text:
    Elias Spingarn et al., Resp’ts, v. Albert Rosenfeld, App’lt.

      (New York Common Pleas, General Term,

      Filed August 9, 1893.)

    Pabtnebship—Assumption op debts op membeb pob mebchandise con- ' TBIBUTED TO POEM STOCK.
    Plaintiffs sold goods to one S., who thereupon entered into a copartnership with defendant, and contributed his stock of merchandise towards the stock of the new firm. The articles of copartnership provided that the sum of $600, owing by S. for account of the merchandise contributed by him should be paid by the firm. Held, that, it being found on sufficient evidence that plaintiffs’ goods were part of the merchandise so contributed, their claim for the purchase money was included among the debts which the firm contemplated to pay, and that they were entitled to recover therefor against defendant as survivor of the firm.
    Appeal from a judgment for plaintiffs recovered in the district court, in the city of New York, for the seventh judicial district.
    Action by individual creditors of one co-partner to recover the amount of their demand against him from the firm upon the firm’s assumption of payment of such co-partner’s debts.
    The facts appear in the opinion.

      Morris W. Hart, for resp’ts; A. H. Sarasohn, for app’lt.
   Bischoff, J.

Plaintiffs, who were dealers in tobacco, sold a bale of Sumatra tobacco to Samuel Swyke, who promised to pay them the sum of $333 therefor. Swyke then entered into co-partnership with Albert Eosenfeld and contributed his stock of merchandise towards the stock of the new firm. Articles of co-partnership were executed by the partners which, among other things, provided as follows: “ It is hereby agreed between the parties hereto that the sum of $600, now owing by Samuel Swyke, one of said co-partners, for account of the merchandise contributed by him to said co-partnership, shall be paid by said co-partnership firm of Swyke & Eosenfeld.” Shortly afterwards Swyke died. One hundred and sixty-six dollars in the meanwhile had been paid plaintiffs on account of their claim, and they brought this action to recover the balance from Eosenfeld, as surviving member of Swyke & Eosenfeld. On the trial plaintiffs contended that the bale of tobacco which they had sold to Swvke was a part of the merchandise which the latter had contributed towards the stock of the firm, and that the firm also had made the payment of one-half of their claim against Swyke. Those contentions were severally supported by sufficient evidence, and though there was some conflict regarding the facts, it must be assumed for the purposes of the judgment appealed from that this conflict was determined by the justice adversely to defendant.

We are of the opinion that upon the facts in evidence and found by him the justice s conclusion is proper, and that the judgment should be affirmed. The case is not to be distinguished materially from that of Arnold et al. v. Nichols, 64 N. Y., 117.

There one J. M. Bowen entered into co-partnershio with one Charles H. Nichols under the firm name of J. M. Bowen & Co., and transferred his business assets to the firm, in consideration of which the latter assumed and agreed to pay certain specified debts of his, among which was a debt due Hinman, plaintiffs’ testator. Reversing a judgment of the general term of the supreme court which reversed a judgment for plaintiffs, the court says: “ Bowen transferred to the firm the assets to which his creditors had the right to look for the payment of their claims, and hence the promise of the firm to pay such claims must be deemed to have been made for their benefit. It was not made to exonerate Bowen from the payment of his debts, and not primarily nor directly for his benefit, as his property was to be taken to pay the debts, and he was still to remain liable as one of the principals to pay them. This case is, therefore, unlike the case of Merrill v. Green, 55 N. Y., 270, and the action is maintainable upon the principles laid down in the case of Lawrence v. Fox, 20 N. Y., 268, and also recognized in Burr v. Beers, 24 N. Y, 178; Thorp v. Keokuk Coal Company, 48 id., 253, and Claflin v. Ostrom, 54 id., 581. Hinman had the right to adopt the promise made expressly for his benefit." In the more recent case of Hannigan v. Allen, 127 N. Y., 639; 3 Silv. Ct. App., 442 ; 37 St. Rep., 138, these views are emphatically reiterated and Arnold v. Nichols is approved. “As we have seen,” says the court, “ each partner contributed to the capital of the firm the stock of goods he had on hand, on which there were amounts owing for purchase money. The goods having been transferred to the old firm and the firm, having assumed and agreed to pay the balance of the purchase price unpaid, the agreement will be deemed to have been made for the benefit of the creditors holding such claims, and an action may be maintained by such .a creditor against the firm upon such agreement.”

It will be found upon examination that all the cases in which the doctrine laid down in Lawrence v. Fox, 20 N. Y., 268, has been invoked, but held inapplicable, are reducible into two classes; namely, those in which there was no privity between the promisee and the person seeking to enforce the contract, nor duty owing, by the former to the latter, Vrooman v. Turner, 69 N. Y, 280; Lorillard v. Clyde et al., 122 id., 498; 34 St. Rep., 224, and those in which the privity or duty was apparent, but the contract utterly failed to indicate any intention to benefit particular persons not parties thereto. Wheat et al. v. Rice, 97 N. Y., 296; Serviss v. McDonnell, 107 id., 260; 12 St. Rep., 485. In the case now before us the fact of Swyke’s indebtedness to plaintiffs for the merchandise contributed by him to the stock of Swyke &• Rosenfeld furnishes ample evidence of a duty owing from the promisee to the persons seeking to avail themselves of Swyke & Rosenfeld’s promise, and it remains for us, therefore, to distinguish the case from the class secondly mentioned. This distinction is clearly pointed out in Beveridge v. N. Y. E. R. Co., 112 N. Y., 1, 26; 20 St. Rep., 962, where the court says: “Within the principles of adjudged cases in this court where the plaintiff seeks to-base his right to maintain his action against a third party upon a contract made between that party and another, it must be one made or intended for his benefit. Such a beneficial intent must clearly be found in the -agreement.” Wheat et al. v. Rice and Serviss v. McDonnell, supra, both of which are cited by appellant’s counsel, are, therefore, not applicable to the case at bar. In Wheat et al. v. Rice, the promise was to pay one-quarter of the promisee’s aggregate indebtedness, but the particular debts which the quarter was intended to comprise were not mentioned. In Serviss v. McDonnell, it was “ to pay one-third of the liabilities* of the late firm,” without specifying the several or particular liabilities to which the promise should attach. In both cases it was held that there was no intent apparent from the promise that plaintiff’s claim was among the debts of which the promisor had assumed payment, no particular debt or class of debts being mentioned therein, and the promise being open to the equal assertion of benefit by all creditors of the promisee, and hence that the action was not maintainable. See, also, Vrooman v. Turner, 69 N. Y., 280, 284.

The case before us, however, presents an essentially different promise from those in Wheat et al. v. Rice and Serviss v. McDonnell. Here the promise was to pay the aggregate indebtedness of Swyke, amounting to $600, and due from him for the purchase price of the merchandise which he had contributed to the stock of Swyke & Rosenfeld. It seems necessary, therefore, only to inquire whether the bale of tobacco which plaintiffs had sold to Swyke was part of the merchandise which the latter so contributed, to ascertain whether or not plaintiffs’ claim for the purchase price due therefor was among the debts owing by Swyke which Swyke & Rosenfeld contemplated to pay at the time of the execution of the copartnership articles. In Barlow et al. v. Myers, 64 N. Y., 41, the court assumed that a promise to pay all the creditors of the promisee would leave no room to doubt that every creditor who was such at the time the promise was made was intended to be secured and benefited thereby, and so could maintain an action thereon to recover the particular demand owing to-him. In Carman v. Kelly, 5 Hun, 283, and again in Melvain v. Tomes, 14 Hun, 31, the supreme court so ruled. Seemingly, a promise to pay all the claims due upon the sale of particular merchandise, and a promise to pay all the claims of the existing creditors of a particular person, are equally definitive. Each promise alike designates a particular class of debts which are to be paid, and in each instance the particular creditor to whom such payment is intended to be made may be ascertained by reference to the fact that his demand is included in the class mentioned.

On the trial, defendant was permitted to testify to an alleged oral understanding, between himself and his deceased co-partner., to the effect that Swyke & Bosenfeld’s assumption of Swyke’s debts should be limited to the particular claim of one Davidson. „ This was plainly violative of the familiar rule that the effect of a written instrument may not be varied by parol evidence. True, the rule does not apply between the parties to the instrument and a stranger ; but that is so only when the latter asserts a right independent of, and not growing out of, the instrument, or when the right asserted does not originate in the relations established by the instrument. Otherwise, the rule prevails. Browne on Parol Evidence, § 28, sub. 15, p. 40.

Defendant’s uncorroborated statements, as a witness in his own behalf, in other respects, were subject to discredit as those of a party in interest; and as the justice, upon abundant evidence, determined that defendant’s positive denial that Swyke & Bosenfeld had received the bale of tobacco which plaintiffs had sold to Swyke was untrue, we are unable to say that the justice erred in disregarding defendant’s uncorroborated testimony altogether. No error in rulings on the trial is claimed.

The judgment should be affirmed, with costs. -

Giegerich, J., concurs.


source: Caselaw Access Project

author: Bischoff, J.

license: Public Domain

text:
    Henrietta E. Schwarting, App'lt, v. Alfred Bisland, Resp’t.

      (New York Common Pleas, General Term,

      Filed August 9, 1893.)

    1. Husband and wife—Husband not liable fob moneys loaned to wife.
    The rule that a husband may be charged with necessaries furnished to his wife does not apply to a case where money is loaned to the wife.
    2. Same—Assumption of liability.
    In the absence of proof that the husband knew of or assented to the loans, his assumption of responsibility for such supplies as should be furnished to his wife does not justify an interpretation that he assumed responsibilty for anything other than what he might reasonably expect that the tradesman would furnish in the ordinary course of his trade.
    Appeal by plaintiff from a judgment of the district court in the city of New York for the tenth judicial district, rendered in plaintiff’s favor for the sum of twenty-five dollars and ninety-one cents and costs.

