enough. So, also, in Sully v. Schmitt, 147 N. Y. 248, 69 S. R. 527, a stench from the seAver upon adjacent premises of the same landlord Avas held to be tantamount to "eviction. It is not alone the fact that it is a disagreeable odor, offensive to the sense of smell, but that it signifies a menace to life or health, and the testimony justifies the tenant in abandoning the premises. And so with indications of unsafety, of damage from fire, or the collapse of the building. To suffer some inconvenience is one thing; to endanger life or health is another. On this trial an extreme case was made out in favor of the tenant.

The appellant objects that the answer fails to allege that the defects complained of were not due to gradual decay, and that the statute of 1860 (chapter 345) does not contemplate a condition arising from gradual deterioration, but only one due to some sudden and unexpected action of the elements, or other cause. Lansing v. Thompson, 8 App. Div. 54, following Suvdam v. Jackson, 54 N. Y. 450. The record does not show that that question was raised at the trial, but, on the contrary, appellant’s own witnesses accounted for the defects upon' tire theory that the erection of a large and high building upon the adjacent lot had so affected the landlord’s building as to cause these defects. There was no sufficient evidence that the breaks in the pipes were caused by the fault of the tenant in allowing articles to be placed against them; and while the lease provided that the tenant should, at his own expense, make all repairs required to plumber work when damaged from misuse or neglect, there was no evidence that the damage arose from any such cause, but rather from causes operating from without the building.

But it is further claimed that the premises had been restored to a tenantable condition before the tenant vacated them, and that, as the defect did not continue up to the time of the abandonment, his removal was not justified. Ryan v. Jones, 2 Misc. Rep. 65, 49 S. R. 140. In that case, the tenant, going out in April, as the cold began to moderate, attempted to justify his removal by the landlord’s failure to provide sufficient heat during the preceding cold period. But the circumstances here are very different. On the 8th"of February the tenant gave notice that he was going,to vacate as soon as he could make proper arrangements. On the 14th or loth of that month he moved out, on which date the repairs were in progress, the bathroom being then disordered with the debris which had been torn away to get at the pipes that were concealed. Instead of assigning past conditions as a reason for removal, as was done in Ryan v. Jones, the defendant assigned a present condition, and the proof justified it. It would be a hardship upon an aggrieved tenant in such cases if the law should hold, for instance, that he could not hire new premises to which to take his family except at the risk of being held to payment for the old one, if in the meantime the delinquent landlord should make the delayed repairs.

The judgment should be affirmed, with costs.

All concur.


author: BISCHOFF, J.

text:
    Cecil A. Brackett v. Metropolitan Ins. Co.
    (Supreme Court, Appellate Term, First Department.
    October 29, 1896.)
    Principal and agent—Compensation—Agent as procuring cause.
    Plaintiff, a soliciting agent for life insurance, receiving as compensation commissions on insurance procured, is not entitled to commissions on the increased insurance where his employer induces, through another agent, an applicant secured by plaintiff to increase, the amount of his application.
    Appeal from Eighth district court.
    Action by Cecil A. Brackett against the Metropolitan Insurance Company. There was a judgment in favor of plaintiff, and defendant appeals.
    Bert Hanson, for appellant. H. Bell, for respondent.
   BISCHOFF, J.

—The plaintiff was a soliciting agent for life insurance, in the employ of the defendant, with an agreement for compensation based upon the amount of insurance procured by his efforts, and 'this action is brought to recover the commissions which he claims to be due him for procuring a policy upon the life of one Dean for $10,000. The evidence shows that the plaintiff actually solicited and obtained from DeLan an application for a policy of $5,000, and that he was paid his commission upon such policy, but thereafter one Gray, an agent of the defendant, called upon the insured, and prevailed upon him to substitute an application and receive a policy for $10,000. The plaintiff’s claim is for commission upon the additional $5,000 of insurance thus taken out, but clearly he failed to substantiate it by proof at the trial. True, he introduced the insured, Dean, to the defendant, and but for that introduction this additional $5,000 of insurance might not have been secured; but the insurance which he actually obtained was limited to the amount of the first application, and the defendant, through Gray, procured the remainder. Granted, also, that Dean had intended at the time of his -first application to subsequently take out an additional insurance of $5,000; but his evidence was that he contemplated so contracting with some insurance company other than the defendant, and the proof is ■ that he was induced to change his intention, not through the plaintiff’s efforts, but through the agency of Gray. A finding that the plaintiff’s influence with Dean extended to this additional insurance could be founded only upon the merest conjecture, and the preponderance of the evidence was all to the contrary. Close analogy appears between this case and that of McClave v. Paine, 49 N. Y. 561, and upon the principles there applied this recovery cannot be sustained.

Judgment reversed, and new trial ordered, ■ with costs to appellant, to abide event.

All concur.


author: BRADLEY, J.

text:
    National Wall-Paper Co. v. Hirsch Szerlip.
    (Supreme Court, Appellate Division, Second Department.
    October 13, 1896.)
    Costs—Discontinuance—Discretion.
    The court, in an action at law, may, in its discretion, permit plaintiff to discontinue, on payment of $10 costs, instead of the amount of costs which would have been taxable for the proceedings had up to that time if defendant had recovered judgment; Code Civ. Proc. § 3229, only fixing a party’s right to costs on “ final judgment.”
    Appeal from Kings County court.
    Action by the National Wall-Paper Company against Hirsch Szerlip for the price of goods sold. Prom an order allowing plaintiff to discontinue the action on payment to defendant of $10 costs, defendant appeals.
    H. B. Davis, for appellant; Lucien S. Bayliss, for respondent.
   BRADLEY, J.

