text:
    WELLINGTON E. CRIPPEN, Respondent, v. JAMES R. BAUMES, Impleaded with JOSEPH C. FRONE, and others, Appellant.

      Mefoi'mation of contract — by whom it can he enforced — hona fide purchase)' — purchaser of equitable title.

    On February 21, 1870, one Reed, who was the owner of a number of pieces of land, conveyed to him by, and described in four different deeds and constituting one farm, agreed with one Frone to sell such lands to him, and take back a mortgage for part of the purchase-price. By mistake the scrivener omitted from the deed and mortgage the description of one of the lots, and the papers were executed and delivered without either party having discovered its omission. Frone took possession of all the land agreed to be sold, and subsequently pointed out the boundaries thereof to the plaintiff, assuring him that the mortgage covered the whole farm. The plaintiff thereafter purchased the mortgage from Reed, all parties being then unaware of the mistake.

      In an action by the plaintiff to reform the deed and mortgage by inserting therein the description of the lot omitted, and to foreclose the mortgage as so reformed, held, that the relief asked for should be granted.
    Prior to the bringing of this action, and after plaintiff had purchased the mortgage, one Baumes talked with Prone about purchasing the lot omitted from the description in the deed and mortgage; Frone saying that he had purchased it of Reed, and that Reed Would convey it, and Reed, on Baumes application, promising to do so. Baumes subsequently became aware of plaintiff's claim to this lot, and thereafter took a deed thereof from Prone, paying §800 therefor, and subsequently and after the commencement of this action, and the filing of a lis pendens therein, obtained a deed thereof from Reed, but paid nothing therefor.

      Held, that Baumes was not a bona fide purchaser of the lot, with respect to the plaintiff.
    A bonaficle purchaser is one who takes a legal title, without notice of conflict? ing equities and for a valuable consideration.
    The purchaser of an equitable title takes subject to all prior equities.
    Appeal from a judgment in favor of the plaintiff, entered upon the trial of this action by the court without a jury.
    The action was brought to reform a mortgage by correcting the description thereof, and to foreclose the same as so reformed. From the findings of the court, it appears that on and before the 21st day of February, 1870, the defendant, Platt Reed, being the owner of a certain farm, consisting of about 277J acres, agreed' with the defendant, Joseph C. Frone, to sell and convey to him the farm, and to take in payment a certain house and lot of said Frone, and for the balance of the purchase-price, to take back a bond and mortgage of $5,700 on the farm so conveyed.
    That the farm so to be conveyed, had been purchased by Reed in four different parcels, for which he held four different deeds of conveyance.
    That on the said 21st day of February, 1870, the said Reed and Frone went to the office of one Hunt, a conveyancer at Otego, N. Y., and there produced the four deeds to Reed, and directed Hunt to draw a deed from Reed and wife to Frone, containing the lands described in the deeds, and to draw a mortgage from Frone and wife to Reed, for $5,700 on the same premises.
    That said Hunt proceeded to draw said deed, and in so doing, by mistake, neglected to include therein the 100 acres described in and conveyed by one of said deeds, and also omitted the same from the mortgage.

      That the deed and mortgage were executed and delivered without any of the parties discovering the mistake.
    That Frone soon thereafter went into the possession of the whole of said 277-| acres, under said deed, and for several years com tinued so in possession, carrying on and farming the whole thereof.
    That Reed being desirous of selling and realizing upon said mortgage, subsequently, and about January, 1873, applied to the plaintiff to purchase the same, and to induce him to do so represented that the mortgage conveyed the -whole farm occupied by Frone, requesting the plaintiff at the same time to go and look at the land. That plaintiff went to the farm and saw Frone,. who was still in possession and working the farm, and Frone thereupon pointed out to the plaintiff the boundaries of the farm, including the said 100 acres, and assured the plaintiff that the mortgage covered the whole farm, and covered from 250 to 300 acres.
    That the mortgage describes a large number of parcels of land separately, not anywhere giving the whole number of acres, and that plaintiff is somewhat illiterate, and was unable to road, and did not read the description in said mortgage.
    That subsequently plaintiff, believing and relying upon the representations of Reed and Frone that said mortgage covered the whole farm, purchased the same, paying the full consideration therefor.
    That the deed from Reed to Frone, and the mortgage were, within a few days after tlioir execution and delivery, duly recorded in Delaware county clerk’s office, and the said assignment of said bond and mortgage was also recorded in said clerk’s office on the 9th day of April, 1873.
    That the plaintiff first learned the 100 acres had been omitted in the deed from Reed to Frone and from said mortgage, on April 1st, 1874.
    That Fronc, sometime in March, 1875, offered to sell to the defendant, James R. Baumes, the said 100 acres, stating to said Baumes that the same was not covered by the said plaintiff’s mortgage; and also stating to him that it was not included in the deed from Reed to him; but stating that he had purchased it of Reed, and that Reed would execute a conveyance of the same at any time. That said Baumes then examined the record of said deed and mortgage, and found that said 100 acres was not included in either; that he then saw said Reed, who told him that he would convey to him, said Baumes; but there was no consideration either paid or promised by said Baumes for such promise to convey.
    That Frone thereupon, and on the 29th day of March, 1875, executed and delivered to Baumes a quit-claim deed of said 100 acres for the consideration therein expressed of $800 (which deed was never recorded) which $800 was paid in part by his note of $100, payable in thirty days, which was paid when it became due, and the balance by the transfer and assignment of good, valid securities.
    That Baumes had, prior to that time, been drawing some writings between plaintiff and Frone, to secure the interest on said mortgage and was then informed by the plaintiff'and Frone, or by one of them in the presence of the other, that said mortgage covered the whole of said farm.
    That this action was commenced on or about the 5th day of June, 1875, to obtain a reformation of said deed from Reed to Frone, and of said mortgage, by correcting said mistake and 'including said 100 acres, and to foreclose the mortgage as reformed. That the complaint and notice of Us pendens, stating the object of the action, and the lands affected thereby, including said 100 acres, was duly filed and recorded in the office of the clerk of Delaware county.
    That subsequently, with full knowledge of the commencement of this action as aforesaid, and subsequent to the filing of said complaint and Us pendens, the said Reed on or about the 15th day of Juiie, 1875, executed and delivered a quit-claim deed of said 100 acres to said James R. Baumes, without any consideration having been paid therefor or promised to be paid; but that said deed was never recorded. That said Baumes, at the time of taking said deed, had full notice and knowledge that said action had been commenced and said Us pendens filed, and had seen and read the complaint in this action, and knew of the equities claimed by the plaintiff.
    That said James R. Baumes afterwards went into possession of Said 100 acres, and he and his wife were subsequently brought in and made parties, defendant in this action.

      W. H. Johnson, for the appellant.
    If any right to ask such reformation existed in Reed, the original mortgagor, the plaintiff has not succeeded to it. Such equity was personal to Reed, or at most, could only have been transferred by" special assignment. (Birdsall v. Fuller, 11 Hun, 207; Fieles v. Cleveland, 39 Barb., 573.) The authorities hoLding that a transfer of a note or bond for unpaid purchase-money does not pass the vendor’s lien, are decisive against the plaintiff. ( White v. Williams, first page, 502; Battle v. Coit, 26 N. Y., 404; Hallede v. Smith, 3 Barb., 267; Perry on Trust, § 238; Armstrong v. Cushing, 43 Barb., 340; Byron v. Butts, 27 Barb., 503; Coan v. Osgood, 15 Barb., 588; 1 Greenleaf’s Evidence, § 189; Cady v. Potter, 55 Barb., 453; Stephenson v. Burton, 15 Abb., 352; Mills v. Van Voorhis, 23 Barb., 125.) Baumes was a bona fide purchaser for value. (Jones v. Smith, 1 Hare’s Chañe. R., 44; 1 Phillips’ Chañe. R., 244; page 253, et seq.; Ware v. Bgmont, 31 Eng. L. & Eq., 89, 97; West v. Peed, 2 Hare’s C. R., 249; Buttride v. Holden, 13 Met-calf, Mass., 355; Hinev. Dodd, 2 Atkyns, 275; Acer v. Wescott, 46 N. Y., 384.) If any information on the subject was given, it was given to him, not as a jiurchaser or a person contemplating a purchase, but as a conveyancer. The last suggestion is a conclusive answer to a claim of notice. {Miller v. Illinois Central B. B. Co., 24 Barb., 312.)