      John M. Tierney, for app’lt; Alfred B. Cruikshank, for resp’t.
   Bischoff, J.

The action- was brought to recover the sum of $122.78 for goods sold and money loaned by plaintiff’s assignor to defendant through the medium of his wife as his alleged agent. The amount claimed for the goods sold was twenty-three dollars and forty-one cents, and the court below rendered judgment in favor of the plaintiff for the value of such goods, no recovery being had for the money loaned. From this judgment in her favor the plaintiff appeals to this court..

The only question for our determination is : does the plaintiff’s case as made out entitle her to a recovery against the defendant for money furnished to defendant’s wife by plaintiff’s assignor, a tradesman patronized by defendant?

In order that the recovery may be had against a husband for goods furnished to his wife the plaintiff must show that the goods so furnished were suitable to the wife’s position and necessary to her maintenance, and that she was not otherwise provided for. Arnold v. Allen, 9 Daly, 198; McQuhae v. Rey, 52 St. Rep., 484; Bloomingdale v. Brinckerhoff, 49 id., 142.

With regard to the money furnished the wife in this case, this burden was in no way successfully sustained by the plaintiff upon the trial. Moreover, the rule that a husband may be so charged does not apply to a case where money is loaned to the wife, Anderson v. Cullen, 8 N. Y. Supp., 643 ; 29 St. Rep., 494.

There is no proof that the defend"nt knew of or assented to the loans for which recovery is sought, and, in the absence of such proof, his assumption of responsibility for such supplies as should be furnished to his wife does not justify the interpretation that he assumed responsibility for anything other than what he might have reasonably expected that the tradesman would furnish in the ordinary course of his trade.

The decision of the court below was in all respects correct.

Judgment affirmed, with costs. •

Giegerich, J., concurs.


text:
    Solomon M. Grouse, Resp’t, v. Elias Wolf, App’lt.

      (New York Common Pleas, General Term,

      Filed August 9, 1893.)

    Sale—Rescission.
    Plaintiff sold a truck to defendant, for which the latter agreed to pay a certain sum, but thereafter offered to and did return the truck, and plaintiff took possession thereof and sold it for a smaller sum. Held, that this constituted a rescission of the sale to defendant, and that plaintiff was not entitled to the purchase money.
    Appeal from a judgment for plaintiff rendered by the district court in the city of New York for the ninth judicial district.
    Action to recover the purchase money agreed to be paid upon the alleged sale and delivery of a truck by plaintiff to defendant.

      Goldsmith & Doherty, for resp’t; Maurice B. Blumenthal, for app’lt.
   Bischoff, J.

As we understand plaintiff’s testimony, it was to the effect that he sold and delivered a truck to defendant, which the latter accepted, and for which he agreed to pay the sum of $150; that some time after the delivery and acceptance of the truck defendant offered to return it, and did in fact take it to the premises of L. Ullman & Co., where plaintiff assumed possession, and subsequently again sold the truck to Cowperthwait & Co. for sixty dollars. This was all the evidence which was adduced on. the trial, and a judgment for plaintiff thereon is clearly erroneous..

It was competent for the parties to rescind the sale of the truck by mutual agreement to that effect, and that they did so is indisputable from plaintiff’s admission that the truck was returned to-him, and that he thereupon sold it to others. After such rescission, plaintiff was not entitled to the purchase money which defendant, had agreed to pay, and if the latter had paid any sum on account he was entitled to return thereof. Fulton v. The Met. Life Ins. Co., 53 St. Rep., 172.

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

Gtegerich, J., concurs.


author: Giegerich, J.

text:
    George W. Stephens, Resp’t, v. Arthur H. Page et al., App’lts.

      (New York Common Pleas, General Term,

      Filed August 9, 1893.)

    Supplementary proceedings—Foreign corporations.
    A foreign corporation not having a place of business within the state cannot be examined as a judgment debtor in supplementary proceedings for the purpose of the appointment of a receiver of its assets to he applied upon an execution.
    Appeal from a - judgment of the district court in the city of New York for the third judicial district. The opinion states the material facts.

      A. A. Mitchell, for app’lts; E. J. Tinsdale, for resp’t.
   Giegerich, J.

The principal question presented by this appeal is: Can a foreign corporation not having a place of business within the state be examined as a judgment debtor in supplementary proceedings for the purpose of the appointment of a receiver of its assets to be applied upon an execution? Section 2463 of the Code of Civil Procedure excepts from the provisions of the foregoing sections relating to supplementary proceedings domestic corporations and foreign corporations specified in § 1812, except in proceedings by or against the People. Section 1812 refers to and is to be read with § 1810, and is declaratory of the kinds of corporations which come within the provisions of such latter section. These corporations are domestic corporations and foreign corporations doing business within the state, or having therein a business agency or fiscal agency, such being the corporations referred to in § 2463. It is contended that since there is no mention in § 1812 of corporations not having a place of business within the state, that therefore the provisions of the Code relating to supplementary proceedings are applicable to the case at bar; but a careful reading of the enactment in question does not support this view. Section 1810 is express in its terms and declaratory of the cases where a receiver of the property of a corporation may be appointed. These cases do not include that of the appointment of a receiver in supplementary proceedings. Section 1812 prescribes over what corporations a receiver may be appointed, and is in effect strengthened by the declaration in § 2463, which we read as a reiteration of such former section.

Our conclusion is that the appointment of the plaintiff as, receiver of the McCall Publishing Company was unauthorized ; and this conclusion appears to be eminently reasonable in view of the familiar rule that preferences cannot be given to creditors of insolvent corporations. A contrary determination would in effect be a granting of such a preference. Hammond v. Hudson River Iron & Machine Co., 11 How. Pr., 29.

So much for the respondent’s contention, but our determination of the question has the support of reason and authority upon still another ground. In order that supplementary proceedings ma}'be instituted, the execution must have been issued to the sheriff of the county where the debtor has (1) a place for the regular transaction of business in person, (2) where he resides, or (3) if he is not then a resident of the state, to the sheriff of the county where the judgment roll is filed, Code Civ. Pro., § 2458 ; which latter requirement necessarily implies residence in the state at the time of rendition of the judgment. None of these requirements can be met by a foreign corporation, and in no sense can such a corporation be a “ resident.” Moreover, the whole intent to be gathered from the sections of the Code relating to these proceedings is that the judgment debtor should be a natural person. Hinds v. C. & N. F. R. R. Co., 10 How., 487. In Sherwood v. Buffalo & N. Y. City R. R. Co., 12 How., 136, it is expressly held that supplementary proceedings are not to be taken against •corporations. These two last cited cases are adjudications under the old Code, but the provisions of the present Code with reference to these proceedings are, as far as this question is concerned, as much a re-enactment of the provisions of the old Code as though so enacted in express words. See also Fiero Spec. Pro., 519. It follows that since the proceeding was unauthorized in the first instance, the receiver appointed thereunder was without power to maintain the action now before us.

Our conclusion does not leave a creditor of a foreign corporation with property in the state, but with no place of business therein,, remediless, as is contended by respondent to be the case. Equity can afford relief under a state of facts similar to those before us, as was done, but without preferences, in Redmond v. Hoge, 3 Hun, 171.

The judgment should, therefore, be reversed and judgment absolute for dismissal of the complaint should be directed in favor of 'the defendants, with costs.

Bischoff, J., concurs.


text:
    Sigmund Fuld, Resp’t, v. Abraham Kahn, App’lt.

      (New York Common Pleas, General Term,

      Filed August 9, 1893.)

    Judgment—Must conform to pleadings and proofs.
    Plaintiff sued for an alleged agreed compensation of fifty dollars for services; defendant denied making the agreement, and there was no evidence as to the value of the services. The justice rendered judgment for twenty-five dollars. Held, error; that the judgment was not consistent with the facts alleged or proven.
    Appeal from a judgment of the district court in the city of Hew York for the seventh judicial district in favor of plaintiff.
    Action-to recover upon a special agreement for services alleged to have been rendered by plaintiff’s assignor at defendant’s request.

      Leopold Moschovitz, for resp’t; Leonard J. Langbein, for app’lt.
   Bischoff, J.

Plaintiff sued to recover the sum of fifty dollars, the alleged agreed compensation of his assignor for services which the latter claimed to have performed at defendant’s request. Defendant denied the making of such agreement, and the justice below gave judgment for plaintiff for twenty-five dollars.

It is obvious that the judgment is not consistent with the facts in evidence, and so should be reversed. Wise v. Rosenblatt, 30 St. Rep., 858; 34 id., 1005; 16 Daly, 496. The determination of the controversy rested in the conflicting contentions of .the parties. Crediting the statements of plaintiff’s assignor, the recovery should have been for fifty dollars; discrediting them, defendant was entitled to judgment. The complaint was not amended to enable the action to proceed as one to recover the reasonable value of the services, nor was any evidence whatever introduced for either party from which the justice could determine such values. The recovery, therefore, was not secundum allegata et probata. Romeyn v. Sickles, 108 N. Y., 650; 1 Silv. Ct. App., 594; 13 St. Rep., 864.

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

Giegerioh, J., concurs.


text:
    Leo Owiter, Resp’t, v. The Metropolitan Life Insurance Co., App’lt.

      (New York Common Pleas, General Term,

      Filed August 9, 1893.)