—The action was one at law- to recover the purchase price of goods sold by the plaintiff to a person other than the defendant, having the same name as the one on whom the summons was served. The mistake was discovered after the defendant had answered and the action had been noticed and placed upon the calendar for trial. Then the plaintiff’s motion for leave to discontinue was made, and granted on payment of $10 costs. It is insisted on the part of the defendant that, as the action was one at law, he was entitled to the amount of costs which would have been taxable for the proceedings had up to that time if he had recovered judgment. In support of that view is cited Claflin v. Robertson (Sup.), 6 N. Y. Supp. 430. It cannot well be supposed that the court in that case intended to hold that there was, on the question of costs, no discretion in the court on granting to a plaintiff leave to discontinue an action at law. The right to costs is dependent upon the statute, which provides that in such an action the defendant is entitled to specified costs upon the rendition of final judgment. Code Civ. Proc. § 3229. This provision is not available to the defendant, as it is applicable- only when such result is reached in an action. The terms or conditions on which the plaintiff’s application should be granted were addressed to the discretion of the county court, and, leave being given to discontinue the action, the defendant’s right to costs was derived from the order. Overton v. Bank, 3 N. Y. St. Rep. 169; De Barante v. Deyermand, 41 N. Y. 355. While it may be usual to require the payment of all accrued costs as a condition of allowing the discontinuance of an action on plaintiff’s application, there may be cases where reasons appeal’ to the court for imposing more moderate terms as to costs. In the present case there were some circumstances which may have been urged upon the application, and considered by the court, in support of the view there taken of it. The order appealed from was made by a court other than that in which the review is sought, and, as the discretionary power of that court is not deemed to have been arbitrarily exercised, the-result given by the order should be permitted to remain. Tucker v. Pfau, 70 Hun, 59; 53 S. R. 553.

The order should be affirmed.

All concur.


text:
    Catoosa Springs Co. v. George W. Linch.
    (Supreme Court, Appellate Term, First Department.
    October 29, 1896.)
    Insurance policy—Construction—Repugnant conditions.
    An insurance policy for §1,750,.on property valued at §15,000, prohibited additional insurance without permission of the insurer. By a slip attached to the policy, “ §8,000 total insurance ” was permitted. The. slip also provided that the insurer’s liability should be limited by any conditions for co-insurance or average contained in any other policy issued on the property. Held, that a co-insurance clause in another policy, requiring insurance to 80 per cent, of the value of the property, and, on failure to so insure, that the insured should be a co-insurer to the extent of such deficit, was a condition of the first policy, thereby requiring §12,000 of insurance.
    Appeal from third district court.
    Action by the Catoosa Springs Company against G-eorge W. Linch on a policy of fire insurance issued by defendant and his associates as underwriters, each of such underwriters having individually assumed to pay a specified portion of the insurance. There was a judgment in favor of defendant, and jilaintifE appeals. ,
    Robert W. Todd, for appellant; Van Schaick & Norton, for respondent.
   BISCHOFF, J.

—The defendant and 16 associates, styling themselves the People’s Fire Lloyds, insured the plaintiff’s hotel and ballroom building at Catoosa Springs, G-a., valued, respectively at $15,000 and $3,000, against loss or damage by fire,—the hotel building in $1,750 and the ball-room building in $250; the risk being divided among the insurers, each assuming a several liability for one-seventh thereof, and limited to the quotation, “ actual cash value of the property at the time of any loss or damage.” Only the hotel building was . damaged by fire, the actual loss being $6,000 ; and the aggregate insurance upon such building in force at the time of the loss was $6,125, which last-mentioned amount included a policy for $1,000 issued by the Jefferson Company of Wheeling, W. Va. The policy in suit (that of the People’s Fire Lloyds) provided that:

“ The underwriters shall not be liable under this policy for a greater proportion of any loss on the described property, or for any loss by and expense of removal from premises endangered by fire, than the amount hereby insured shall bear to the whole insurance, whether valid or not, or by solvent or insolvent insurers, covering such property; and the extent of the application of the insurance under this policy, or of the contribution to be made by the underwriters in case of loss, may be provided for by agreement or condition written hereon, or attached or appended hereto.”

Among the printed provisions of the same policy, also, was the following:

“ This entire policy, unless otherwise provided by agreement indorsed hereon or added hereto, shall be void if the insured now has, or shall hereafter make or procure, any other contract of insurance, whether valid or not, on property covered in whole or in part by this policy,” etc.

And attached to the policy, at the request of the insured, in the space commonly left for writing in special provisions, was a typewritten slip referred to as a “ jacket,” which bore the figures and words, “ $8,000 total insurance permitted.”. Stamped or printed upon the face of the jacket, in red ink, was the following:

“ It is a condition of -this policy, if at the time of loss the assured shall hold any policy of this or any other company on the property hereby insured, subject to conditions of co-insurance or average, this company’s liability herein shall be limited thereby to the same extent as though such clause were contained in this policy.”

■ The policy of the Jefferson Insurance Company contained - the following clause :

“ It is a part of the consideration for this policy, and the basis upon which the rate of premium is fixed, that the insured -shall maintain insurance on the property described in this policy to the extent of at least eighty per cent. (80%) of the actual cash value thereof, and that, failing so to do, the insured shall be a co-insurer to the extent of such deficit, and to that extent bear his, her, or its proportion of any loss ; and it is expressly agreed that in case there shall be more than one item or division in the form of this policy this clause shall apply to each and every item: provided, however, that whenever the loss does not exceed five per cent. (5%) of the amount of insurance involved the co-insurance clause need not be applied in the adjustment.”