      C. H. Graham and E. Countryman, for the respondent.
    A written instrument may be reformed upon parol evidence of a mistake. This can be done in an action between the parties to the contract, or their privies. {Cady v. Potter, 55 Barb., 463; Willard’s Eq. Jurisprudence, 64; De Peyster v. Hasbroucle, 11 N. Y., 582; Barloio v. Scott, 24 N. Y., 44; Eider v. Potvell, 28 N. Y., 310 to 315; 1 Seldon, 357; 8 Cow., 195; 1 Wend., 355; 48 Barb., 225; 83 N. Y., 676; 60 id., 430, 298; 3 Barb., 50; 2 Johns. Ch., 585; 17 John., 377; 45 Barb., 478.) The assignee of a mortgage is in effect the grantee of the mortgagee’s interest in the land, and is as much in privity as the grantee of the grantees.. (2 Greenleaf’s Evidence, § 189; 3 Barb., Ch., 647, and cases there cited.) The plaintiff is entitled to the relief for which he asks, and which the judgment of the court has so far given him. A clear mistake of facts was proved, and the mistake was mutual. The testimony of all the witnesses shows this which entitles the plaintiff to the relief asked for. {JDe Peyster v. Hasbroude, 1 Kern., 582; Bush v. Hides, 60 N. Y., 298; Ilappough v. Strubble, 60 id., 430.) Also where contract ivas by parol. {Rider v. Powell, 28 N. Y., 310.)
   Learned, P. J.:

The agreement Avas for the sale of one farm, as a whole, although the description Avas to be taken from several deeds of distinct parcels. The omission of one of these parcels from the deed and from the mortgage aauis a mere mistake of the scrivener, and not noticed by the parties at the time. The case is one of error in the description, and is within the principles of equitable relief, as administered in this State. As between Reed and Prone, the deed and the mortgage should be reformed, according to the real agreement. The defendant suggests that the intent of the parties is in fact carried out in the mortgage, because it does truly convoy the premises deeded that same day by Reed to Frone. But this fact only shows that the same error was common to both instruments. Neither expressed the real agreement. Both should be reformed. (Johnson v. Taber, 10 N. Y., 319.)

The defendant urges that the original agreement was by parol; that, therefore, to re-form the instruments is to enforce a contract void by the statute of frauds. It is not necessary to inquire hoAV much force this position Avould have, if there were a parol contract to sell Iavo independent and distinct parcels of land, and if the deed should, by mistake, convey but one of them. (See Smith v. Underdunck, 1 Sand. Ch., 579.) It is enough that, in the present case, the agreement Avas for the sale of one farm, and the mistake was the omission of a part of the description; and the purchaser has gone into possession. Equity will l’elieve, although the original contract was by parol. (De Peyster v. Hasbrouck, 11 N. Y., 582; Rider v. Powell, 28 id., 310; Wiswall v. Hall, 3 Paige, 313.)

The case of Glass v. Halbert (102 Mass., 24), is cited by the ' defendant as in conflict with these views. But it Avill be seen by reference to that case, that the equity power of the Massachusetts courtis somewhat limited by statute, and that the views there held, are shown not to be in harmony with the decisions of this State. The statute of frauds in this State expressly declares that it is not to abridge the powers of courts of equity to enforce'specific performance. (2 R. S., m. p., 135, § 10.)

This relief of the reformation of instruments is granted in favor of privies, as well as parties. When Reed assigned the mortgage to the plaintiff, he stated that it covered the whole farm. The plaintiff went to the farm and saw Frone in possession and working it. Frone himself pointed out the boundaries to the plaintiff, and represented to him that the mortgage covered the whole of the farm. The plaintiff, believing these representations, purchased the mortgage, under the supposition that it covered the whole farm. ' Every reason therefor of equity and justice gives to the plaintiff the same rights against Frone which Reed had for the reformation of the mortgage. The question then remains, whether Baumes is such a bona-fide purchaser that he can defeat the plaintiff’s equity.

The court finds that Baumes knew, when he purchased, that the plaintiff claimed that his mortgage covered the whole farm, including the part purchased by Baumes. This knowledge prevents him from being a purchaser in good faith. He urges, however, that the information which he had on the subject was not such;as to charge him with knowledge. But the circumstances surrounding his purchase are, of themselves, suspicious. The price which he paid was less than the value of the land. He did not pay in cash, but in securities- — -one of them a second mortgage. He know that the piece of land which he purchased was part of the whole farm. Furthermore, ho knew, before he purchased, that Frone had no legal title to that part of the farm; and he knew, therefore, that he was buying only an equitable right. For this reason, he was not a bona fide purchaser; for, knowing that he was buying only an equitable right, he was chargeable with knowledge that there might be other equities superior to his. Frone, it is true, had said that he had bought this lot of Reed, and that Reed would convey it; and Reed, on Baumes’ application before his purchase, had promised to do so.

But even these facts might have excited his suspicion. He knew that Frone was in possession of the whole farm, by purchase from Reed. He was informed by Frone that the parcel in question was not covered by the deed from Reed, but that Reed would convey, and that Frone had bought the parcel. He knew that Frone had given back a mortgage to Reed, which Reed had assigned to the plaintiff; and, at one time, he drew an assignment of the crops, to be executed by Frone to the plaintiff, as further security.

We are satisfied with the correctness of the finding that the plaintiff had been informed that the mortgage covered the whole farm And it seems to us probable that the defendant knew, or had reason to believe, when he made his purchase from Frone, that the omission of this parcel of land from the deed, and from the mortgage, was an accident, which Reed ivas ready to correct. But, at. any rate, he knew that Frone had no legal title, and that all which he was obtaining by the purchase was Frono’s equitable rights. A bona fide purchaser is one who takes a legal title, without notice of conflicting equities, and for a valuable consideration. Whatever the defendant paid, he paid only for such equity as Frone might have against Reed; aud that equity was subject to the counter equity in favor of Reed, and of Reed’s assignee, the plaintiff. Whenever Frone should demand a deed from Reed of the omitted land, Reed might demand in return from Frone an extension of the original mortgage over the omitted parcel. If Frone, or if his assignee, asked equity, he was bound to do equity.

The defendant never obtained the legal title until after this action was commenced, and after he had both constructive and actual knowledge of its commencement; and the deed which Reed then executed to him was without any valuable consideration. Therefore, he gained nothing thereby.

It may be said that the defendant, before purchasing from Frone, obtained Reed’s promise to convey to.him; that Reed had but the naked title as quasi trustee for Frone; and hence, that the defendant is entitled to the benefit of his purchase from Frone. However true this might be as against Reed (if the defendant had had.no notice of the mortgage claim), it cannot avail against the plaintiff Reed’s promise to convey, based on no consideration, could not deprive the plaintiff of his then existing equity.

The defendant asks that he shall be protected to the extent of payments made by him before notice. But he had notice before he made any payments, as is found by the court, and, as we think, is sustained by the case.

The judgment should be affirmed, with costs.

Present — Learned, P. J., Boardman and Tappan, JJ.

Judgment affirmed, with costs.


source: Caselaw Access Project

author: Per Curiam:

license: Public Domain

text:
    MARGARET BRAMLEY, Appellant, v. STEPHEN FORMAN and JOHN PETERS, Impleaded with others, Respondents.

      Separate certificates given under one decree by a surrogate — 2 JR. S., 223, § 37 — Separate actions on administrator's bond.

    Where upon the final settlement of the accounts of an administrator, a decree is entered directing the payment of sejiarate sums to several of the next of kin, the surrogate may, under 2 Revised Statutes, 223, § 17, issue separate certificates to each of such persons, upon which separate judgments may be docketed, and each of such pei’sons may maintain a separate action upon the administrator’s bond to recover the amount due to him or her.
    Appeal from an order setting aside a verdict in favor of the plaintiff and granting a new trial.
    Samuel McCune was duly appointed the administrator of the estate of Catharine McCune, deceased, and on being appointed gave the usual administrator’s bond, with the defendants as sureties. He afterwards became insolvent, and made an assignment for the benefit of his creditors, after which he rendered his accounts to the surrogate, and a decree was entered declaring certain amounts to be due to each of his five brothers and sisters, who, together with himself, were the only heirs and next of kin of the deceased. Separate certificates were issued under the decree by the surrogate to each of the brothers and sisters, and judgments were duly docketed thereon. Executions having been issued and returned unsatisfied, the plaintiff procured an order from the surrogate assigning the bond to her, as far as her interests were concerned, and brought this action thereon to recover the amount due to her.
    The defendants insisted that the surrogate had no power to issue separate certificates, but should have issued one certificate for the whole amount of the decree; that all of the' brothers and sisters should have joined in the action, and further that a decision of the County Court in certain proceedings had on the assignment for the benefit of Samuel MeCune’s creditors prevented the action from being maintained.