    Principal and agent—Insurance agents — Settlement of accounts.
    In an action to recover a deposit made by an insurance agent as security for his honesty, the company set up a counterclaim for a balance of account owing to it as appeared by a statement of its auditing officers. The contract of employment specified two classes of compensation, one based on the increase of business, and also provided that lapsed policies were to be charged to the agent in the same proportion, and the agent therein agreed that the state of his account might be taken at any time from his books by any person authorized by the company, with or without notice, and be determined by the report of such inspection, and ratified the computations so to be made, and agreed that the result thereof should represent his indebtedness, waiving the production of any evidence other than the report and account. Held, that the report made by the auditing officer was conclusive, and the court erred in refusing to charge that plaintiff was bound thereby.
    Appeal by the defendant from a judgment, entered upon the verdict of a jury in the district court in the city of Hew York for the fourth judicial district, in favor of the plaintiff.
    The opinion states the material facts.

      William H. Arnoux, for app’lt; Wm. John Warburton, for resp’t.
   Giegerich, J.

This action was brought by an agent of the defendant company to recover the sum of fifty dollars deposited as security for honesty in the course of his employment. The plaintiff entered the defendant’s employ as agent of its branch in this city, upon the 23d day of September, 1892, and left it on the 4th of January, 1893. The sum in suit was paid by him when he entered upon such employment. The compensation attached to-the position of agent, according to the terms of the contract, was of two kinds, viz. : An “ ordinary salary ” of fifteen per cent upon the amount actually collected -and paid in by the agent to the company, and a “ special salary ” according to the following terms: The special salary shall be fifteen times the amount of the net weekly increase of collectible debit in my agency. Ret increase of collectible debit is the excess of hew business obtained by and credited to me over policies lapsed and charged against me on the books of the company, either during the continuance of my agency or within six weeks after the official transfer in the books of the company of the business of my agency.”

It appeared that plaintiff had been previously employed in the capacity of agent by defendant’s Brooklyn branch under a like contract of employment.

The provisions with reference to compensation were identical in the two contracts, ánd each contained a clause providing for the determination of the state of the account between the company and the agent in the following terms :

“ I agree that the condition of my account with the company, either before or after the termination of my employment by the company, shall be ascertained and determined by an inspection of my weekly accounts, or my ledger, and by my collection book,- or by the premium receipt books of the policyholders included in my debit; such inspection may be made at the direction of the company at any time, with or without notice to me, and by any person authorized by the company to make it; and when made, whether before or after the termination of my agency, and whether I shall be present at the inspection or not, I agree that the actual condition of my account with the company shall be determined by the report of the inspection as it shall be made by the authorized person aforesaid as he shall compute the same from his entries in the inspection book. And I hereby give such employes who shall inspect my agency as aforesaid full power and authority to compute the sum due by me to the company as it shall appear upon such inspection by him, and I hereby ratify his computations and agree that the result thereof shall represent my indebtedness to the company, hereby waiving the production of any evidence other than such report and account.”

There was a condition of the employment whereby the agent was to be charged with the amount of lapsed policies which he had solicited, in the same degree as such policies had formed the basis for special compensation, and defendant set up a counterclaim upon the difference of account in its favor by reason of such condition, which counterclaim is based upon an indebtedness upon both contracts.

Evidence as to the amount of such indebtedness was given by the defendant’s auditing officers. Evidence was also given by defendant that an amount in excess of plaintiff’s claim was due from him to defendant upon his contract of employment in the New York branch.

The evidence given upon these points was that of authorized officers of the company; as to their authority there is no contradiction.

As to the amount due the company under the Brooklyn contract, such indebtedness was shown to be $132.60, but the plaintiff testified that when he left that employment everything was settled, that he did not owe the defendant one cent, and that he was all clear. Nevertheless, under his contract, he could be charged with lapses occurring thereafter, and, as to the amount of such lapses, the report of the person or persons authorized by the company to make an inspection of the plaintiff’s weekly accounts in his-ledger was conclusive under the seventh paragraph of the contract, as appears above.

In submitting the case to the jury the learned justice should,, therefore, have charged as requested, that the plaintiff was bound by the statements of the company’s officers, and it cannot be-reasonably-said that the defendant’s case was not prejudiced by this error.

Again, the evidence given by the defendant as to plaintiff’s indebtedness under the New York contract was uncontradicted, and, at all events, we think that a verdict should have been directed in defendant’s favor for the amount so proved, less any sum which they may have found to be due to the plaintiff from the defendant. The witness so testifying was not an interested witness in the sense which would require the submission of his-testimony to the jury in order that his credibility should be" passed upon. He testified in the course of his duties as the arbiter appointed by the plaintiff under his contract to decide this very question of account. His uncontradicted testimony was conclusive. See Plyer v. German American Ins. Co., 121 N. Y., 692; reported in full in 3 Silv. Ct. App., 46; 31 St. Rep., 836.

The errors above pointed out necessitate a reversal of the judgment, and a consideration of any other questions arising upon this appeal is not necessary.

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

Bischoff, J., concurs.


author: McAdam, J. Per Curiam.

text:
    Thomas Pearsall Thorne et al., Resp’ts, v. Thomas Henry French, App’lt.

      (New York Superior Court, General Term,

      Filed July 3, 1893.)

    1. Equity—Action for injunction and damages.
    Where an action is brought for an injunction and damages, and the conclusion that the case is not one in which injunctive relief should be granted is not self-evident, hut is only reached after investigation and consideration,. the court at equity term will not dismiss the action, but will retain it and award damages.

      2. Contract—Default—Waiver.
    Plaintiffs, as the owners oí an opera, agreed that the defendant should have the acting rights therein for the United States and Canada for a specified period; the agreement providing that the opera should he produced after the one then running at • defendant’s theatre, and that if not produced by the 1st of February following, defendant should pay $3,000, which should he payment in full for the first fifty performances. The opera then running proving a success, continued until February 13th, when another engagement commenced, and defendant announced that he' would not produce plaintiffs' opera. The contract also provided that the hand parts, leader’s and vocal scores, drawings, etc., were to he delivered by September 1st, and that defendant was to advance for the drawings $300. None of these things were delivered, hut the scores and libretto were ready and were used at rehearsals, and defendant, four days after said date, wrote to one of the plaintiffs that he would he glad to see him when he came, and that there was ample time for the band parts. In an action for the $3,000, Held, that defendant could not put plaintiffs in default until the $300 was advanced; that there was a waiver of delivery of the material, and that after defendant’s refusal to perform, plaintiffs were not hound to make a formal tender or offer of performance on their part, and were entitled to recover.
    Appeal from judgment in favor of plaintiffs, entered upon the ■decision of a judge at equity term.
   The following is the opinion of the court below:

McAdam, J.

The plaintiffs are the owners of the opera entitled, “ The Maid of Plymouth,” Thorne being the composer of the music and Greene the authorof the libretto. On J une 19, 1891, the parties agreed that the defendant should have and acquire all ■acting rights in the opera for the United States and Canada during a specified time. That this gave the defendant the exclusive right is clear, and no negative clause was required to effectuate that purpose. The agreement provides that the defendant shall produce the opera at the Garden Theatre (of which he was manager), following the opera then on exhibition there, entitled “ La Oigale,” which ran until February 13, 1892.

Instead of producing the plaintiffs’ opera after February 13, 1892, the defendant permitted Bichard Mansfield to produce a repertoire of plays under the defendant’s management. The ostensible object of the action as shown by the bill of complaint was to obtain an injunction enjoining the defendant from continuing the use of bis theatre contrary to the covenant with the plaintiffs. It prays for injunctive relief and damages as well. The defendant in his answer objects to the remedy invoked upon the ground that the plaintiff has an adequate remedy at law, and an objection of like purport was again taken in limine at the trial by a demand that the issues be tried by a jury. While satisfied that the action is not one in which injunctive relief should be granted, that conclusion, not self evident, was reached only after judicial investigation and consideration. No motion to dismiss was made either at the close of the plaintiff’s case, or at the conclusion of the trial. The question now is whether the court at equity term should retain the action and award damages in such a controversy or must remand it-to that part of the court wherein issues of fact are triable by a jury, or of its own motion dismiss the action. In Van Rensselaer v. Van Rensselaer, 113 N. Y., at p. 213; 22 St. Rep., 947, the court said: “The case was tried at special term. At the outset the defendants objected to the tribunal as an improper one for the trial of any question involving a personal judgment against either of the defendants, and demanded that if such question was to be tried it should be by a jury trial. The objection was not that the case, as disclosed by the pleadings, was only triable by a jury. It looked not to the case .as presented by the complaint, but as it might possibly be decided at the end. Such an objection is wholly unsound. It conceded that the action as it came into court was of an equitable character, as it certainly was, but insisted that if the final relief was to be a personal judgment, the case was one for a jury. A court of equity does not in that manner lose its jurisdiction, and, having once acquired it, retains it to the end, even though it may turn out that adequate relief is reached by a merely personal judgment. That is not an uncommon occurrence.” See, also, Lynch v. M. E. R. R. Co., 129N. Y., 280; 41 St. Rep., 541. Assuming that the principle declared in the cases cited is applicable here, and that this branch of the court may retain the action and determine the issues, we proceed to consider the facts. The plaintiffs were to have for their labor certain royalties after the opera was produced, and the agreement provides that if, on the first day of ■ February, 1892, the defendant shall not have already produced said opera, he shall pay to the plaintiffs the sum of $2,000, which shall be in full payment for the first fifty performances to be given by him.

The bill as to injunctive relief is not insisted upon, and the ■contention has finally resolved itself into an effort to recover the specific sum.

The main defense is that the contract called for the delivery by September 1st of the materials to produce the opera, viz.: Band parts, leader's score, twenty or more vocal scores, also diagrams of both scenes and the plates of all costumes for principals and chorus; also cuts, drawings or designs of all properties.