This clause, by intrinsic adoption, was part and parcel of policy in suit. “Yerba illata in esse videntur.” Broom, Leg. Max. (8th Am. ed.) 673 ; And. Law Diet. 1085. Under it the insured, to avoid liability as a co-insurer, was required to keep the property insured in $12,000. The trial justice, charging the plaintiff, as a co-insurer, to the extent of $5,875, the difference between $12,000, or 80 per centum of the value of the property insured, $15,000, and $6,125, the actual amount of the insurance at the time of the loss, rendered judgment in its favor for'$51.65, that being one-seventeenth of $877.94, the proportion of the loss of $6,000 which the policy in suit, $1,750, would be required to bear. The plaintiff, however, contends that the justice erred in charging it as a co-insurer, and hence that its recovery should have been $99 as claimed; the defendant’s liability being $100.84, one-seventeenth of $1,714.28, the portion of the loss chargeable to the policy in the suit, talcing the actual insurance at $6,125. The error claimed is with regard to the justice’s construction of the provision of the policy hereinbefore set out. The plaintiff maintained that the provisions for co-insurance are repugnant to the provisions for avoidance of the policy in the event of unauthorized additional insurance upon the same property, and that the latter provisions should prevail. It is conceded that, failing such repugnance, the judgment is incontestible. In Pool v. Insurance Co. (Wis.) 65 N. W. 54, the facts were almost identical with those presented upon this appeal. The policy provided for its avoidance in the event of additional insurance, without the consent óf the insurer, and that the insurer should not be liable beyond its proportion of any loss to the whole insurance. It was a part of the same policy that, “ if at the time of the fire the whole amount of insurance on the property covered by the policy be less than eighty per cent, of the actual cash value thereof,” the insurers should “ be liable for only such proportion of the damage as the amount insured by the policy shall bear to the 80% ” of such cash value. It was held that the provision last alluded to impliedly authorized additional insurance without incurring the risk of an avoidance of the policy under the provisions first above mentioned. We fail to- see how a different conclusion can be reached in the case at bar. True, the indorsement upon the jacket of the policy in suit only authorized insurance in the aggregate of $8,000, and left the clause which provided for the avoidance of the policy in the event of other insurance without the insurers’ consent to-operate if the amount of insurance should exceed that which was expressly permitted. Allen v. Insurance Co., 123 N. Y..6, 14, 33 R. S. 216; 7 Am. & Eng. Enc. Law, 1012. But tiie adoption by the policy in suit of the provisions of the policy of the Jefferson Company relating to co-insurance had the effect of still further extending the amount of permissible insurance, to wit, to 80 per centum of the value of the property covered, or $12,000. It was wholly optional with the insured to maintain a policy with provisions for co-insurance. If he did not, the aggregate of permissible insurance was limited to $8,000. If he did, the adoption of such provisions involved a tacit consent on the part of the insurers to insure in such an amount as would suffice to free the insured from the risk of contribution in the event of a loss. It cannot be fairly questioned that if the plaintiff had insured the property in excess-of $8,000, and not aboAm 80. per cent, of its value, the insurers would have been precluded from asserting that the policy was-avoided because the actual insurance was- in an amount which was not authorized by them. The effect of the provisions of the policy which are involved on this appeal may be a disap-' pointment to the insured, but as we read them they are not. reasonably open to a construction which will render them repugnant, and we must enforce the contract in accordance with the terms agreed upon by the parties.

The judgment should be affirmed, with costs.


author: McADAM, J.

text:
    Bernard Griffin v. Thomas Condon.
    (Supreme Court, Appellate Term, First Department.
    October 29, 1896.)
    Statute of frauds—Promise to answer for debt of another.
    Defendant’s promise to jiay for funeral expenses if decedent’s son would not pay them, the son having assumed no liability, is not a promise to pay another’s debt.
    Appeal from fifth district court.
    Action by Bernard Griffin against Thomas Condon. There was a judgment in favor of plaintiff, and defendant appeals.
    Jacob Levy, for appellant; Thomas F. J. Brennan, for respondent.
   McADAM, J.

—The action is by the plaintiff, an undertaker, to recover for the burial of one John McDonald, an old man employed by the defendant, and who resided with him at Mo. 15 Cannon street, Mew York City. On the day McDonald died,—Movember 19,1891,—his daughter went to the plaintiff’s place of business, saw Mr. Bean, an employé, informed him of the fact, and Mrs. Condon, the defendant’s wife, gave Bean directions as to preparing and icing the body. After this had been done, the plaintiff was apprised of what had occurred, and went to Mo. 15 Cannon street to complete arrangements for the funeral. lie got his directions, and estimated the expense at $127. He informed the son of the deceased and the defendant what the price would be, and naturally desired to know who was to become the paymaster. This led to a conversation in which the defendant, to assure the plaintiff that his pay was safe, saidlhat he (the defendant) had become possessed of $825, which the deceased had in bank, and that he had spent $25 of it, leaving $300 in his possession unexpended.- The defendant also said that the deceased had been insured for $125, which would go to the son, and that the plaintiff should try and get his bill from the son ; ‘ but, in the meantime, if he don’t pay 3Tou, I will pay you,’ and he promised to pay me.” This was sworn to by the plaintiff, and was uncontradicted. On this promise of the defendant the plaintiff performed the work agreed upon.

The circumstances of the transaction, and not the mere ' words, determine whether the statute of frauds applies. Ho personal obligation was entered into by the son, so that the promise of the defendant was an original, and not a collateral, one. It was not a promise to answer for the son’s debt, for he had created none. The plaintiff was to try and get the money from the son. He made every reasonable effort to do so, according to the defendant’s request,- and, not succeeding, the defendant became liable on his promise. Kilbride v. Moss (Cal.), 45 Pac. 812; Moorehouse v. Crangle, 36 Ohio St. 130. Credit was undoubtedly given to the defendant. He had possessed himself of $325 belonging to McDonald’s estate, and, by saying he had $300, unexpended, in his hands, induced the confidence reposed. The defendant, as an executor de son tort, became liable for this money to the legal representatives of the deceased (3 Rev. St. [6th ed.] p. 88, § 94), and, if the son had paid the funeral expenses, he could have recovered them from the legal administrator, who, in turn, would have his remedy against the defendant. Rappelyea v. Russell, 1 Daly, 214; Patterson v. Patterson, 59 N. Y. 574; Kessler v. Hessen, 19 Abb. N. C. 86; Koons v. Wilkin, 2 App. Div. 13; 73 S. R. 234. If the deceased had died without property, the defendant would have been personally liable under the rule declared in Reg. v. Stewart, 12 Adol. & E., at page 778, as follows:

“The individual under whose roof a poor person dies is bound to' carry the body, decently covered, to the place of burial. He cannot keep him unburied, nor do anything which prevents Christian burial. He cannot, therefore, cast him out, so as to expose the body to violation, or to offend.the feelings or endanger the health of the living; and, for the same reason, he cannot carry him uncovered to the grave.” See, also, Patterson v. Patterson, 59 N. Y., at page 583.

The answer is a general denial only, and, although the facts narrated were testified to at the trial, no motion was made to amend the defendant’s plea, nor was any evidence offered in opposition to that given by the plaintiff. Hnder the circumstances, we think the defendant was properly held for the bill. If he had deemed his promise a collateral one to answer for the debt or default of another, he should have invoked by proper plea the protection of the statute of frauds; but he did not, and waived any benefit it -might have afforded him. Wells v. Monihan, 129 N. Y. 161; 41 S. R. 409; Hamer y. Sidway, 124 N. Y. 538; 36 S. R. 888; Crane v. Powell, 139 N. Y. 379 ; 54 S. R. 659 ; Schwann v. Clark, 9 Misc. Rep. 117; 59 S. R. 706.