      Gleason & Murray, for the appellant.

      George Adee, for the respondents.
   Per Curiam:

The learned justice who tried the case set aside the verdict, for the reason that the surrogate made five separate certificates.

By the decree of the surrogate the administrator had been directed to pay a certain separate sum to each of five several parties, being five of the next of kin. One of these parties was the plaintiff.

On her application the surrogate gave a certificate, stating that a decree had been made in her favor against the administrator for the sum therein named. He gave similar certificates to the other four. The learned justice held that thex*e should be only oixe cex*tifxcate, which should state the several amounts to be paid to each. (Laws of 1837, chap. 460, § 63.) In this we think that he was iix an error.

The plain object of the certificate is that the decree may be docketed fix the county clerk’s office and aix execution issued thereon. It would seem that this object could be accomplished equally well, whether the certificate embraced all the several sxxms to be paid to different parties, or whether a separate certificate were given to each. The docketing could be done in either case.

The decree is several as to the parties. None has any interest in the amount awarded to any other. It is like a jxxdgment awarding separate and sevex’al recoveries in favor of several parties. After the decree, the administrator might pay one party and not another. The party who had been paid would not apply for a certificate, and it would be unjust that a decree should be docketed against the administrator for an amount which he had paid. No possible harm is suggested which could arise from the giving of a separate certificate to each party to whom a sum is awarded; and there are some advantages. It is to be observed further that the statute does not require a copy of the decree, but only a certificate, stating the names and the amount to be paid. We think that the construction given to the statute by the learned justice ivas unnecessarily strict.

Two other grounds were urged by the defendants before the learned justice, which were overruled by him, but which are now presented to sustain the order. The first is that the proceedings before the county judge were a bar to this action. But the defendants misapprehend the meaning of the county judge’s order. He decided that a certain amount of the property of the estate Avas in the hands of the administrator at the time when he made his assignment in his insolvent proceedings. This was not a decision that this amount was all which the administrator owed the estate at that time. And, besides, the proceedings were against the assignees, and not against the administrator.

The remaining ground is that all the next of kin who had claims should have joined in the action. We see no reason for this. The claim and the interests of each are several, not in any way joint. There is no reason why they should be compelled to bring a joint action. One may be unwilling to put his interests in the control of another. They may desire to employ different attorneys. One may have been paid by the administrator before or after the time when application for the assignment of the bond was made to the surrogate. These and other reasons which might be mentioned, show the objections to requiring a joint action.

Originally, of course, when causes of action were in theory not assignable, a suit on a bond Avas necessarily brought in the name of the obligee, even though he had in fact assigned it. And the obligees, in such cases as this, are the people. But now actions must be in the name of the real party in interest. And originally, too, the judgment on a bond was for the AArhole penalty; and thus it did not in form award to the party in interest the exact amount owing to him. Now the practice is different, and the successful plaintiff only receives the amount due to him.

We think, therefore, that the learned justice was right in holding that this last ground was no reason for setting aside the verdict. (Casoni v. Jerome, 58 N. Y., 321; Baggott v. Boulger, 2 Duer, 160.)

The order setting aside the verdict must be reversed, with costs.

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

Order reversed, with costs.


author: Learned, P. J.:

text:
    CLARENCE VAN VALKENBURG, Respondent, v. FRANKLIN R. CROFFUT, Appellant.

      Contract, void by statute of frauds — recovery after performance of— limited to compensation agreed upon.

    Where a party enters into a verbal agreement to work for another for a number of years for a certain compensation, to be paid at the end of the time specified, and fully performs such contract on his part, he cannot repudiate such contract, on the ground that it was void under the statute of frauds, and maintain an action to recover the value of the services rendered; he can only recover the compensation agreed upon.
    Appeal from a judgment of the County Court of Broome county in favor of the plaintiff, entered upon the verdict of a jury, and from an order denying a motion for a new trial made upon a case and exceptions.

      Bdzoard K. Ciarle, for the appellant.
    The contract was executed, and so became an executed contract, making all its terms binding. (Dodge v. Crandall, 39 N. Y., 294, at pp. 303, 304; Thomas v. Dickinson, 12 N. Y. [2 Ker.], 364, 371; Westfalls. Parsons, 16 Barb., 649; Emmet v. Reed, 8 N. Y. [4 Seld.], 312; Talmadgev. Ren. <& 8. R. R., 13 Barb., 498, 499; Bartholomew v.
      Finnemore, 17 id., 428, 430; Story on Contracts, § 61 [old ed.]; Stone v. Dennison, 13 Pick., 1.) The contract price is the measure of damages for all services rendered under the contract. (Qlarlc v. Gilbert, 32 Barb., 584; Lisle v. Sherman, 25 id., 433; Thomas v. DicJcinson, 12 N. Y., 364, 371, and cases cited above; Taggard v. Rosevelt, 8 How., 144; Schuyler v. Leg get, 2 Cow., 660; The People v. Riclcart, 8 id., 326; McGlouchy v. Litter, 1 E. D. Smith, 618; Maltby v. Harwood, 12 Barb., 473.)

      Penrie & Wales, for the respondent.
    The agreement under ■which this work was done was verbal and not in writing, and by the terms of it was not to be performed within one year. It was therefore void by the statute of frauds. Evidence as to the value of the plaintiff’s services was therefore competent. (Shute v. Dorr, 5 Wend., 204; Jones v. Hay, 52 Barb., 501; Day v. FT. r. O. R. R. do., 51 N. Y., 590; Bartlett v. Wheeler, 44 Barb., 165; BroadwellY. Getman, 2 Denio, 90, 91.) When the agreement fixing the compensation is void, it furnishes no evidence of value. The position of the parties is the same, in a legal view, as though no agreement as to the amount of compensation had been made in fact, as there had been none in law. (Frben v. Lorillard, 19 N. Y., 302; Hobbs v. Wetherwax, 38 How., 389; Galviny. Prentice, 45 N. Y., 162; TurnowY. Hotchstader, 7 Hun [14 Sup. Ct. R.j, 81; Shute v. Dorr, 5 Wend., 208.)
   Learned, P. J.:

When the plaintiff was about eleven years of age, his father made a verbal agreement with the defendant, that the plaintiff should live with him till he was twenty-one. The plaintiff was to work for the defendant, and was to be clothed and sent to school. The defendant was to take a calf belonging to the plaintiff, and was to deliver him a cow, when he arrived at twenty-one. At that time, also, according to the varying testimony, the defendant was to pay the plaintiff fifty dollars, or one hundred dollars, or two hundred dollars, or nothing. When the plaintiff arrived at twenty-one, the defendant gave him the cow, and refused to pay him any money. This action is brought to recover the value of the plaintiff’s services.

The plaintiff insisted on the trial that the contract was void, under the statute of fraud, and that therefore, he was entitled to recover the value of the services. On the trial the court charged that the contract was void by the statute, and that the defendant became liable to pay to some one the value of the plaintiff’s services, deducting' whatsoever would be proper for his board, etc. And he also left it to the jury to find from the circumstances, whether or not the father gave up to the son the right to receive his wages. He charged that if the father did not give up this right to the plaintiff, the plaintiff could not recover. That if he did, the plaintiff might recover for his services, deducting as above stated.

The defendant asked the court to charge that, if the jury found that there was an agreement bet ween the defendant and the plaintiff’s father, that the plaintiff was not to be paid any money, then he could not recover. And, also, that if they found that there Avas a specified sum agreed upon betAveen the plaintiff’s father and the defendant, to be paid to the plaintiff, then he could recover only that sum. Each of these requests Avas refused and exception taken.