The plaintiffs’ failed to perform this provision of the contract, and it is claimed that, as a consequence, no action by them will lie for a breach of the defendant’s agreement to pay. But strict performance of this provision was waived by the defendant. For the drawings the defendant was to advance $200, which was to be deducted from the first fees due to the plaintiffs under the contract.

The meaning of the term “ advance ” is that the defendant was to pay $200 before it would otherwise have become due. Webster’s Dictionary. The defendant never paid or advanced any part of this money. It was a condition precedent on his part, and the plaintiffs could not be put in default until such sum was first advanced. Mansfield v. R. R. Co., 102 N. Y., 205; 1 St. Rep., 390 ; Dannat v. Fuller, 120 N. Y., 554, 558 ; 31 St. Rep., 825. The band parts, leader's score, and a number of the vocal scores, had been prepared and were ready for delivery, and libretto was complete. Indeed, they were used at rehearsals even before the date of the contract. The additional material involved merely the mechanical work of copying and designing, which would have taken but a few dajm to complete. Conceding that time was of the essence of the contract, and there was no waiver in respect thereto, the defendant had the right (1) to elect to rescind the contract for failure to deliver the materials on or before September 1; 1891, or (2), to elect to continue the contract in force. The plaintiffs, by their simple failure to deliver the materials, did not put an end to the contract, although their default might have given the right to the defendant to elect to rescind. If he elected to rescind it was incumbent on him to make his choice promptly. See Lawrence v. Dale, 3 Johns. Ch., 23, 42; McNevin v. Livingston, 17 Johns., 437 ; Hunt v. Singer, 1 Daly, 209 ; aff’d, 41 N. Y., 620 ; .Meyer v. Hallock, 2 Robt., 284; Starbird v. Barrows, 38 N. Y., 230, 237 ; Hennessy v. Bacon, 137 U. S., 78. The defendant did not elect to rescind, however, but determined to continue the contract in force.

The opera o£ “ La Oigale ” had proved a great success, and defendant was in no hurry to withdraw it from the public, and, as the “Maid of Plymouth ” was to be produced at the same theatre, it could not be accommodated until “La Oigale” had been withdrawn, and hence there was, seemingly, no hurry on either side in asserting rights, making demands or pressing tenders.

Peeling this way, and acting accordingly, the defendant wrote Mr. Thorne, under date of September 5, 1891 (five days after the alleged default): “Your favor of September 3d to hand. I shall be glad to see you when you get here, which will be in ample time for the band parts.” The defendant’s letter refers only to the “band parts,” and it is urged that the waiver applies to nothing else. The contract was entire and indivisible, and the defendant thus knew of the failure to deliver the other material. He did not complain of delay, take the position that the plaintiffs were in default, or that the contract was at an end. On the contrary, there was, as he expressed it, “ample time.” Conversations were-had between the parties after this, one as late as January, 1892, in which the defendant said that the plaintiffs had better read their contract; they would get their $2,000, but he expected the material.

By electing to continue the contract in force, the defendant retained his rights under it until September 1, 1893. He evidently intended to regard the contract as a subsisting obligation, and one that might ultimately prove beneficial to him.

A defendant is not bound to take advantage of a delay or forfeiture, and there may be a waiver, if there be conduct indicating an intention to waive a condition as to time, “ although there are no new considerations, and although there may be no technical estoppel.” Prentice, v. Knickerbocker Life Ins. Co., 77 N. Y., 483, 488; Goodwin v. Massachusetts Mut. Life Ins. Co., 73 id., 480, 493; Titus v. Glens Falls Ins. Co., 81 id., 410; Sinclair v. Tallmadge, 35 Barb., 602, 606. Where time is waived a party is not put in default until he has demanded performance, and thus restored time as an element of the contract, Lawson v. Hogan, 93 N. Y., 39, 41; Wallman v. Society, 45 id., 485; Leaird v. Smith, 44 id., 618; Owen v. Evans, 47 St. Rep., 661; Dillon v. Masterson, 42 N. Y. Supr. Ct., 176.

. When the parties entered into the agreement they contemplated that “ La Oigale ” would soon come to a close and “ The Maid of Plymouth ” follow it, and it in turn was to be followed by Richard Mansfield. The defendant was at this time anxious to secure the plaintiffs’ opera; the agreement so recites, and all the circumstances point to the same fact.

But “La Oigale ” continued its hold on the favor of the public much longer than was expected. The success continued until the advertised time for Richard Mansfield to make his appearance came around, and there was no longer room for the “ Maid of Plymouth.” The play was not then wanted; it had been crowded out by the circumstance stated, and thus it was that the defendant, in January, 1892, finally announced his determination not to produce it at all.

This was a complete change of front on the part of the defendant and a surprise to the plaintiffs. That the plaintiffs were anxious to carry out their part of the contract is apparent all through the case. They did not want to crowd the defendant, or even appear to do so, but they never intended to abandon their contract or relieve the defendant from its obligations. There was substantial performance on the part of the plaintiffs, and but for the acts of. the defendant there would have been literal performance.

Certain legal results follow .the defendant’s acts. (1) Where a party gives a reason for his conduct or decision touching anything involved in a controversy, he cannot, after litigation has begun, change his ground and put his conduct upon another and different consideration. He is not permitted to mend his hold. He is estopped from doing it by a settled principle of law. R. R. Co. v. McCarthy, 96 U. S., 258, 267, and see Gould v. Banks, 8 Wend., 562; Holbrook v. Wight, 24 id.. 169; Everett v. Salters, 15 id., 474; Wright v. Reed, 3 Durnf. & E., 554; Duffy v. O'Donovan, 46 N. Y., 223; Winter v. Coit, 7 id., 288. Next, when the defendant finally announced that he would not produce the opera at any time, the plaintiffs were absolved from the necessity of any formal tender or offer of performance on their part. Shaw v. Ins. Co., 69 N. Y., 286; Gray v. Green, 9 Hun, 334; Carter v. Scargill, L. R., 10 Q. B., 564, 567.

That the defendant was not put in default promptly by a formal tender was no doubt owing to the fact that the plaintiffs wanted their opera produced, and by the defendant at his theatre. These were paramount considerations. They preferred this to a forfeiture of any kind. It was understood by the parties (all professional men) that, until “La Oigale” was formally announced to be withdrawn after a certain date, there was no hurry about the plaintiffs’ opera or its accompaniments. Time was not, therefore, regarded by either party as of the essence of the contract. Indeed, viewed in the light of the circumstances, all the parties knew that it was not and could not be so regarded, and they acted on this interpretation of the agreement until the defendant formally announced his intention not to perform any portion of it on his part, except that perhaps relating to his obligation to pay the $2,000 specified in it.

A. J. Dittenhoefer and David Gerber, for app’lt; William D. Guthrie and Charles Steele, for resp’ts.

In actions at law (though not in equity) time is regarded as of the essence of the contract, Schmidt v. Reed, 132 N. Y., at p. 113 ; 43 St. Rep., 490; Ohitty on Oont., 11th Am. Ed., 433; yet where time does not go to the root of the matter, and the acts of the parties evidence, as they do here, the fact that it is not to be regarded as of the essence of the contract, it will violate no legal principle to give effect to the evident intention of the parties, a feature that controls the interpretation of all contracts. This principle was carried to great lengths in Bettini v. Gye, L. R., 1 Q. B. D., 183, in which the contract provided that Bettini, a singer, should be in London, “ without fail,” at least six days before the commencement of his engagement, for the purpose of rehearsals. The plaintiff did not arrive in London until two days, before the engagement. The defendant Gye, an opera manager, sought to escape liability under the contract upon the plea that timeiwas of the essence; but Mr. Justice Blackburn ruled that the plaintiff was entitled to judgment.

The decision in this case is not put upon that ground, but upon the more substantial one of waiver by the defendant, which, under the evidence and the authoritative adjudications on the subject, relieve the plaintiffs from all imputation of neglect or default.

The plaintiffs are entitled to judgment for $2,000, with costs.

Per Curiam.

The judgment should be affirmed, with costs, upon the opinion of the learned judge at the equity term.

Freedman and Gildersleeve, JJ., concur.


author: McAdam, J, Freedman, J.

text:
    Ferdinand A. Strauss, Resp’t, v. John Henry Vogt, App’lt.

      (New York Superior Court, General Term,

      Filed July 3, 1893.)