The judgment must be affirmed, with costs.

All concur.


text:
    Frederick Akers v. Charles Overbeck et al.

    (Supreme Court, Appellate Term, First Department.
    October 29, 1896.)
    1. Bailment—Liability of bailor.
    ■ A bailor delivering an article to the bailee for work to be performed thereon is only required to use reasonable care to see that the article is not in such a condition as to cause injury to the bailee which he could not reasonably expect.
    ■2. Same—Negligence.
    Negligence on the part of defendant is not shown by the fact that a bag of coffee delivered by him, through a broker, to plaintiff tq be roasted, contained a large stone, which could not have been discovered by an outward inspection of the bag, and by which plaintiff’s roasting , machine was broken ; it appearing from plaintiff’s testimony that the presence of such a stone in a bag of coffee was exceptional.
    3. Evidence—Admissions—Answer to indefinite question.
    An answer by defendant to an indefinite question, admitting plaintiff’s cause of action, is not conclusive against him, where his other testimony was directly ojiposed thereto, and the casé proceeded after such answer without further reference thereto by either party.
    Appeal from fifth district court.
    Action by Frederick Akers against Charles Overbeck and others. There was a judgment in favor of plaintiff, and defendants appeal.
    Henry Wendt, for appellants; James P. Niemann, for respondent. .
   BISCHOFF, J.

—Thisaction was brought to recover damages for breakage of and injury to the plaintiff’s coffee-roasting apparatus, through the negligence of the defendants in furnishing the plaintiff with a bag of coffee, under a contract for its roasting, when such bag contained a large stone, weighing between 26 and 27 pounds, which, being introduced into the machine, together with the coffee, occasioned the damage in suit. The defendants were grocerymen, and had employed the plaintiff in roasting green coffee for them during a period of 15 years, it being their custom to deliver the coffee to him in bags, which, without examination, were cut open by him, and emptied into his machine. Small stones, about the size of a coffee bean, were sometimes to be found in these bags, and, for a special compensation, they were sorted out by the plaintiff when expressly required so to do. These stones, however, were not of sufficient size to cause injury to the machine, and were usually removed after the roasting process had been completed. The requirement for sorting, in the case of these stones, was apparently for the benefit only of the groceryman, not for the protection of the miller’s apparatus; and no such requirement had entered into the contract for roasting in the present instance.

The question at issue had to do solely with the defendants’ responsibility for the presence of this stone in the bag, its size-being entirely beyond anything such as could be looked for in a bag of coffee as handled in the usual course of trade. From the plaintiff’s testimony it appears that in 21 years’ experience in the business he had never seen anything like such a stone in such a situation; nor had his witness, Reid, in the course of 45 years devoted to the trade. The stone was in the middle of the bag, and so was not discoverable by an inspection which did not go thoroughly'into the contents; and it is to be determined whether the defendants’ duty to the plaintiff called upon them, to make such an inspection. It is not disputed that-the stone was placed in the bag by some one other than the "defendants. The bag was never in their possession, but was sent to the plaintiff by one Davidson, a coffee broker, upon the defendants’ order, and the plaintiff’s written receipt of the bag from Davidson appeared in evidence. The irresistible inference is that the presence of this stone was due to the fraudulent attempt ón the part of some person, other than the defendants, to obtain the price of 26 pounds of coffee more-than were contained in the bag, and‘the question is: Weré the defendants negligent in failing to inspect the bag before its delivery to the plaintiff, with a view to the discovery of this foreign substance ? The answer must be that they were not. The defendants, as bailors, were called upon, in the performance of their contract, to furnish the subject of the bailment, which was here of the nature locatio operis faciendi, in a condition* such as would enable the plaintiff to properly perform his task (see Story, Bailm. § 425); and, upon analogy to-the principles' governing contracts for the performance of services generally, a liability upon the-part of the defendants would attach if, through their negligence, the thing furnished caused an injury which would not reasonably have been expected by the plaintiff, as bailee. On no principle, however, could the defendants be held to have insured the plaintiff against damage in the performance of his work, by reason of every conceivable defect which might exist in the subject of the contract, here a bag of coffee, which was-not in its nature a dangerous thing in any aspect. They were required to exercise ordinary care, and no more; and negligence, upon the present state of facts, would result only from their knowledge and concealment of this defect, or from their' failure to use reasonable diligence to discover it. Devlin v. Smith, 89 N. Y. 470. And see McKay v. Wild West Co., 17 Misc. Rep. 603. But to have discovered this stone, of the presence of which they had no actual lcn'owledge, it would have been incumbent irpon the -defendants to have particularly emptied the bag, and the evidence shows that, in the usual course of trade, such a search would never have disclosed anything of a like nature.

Why, then, were the defendants negligent in failing to look for a thing, the discovery of which could not have been ex-pectecl, and which was present in this instance only through the willful fault of some one, whose act was inimical to the interests of all in the trade, and alone did bring about the plaintiff’s damage? Eeither the plaintiff nor Mr. Eeid, his witness, would have expected to find any such a substance in a bag of coffee, with the experience born of many years devoted to. this trade. The plaintiff’s custom had been to place the contents of the bags in the machine without examination, and throughout a period of 21 years nothing like the present condition had arisen to call for change of this apparently justifiable course. It cannot be said that the defendants failed to act as reasonably prudent persons would have acted, merely through not inspecting the contents of the bag, with a view to avoiding this extremely unusual course of injury. If the plaintiff could connect the broker Davidson, as the defendants’ agent, with the act of placing this stone in the bag, or could charge the defendants, through him, with negligence in permitting it to come into the plaintiff’s hands in the manner noted, a different question would be presented; but, while evidence in this regard might be forthcoming upon a second trial, the record before us fails to disclose a cause of action against the defendants. The fact that they were allowed by Davidson the difference in the price of the bag which the weight of the stone represented is, of course, insufficient to charge the defendants with negligence for its presence. This was merely a natural adjustment of the right arising under the sale of Davidson, and the fact does not support any reasonable inference that the defendants were responsible for Davidson’s recognition of the claim that the stone was not a proper part of the contents of the bag, at the agreed price.