The question principally argued on this appeal relates to the statute of frauds. By the defendant it is insisted that, though the verbal agreement Avas void under the statute, yet that it Avas performed on the plaintiff’s part; and hence that the price fixed by the agreement Avas the price to be paid for the Avork and services performed under it. By the plaintiff it is insisted that, as the agreement Avas void by the statute, although the Avork and sendees Avere performed under the agreement, yet that he can recover on a quantum meruit, and is not bound by the contract-price. An oral contract for the sale of land is void. Yet if the vendor subsequently convey, and the purchaser accept the conveyance, the purchaser is liable to pay, not on a quantum meruit, but the contract price. (See Pulbrook v. Lawes, 16 Eng. Rep. [Moak’s Notes], 347 note; Tyler v. Church, 54 N. Y., 632; Bowen v. Bell, 20 Johns., 338; Thomas v. Dickinson, 12 N. Y., 364, etc.) The contract is no longer liable'to any objection under the statute of frauds. The same principle applies in this case. The oral contract in question was void, because it Avas not to be performed within one year. But the party who contracted ■ to render the services, has in fact fully rendered them under the contract, and the other party has accepted them. The contract then has been actually treated by the parties as valid, until all has been done by the plaintiff which he 'was to do. And this has been with the consent of the defendant. He is then liable to pay for the services rendered according to his agreement. “ The effect of the statute,” in the language of Judge Rapadlo, “is not to make a different contract between them.” (Galvin v. Prentice, 145 N. Y., 162.) Every act was done under the contract; and when all had been done by the plaintiff, and accepted by the defendant, there was a re-adoption of the terms of the original contract. (Thomas v. Dickinson, ut supra, p. 371.)

It is thought by the plaintiff that there are cases in conflict with this view. They will be found to be cases where there was only a partial performance of a void contract and a refusal to perform fully. In Shute v. Dorr (5 Wend., 204), there -was an oral contract that a child sixteen years of age should serve until he was twenty-one for a specified sum. He left before that time. Of course, there could be no recovery on the contract. A recovery was had on a quantum meruit.

In Jones v. Hay (52 Barb., 501), there-was a similar oi’al agreement, which was in like manner not fully performed. The recovery was on the quantum meruit.

In Bartlett v. Wheeler (44 Barb., 165), the defendants orally agreed to deliver sheep four years from the time of the contract, and they refused altogether to perform. There had been no ratification by them of the oral contract after it was made. In that case, the question is discussed whether the case is within the statute, where the agreement, at the time of making it, is wholly executed by the plaintiff and executory on the part of the defendant. And it was held that such an agreement was within the statute. But that is not the present case. Here the agreement was to be performed by the plaintiff, and on its complete performance by him the defendant was to pay a fixed sum therefor. After making the agreement, the plaintiff performed fully and the defendant accepted full performance; and the only question is, whether we are to disregard the price fixed by the oral contract, and to turn the parties over to an imaginary agreement to pay quantum meruit. It is certainly not immoral that parties should perform their oral ^ contracts.

The plaintiff also relies on the case of Erben v. Lorillard (19 N. Y., 302). And there are expressions in one of the opinions which, to be understood, must be taken in connection with the facts of the case. The plaintiff in that case sued the defendant to recover compensation for services. He gave evidence tending to show that the defendant orally promised, in consideration of the services, to lease certain property to the plaintiff for a term of twenty-one years. And he gave in evidence the value of such lease. This was held to be error. Now, on the most favorable view for the plaintiff, this was an oral contract to lease to him land for twenty-one years, for which he had paid the consideration. ■ But where there is an oral agreement to sell land, and the purchaser pays the full price, if the vendor refuses to convey, the purchaser cannot sue on the agreement.. He can recover only/ what he has paid. He cannot recover the value of the land, and, therefore, the value should not have been proved in the case cited.) On the other hand, as we have already seen, if the vendor chooses to perform the contract, and gives a deed, which the purchaser accepts, the purchaser must pay the price agreed upon.

In the case of Abbott v. Draper (4 Denio, 51), there was an oral contract for the purchase of land. After the purchaser had made some payments in goods under the contract, he sued the vendor for the value of the goods. That is, he repudiated the contract as void, and sought to recover the value on a quantum meruit. But the court said that “ as long as the vendor was ready to perform the contract on his part the vendee could not recall the payments which he had made under the agreement.” “ Every time a payment was made and received the parties virtually said, although the law will not enforce this contract, we will go on and carry it out.” This language is quoted and ■ approved in Thomas v. Dickinson (ut supra) ; and see Galvin v. Prentice (ut supra). Now, if we apply the principles to the present case, it may be said that every time that the plaintiff rendered and the defendant accepted services, they virtually said they would go on and carry out the contract. Thus they affirmed it down to the very last act done under the same; leaving nothing unperformed but a promise to pay for past services. And it will further be seen by this case of Abbott v. Draper, and similar cases, that one party is not allowed to repudiate the contract as void and sue on a quantum meruit, until the other party is in default. He cannot treat a contract iis void, under the statute of frauds, which the other party is willing to treat as valid. The default of the defendant is necessary to give the plaintiff an action as on a quantum meruit.

Now, in the present case, the defendant has not made default or refused to carry out the oral contract. But the plaintiff himself, by his complaint, instead of suing on the oral contract, has sued on the quantum meruit for his services. Thus the plaintiff is the first to repudiate the oral contract, which the defendant has never refused (so far as appears) to carry out, and which he now sets up in his answer. (See Galvin v. Prentice, ut supra, at p. 164, 165.) That this was the ground taken by the plaintiff appears not only by the pleadings, but by the language of the court in its charge, and by the case generally.

We think, therefore, that the court erred in this view of the law. That as the plaintiff has performed, or claims to have performed the contract fully, and the defendant has never treated it other than as_y.oidra recovery, if at all, must be on the contract, and not for the value of the services. It is not necessary to express any opinion on the question whether there should be, olean be, an amendment of the pleadings.

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

Present — Learned, P. J., and Boardman, J. Martin, J., not sitting.

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


author: Per Oitriam:

text:
    JOHN CASEY, Respondent, v. CATHARINE DWYRE, Appellant.

      iSpecial verdict— what it must contain.

    A special vei’dict must contain all tlie facts necessary to sustain the judgment.
    Appeal from a judgment in favor of the plaintiff, entered upon a special verdict.
    The action was brought to recover damages occasioned by the acts of defendant, in tearing down a gate and allowing her cattle to trespass upon plaintiff’s land. At the trial the three following questions were submitted to and answered by the jury: To the first interrogatory: “ What were the damages which plaintiff sustained for the cattle trespassing upon plaintiff’s land ? ” the jury reply: “ We find damages $5.” To the second interrogatory: “ Was this a public highway or not ? ” the jury reply: “No public highway.” To the third interrogatory: “If it was not a public highway, what damages did plaintiff sustain in consequence of the defendant’s tearing down and destroying the gate ? ” the jury reply: “ Six cents damages.”

      Oliver Porter, for the appellant.

      H. O. Miner and A. P. Smith, for the respondent.
   Per Oitriam:

It appears that at the close of the trial the court submitted several interrogatories to the jury to which they answer. There was no other verdict than their answers to these interrogatories. The interrogatories and the answers are called in the judgment-roll, “ special verdict,” and this is what they seem to constitute. We do not think that this can be called a general verdict, for the jury do not find that the plaintiff shall recover any sum.

The complaint is denied by the answer ; so that there are no admissions in the pleadings to aid these special findings. And it is a well-known principle that a special verdict must contain all the facts necessary to sxistain a judgment. (Seward v. Jackson, 8 Cow., 413; Hill v. Covell. 1 N. Y., 522: Langley v. Warner, 3 id., 327.)

In this respect this special verdict is defective. For instance: it does not find that the trespassing cattle belonged to the defendant, or that the defendant had anything to do with them. There is nothing then in the verdict which shows that the defendant is liable for the damages. Even if we assume, from the answer to another interrogatory, that the defendant tore down the gate, the jury have not found that this act was the cause or occasion of such trespassing of cattle.

It is very possible that all these matters were sufficiently proved, and were even undisputed. But the difficulty is that, in the absence of a general verdict, we can add nothing to the facts specially found. If the jury had, in addition, found a general verdict, that would have authorized the judgment. The judgment, it is true, recites that the jury found in favor of the plaintiff and against the defendant for so much damages. But it refers to the certified minutes of the trial attached. And by these it appears that they did not find generally.

The objection thus presented is not, as seems to bo thought by the plaintiff, the neglect to apply for judgment on the special verdict. It is a defect in the verdict itself, which is apparent when the case is presented on this appeal.