    Attachment—Fbaudulent disposal oe goods.
    Proof that defendant at various times while purchasing goods represented himself as doing a good business; that his profits ought not to be less-than one-third, and that he had not had any loss for a long time, and that within three weeks after making such statement he called a meeting of creditors and his attorney stated that he was only able to pay twenty-five per cent, of his debts, is sufficient to sustain plaintiff’s right to an attachment on the ground that defendant had assigned, disposed of or secreted his goods, or was about to do so, with intent to defraud his creditors.
    Appeal from order denying defendant’s motion to vacate the attachment granted against defendant’s property.
    The affidavits upon which the attachment was granted show the following facts:
    The defendant has been, for a number of years, engaged as a manufacturer of braids and trimmings at Ho. 270 Bowery in the city of Hew York. In October, 1892, the defendant told plaintiff that he had a large and valuable stock of goods and valuable machinery ; that he was doing very well, and doing his share of business. That he had some new specialties and expected to make plenty of money the coming season. In January, 1892, defendant told plaintiff that his business was “ fairly good ” and that he expected a good spring season. At that time the defendant purchased of the plaintiff a large bill of goods, the largest in any month for a long time.
    During the month of February the defendant frequently called at the place of business of the plaintiff, and on most every occasion the business of the defendant was discussed and defendant stated that he was doing fairly good and as well as could be expected.
    The defendant has expensive machinery which he said was paid for out of the profits of his business.
    The defendant has frequently stated to plaintiff that the profits in his business ought never to be less than one-third.
    On March 7, 1893, defendant met plaintiff at the-Merchants & Traders’ Bank, at which time defendant said to plaintiff that he was doing his share of business and was doing as well as any one else in his line. That he had sustained no loss of any kind in a long time. And in answer to a remark of the plaintiff that the braid people were getting rich, defendant said that he had his share of the business and was not poor by any means.
    The defendant continued to purchase merchandise of the plaintiff up to and including the 21st day of March.
    Such being the condition of defendant’s affairs, on the 23d day of March, 1893, he sent to his creditors a notice of a meeting of his creditors to determine what action should be taken in his affairs.
    Thereupon Charles A. Hess, as counsel for the plaintiff, called upon Eugene H Pomeroy, Esq., the attorney for the defendant, and was informed by Mr. Pomeroy that the defendant had been in a bad way financially for a year or more, and that he was only able to pay twenty per cent, or twenty-five per cent, of his indebtedness.
    Mr. Pomeroy also informed Mr. Hess that the liabilities of the defendant were about $31,000. That his assets were about $20,000 or $21,000, which were made up of book accounts considered good, $12,000 ; cash on hand, $3,000 ; merchandise on hand, $3,-000 ; and machinery, $3,000.
   The following is the opinion of the court below:

McAdam, J,

The affidavit of Egeln, the former bookkeeper of the defendant, makes out a strong case for the plaintiff. The defendant’s stock in July, 1892, was estimated at from $28,000 to $30,000; collectible book accounts, $8,000 to $12,000, and machinery at cost price, $20,000.

Egeln swears that, from his knowledge and observation, the assets were about the same on March 1, 1893. He asserts that the defendant’s business was fairly good, while Strauss testifies it was prosperous. The latter also states that late in March the defendant told him that his stock was worth $3,000 only, and that this is all the creditors would get in that line. The question naturally suggests itself, what has become of the difference between $28,000 and $3,‘000, the missing $25,000 worth of stock is unaccounted for, and its disappearance unexplained.

Eugene H. Pomeroy, for app’lt; W. J. Townsend, for resp’t.

Evidence and inferences to be .drawn therefrom sustain the plaintiff’s right to attachment, and the motion to vacate it will be denied, with costs. See 11 Abb. Pr., 283; 8 Abb., N. S., 131.

Freedman, J.

The affidavits upon which the attachment was granted present a sufficient case for its support on the ground that the defendant has assigned, disposed of or secreted, or is about to assign, dispose of or secrete, his property with intent to defraud his creditors.

The papers submitted by both parties on the motion to vacate present a sharp conflict as to the most material facts. The learned judge who heard the motion determined the issues thus raised in favor of the plaintiff, and upon a careful review of the whole case 1 am unable to say that he erred in his decision.

True, in the course of his opinion, he erroneously assumed that some witness had testified that the defendant had admitted that late in March his stock was worth $3,000 only, but independently of that there is sufficient evidence left upon which, together with the inferences to be drawn therefrom, the plaintiff’s right to the attachment may be sustained.

The order should be affirmed, with ten dollars costs and disbursements.

Gildersleeve, J., concurs.


author: Lawrence, J.

text:
    Jules Reynal et al., Trustees, Pl’ffs, v. Mathilde Eugenie Thebaud et al., Def’ts.

      (Supreme Court, Special Term, New York County,

      Filed April 11, 1893.)

    Will— Cohstbtjction—Depreciation of tkust funds.
    A testator bequeathed a certain fund to his executors, with directions to divide it into as many shares as there should be persons of a certain ■class living at the time of his decease, to hold one of such shares in trust for the benefit of each of such persons, applying so much of the net income of each share as was necessary for the support and .education of the cestui que trust during minority, and accumulating the balance. Upon the attainment of majority by each of said cestuis que trust so much of the net income of his or her share as had been accumulated was directed to be paid over to him or her, and thereafter the whole net income of each share was directed to be applied to the use of the person for whose benefit it was held during his or her life. The remainders in such shares were absolutely bequeathed upon the deaths of the cestuis que trust respectively. The will prescribes certain forms of investment for the trust funds. _ Held, that where the principal of the trust' funds had suffered diminution by reason of the decline in value through approaching maturity of securities of the kinds prescribed in the will, and. purchased at a premium, the trustees were authorized to add to the principal of each share sufficient of its accumulated income to restore the corpus of the trust estate to the amount originally set apart by the testator.
    Action for judicial settlement of plaintiffs’ accounts as trustees.

      Carter & Ledyard, for pl’ffs ; Elliott & S. Sidney Smith, for def’t Thebaud; Walter Trimble, for def’t Reynal.
   Lawrence, J.

Nathaniel Higgins died on the 11th day of January, 1882. He left a will which was duly admitted to probate by the surrogate of this county. The second clause of the will reads as follows :

I give and bequeath unto my executors hereafter named, or to such of them as shall qualify and undertake the execution of this, my will, and the survivors or survivor of them, the sum of $1,500,000, in trust, nevertheless, and to and for the uses and purposes following, that is to say, to divide the same into as many parts or shares as there may be children, or children of any predeceased, of my daughter, Nathalie Florence Beynal, living at the time of my decease, such grandchild or grandchildren of my -said daughter to represent the part or share to which his or her or their parent would have been entitled to the benefit of under this clause of my will if living at the time of my decease, and invest and keep each of said shares or parts thereof invested at interest on bond and mortgage of real estate, or in the public stocks or funded debt of the city or county of New York, or of the city of Brooklyn, or of the state of New York, or of the United States of America, and collect and receive the interest and income arising therefrom, and pay and apply the net interest and income arising from each of said parts or shares, or so much thereof as may be necessary for that purpose, to the support, maintenance and education of the child or grandchild for whom such part or share may be set apart and invested, until such child or grandchild shall attain the full age of twenty-one years, and accumulate the balance of such interest and income, and on such child or grandchild attaining the age of twenty-one years to pay him or her all such accumulated interest or income, and from and after the time such child or grandchild shall attain the age of twenty-one years to pay and apply the whole of the net interest and income arising from the part or share set apart for the benefit of such child or grandchild to the use of such child or grandchild during his or her natural life, and on the decease of such child or grandchild to assign, transfer and pay over such part or share to the issue of such child or grandchild surviving him or her, and to the issue of any child of him or her so dying, who may have previously died leaving issue him or her surviving, such issue to take the same part or share which his, her or their parent or parents would have taken if living. If, however, said child or grandchild shall die without leaving issue surviving him or her, then to assign, transfer and pay over said part or share held or directed to be held for the benefit of the child or grandchild so dying, to his or her brothers and sisters then surviving him or her, and to the issue of such of them as may have previously died leaving issue surviving, such issue to take the part or share his, her or their parent would have taken if living.”

At the time of the testator’s death there were four children of his daughter, Nathalie F. Beynal, all of whom were minors. One of these children has since died, and the amount of the trust has been since held by the plaintiffs as trustees for the three surviving children, who are the defendants in this action. This action is brought for the purpose of obtaining a judicial settlement of the accounts of the plaintiffs as such trustees since the 10th day of January, 1890, the date of the previous settlement of the accounts in the surrogate’s court. The defendant, Mathilde Eugenie The-baud, became of age on the Sd day of February, 1891, and the defendant, Nathaniel Claude Reynal, on the 15tli day of February, 1892, and as to those defendants the time has arrived when the plaintiffs must account in respect to the trust fund created by the second clause of the testator’s will. It is conceded that the accounts of the investments and payments made by the plaintiffs are correct, but it is objected that the trustees were not authorized to set up what is termed in said accounts a “ sinking fund.’’ This fund, as is stated by plaintiffs’ counsel in his brief, was established by the trustees to make good a deficiency in the principal of the investments held for each of the said ■ defendants arising from the fact that the said principal has been invested by the trustees in interest bearing government and city bonds and stocks purchased by them at a premium, and which premium has been gradually diminishing by reason of the fact that said bonds and stocks are approaching maturity. It appears that during the first eight years of the administration of these trustees, from 1882 to 1890, the trustees made noeffortto maintain a sinking fund. In 1890, when they began to prepare for the accounting which would be requisite in 1891 (when Mathilde Eugenie Thebaud attained the age of twenty-one years), the trustees discovered that the principal of the three trust funds held by them had been impaired by the shrinkage in the values of the securities held by them. This shrinkage is shown on pages 7, 8 and 9 of the first account, and amounted to $7,090.48 in each trust.

The trustees accordingly transferred from the accumulated income in their hands $7,090.48 to principal in the case of each of the trusts, and began to establish a sinking fund for each security so as to prevent future shrinkage in the principal of these funds.

It is the action of the trustees in making the above transfer,, and in establishing this sinking fund, which is now criticized.

The question involved in this case, therefore, is whether the plaintiffs, as trustees for the defendants under the will of their grandfather, Nathaniel D. Higgins, should pay over to the defendants, as life tenants, the whole amount of the income collected by them in each year, or whether they should retain out of the income, which accrued prior to the time when each of the defendants became or becomes of age, a sufficient amount to gradually retire the premiums paid by them for the securities in which they have invested the trust funds, and pay over to the defendants as cestuis que trusts the net income or interest after deducting that amount.