It is urged by the plaintiff that there was evidence showing that the defendants knew of the presence of the stone in the bag before its delivery to him, the contention being based upon the following question and answer, which appear in the course of the cross-examination of the defendant Charles Over-beck, touching the allowance made to the defendants by Davidson for the weight of the stone : “ Q. My question includes that you claimed it, and received it,—that is, compensation for the difference,'—before it was delivered to Mr. Akers ? A. Tes, sir.” The question was not definite, and, in view of the fact that the proof throughout showed the defendants to have had no knowledge of the presence of the stone until after the injury in suit, and that the claim by the defendants against Davidson was made upon the plaintiff’s affidavit of the circumstances, we think that the inquiry was intended and understood to go only to the difference between the weight of the bag before it was delivered and after the stone was removed. According to the plaintiff’s construction of the question, the defendants’ reply admitted the cause' of action; and it is not reasonable to believe that, if the parties had so understood it, the trial would have proceeded, as it did, with no further* .allusion to the matter by any one concerned in the litigation.

This appeal does not present the question whether or not the plaintiff would have a right of action against the individual who originally placed the stone in the bag, in the perpetration of a deliberate wrong ; and an expression of our views upon this subject would be merely obiter. Be that question as it may, the evidence given at the trial was not sufficient as a basis for recovery against the defendants, and a new trial should be had.

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

All concur.


text:
    Charles Trankla et al. v. Andrew McLean.
    (Supreme Court, Appellate Term, First Department.
    October 29, 1896.)
    1, Estoppel in pais—Principal and agent.
    Plaintiff, in response to a circular from A., a manufacturer, ordered goods manufactured by him. A. rendered a bill in the name of defendant as creditor. The bill was written on bill heads furnished by defendant. The bill heads described defendant as sole agent for the goods manufactured by A., stated that the goods had been shipped by A., and that all orders should be sent directly to A. Plaintiff sent the money to defendant, who paid the amount to A., receiving his commission on the sale. Held, that defendant acted as principal in the sale; and therefore, on failure of A. to ship the goods, plaintiff could recover from defendant the money paid to him.
    •2. Estoppel—Authority of agent.
    A principal furnishing his agent with his bill heads, on which to send out bills due the principal, is liable for the representations of the agent in regard thereto, though" made without the principal’s knowledge.
    3. Trial—Objections to evidence.
    An objection to evidence as “incompetent” does not raise the objection that it was secondary.
    Appeal from first district court.
    Action by Charles Tranlda and others against Andrew McLean for deceit. There was a judgment in favor of plaintiffs, .and defendant appeals.
    Robt. A. B. Dayton, for appellant; George S. Hastings, for respondents.
   BISCHOFF, J.

—The plaintiffs sued for, and have obtained, .a recovery of a sum of money paid by them to the defendant, the action proceeding upon allegations of fraud and deceit in inducing the payment, under a state of facts disclosed by the record, as follows : In the month of October, 1895, the plaintiffs, & firm in business at Grand Rapids, Mich., received a circular letter from the firm of E. & H. Adams, a milling concern,, soliciting orders for mosquito netting, and, in response to this, they sent an order for a certain quantity of the goods, the-transaction, thus far, being had directly with the Adams firm. Some weeks later (the goods not as yet having been delivered), the plaintiff received a bill for the amount of the purchase price in the name of the defendant as creditor, who was-therein described as “ sole agent for mosquito netting manufactured by E. & II. Adams, Andrew McLean & Co., James Thompson & Co.” Stamped upon the face of this bill were the words “ Delivered by E. & H. Adams,” and “ These goods-shipped by E. & H. Adams; all orders to be sent direct to 16 Greene St.,” New York.” In the course of business between the defendant and the Adams firm, the former furnished the-latter with his bill heads, to be filled up and sent to purchasers ; and the bill received by the plaintiffs upon one of such bill heads was prepared and sent, not by the defendant, but-by the Adams firm. Persuaded by the bill that the goods had been actually shipped to the defendant subject to their orders, the plaintiffs remitted to the defendant in payment, and, upon, the failure of the Adams firm to deliver the goods, this action was brought. The theory of the action was that the defendant, in the sale of the goods, acted as principal, and that in the sending of the bill, stamped as above set forth, the Adams firm acted as his agent, for whose misrepresentations he was answerable. Testimony tending to show that the goods were never shipped by the Adams firm was left wholly unchallenged, and from further testimony it appeared that the defendant, upon receipt of the plaintiffs’ remittance, paid the amount to-the Adams firm, receiving from the latter a commission for' the sale.

. We are of the opinion that the facts in evidence sustained the action, and that the plaintiffs’ recovery is unassailable. At the top of the bill rendered, and in evidence, appear the words, Trankla, Jamieson & Co., Grand Ea-pids, Mich., to Andrew McLean, Dr.,” followed in the next two succeeding lines by “ Sole Agent for Mosquito Netting Manufactured by E. & li. Adams,” etc. These words fairly imported a representation that the defendant, as the only dealer therein, was engaged in the sale of mosquito netting manufactured by the Adams firm, for his own account, and that, for the goods ordered by them, the plaintiffs would be indebted to the defendant, not to the Adams firm. That the Adams firm sent their circulars to the trade, urging orders for mosquito netting to be sent to it direct, and at a place other than the defendant’s-address, as stated in the bill, did not necessarily conflict with such representation, and could consistently have been regarded as an effort by the Adams firm to promote the sale of its product by the defendant. The like request, stamped upon the bill, to send orders to the Adams firm direct, reasonably, also, imported the defendant’s approval of that method of. transacting business. Whatever, therefore, the actual relations of the defendant to the Adams firm may have been, the proof in the instance of the sale before us is that the plaintiffs dealt with the defendant as principal, and not as the agent of the Adams firm; and having, by means of the ‘representation that the sale was made for his account, induced the plaintiffs to part with their money to him, the defendant wa,s thereafter estopped from asserting that the remittance was to him as an agent merely of the Adams firm. His authorization of the representation was apparent from the fact that he furnished the bill head containing it for use by the Adams firm in preparing 'and sending the bill to the plaintiffs.