We do not think that we ought to break down a rule that is so well settled. It may seem strict, but the reasons for it are apparent, on a little consideration.

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

Present — Learned, P. J., Boardman and Tarpan, JJ.

Judgment reversed for mistrial, new trial ordered; costs to abide event.


author: Learned, P. J.: Westbrook, J.:

text:
    HENRY A. MANN, Plaintiff in Error, v. THE PEOPLE OF THE STATE OF NEW YORK, Defendant in Error.

      Forgery — what constitutes.

    Where one executes and issues an instrument purporting on its face to be executed by him as the agent of a principal therein named, he is not guilty of forgery, either at common law or under the statutes of this State, even though he has in fact no authority from such principal to execute the same.
    The fact that such principal is a corporation incapable of acting, except through its officers, by one of whom the instrument is executed, does not alter the rule.
    Writ of Error to review the conviction and sentence of the plaintiff in error of the crime of forgery in the third degree.
    The plaintiff in error was indicted for making the following instrument:
    No.--.
    Saratoga County Treasurer’s Office, \ Ballston Spa, June 16, 1875. $
    In pursuance of a resolution passed November, 1874, by the board of supervisors of Saratoga county, the county of Saratoga promises to pay, at the Saratoga county treasurer’s office, on or before the 15th day of February, 1876, to First National Bank, Ballston Spa, or bearer, ten thousand dollars, at seven per cent interest, for value received.
    $10,000. HENRY A. MANN,

      Treasurer.

    The instrument was made by the plaintiff in error, who was the treasurer of the county, and discounted at the First National Bank of Ballston, and the proceeds received by Mann. Mann had, in fact, no authority from the board of supervisors to make or issue the instrument.

      Nathaniel O. MoaJc, for the plaintiff in error.
    On its face the instrument informed every person to whom it was presented that Mann had executed it as the agent of the county of Saratoga, and that its validity or invalidity depended solely upon his authority or want of authority tp execute it. It did not purport to be-the act of any one except himself. (Supervisors of Rensselaer Go. v. Bates, 17 N. Y., 242; Donovan v. Mayor, 33 id., 293; Blackwell v. Ketchum, 53 Ind., 184; Silliman v. Fredericksburgh, etc., 27 Graft. [Ya.], 120.) At coriunon law, it was well settled in England that one who sigued an instrument purporting, on its face to. be executed by him as agent for a principal, was not guilty of forgery, though he had no pretense of authority from such principal. (2 Eussell on Crimes [9th Ain. ed.] 946,. 947; 2 id., 942; Queen v. White, 1 Denison’s Crown Cases, 208; 2 Cox Criminal Cases, 210; 2 Car. & Kirwan, 404, referred to at length, and 2 Eussell on Crimes [9th Am. ed.], 946, 947; Rex v. A.rscott, 6 Carr. & Payne, 408; 25 Eng. Com. Law Eep.; Rex v. Story, Eussell & Eyan, 81; Regina v. Watts, 3 Brod. & Bing., 197; 7 Eng. Com. Law Eep., S. C., Euss & Eyan, 436; 2 Bishop Crim. Law [7th ed.], § 582; 2 Whart. Crim. Law [7th ed.], § 1432; 2 Arch. Crim. Prac. and PI. [7th ed.], 819; 2 Arch. Crim. Prac. and PI. [Poirieroy’s ed.], 1854; 2 Cox & Saunders’ Crim. Acts, 156; 2 Eussell on Crimes [4th Eng., 9th Am. ed.], 941; Conner’s Case, 3 City Hall Eecorder, 59; Heilbonn’s Case, 1 Parker 429; Crim. Eep., Commonwealth v. Baldwin, 11 Gray, 197; State v. Young, 46 N. II., 266.) The court erred in overruling the prisoner’s motion that the court direct his acquittal, on the ground that none of the counts in the indictment alleged or set forth the alleged false instrument according to its “tenor,” or in words or figures, but according to its “substance” and “effect” only. In an indictment for forgery, it is absolutely necessary to allege or set forth the alleged false instrument according to its tenor, or in words. It is not sufficient to set it forth according to its substance and effect. If the case comes within any of the exceptions known to th,e law, the particular fact which excuses must be mentioned. (People v. Kingsley,,2 Cowen, 522; People v. Badgley, 16 Wend., 56; 1 Bish. Cr. Pi*oc. [2d ed.], §§ 559-561; 2 Bish. Crim. Pro'c. [2d'ed.],’ §4 103, 405, 434,-462; 2 Whart. Crim. Law [7th ed.] §§ 1468, 1474, 1475; 2 Burn’s Justice [30th ed.], 636, Tit. Forgery; Dana v. State, 2 Ohio State Eep., 91; Com. v. Sweeney, 10 Serg. & Eawle, 173; People v. Phelps, 6 Hun, 432, 433, 434; State v. Bryant, 17 N. H., 326, 329; State v. Cooke, 52 Ind., 576, and cases cited; Com. v. Clancy, 7 Allen, 537; State v. Witham, 47 Maine, 165; State v. Potts, 9 N. J. [Law] Rep., 26; Coxdale v. State, 1 Head. [Tenu.], 139; State v. Parker, 1 Chipman, Venn., 298; State y. Dour den, 2 Dev. [N. C.], Law, 448; IT. S. v. Button, 2 Mason, 464; U. S- v. Foster, 4 Bis-sell, 59.) The county had no power or authority to borrow money, or to issue paper similar to that set out in the indictment. (;Supervisors v. Weed, 35 Barb., 136, 142; Chemung Bank v. Supervisors, 5 Den., 517, 523; People v. Mitchell, 35 N. Y., 552; Thompson v. Lee Co., 3 Wall., 330; Marsh v. Fulton Co., 10 Wall., 676; Police Jury v. Britton, 15 Wall., 566, 570; Van Alstyne v. Friday, 41 N. Y., 174; Baker v. Loomis, 6 Hill, 463; Mather v. Crawford, 36 Barb., 564; People v. Lawrence, 6 Hill, 245.) If such a paper was not valid and binding upon its face, no forgery in relation thereto could be committed. (People v. Shall, 9 Cowen, 778; Cunningham v. People, 4 Hun, 455; PeopleY. Harrison, 8 Barb., 560; Vincent v. People, 5 Park., 88; 15 Abb., 234; De Bow v. People, 1 Den., 9; People v. Galway, 17 Wend., 540; People v. Wilson, 6 Johns., 320; Com. v. Hinds, 101 Mass., 209; Vance v. Schuyler, 6 Ills., 160; Conner's Case, 3 City Hall Rec., 59; Falkner’s Case, 3 id., 65, 69, 70; 1 Bish. Crim. Law [6th ed.], § 748;- 2 Bish. Crim. Law [6th ed.], §§ 533-544; 4 Cent. Law Jour., 529, and cases there cited; Waterman’s Crim. Dig., 200, §§40-44.)

      Fsek Cowen, for the defendant in error.

      Decided May, 1878.

   Learned, P. J.:

The counsel for the people insists that the instrument set forth in the indictment, supposing it to have been signed by the authority of the county, would be the promissory note of the county; that is, that its legal character would be the same as if it had been signed, “ County of Saratoga, by Henry A. Maun, Treasurer.” '

Assuming this to be correct, we first have to inquire whether the making of such an instrument would have been forgery at common law, or without reference to the phraseology of our statute. That is, when one executes an instrument purporting on its face to be executed by him as agent for a principal named therein, and when he has in fact no authority from such principal, is he guilty of forgery ? The English cases prior to chap. 28 of 24 and 25 Viet, hold that he is not.