This case has been very thoroughly discussed by counsel in the briefs which they have submitted, and authorities conflicting, or apparently conflicting, have been cited by them to sustain their respective positions, but after all the case must be determined by following the elementary rule as to the construction of wills, by ascertaining the intention of the testator from the language used by him. Applying that rule,' I think that it is clear that the testator intended to preserve the corpus of the trust fund for the benefit of his grandchildren.

It must be assumed that a man of large fortune who was competent to make and did make a will, executed as far back as March 2, 1878, knew that the government bonds and city stocks, in which he directed his executors to invest the $1,500,000 fund, could not be purchased without paying large premiums therefor, and that unless provision was made by the trustees from year to year to meet the shrinkage in the value of the securities which must ensue as they approached maturity, the corpus of the fund would be most materially impaired. Having this knowledge, what does the testator direct the trustees to do ? He directs them to “ collect and receive the interest and income arising from each of said parts or shares and pay and apply the net interest and income arising from each of said parts or shares to the support, maintenance arid education of each of said children, until' each of said children shall attain the full age of twenty-one years, and accumulate the balance of such interest or income, and from and after the time such child shall attain the age of twenty-one years, to pay and apply the whole of the net interest and income arising from the part or share set apart to the use of said child, and on the decease of such child to assign, transfer and pay over such part or share to the use of such child.”

It will be observed that upon one of the children attaining majority the trustees are not directed to pay to such child the whole of the accumulated interest or income, but the whole of the net accumulated interest or income. The net interest or income is to be applied to the support and maintenance of each child, and the accumulation of such net income over and above the sum required for its support is to be paid to the child when majority is attained. The direction as to the payments to be made to each of the children after they have become of age is, also, to apply the whole of the net interest or income arising from each share, and when the child dies the trustees are directed to pay over such part or share to the issue of such child.

There is nothing in the will from which it can fairly be inferred that the testator when he used the word “ net ” meant gross “ income.” And where in the direction of the final payment to the issue of each child upon the death of the child, the testator refers to “ such part or share,” there is nothing from which it can be inferred that he did not mean the whole share, unimpaired and unreduced. The sum which he had directed the trustees to invest in the bonds and stocks mentioned in the second clause of the will was $1,500,000, which he directed to be divided into as many shares or parts as there might be children of his daughter. It is the amount of one of the shares resulting from the division of that sum by the number of children of Mrs. Eeynal that the testator intended should go to the issue of each child upon the death of the child.

I have examined the various authorities relied on by counsel with care, but deem it sufficient to say that where a result apparently different from that at which I have arrived has been reached, the judgment of the court has been based upon the fact that from the language of the testator it was clear that he intended that the loss resulting by shrinkage in the value of the securities for which a premium had been paid should fall upon the remaindermen. As I read the will in this case no such intention is manifest.

Draw findings accordingly and settle on notice.


author: Hatch, J.

text:
    Thomas W. Casterton, Resp’t, v. John E. McIntire et al., App’lts.

      (Superior Court of Buffalo, General Term,

      Filed May, 1893.)

    Contract—Agreement eor increased compensation—Evidence.
    In an action on a contract for excavation at an agreed price, proof that after the work was commenced it was found more difficult than was supposed, resting alone on the testimony of the parties interested in increasing the pay, and disputed by a preponderance of testimony of disinterested parties, coupled with the fact that opportunity existed for examination of the character of the soil to be removed, which was availed of, is insufficient to make out a case for relief based upon mutual mistake, and cannot furnish a consideration for a promise to pay an additional sum for the work; and hence evidence of such a promise is inadmissible.
    Appeal from judgment in favor of plaintiff, entered on verdict, and from order denying motion for a new trial.

      Tracy C. Becker, for app’lts ; George W. Cothran, for resp’t.
   Hatch, J.

Among other things, plaintiff’s complaint alleged that he and one Emmett, as partners, entered into a contract with defendants to excavate a certain quantity of earth and material which defendants were obligated to remove by virtue of a contract with the Lehigh Valley Railroad Company; that said excavation was to be made for and at the agreed price of 16& cents per cubic yard, payments to be made upon the estimates of the engineer of the company as the work progressed; that after the making of the contract, and in the course of its performance, the same was modified as to the price of excavation, defendants agreeing to pay therefor the sum of 18 cents per cubic yard in place of 16J cents; that, in pursuance of the contract, plaintiff excavated 15,197 cubic yards of earth, and became entitled to receive therefor the sum of $2,735.46, but has only been paid $1,123.64, leaving balance due of $1,611.82, for which sum judgment was demanded; also alleged that prior to the commencement of the action said Emmett assigned his interest in the claim to plaintiff. The defendants, among other things, denied the alleged modification of the contract as to price, set up matter in defense and by way of counterclaim, and demanded judgment that plaintiff’s complaint be dismissed. Hpon the trial, evidence was given, under defendants’ objection and exception, tending to establish that, after plaintiffs entered upon the performance of the contract, they found the soil much softer and more difficult to remove than they had supposed, and, upon defendants’ attention being called to that fact, they agreed to increase compensation of plaintiffs to 18 cents per cubic yard. The objection to this testimony was based upon the ground that there was no demand in the pleading for a reformation of the contract, and no allegation of any fraud or mistake in its inception ; that the claimed modification was without consideration to support it.

The testimony remained in the case, and the learned judge, in submitting the case to the jury, proceeded upon the theory that it presented a question of fact for the jury, as he charged that, if the character of the soil was different from that supposed by both parties at the time of the execution of the contract, then a case of mutual mistake was made out, which would furnish a sufficient consideration for the agreement to pay the enhanced price, but, if no such mutual mistake existed, then it was a voluntary promise, which would not support an agreement to pay additional compensation. Defendants excepted to the submission of this question to the jury, and also requested the court to charge that the evidence was insufficient to authorize a finding of said increase ; also that the evidence was insufficient upon which to base a consideration for the increase. Both of the requests being refused, defendants excepted. This question is thus properly presented, and its disposition involves a consideration of the testimony. It is first to be noticed that the complaint does not allege fraud or mistake in the execution of the contract, but the allegation upon which the evidence was admitted is found in the alleged modification of the contract. I assume that evidence under it of a valuable consideration would be competent, but whether a mistake of parties can furnish a basis of consideration, without allegation of such mistake, is not so clear. Marsh v. McNair, 99 N. Y., 178-180. In the view taken, however, it is not deemed necessary to pass upon this question. Before the contract was executed, the work was staked out by the engineer, and was pointed out to plaintiffs. They examined it. Emmett testified that there was a cut which ran through the work, which disclosed the character of the soil to be excavated, and that he could see it to within three or four feet of where he had to go. In this he was corroborated by Casterton, who testified that “ there was a cut right down through the work as far as that went, within three feet, and in some places within eight feet. The material was different at eight feet than it was at ten feet down.” Upon this point defendants’ testimony showed the same thing, except that it is more in detail, and shows with more certainty the character of the cut, and that it disclosed the material to be excavated and its character. It thus appears to he undisputed that plaintiffs, when they executed their contract, had knowledge of the surface of the soil to be removed, and also of that which lay beneath the surface. So that the condition of material and quantity was known to each party, and must have been or should have been clearly understood by both.

Upon this testimony, I am unable to see any ground upon which there can be predicated a basis of right to have the contract reformed or avoided for mutual mistake in the character of the soil to be removed. If it could, not be reformed or avoided, then it cannot furnish a legal'consideration for enhancing the cost of performance of work which plaintiff was bound to do. It has long been well settled that a court of equity even is without power to make contracts for parties, and a mistake can only be corrected upon the clearest proof. Whittemore v. Farrington, 76 N. Y., 458; Stettheimer v. Killip, 75 id., 282. The proof of mutual mistake must be sufficiently clear to leave no room for doubt. Smith v. Knapp, 18 W. Dig., 95. An erroneous estimate of the extent of liability as a fact, in the absence of warranty or fraud, is not such mistake as will warrant relief from a contract. Noel v. Lithograph Co., 33 St. Rep., 759, affirmed on appeal, without opinion, 134 N. Y., 617; 47 St. Rep., 929. Proof that after the work was commenced it was found more difficult than was supposed, resting alone upon the testimony of the parties interested in increasing the pay, and disputed by a preponderance of testimony, coming in part from disinterested parties, coupled with the fact that opportunity existed, as we have seen, for examination, which was availed of, is, in my judgment, within the authorities cited, entirely insufficient to make out a case for relief based upon mutual mistake of the contracting parties, and consequently could not furnish consideration to uphold,a promise to pay an additional sum for the work. In this regard no dispute arose over any matter. Plaintiffs simply complained that there was more difficulty in the prosecution of the work than they had contemplated, and the soil was different, but their contract bound them to perform the work, and the enhanced difficulty of performance was no consideration for the promise to increase the pay. Vanderbilt v. Schreyer, 91 N. Y., 392 ; Robinson v. Jewett, 115 id., 40; 26 St. Rep., 387; Ward v. Building Co., 125 N. Y., 230; 34 St. Rep., 934. This discussion reaches the conclusion that the case did. not present evidence upon which the jury could find a valid agreement to increase the sum to be paid, and in consequence thereof the testimony objected to should have been excluded. The exception to the charge was well taken, and the defendants were entitled to the charge asked. There are other questions presented by this record which are clearly debatable, while the evidence to support plaintiff’s claim is slender almost, if not quite, to failure, in view of undisputed facts and circumstances, and defendants’ testimony. As we have reached the conclusion, for the error noted, that there must be a new trial, we do not deem it necessary to discuss the other features of the case.

Judgment and order appealed frotn reversed, new trial ordered, costs to abide event.

Titus, Ch. J„ concurs.


author: Titus, Ch. J.

text:
    The City of Buffalo, Resp’t, v. The New York, Lake Erie & Western Railroad Co., App’lt.