That the representations which were stamped upon the bill with regard to the actual shipment and delivery of the goods ordered by the plaintiffs were false was not disputed by the defendant, and that they were made by the Adams firm with intent to deceive was inferable from the fact that the substance of the representations" related to matter which must be assumed to have been within such firm’s knowledge. Bennett v. Judson, 21 N. Y. 238; Morgan v. Skiddy, 62 N. Y. 319. Neither could it avail the defendant that such representations were not made with his actual knowledge, or that he did not specifically authorize them to be made. In furnishing his bill heads for use by the Adams firm, in his business, he constituted such firm his agent in the preparation and sending of the bill to the plaintiffs. The representations were made in the course of such business, and were within the scope of such agency. He therefore was as actually bound by the representations as if he had made them in person. 1 Am. & Eng. Enc. Law (2d ed.) 1158, etc. The defendant could not avail himself of his agent’s fraud without assuming to be responsible therefor. Elwell v. Chamberlain, 4 Bosw. 320, 31 N. Y. 611, 619. And, failing of restitution to the plaintiffs, he was answerable to them in an action for damages for fraud and deceit. Bank v. Dun, 51 Fed. 160; Reynolds v. Witte, 36 Am. Rep. 678; Barwick v. Bank, L. R. 2 Exch. 259 ; Fishkill Sav. Inst. v. National Bank of Fishkill, 80 N. Y. 162, 167. In an action of deceit, whether against a person or a company, the fraud of the agent may be treated for the purposes of pleading, as the fraud of the principal. Mackay v. Bank, L. R. 5 P. C. 394.

The testimony of the plaintiffs’ witness, Charles Tranlda, himself one of the plaintiffs, that he relied upon the truth of these representations contained in the bill, was competent. Forster v. Wilshusen, 14 Misc. Rep. 520, 522; 70 S. R. 701; Smith v. Countryman, 30 N. Y. 655 ; White v. Dodds, 42 Barb. 554; Ely v. Paclden, 13 N. Y. St. Rep. 53. And with regard to the iuture testimony of the same witness that “ in each instance the bills for the goods ordered were rendered to the plaintiffs by the defendant, not as agent, but as principal,” it is to be said that the witness may be fairly understood to have alluded rather to the form of the bills rendered to the plaintiffs, upon the occasions of former purchases, than to the defendant’s relation to the Adams firm. In that sense the testimony did not involve a legal conclusion, as urged by the counsellor the appellant. The point made on this appeal that the testimony was evidence of a secondary nature was not raised on the trial by merely placing the objection to its admission on the ground of incompetency. The testimony “ was not in its essential nature incompetent,” and the objection “ did not call the attention of the court to the point that further proof was insisted upon as necessary before the question could be properly answered.” Stouter v. Railway Co. 127 N. Y. 661; 38 S. R. 162. Hon constat that, if the specified objection had been made, the plaintiffs could not nave produced the bills, or shown their loss or destruction, in either of which events the testimony as to their contents was admissible.

The judgment should be affirmed, with costs.

All concur.


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    Snow, Church & Co. v. William Reichman.
    (Supreme Court, Appellate Term, First Department.
    October 29, 1896.)
    Accord and satisfaction—Evidence.
    An accord and satisfaction is not shown as to disputed claims by the fact that a collector, by whom a bill for an undisputed claim was . taken to defendant, gave a receipt in full, and accepted a check which recited that it was in full of all claims, which, without the creditor’s knowledge, was deposited to his credit by his cashier ; neither the cashier nor the collector being aware of the existence of the disputed claims.
    Appeal from ninth district court.
    Action by Snow, Church & Co. against William Reichman for commissions on accounts given to plaintiffs by defendant for collection. There was a judgment in favor of plaintiffs for $444.66, and defendant appeals.
    Gustav R. ITamberger, for appellant; Harry Maxson and Campbell, Ford & Hance, for respondents.
   DALY, P. J.

—This action is brought by a collection agent to recover aggregate commissions for collecting claims. The amount claimed was $34.69, and the defendant disputed liability on the ground that the claims were withdrawn before the plaintiffs had taken any steps to collect them, and that there had been an accord and satisfaction between the parties. It appeared that the last item of commissions sued for accrued about February 25, 1891, and that on September 4,1894, a, collector of the plaintiffs called on the defendant with a bill for another commission of three dollars upon subsequent collections, as to which there was no dispute. According to the plaintiffs’ evidence, the defendant offered to pay it if the collector would give him a receipt in full of all claims to date,, which the latter did, saying to the defendant that he supposed, this was the only account plaintiffs had against him, otherwise-they would have rendered a statement; and then the defendant-, without disclosing to the collector the existence of the disputed claims, took the receipt in full, and gave the collector a. check for three dollars, on which was written a statement that-it was in full of all claims. This check was indorsed by the plaintiffs’ cashie^, and was deposited and retained. There was-no evidence that the plaintiffs saw it or knew of the receipt in. full, or that the cashier knew of the prior disputed claims.

Defendant claims that there was an accord and satisfaction of the demands now sued upon, under the authority of Fuller v. Kemp, 138 N. Y..231, 52 S. R. 342, and Nassoiy v. Tomlinson, 148 N. Y. 326, which hold that, if a claim is unliquidated, the acceptance of a part, and the agreement to cancel the entire debt, furnish a new consideration, founded on the-compromise, which.will support an accord and satisfaction;, and so where a debtor offers a certain sum of money in full satisfaction of such a demand, and the creditor accepts and retains the money, his claim for the same is canceled. But, in order to make out the defense- of accord and satisfaction, the-proof must be clear and unequivocal that the observance of the condition is insisted upon; and, where a check is tendered, it must clearly appear that it was received and retained by the-creditor with the knowledge that it is acquired in settlement of a disputed claim. In this case the check was the exact-amount of the bill rendered, and which was not disputed. Upon a conflict of testimony between the collector and defendant as to what occurred when that bill was presented, the finding of the justice establishes that the collector’s version of the-interview was correct. He denied the testimony of the defendant that there"was anything said about any other account- or moneys due, or. any waiver of claims for other alleged collections. It was explained that the plaintiffs had opened a new set of books, to which the old accounts were not transferred, and which show only the new account for which the bill for three dollars was rendered; so there was nothing to call the attention of the cashier to the other accounts, and the-check for three dollars was not received and retained b}*- him. with notice that it was tendered in settlement of any disputes. This fact distinguishes the case from the authorities relied upon by the appellant. Here the receipt in full was given,. and the check received'and retained, in ignorance of the fact-on the part of the plaintiffs’ agents, and (as the justice must-have found) a concealment of the fact on the part of the defendant. There was therefore no meeting of the minds of the parties, and no agreement, expressed or implied, upon which alone the defense of accord and satisfaction must rest. Had an explanatory letter been sent with the check, as in the cases - of Fuller v. Kemp and Nassoiy v. Tomlinson, above, the case might have been different. Merely writing the words, “In full of all claims ” on the check did not advise the plaintiffs’ agents of a tender of that sum in settlement of disputed claims, since the amount of the check was the exact amount of the bill which had been rendered.