In Rex v. Arscott (6 Carr. & Payne, 408), the prisoner had indorsed on a bill of exchange “ Received for R. Aickman, G. Arscott.” Littledale, J., said: “ To forge a receipt for money is writing the name of the person for whom it is received. But in this case the acts done by the prisoner were the receiving for another person and signing “ Ms oimi name.” It was held that the offense was not forgery. The leading case of Regina v. White is reported in 2 Carr. & Kirwan, 404, and much more fully in 2 Coxe C. C., 210. In that case a bill of exchange payable to the order of Thomas Tomlinson was indorsed by the prisoner: “ Per procuration Thomas Tomlinson, Emanuel White.” He had no authority whatever from Tomlinson. It was held by the twelve judges, before whom the case was argued, that this was not a forgery. On the argument of the present case, the counsel for the people urged that the act of White could not have been forgery at common law, because it was the writing merely of a name; citing to that point Regina v. Close (7 Coxe C. C., 494). That was a case where, with fraudulent intent, a person had marked a painting with the name of a celebrated artist; and the court held that the act was not forgery. This was entirely different from the case of an indorsement of a note. In the one, the name, if genuine, has a legal effect and forms a contract. In the other it does not. The counsel for the people also cited 3 Coke, Inst., 169, where Lord Coice, speaking of the words “ or make,” in 5 Eliz. Ch., 14, says: “ These bo larger words than to forge, for one may make a false writing within this act, though it be not forged in the name of another, nor his seal nor hand counterfeited.” But the meaning of that language is explained by Lord Coke in the next sentence, where he gives, as an illustration, that if A execute a deed of land in the manor of Dale to B, and if a person erase from the deed the letter D, and insert the letter S in its place, so that the deed shall read lands in the manor of Sale, this will be a forgery, or a false writing under seal, although it is not forged in the name of another, nor his seal nor hand counterfeited. There is nothing, then, in this passage of Lord Coke which weakens the force of the decision in Regina v. White. It was in fact cited by the counsel for the prisoner in that case. The decision there seems to be on the very point involved in this present case, that an instrument thus made was not a forgery, although its statements were untrue.

This question came up in this State under the extradition treaty with England. A bill of exchange had been made payable to the order of Charles Macintosh & Co. It was indorsed by the prisoner, Heilbonn, as follows: “Received for Chas. Macintosh & Co., Alex. Heilbonn, No. 9 Vine street, Regent street, No. 73 Aldermanbury.” The prisoner had no authority to make the indorsement. He was arrested under the provisions of that treaty, and was afterwards brought up on habeas corpus and discharged. The court said: “Itis the essence of forgery that one signs the name of another to pass it off as the signature or counterfeit of that other. This cannot be when the party openly and on the face of the paper declares that ho signs it for the other.” (Ileilbonn’s Oase, 1 Parker Crim. Cas., 429; see, also, 2 Bish. Crim. L., § 582; 2 Wharton Crim. Law, § 1432; 2 Arch. Crim. Pr. and PL, 819.)

To the same effect is the case of Commonwealth v. Baldwin (11 Gray, 197). The prisoner made and delivered a note signed “ Schouler, Baldwin & Co.,” stating at the same time that he and one Schouler composed the firm. There was no such partnership. It was held not to be a forgery. The court say: “As a general rule, however, to constitute forgery, the writing falsely made must purport to be the writing of another party than the person making it. The mere false statement or implication of a fact not having reference to the person by whom the instrument is executed, will not constitute the crime.”

. So, also, in The State v. Young (46 N. H., 266), the court say: “The term falsely * * * has reference, not to the contents or tenor of the writing, or to the fact stated in the writing, * * * but it implies that the paper or writing is false, not genuine; fictitious, not a true writing; without regard to the truth or falsehood of the statement it contains.”

The case of Commomoealth v. Baldwin (ut supra) is referred to iii a recent case in the same State. (Commonwealth v. Foster, 114 Mass., 311.) The court there say: “The distinction is plainly drawn between one who assumes to bind another, either jointly with himself, or by procuration, however groundless and false may be the pretense of authority so to do, and one who signs in such a manner that the instrument may purport to bear the actual signature of another party having the same name.” And the court speak of “ the essential element of an intent, when making a signature, or procuring it to be made, to pass it off fraudulently as the signature of another party than the one who made it.”

It seems to us that these authorities, in the absence of anything to the contrary, are sufficient to show that, aside from our statute and at common law, such an offense is not a forgery. The statement was untrue. But every untrue statement is not a forgery.

It is true, as urged by the counsel for the people, that it has been held in England that a man may be guilty of forgery in ante-dating his own deed. (Queen v. Ritson, Law Rep., 1 C. C. R., 200, and cases there cited.) But that does not seem to touch this question. So it has been held that a man may be guilty of forgery, although the person whose name he has forged has the same name with his own. [Feople v. Peacock, 6 Cow., 72, and cases there cited.) The forgery consists in signing the name of the other person unlawfully. Thus, if a note payable to John Smith’s order should fall into the hands of a John Smith who was not the payee, and ho should indorse it knowing that he was not the payee, the fact that he bore the same name would not excuse him. He would have falsely signed the name of the payee just as much as if his own name had been Brown. To prevent any doubt on this point, our statute has provided for such a case. (2 R. S., m. p., 674, § 41.)

The counsel for the People further urges that even if the prisoner’s offense were not forgery at common law, it is so under the statutes of our State (2 R. S., m. p., 673, § 33); and he quotes the words of the revisers as indicating an intent to extend the scope of the law “to reach every case of forgery that has ever been committed, or that ever can be committed, and to afford a definite and distinct rule.” (Revisers’ Notes.) It will be seen, however, on reading the whole note, that the perplexities against which the revisers intended to guard in future, were those which arose from the fact that previous laws had enumerated and specifically described many instruments which might be the object of forgery. “In principle,” they say, “ there can be no difference m the injury to society or to an individual, or in the degree of moral turpitude, between the forgery of one instrument and another, by which the property, rights or interests of any one is affected.”

It was in order to embrace in general language all instruments which might properly be the subject of forgery, and not to establish any new kind of crime, or to change the previous rule as to what constitutes a false making, that this section was proposed by the revisers. The facts that the common law was such as we have seen it to be, and that it must have been known to be such to the revisers, and to the Legislature, and that no change was introduced, such as was afterward adopted in England (as above cited), may indicate that no change in the law was-intended. Of course, we do not overlook the date of the deck sion in Regina v. White (1847). But that decision declared the previous law. (Maddock’s Case [1805]; Buss, on Crimes, 499.).

The language of the statute material to the question is: “ Any person who * * * shall falsely make, alter, forge or counterfeit '* * * any instrument or writing, being or purporting to be the act of another, by which,” etc. The counsel for the people urges that the writing in this case purports to be the act of' another, viz., of the county of Saratoga, and that it was falsely made by the prisoner. That argument was used in Regina v. White (ut supra), as appears by the report: “ Pollok, C. B.. It purports to be the name of a party, written by his authority, and it is his name, written without that authority. < Willmore (for1 the prisoner): Bather it purports to be the writing of the prisoner, and it is so.” And so the court finally held. Now, it is. true that so far as civil obligations and rights are concerned, we> are accustomed, in order to express the binding effect of an agent's; acts, to say that the act of the agent is the act of. the principal.. This is a convenient way of stating, in brief language, that, when an agent is authorized, his act binds, not himself, but his principal, just as if it were the act of the principal. But we do not: mean that the act is literally that of the principal.

The instrument in question purported to be the act of Henry A. Mann. It may be that it purported to be legally binding on the county of Saratoga. But the act — that is, the doing the physical act as distinct from the legal effect — was the act of the prisoner. There is undoubtedly a sense, as urged by the counsel for the people, in which such an instrument may be said to purport to be the act of the county. But that is a statement of the legal effect. As a matter of fact, the instrument purports to be the act of Mann. He signed it in his own name, adding the title of his office — an office which he legally held.

The counsel for the people cites the case of the People v. Graham (6 Park. Crim. Cas., 135.) In that case the Travelers’ Insurance Company was accustomed to deliver to the prisoner what are called accidental policies. These had the signatures (printed or written) of the president and of the secretary, and of a general ticket agent. The prisoner was the agent of the company for the purpose of issuing these policies. The only thing to be done by him on issuing a policy was to stamp it with the date, and with the words “ General R. R. ticket office, J. Graham, Buffalo.” The policy was to run for three days from date.

One Hunt was killed on the 13th of November; on the next day the prisoner, with intent to defraud, issued to one Waner one of these policies,- and stamped it with the date of November 13th, in order that it might be enforced as a policy issued to Hunt on that day. This was held to bo a forgery. The date was a material addition. The insertion of a false date was like the alteration of a date after the issue of the instrument.

But that instrument had been in fact executed by the president and secretary of the company. The insertion of a false date was an unlawful writing above the valid signatures of the officers, in the body of the instrument, of words which the prisoner had no right to put in that place. The case is analogous to that where a person in possession of a genuine signature, in blank, falsely writes an instrument over such signature. But it has no analogy to the present, where the prisoner writes- an instrument openly and avowedly in his own name, only asserting therein that he is agent for another, and that therefore the other will, by virtue of the agency, be bound by the instrument.