      (Superior Court of Buffalo, General Term,

      Filed May, 1893.)

    1. Municipal corporations—Ordinances.
    A provision of a city charter authorizing the common council to enact ordinances “to prohibit or regulate the use of locomotive engines and of steam, and to regulate other motive power and speed on any portion of any railroad within the city,” confers power on that body to pass ordinances restraining the rate of speed.
    3. Same—Railroads—Discrimination.
    An ordinance restricting the rate of speed of trains crossing the city streets, except “passenger trains running on the Belt Line” of the IT. Y. 0. & H. R. R. R. Co., is not invalid as discriminating against other roads; it appearing that such Belt Line was not a separate corporation, but only a train of the Central road doing only a local passenger traffic, and intended to furnish rapid transit.
    3. Same—Penalty—Defense.
    It is no defense to an action for a penalty under said ordinance that the acts complained of were done by a servant of the company without its knowledge or consent, and against its express orders.
    4. Appeal—Modification of judgment.
    Where the trial court gave judgment for penalties for two violations of the ordinance, as to one of which there was no evidence, the appellate court may modify the judgment by reducing the recovery so as to include but one penalty.
    Appeal from judgment of the municipal court of Buffalo, in favor of plaintiff.

      Sprague, Morey, Sprague & Brownell, for app’lt; George M. Browne, for resp’t.
   Titus, Ch. J.

This action was brought in the municipal court to recover penalties for violating §§ 1, 3, chapter 5, of the city ordinances, in crossing certain streets at a greater rate of speed than six miles an hour, and in not bringing its trains to a full stop before crossing Griffin street and Hydraulic street. A judgment was obtained against the defendant in the court below for $100, being the amount of two penalties as fixed by the ordinance. As to Griffin street, it is not claimed by the plaintiff’s counsel, in his brief, that the evidence established that it was a public highway; and he claims that at the close of the case in the court below it was conceded by the plaintiff that it was not entitled to recover for a failure to stop at that street. A judgment was given for but two penalties, under the evidence as it stands, without including Griffin street It is probable that the court below did not give judgment on a penalty for violating the ordinance in reference to Griffin street

The principal question raised by the defendant’s counsel is as to the validity of the ordinances. He claims that they are unreasonable, and discriminate unlawfully against the defendant, and injuriously affect its business, and that the defendant cannot be convicted of a violation of the ordinances, because the acts complained of were committed without its knowledge or consent, and against its express orders.

By subdivision 7, § 17, of the revised charter (chapter 105, Laws 1891), it is provided that the common council shall from time to time enact ordinances “to prohibit or regulate the use of locomotive engines and of steam, and to regulate other motive power and speed, on any portion of any railroad within the city; to require any railroad company to keep a flagman or gates at each railroad crossing of a public street.” This is the' only provision of the .charter which authorizes the common council to enact the'ordinances in question. In pursuance of this provision of the statute the common council enacted ordinances which, so far as they are material here, are as follows:

Chapter 5, § 1: “It shall not be lawful for any steam railroad to propel any engine or cars across any public street, at grade, in the city of Buffalo, at a greater rate of speed than six miles an hour, under a penalty of fifty dollars for each offense. The provisions of this section shall not apply to any passenger trains running on the Belt Line of the New York Central & Hudson River Railroad.”

The last subdivision of § 3, which is the only part of the ordinance having any bearing upon the question, is as follows:

“All passenger trains crossing the following streets in the city of Buffalo, namely, Babcock street, Griffin street, Hydraulic street, Yan Rensselaer street, and Heacock street, shall come to a full stop at every crossing of each of said streets, under a penalty of fifty dollars for each and every offense.”

As Griffin street was not shown to be a public street, no penalty would be incurred under this ordinance for not coming to a full stop before crossing. It seems, however, that there0 was evidence showing that Hydraulic street is a public highway, and has been such for many years, which fact I do not think was successfully controverted by the defendant It has been laid out, opened and traveled for many years, and portions of it near the tracks of the defendant railroad have been paved. The spaces between the tracks have been planked. The names of the street are upon the corners of the street, and there is every indication that it is a public street, and it must now be so regarded. There are a large number of railroads entering the city at different points, and from almost every direction. Some are on elevated tracks, but most of them are laid on the surface, and cross the streets at grade. It is forty or more years since the New York Central Railroad Company and the Brie Railroad Company built their railroads in this city, and for some distance from Michigan street, which is practically the starting. point of both, the trades are laid near to and parallel with each other. What is called the “ Belt Line ” by the witnesses, in giving their testimony, is a train running in both directions around the more thickly settled portions of the city at stated intervals, leaving and arriving at the principal depot of the New York Central Railroad Company. It is not a separate corporation, and is designated the “Belt Line " for public convenience. This train has been run about ten years, and, going east from the principal depot, it runs on the main tracks of the Central Railroad Company as far as Bast Buffalo, at or near William street, where it bears to the north and west until it intersects the main tracks of the Buffalo & Niagara Falls branch of the Central Railroad, and continues on these tracks up and along the Niagara river, across the Terrace, and to the Central Railroad Company’s principal depot. In 1883 the legislature, by chapter 462, authorized the New York Central Railroad, on this Belt Line, to charge a minimum fare of five cents for one continuous ride for any distance traveled in the city. It will thus be seen that the Belt Line is not a railroad corporation, owning tracks of its own, but merely a name of a train operated by, and running on the tracks of, the Mew York Central Railroad Company. This fact may bear somewhat upon the purpose and scope of the ordinance, which excepts from its provisions relating to the rate of speed at which railroad companies may run their trains “ trains running on the Belt Line of the Mew York Central & Hudson River Railroad.” It may also bear-somewhat on the question raised by the defendant’s counsel, that the ordinance unjustly discriminates against the defendant. It appears that the trains of several other roads run upon the main tracks of the Central Railroad Company within the city, some a greater and some a less distance. For instance, the trains of the Western Mew York & Pennsylvania Railroad run but a, few blocks, and then branch off to the right, and then on, south and west.

The defendant’s counsel, in his elaborate brief, bases his argument of the invalidity of the ordinance relating to the speed of trains- (§ 1) upon the assumption that the Belt Line is a distinct railroad, having tracks of its own, with the trains of numerous other roads passing over them, and reaches a conclusion that the provision of the ordinance excepting the Belt Line trains from its operation applies to all trains passing over the main tracks of the Central Railroad, on which, for some distance, the Belt Line trains run. This cannot be a correct interpretation of the ordinance. As has been stated, the facts are the reverse of this claim, and the exception to the ordinance can apply only to the Belt Line trains. This is so, as a brief review of railroad history will show. It is within the knowledge of every adult person in this city that the Belt Line road was established to bring the people living in remote parts of the city more speedily to the business centers. Rapid transit was wanted, and if the trains of the Belt Line were limited to six miles an hour that object could not be attained. As the concession was made by the legislature in allowing a charge of five cents for any distance for each passenger, so the common council, in furtherance of this object, excepted from the provisions of the ordinance “ all passenger trains running on the Belt Line.” The defendant’s counsel tried the cause in the .court below, and now argues it, upon the theory that all trains passing over the main tracks are within the exception to the ordinance. I think he is mistaken in his assumption that all trains running on this track are not subject to the six miles an hour regulation. It does not seem to me that the exception to the ordinance affects any trains excepting the Belt Line trains. I think the language of the provision plainly bears out such a construction, and, when the facts attending the running of the Belt Line trains are considered, it does not seem to me to leave the question open to doubt. If this, is the correct interpretation, then all trains entering the city at grade are subject to the ordinance regulating the rate of speed., whether they run on the defendant’s tracks, or on the tracks oí the New York Central & Hudson Elver Railroad Company, except the trains in the Belt Line service.

This eliminates from the case many of the questions raised by the counsel for the defendant, and presents, upon this branch of it, the single question, is the ordinance which permits the trains in the Belt Line service to run at an unlimited speed, while it limits the speed of all other trains on all of the roads within the city to six miles an hour, invalid ? It should be borne in mind that no other railroad runs a line around the city in competition with the Belt Line; that its traffic is entirely local, and confined by the ordinance to passenger business. The plaintiff, by its complaint, claims that the defendant violated § 1 of the ordinances above quoted, in running its train at a greater rate of speed than six miles an hour ; second, that it violated § 3, in not bringing a passenger train to a full stop at Griffin street; and, third, that it violated § 3, in not bringing its passenger train to a full stop at Hydraulic street. Section 3 of the ordinances is general in its terms, and applies to all railroads. The defendant claims that the common council had no power to enact the ordinances; that they are unreasonable, and unjustly discriminate again,st its railroad. From an examination of the authorities, it may be stated, generally, that the exercise of delegated power by municipal bodies is limited"to such acts as are clearly within the words of the charter, or derived therefrom by necessary implication. The ordinance must be legal, and not repugnant to the constitution or laws of the state. It must not unjustly discriminate against any person. It must be reasonable, in view of the subjects sought to be regulated, and the evil to be remedied. Dillon Mun. Corp., § 320 et seq.] Mayor v. Thorne, 7 Paige, 261; People v. Draper, 15 N. Y., 545; Cronin v. People, 82 id., 323; Mayor v. Dry-Dock, E. B. & B. R. Co., 39 St. Rep., 105. The provisions of the charter which authorize the common council to pass ordinances regulating the speed of. trains ■on railroads certainly confer upon that body the power to pass ordinances restricting the rate of speed. It has fixed a limit of six miles an hour in crossing streets, and I think it acted entirely within the statute. It does not seem to be unreasonable, in view of the situation in this city. Buffalo has a population of ■300,000, and its numerous railroads entering the city, and crossing many of the most important streets at grade, call for the exercise of great care in their operation, to avoid accident to the people whose business requires them to cross these streets many times .a day.