The judgment is affirmed, with costs.

All concur.


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    Annie Dorschel v. Jacob Burkly (two cases).
    (Supreme Court, Appellate Term, First Department.
    October 29, 1896.)
    1. Landlord and tenant—Summary proceedings.
    A summary proceeding is- not an “action,” within the Code provisions requiring the district court judge to dismiss “ actions ” in which, title to land is involved.
    3. Same—When relation exists.
    Where the guardian of the heir permits a lessee to remain in possession after the death of the tenant by the curtesy before the expiration of the term for which he has leased the land, the payment of rent by the lessee to the guardian creates the relation of landlord and tenant between the lessee and the heir, so as to enable him to maintain summary proceedings.
    Appeal from eleventh district court.
    Summary proceedings by Annie Dorschel against Jacob Burkly to remove defendant from the premises Ko. 125 Amsterdam avenue, which he claimed to hold under a lease from plaintiff’s father. From final orders in favor of plaintiff, defendant appeals.
    Isaac N. Miller, for appellant; Louis Wendel, Jr., and Quincy, Wendel & Robeson, for respondent.
   DALY, P. J.

—The tenant claimed the right to possession under leases executed by the father of the petitioner, Annie Dorschel. The facts, briefly stated, are that Mr. Dorschel -was tenant by the curtesy of this real estate, of which his wife died seised, and executedua lease which had not by its terms expired at the time of his death, nor at the time that his daughter, who was her mother’s sole heir, became of age and elected to terminate the tenancy. ■ After the death of the life tenant the lessee was permitted to remain in possession on paying rent to the guardian of the petitioner. When the petitioner attained her majority she demanded rent, and afterwards possession of the premises, from the lessee, and, being refused, brought these summary proceedings to remove him as holding over—First, after nonpayment of rent;' and, next, after the expiration of his term. The question upon these appeals is whether the justice should have dismissed the proceedings upon the ground that the title to real property was involved. There is no provision of law which requires a district court judge, before whom, summary proceedings for the recovery of land was brought, to-dismiss such proceedings where the title to real property is involved. Yhe provision of the Oode as to dismissal where questions of title are involved relate exclusively to civil actions (Code, §§ 2861,2863,2951,2952, 2951, 3212), and so with respect to the consolidation act, § 1286. The word action ” is defined tiy section 3333 of the Oode, and every other prosecution by a. party is by section 3331 denominated a special proceeding.”’ Summary proceedings are especially designated as “ special proceedings.” Code, §2235. In Re White, 12 Abb. N. C. 318, which was a proceeding to remove a squatter, it was held that the provision of the Oode in regard to title did not apply to summary proceedings. In such a proceeding the owner of the land is bound to prove title if it is denied, and so with regard to proceedings by adjoining owners of property used for illicit purposes. Section 2237. The cases cited by appellant do not conflict with this view. In Low man v. Sprague, 73 Hun, 108, 58 S. R. 87, the only question discussed is the defense to a. summary proceeding on the ground of a forcible holding out of possession, and there is no suggestion that the justice was or could be ousted of jurisdiction by the question of title which did or might arise in the proceeding. People v. Palmer, 16 Hun, 136, was a case of holding over after title perfected under1 execution sale, where the statute provides that a stay shall be granted when an affidavit and bond are given. This provision is incorporated in the present Oode, with reference to such cases. Section 2251, subd. 3. And the decision and provision had nothing to do with the point under consideration on these appeals. The justice was clearly right, therefore, in retaining jurisdiction of this proceeding, although he might have to pass, upon the title of the deceased lessor in determining the duration of the term which he had granted to the tenant. In the case before us the conventional relation of landlord and tenant was established by the permission given by the petitioner’s guardian to the tenant, after the death of his lessor, to remain in the premises untill the petitioner became of age, and his implied assent thereto by payment of the rent thereafter to the guardian. Benjamin v. Benjamin, 5 N. Y. 388. Whatever was done by the guardian was done on behalf of the infant, and for her sole benefit. After she came of age she affirmed the agreement by demanding rent, and these facts established the conventional relation of landlord and tenant, and enabled her to maintain summary proceedings. People v. Ingersoll, 26 Hun, 316. •

• The final order should be affirmed, with costs.

All concur.


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    Francis O. Boyd et al. v. L. H. Quinn Co.
    (Supreme Court, Appellate Term, First Department.
    October 29, 1896.)
    1. Measure oe damages—Breach of contract.
    The measure of damages for breach of contract to deliver goods at a certain place for shipment to the purchaser is the difference between the contract price and the market value at the place of delivery at the time the purchaser was notified that the goods would not be delivered, the purchaser having used due diligence to ascertain the cause of the non-shipment.
    2. Harmless error—Subsequent admission of excluded evidence.
    The erroneous exclusion of testimony is rendered harmless by its subsequent admission.
    S. Evidence—Admission—Conclusiveness.
    Where defendant, in an action for breach of contract for delivery of goods, defends on the ground that he acted in the contract as agent merely, an admission by the purchaser, plaintiff’s assignor, that he knew defendant was so acting, is insufficient to prove such fact, where defendant proves by his own witness that such was not the fact.
    Appeal from, city court of New York, general term.
    Action by Francis O. Boyd and another against the L. H. Quinn Company to recover damages for the nondelivery of four car loads of high-proof spirits and alcohol purchased by the firm of Boss & Beany, plaintiffs’ assignors, from defendant, and which defendant failed to deliver. From a judgment of the city court (40 N. Y. Snpp. 370) affirming a judgment in favor of plaintiffs entered on a verdict for §546.25, defendant appeals.
    David Wilcox and Opdyke, Wilcox and Bristow, for appellant ; Albert B. Boardman, Malcolm, Graham & Tracy, and Boardman & Platt, for respondents.
   DALY, P. J.