In the case last cited, the instrument did not in any sense purport to be the act of the prisoner. It purported to be, as it was in fact, the physical act of the president and secretary, and the legal act of the company. . It is true that, in that case, the indictment charged that the instrument purported to be the act of the company. No question was made on thát point, and the indictment charged the forging, not the alteration of the instrument. But the opinion of the court speaks of the act of the prisoner as1 an alteration of, or material addition to, the instrument.

. Again, it is urged by the counsel for the people that section 45, 2 R. S., m. p., 675, supports the view of the defendants in error. That section, among other things, provides that “ every signature of an individual, firm or corporate body, * * * shall be deemed a writing,” etc.

It is urged that a corporate body can sigh only through agents; that, therefore, a corporate signature can never purport to be the physical act of the corporation; hence that the words “purporting to be the act of another,” are shown to include the case of one who, without authority, signs the name óf a corporation; and, therefore, they must be held to include' every case where one without authority signs the name of another, even though he adds his own name as agent. This section,, however, ought to be construed as intended rather. to embrace all the various kinds of signatures which may be forged, than to establish a new rule as to the crime.

It might be intended to remove any doubt, among others, in a case where A, not being authorized, should sign the corporate name of some body, adding “ By C, president;” or in a case where A, without authority, should sign the corporate name of some body without any addition thereto whatever. In all the cases that may be supposed, there runs this distinction: did the person who is accused of crime put forth the instrument with the fraudulent pretense that it was written or signed by some person other than himself, or did he plainly state that he was the writer or signer, but falsely assert at the same time therein that his act was obligatory on some other person? These two classes of acts seem to be essentially different, as well in their criminality as in their dangerous effect on society.

Thus, suppose that A makes á note, signing himSélf “A, agent,” when in fact he is not agent for any one. If we adopt the argument of the counsel for the people, this would be an instrument 'purporting to be the act of another; that is, of the principal not named,, and the writer would be guilty of forgery.

Section 45, above referred to, seems to be intended to prevent any question whether an instrument partly written and partly printed, or whether a mere signature would be included in the language of the previous sections, which spoke of writings and instruments. In the.effort to remove any doubt, it declares that a signature shall be a writing, and amplifies by saying the signature of an individual, firm or corporate body. But while a signature is, by this section, declared to be a writing, yet by section 33 such signature, in order to make the party guilty of this crime, must “purport to be the act of another.” And when the signature, as in this present case, purports to be the signature of the' very person who made it, it does not purport to be the act of another.

Hence this section, in declaring that a mere signature is a writing under the statute, shows that the words “ purporting to be the act of another ” refer to the physical act, and not to the legal effect. For Avhen an instrument is lawfully executed by an agent, the signature is the act of the agent, even though Ave speak of the instrument as, in legal effect, the act of the principal. And here we may notice that a subsequent section — 55 (53) of the same title — makes it a crime to obtain from any person any valuable thing “by color of any false token or writing.” To constitute a crime under this section, it is not necessary that the false Avriting should purport to be the act of another. Its falsity is enough. This section, therefore, provides for the case of a false statement, while the section which Ave have been considering provides for the case in which there is not only falsity, but the additional circumstance, also, that the offender has attempted to put off on the public his own writing as the Avriting of another.

These reasons bring us to the conclusión, without any examinar tion of the other points raised by the counsel for the plaintiff in error, that the conviction cannot be sustained.

However wicked may have been the conduct of the plaintiff in error; however disgracefully he may have betrayed the trust conficled in him by his fellow-citizens, we have to do with only one question: Was he rightfully convicted of forgery ? He may still claim the protection of the law, however much he may have disobeyed it. Whatever his misdeeds, he must not be punished for a crime which he has not committed.

The judgment must be reversed.

Westbrook, J.:

Continuous labor in circuit prevents any elaborate discussion by myself of the interesting question which this case presents. No effort in that direction will be attempted, but a simple, brief statement of the line of argument controlling my action is all that the very limited time at my command allows.

At the Washington County Oyer and Terminer, on the 16th day of May, 1877, the plaintiff in error was convicted of the crime of forgery in the third degree, and sentenced to imprisonment for the term of five years. The alleged forgery was the making by the said plaintiff in error, on the 16th day of June, 1875 (he at that time being the county treasurer of Saratoga county), a promissory note for the sum of ten thousand dollars, by the language of which the county of Saratoga promised to pay that sum, in pursuance of a resolution of the board of supervisors thereof, of the date of November, 1874, and which was signed by himself thus: “Henry A. Mann, Treasurer.”

It will be seen, from this brief statement of facts, that one of the points involved is this: When an instrument is really, in all its parts, written, signed and executed by the individual by whom it purports to be written, signed and executed, and the falsity thereof consists, not in the simulation or counterfeiting of the act of another, but in the false assertion Avhich the instrument contains, that he, the Avriter and signer thereof, is authorized so to make and sign it in behalf of another, as it purports to be; upon the negotiation of such instrument by the person who has’ so prepared it, is that person guilty of the crime of forgery, or of obtaining money by a false pretense?

In answering the question propounded, the ordinary and popular meaning of the word “ forge ” must not be forgotten. When a note or instrument is spoken of as “forged,” it is understood fo be a counterfeit one, and this understanding is in conformity with the definitions given to the two words by our best lexicographers. (Webster’s Dictionary, Worcester’s Dictionary, Imperial Dictionary, etc.). Whenever, therefore, the expression “ forged note,” or “ counterfeit note,” is used, we understand the speaker to refer to an instrument by which some one has undertaken to utter and pass, as the genuine and personal act of another, something which he has himself prepared in the similitude and likeness of the other’s act, and by such similitude and likeness which he has endeavored to impress upon the spurious instrument to deceive and defraud. In other words, forgery is the attempted imitation of another’s personal act, and by means of such imitation to cheat and defraud; and not the doing of something in the name of another, which does not profess to be the other’s personal act, but that of the doer thereof, who claims and insists by and in the act itself, that he is authorized to obligate the individual, whom he is assuming to obligate precisely as he undertakes to d,o.

The definition of the crime of forgery which has been given is well sustained by authority. (2 Russell on Crimes [9th Amer. Ed.], 946, 947; Queen v. White, 1 Denison’s Crown Cases, 208; 2 Cox’s Criminal Cases, 210; 2 Car. & Kirwan, 404; Rex v. Story, Russell & Ryan, 81; Rex v. Arscott, 6 Carr & Payne, 408; 2 Bishop’s Crim. Law [7th ed.], § 582; 2 Whart. Crim. Law [7th ed.], § 1432; 2 Archbold Crim. Pr. & Pl. [7th ed.], 819; Pomeroy’s Editions of Archbold, vol. 2, 1584; Conner’s Case, 3 City Hall Recorder, 59; Heilbonn’s Case, 1 Parker’s Criminal Reports, 429; Commonwealth v. Baldwin, 11 Gray, 197; State v. Young, 46 N. H., 266.) The learned counsel of the people, however, whilst not denying the general and ordinary definition of the .crime of forgery to be as stated, nevertheless insists that the act of Mann is within the statute definition of the crime, and that therefore he was properly convicted. The statute ho refers to reads: “ Every person who, with intent to injure or defraud, shall falsely make, alter, forge or counterfeit * * * any instrument or writing, being or purporting to be the act of another, by which any pecuniary demand or obligation shall be, or shall purport to be created, increased, discharged or diminished, * * * by which false making, forging, altering or counterfeiting, any person may be affected, bound, or in any way injured in his person or property,, upon conviction thereof, shall be adjudged guilty of forgery in the third degree.” (3 B. S. [6th ed.], page 944, § 34.) This .provision, it is insisted, has enlarged the crime of forgery, and as Mann falsely made a note, which counsel claims purported “ to be the act of another,” he is guilty of the crime of forgery.