For many years, under similar authority in the charter of 1870, ordinances have been in force, limiting the rate of speed of railroad trains to six miles an hour, and in that portion of the -city where the greatest danger was to be apprehended; and I am not aware that their validity or reasonableness has ever been questioned in any court. Nor does it seem to me to discriminate in favor of the Central Railroad, or against the defendant. The Belt Line trains run around the city. The trains of no other road do. No other road is engaged in carrying passengers exclusively within the city. Other roads have stations, and make stops to take on and let off passengers, but no road competes with the Central road in running trains within the city limits for local passenger business. Other roads are subjected to the same restriction, and incur a like penalty if they violate the ordinance and cross streets at a greater rate of speed than six miles an hour, and tiie Central Railroad incurs or subjects itself to the same penalty whenever it violates the ordinance in that regard; and the ordinance cannot be declared invalid for the reason that it discriminates against the defendant.

So far as these ordinances are concerned, this practically disposes of the case. The ordinance, § 3, requiring trains to come to a full stop at Babcock street, Griffin street, Hydraulic street, Van Rensselaer street, and Heacock street, does not seem to have been violated by the defendant. There is no evidence in the case, that I can discover, that the defendant’s trains did not stop at Babcock and Heacock streets. The witness, Deining, in his testimony, states that the train stopped at Smith street and Van Rensselaer street, but did not stop between these two streets. Hydraulic and Griffin streets are between these two streets, and, as there is a failure of proof to show that Griffin street is a public highway, no penalty was incurred by the defendant in not stopping at that crossing. Hydraulic street being a public highway, under the ordinance trains would be required to stop before crossing that street, which, as appears from this witness was not done. If the ordinance is reasonable and valid, a penalty was incurred ; but at page 235 of the minutes of the court below, it appears that it was stipulated that the testimony in regard to trains stopping at Hydraulic street might be stricken out, thus leaving no testimony in the case of a failure to stop before crossing any of the streets mentioned in the ordinance. It is therefore unnecessary to pass upon the validity or reasonableness of this section of the ordinance, because there is no evidence that the ordinance was violated by the defendant.

It is claimed that the defendant cannot be convicted of the offenses charged in the complaint because the violation of these ordinances was without the consent of the defendant, and contrary to its express orders. It will not be presumed that the defendant’s employes knowingly, and against the defendant’s express orders, violated the ordinance. There is no direct pi’oof that the persons having charge of this train had notice of the ordinances, or of the defendant’s wish with reference to them. However that may be, the law is well settled that the master is liable for the acts of his servant, even if wrongful, and done in violation of the master’s orders. Peck v. Railroad Co., 70 N. Y., 587; Mott v. Ice Co., 73 id., 543; Quinn v. Power, 87 id., 535; Ochsenbein v. Shapley, 85 id., 214. The case of Davis v. Bemis, 40 N. Y., 453, note, seems to be decisive of the question here raised. That case was for a penalty for a violation of the statute by the agents of the defendant, without the principal’s knowledge or consent; and the court held, in an exhaustive opinion, that the principal was liable. The doctrine of this case does not seem to have been questioned or disturbed, and it must now be considered as the law in this state. The case before us is a civil action to recover a penalty, in the nature of a tort, and the defendant is liable if a cause of action has been made out.

There are numerous objections and exceptions to the rulings of the court on the trial; most of them relating to Hydraulic and Griffin streets, and are not material. Others were immaterial, and no error was committed by the court in its rulings in that respect. And, besides this, the defendant’s counsel, in his brief, makes no claim that error was committed on the trial, and he has presumably waived all questions of error of the court below during the trial.

But one question remains to be considered. The penalty fixed for violation of the ordinance in not coming to a full stop at Hydraulic and other streets is fifty dollars. The court below gave a judgment for two penalties, one for crossing Chicago street at a greater rate of speed than six miles an hour, contrary to § 1 of the ordinances, which is fifty dollars, and the other for not stopping at Hydraulic street before crossing, evidently having overlooked the fact that the claim as to Hydraulic street had been withdrawn before the case was finally submitted. It is the duty of this court to correct the error, as it can be done without reversing the judgment. Section 3063, Code. The amount of damages should have been for one penalty, for crossing Chicago street contrary to the ordinance, which necessarily reduces the amount of the recovery to fifty dollars. The costs allowed under the charter, § 462, on a recovery of $100 is $15 ; and on a recovery of $50, $8. As the recovery will be but $50, the costs must be reduced to correspond with the recovery as reduced, namely, to $8, and the plaintiff should be ordered to repay to the defendant $7, the amount of costs overpaid; and the judgment as modified is affirmed, without costs to either party.

Hatch and YChite, JJ., concur.


text:
    The City of Buffalo, Resp’t, v. The New York, Lake Erie & Western Railroad Co., App’lt.
    (Superior Court of Buffalo, General Term,

      Filed May, 1893.)

    Appeal from judgment of the municipal court of Buffalo, in favor of plaintiff.
    .Sprague, Morey, Sprague & Brownell, for app’lt; George M. Browne, for resp’t.
   Titus, Ch. J.

The facts in this case are similar in all respects to the facts in the case bearing the same title, and designated “Ho. 1.” It was stipulated on the trial that the evidence taken in Ho. 1 should be considered as applicable to this case. The plaintiff here claims that the defendant violated § 1, chap. 5, of the city ordinances, in crossing Main street at a greater rate of speed than six miles an hour. A judgment of $50 was given against the defendant by the court below. It was determined in the other case that the ordinance regulating the rate of speed was not invalid, and the plaintiff was entitled to recover. It appears here, and is undisputed, that on the 25th day of March, 1892, the defendant did pass its train across Main street at a greater rate of speed than six miles an hour. The facts being undisputed, the judgment of the court below should be affirmed, with costs.

Hatch and White, JJ., concur.


text:
    Margaret Palmer, Resp't, v. John A. Pirson, App’lt.
    (Superior Court of Buffalo, General Term,

      Filed July 14, 1893.)

    1. Brokers—False representations as to value op land.
    If a broker induces liis principal to exchange lands by means of fraudulent representations'as to the value of the land to be taken, he is liable to his principal for the damages thereby sustained.

      2. Same—Commissions.
    In such case the broker is not entitled to commissions, and if the same have been paid in ignorance of the fraud, they may be recovered.
    Appeal from judgment in favor of plaintiff.

      Arthur W. Hickman, for app’lt; Henry B. Loveland, for resp’t.
   Titus, Ch. J.

The defendant appeals from a judgment on the verdict of a jury in favor of the plaintiff for a cause of action resting in fraud. The plaintiff employed the defendant to assist her in the sale of her house and lot. For the service she agreed to pay him $100. He did aid her in trading her house and lot for certain vacant lauds on Lark street, in this city. After the trade was consummated, she paid him the $100 agreed upon. She now seeks to charge him with damages for false and fraudulent representations made to her of the value and location of the land which she received in exchange for her house and lot, and also to recover the $100 commissions paid. The facts are disputed, but we think there was evidence enough to submit the questions in the case to the jury. If it were necessary to the disposition of the questions raised by this appeal to look for evidence of fraudulent conduct by the defendant in negotiating the trade of this property, it would require but a slight examination of the testimony to satisfy the inquirer that the evidence abundantly warranted the submission of the case to the jury on the theory that some proof aside from the mere statement of the value of the property fraudulently made would be necessary to enable the plaintiff to recover, butwe,.do not think that such additional proof is required. This is an action by a principal against her agent for false statements made to her of the value of property.

In Ellis v. Andrews, 56 N. Y., 83, it was held that, as between vendor and vendee, the fraudulent statement by the vendor of the value of the property, unaccompanied with a statement of extrinsic facts, was not sufficient evidence of fraud to warrant a recovery by the vendee; the court holding that such statements became mere matters of opinion, when maue by a vendor. He is at liberty to fix such a value upon his property as he likes, and to have and to express an opinion of its value, even though he knows it is not true. The duty of the vendee is to use his faculties, and the means within his power, to protect himself against the expression of such an opinion, and if he relies upon the vendor’s statement of the value he is without remedy. But this rule has never been applied-to a case where the relation of vendor and vendee does not exist.. Here the defendant is the agent of the plaintiff, under her employment and pay, and the utmost good faith is required of him in dealing with her, by virtue of the relation of the parties. She had a right to rely upon his judgment as to the value of the land, because she paid him for his supposed superior knowledge of the value of the property; and it would be a singular rule which would permit him to take advantage of the confidence reposed in him by her, although, as between vendor and vendee, he would not be liable. We think the charge of the court upon that subject correctly stated the law—that if the defendant, by fraud or deception, led or induced the plaintiff to part with property, to her damage, while acting as her agent, he is liable for the damages actually sustained by her.

In addition to the recovery of the defendant in the value of the-land, the plaintiff was permitted to recover the commissions paid to the defendant. We do not think error was committed by the court in allowing such recovery. If the defendant was guilty of fraudulent practice upon the plaintiff, he could not maintain an action to recover the contract price for his services, or of the value of them; aud when she paid him, in ignorance of his fraud, she could recover the sum paid when she discovered the fraud. The defendant, in view of his fraudulent conduct, earned no compensation, and was not entitled to be paid ; and no rule is better settled than that if money is paid under a mistake of the facts, or under fraudulent representations, it may be recovered on discovery of the true state of facts. No error is discoverable in the record affecting the case, and we do not think the judgment should be disturbed. The order must therefore be an affirmance of the judgment, with costs.

Hatch, J., concurs.