—The principal question involved in this appeal is whether the judgment is based upon the correct rule of damages. The contract, which was made on April 26, 1895, was for the purchase of three car loads, or 17,550 gallons of high-proof spirits at §1.20-¡- per proof gallon, and one car load, or 5,750 gallons, of alcohol, at S1.20-J- per proof gallon, free on board at Peoria; shipments to be made Monday, Tuesday, Wednesday, and Thursday of the week ending May 4,1895, and payments to be made on sight draft against documents. The contract was made in New York, where the parties resided. Not hearing from the goods, the purchasers, Boss & Keany, on May 8th or 9 th, wrote to the defendant, inquiring the cause of the delay, and on May 10th received a letter refusing to make the delivery. The "question is whether the plaintiffs were entitled, as damages, to the difference between the contract price of the goods and their market value at Peoria on the date or dates of delivery, or such difference on the day when they first had notice of the refusal to deliver. The general rule that the damages recoverable is the difference on the day fixed by the contract for delivery is based upon the assumption that immediately upon the breach the purchaser can go into the market and buy other goods of a similar quality and quantity. But this rule obviously rests upon the assumption that the purchaser has knowledge at that time of the breach, and in the great majority of cases such is the fact, because delivery is usually made to him, or to some agent who has such knowledge of the facts that the breach would be chargeable to him. But thé present case is exceptional in this : that while the contract names Peoria, and certain dates in Hay, as the place and time of delivery, it doesmot appear that the purchasers had any knowledge or means of knowing on that date that a breach had occurred or was contemplated. It would not be reasonable to require them to anticipate a breach, and to make provisions in advance for ascertaining whether goods were or were not placed upon the cars at the time mentioned in the contract. Even had they done so, it is possible they would not have acquired knowledge of any breach, because Hr. Quinn, on behalf of the defendant, testified that he had ordered the goods shipped, but had not notified the purchasers that they were not going to receive them until Hay 10th. It appears that the bills of lading would not have been sent to the purchaser directly,, even had the goods been shipped, as payment was to be made when they were presented. The purchasers did use diligence in seeking to learn the cause of the delay, when put upon inquiry by the no'narrival of the bills of lading in expected time ; for on the 8th or 9th of Hay they wrote to the defendant, and prior to that time one of them had inquired of the defendant’s office, over the telephone, concerning the delivery, and had been told that Hr. Quinn would have to be seen about the matter. Under such circumstances it would be manifestly unfair to offer the purchasers the difference of market price at the time of delivery in Peoria, upon the ground that at that date they were bound to secure themselves by purchasing other goods in place of those not delivered. And under the facts of this case it must be held that the damages recoverable are the difference between the contract price and the market price on the date when the purchasers were definitely informed that delivery would not be made. The damages allowed were based upon the market price of the goods at the place of delivery, Peoria, on the 10th of Hay, and 1 find no ground for the discussion on this appeal of any question as to the market value in New York. By a stipulation in the case the market value at Peoria on Hay 10th, the earliest date at which the purchasers had notice of nondelivery, was $1.23 per gallon for high-proof spirits, and $1.22 for alcohol; and the difference between these prices and $1.20-|- per gallon, named in the contract, gives by computation the exact amount of the verdict.

Another question arising upon this appeal is upon the claim of the defendant that in making this contract it was acting merely as agent for a disclosed principal, by whom the goods were manufactured. the Distilling & Cattle-Feeding Company. Mr. Quinn testified for defendant that at the times involved in this action he was agent for the receiver of the Distilling & Cattle-Feeding Company in the eastern territory, and that his exclusive business was disposing of the Distilling & Cattle-Feeding Company’s, products in the way of spirits and alcohol. The judge refused to charge the jury.that, if the purchasers bought the goods with knowledge that the defendant company was acting in the premises as agent for the receiver of the Distilling & Cattle-Feeding Company, the defendants should have a verdict. This was not error. The contract for the sale of these goods was made by the L. H. Quinn Company, and not by Mr. Quinn individually. There was no evidence that the company was acting as agent. There is a difference between an agency in Mr. Quinn and in his company. From the whole testimony in the case, it is manifest that this defendant was selling the goods on its own responsibility, and not as agent. Hot only does the contract read, “ Bought of the B. H. Quinn Company,” without any reference whatever to an agency for any party, but in the letter of the defendant repudiating the contract, and refusing to deliver the goods, there is no suggestion it had been acting except on its own responsibility. There is nothing inconsistent Avith Mr. Quinn’s being indivitlually the agent of the receiver for the sale of the products of the Distilling & Cattle-Feeding Company, and a contract by his oavu corporation, the B. H. Quinn Company, for the sale of such goods as principal.

The alleged error in sustaining an objection to the question, You knew he Airas acting as agent for the Distilling and Cattle-Feeding Company % ” Avas cured by a subsequent answer of the witness admitting such lcnoAvledge. The defendant’s request for the instruction above referred to Avas based upon an admission by the plaintiffs’ assignor Doss, Avhen under cross-examination, that he “knew that B. IT. Quinn & Co. Avere the recognized agents here of the Distilling & Cattle-Feeding Company.” This admission Avould be proof of the fact of agency, if the defendant had been content to rely upon it; but instead of doing so it called B. II. Quinn, and proved by him that he Avas the agent of the Distilling & Cattle-Feeding Company ; thus disproving its OAvn allegation in the answer, disproving any presumption arising from the admission of Doss, and making such admission immaterial, since he could not know AArhat Avas not a fact. The request based upon admission of such knowledge Avas therefore properly denied.

The judgment should be affirmed, with costs.

All concur.