In considering this point, it will be observed that counsel assume that the plaintiff in error has done the very thing which the statute declares to be a crime, whilst the truth is otherwise. Mr. Mann has not falsely made a note, which purports “ to be the act of another.” The “ act” — i. e., that which was done — purported to be his own, but one which he was authorized to do for, and in behalf of another. The reader of the instrument could not misunderstand it. By its terms Mann declares that he has made the writing, but he has so made it for the county whose officer he was, and by the authority of those representing it. The paper may be false and untrue in its statements, but the making is not false by reason of the fact that it purports to have been made by-some other person, which must be the case if this conviction is upheld. In short, the statute seems to us to require that, in order to com stitute a crime thereunder, an instrument must purport to have been made by some individual or body other than the party who in fact makes it, which act of his own he endeavors to impose upon the public as the genuine one of him or it whose it professes to be. Thus construing the statute, it is not only in entire harmony with the well-understood definition of the crime of forgery at common law, but in addition, also, it does not compel a court to call that which a party, in and by the act complained of, declares to be of his own making, to be the forging, counterfeiting, or simulating the act of another.

There is also another argument worthy of consideration. The statute relied upon by the counsel for the people is a part of article 3 of title 3 of chapter 1 of part 4 of the Bevised Statutes. The chapter is entitled, “ Of crimes and their punishment;” the title is entitled, “ Of offenses against property punishable by imprisonment in a State prison;” and the article, of which the section forms a part, is entitled, “ Of forgery.” Being a part of the statutes defining a particular species of crime, which is itself a part of another division consisting “of offenses against property punishable by imprisonment in a State prison,” it should be read so as not to contradict its own specific title (“of forgery”), and also so as not to interfere with any other defined offenses which are also “offenses against property,” and also “punishable by imprisonment in a State prison.” The article succeeding that of which the section forms a part, is the fourth, and is entitled, “ Of false personating another and cheats ”. (3 R. S. [6th ed.J, 947). Its fifty-eighth (53d of old) section provides that “ every person, who, with intent to cheat or défraud another, shall designedly, by color of any false token or writing, or by any other false pretense, obtain the signature of any person to any written instrument, or obtain from any person any money, personal property or valuable thing, upon conviction thereof, shall be punished by imprisonment in a State prison not exceeding three years, or in a county jail not exceeding one year, or by a fine not exceeding three times the value of the money, property or thing so .obtained, or by both such fine and imprisonment.”

Is it not entirely clear, if the proof shall show, that '“ with intent to cheat or defraud another,” Mann obtained the money upon the note which he made, he was directly within the letter of this provision? No opinion, as this question has not been argued, is expressed upon the need of other proof being given in connection with the note to insure the conviction of Mann, if he can be convicted at all, under this statute; but it seems reasonably clear that if it can be shown that the making of the note was with the fraudulent intent aforesaid, and that “ designedly,” and “ by color of” this note, which must then be a “false * * * writing,” he obtained from a “ person * * * money,” that this case is covered. It is, therefore, very evident that for the offense of making an instrument in the name of another, which on the face thereof is stated not to be the personal act of the party purporting to be obligated, but of another, in his behalf and by his authority, express provision has been clearly made, and consequently another and prior statute should not be so construed as to cover and occupy the same ground. Such a rendering of the statute law would subject the Legislature to the imputation of having twice provided for the same crime, and of having prescribed two different degrees of punishment therefor. To both sections a construction can be given, which is in entire harmony with their language, and which preserves the well-known and understood common-law distinction between the crime of obtaining money upon a forged note, or upon one which involves only a false pretense. A forgery necessarily is also a false pretense, but the latter, when embodied in a writing, does not necessarily involve the former. The crime of forgery is only completed when the falsity of the instrument consists in the forging or counterfeiting the act of the other; and that of false pretense, when it springs out of a transaction like the present, is perfect when the intent “ to cheat or defraud another ” is shown, and the party insists by the writing, that whilst the act of making is his own, yet such making is by him, for and in behalf of another, whom it purports to bind, and which assertion he knows is false.

The conviction of the plaintiff in error should, in my opinion, be reversed, and the prisoner discharged.

Present — Learned, P. J., Westbrook and Osborn, JJ.

Judgment and conviction reversed, and new trial ordered.


author: Learned, P. J.

text:
    CHANDLER HINCKLEY, Respondent, v. WILLIS C. MILES, Appellant.

      Judgment — when-collection of restrained Veeause of fraudulent representations as to the parpóse of the action.

    Appeal from a judgment in favor of the plaintiff, entered upon. the trial of this action by the court without a jury.
    This action was brought to enjoin the defendant permanently from enforcing a certain judgment recovered by him in a Justice’s Court, except for a part of the same, on the ground that it was obtained by a fraud practiced on the present plaintiff. The facts of the case, as found by the court are, that the defendant held two notes against the plaintiff one on which there was due twenty-six dollars, and the other, originally given for one hundred dollars to one Shoemaker, which had been fully paid, as the defendant knew. That the defendant gave the twenty-six dollar note to a constable, directing him to procure a summons in Justice’s Court, and, also, to present this note to the present plaintiff and to tell him that the suit was commenced only to.collect said note, and for no other purpose; that the constable did so; that the plaintiff did not have the money to pay the note, and the constable served the summons; that the plaintiff trusted to their statement, and did not appear; that in his absence, the defendant on the return day of the summons took judgment against him on both of the notes; that the plaintiff did not discover this fact until his time for appeal had been barred.

      The court at General Term, said: “ The case seems to be one of bare, unqualified trick and fraud; the use of legal proceedings to perpetuate a piece of knavery, If the defendant was not ashamed to practice such a fraud, he ought at least to have been ashamed to defend it, after it was discovered, and after the defrauded party was seeking redress. That he should have been willing to give publicity to his wrong doing by appealing from •this most righteous judgment is surprising.”
    The judgment should be affirmed, with costs;

      Alex. Gumming, for the appellant. John F. Anderson, for the respondent.
   Opinion by

Learned, P. J.

Present — Learned, P. J., Boardman and Martin, JJ.

Judgment affirmed, with costs..


author: Smith, J.:

text:
    WILLIAM CONE, Respondent, v. THE DELAWARE, LACKAWANNA AND WESTERN RAILROAD COMPANY, Appellant.

      lAaMlity of master for injury to servant.

    For an injury to a servant resulting from the negligence of his master the latter is liable although, by diligence on the part of a fellow-servant the injurious effects of the master's negligence might have been prevented.
    The plaintiff, one of defendant’s employes, while repairing a car on a side track, was struck by another car, which was moved against him by an engine attached thereto. The engine was moved by the escape of steam through a defective valve into the cylindei-, which defect had been known to defendant’s superintendent for several months. Defendant’s employe in charge of the engine, knowing of the defect, had left it, without using certain means, which he knew of, which would have prevented the eseape of the steam.

      Held, that defendant was liable to the plaintiff for the injuries sustained.
    Appeal from a judgment in favor of the plaintiff, entered on the verdict of a jury rendered at the Oneida Circuit, and also from an order denying a motion for a new trial made on the minutes of the justice before whom the action was tried.

      Isaac 8- Newton, for the appellant.
    , A servant owes to • his co-servant' the duty to use all diligence. . Any injury which might have been prevented by diligence is chargeable solely to the co-servant, and that, too, even if negligence might be imputable to the master. (Salters v. The Delaware & Hudson G. Go., 3 Hun, 338; Samson v. The N. Y. & Harlem JR. JR. Go., 62 N. Y. R., 251; Hayes v. The Western JR. II. Go., 57 Mass., 270, 2.72; Hoffnagle v. JK Y O. & II. JR. B. R. Go., 55 N. Y., 610; Wright v. R. R. Go., 25 N. Y. R., at page 567; • Tinney v. R. R. Go., 62 Barb., 218; Wood on the Law of Master and Servant, § 426, pp. 810, 812.) As between master and servant, that in providing machinery only reasonable care and diligence is called for is supported by the entire current of authority. (Wood’s Master and Servant, § 421; Piper v. R. R. Go., 56 N. Y., 630; R. R. Gos. v. Webb, 12 Ohio St., 475; R. R. Go. v. Heavy, 3 id., 202; Priestley v. Fowler, 3 Meeson & Welsby, 1; Fletcher, J., in King v. R. R. Go., 9 Cush., 112; see, also, Pierce on Ain.,R. R. Law, 296; Redfield on Law of Railways, sec. .131, sub. 10; see, also, Wright v. R. R. Go., 25 N. Y. R., 562.)

      Alfred F. Goxe, for the respondent.
    The defendant was obliged by law to furnish, for the use of its servants, proper, suitable, safe and sufficient machinery, means and appliances, and keep them in a safe and suitable condition, or use due care to that end. (Gorcoran v. Holbrook, 59 N. Y., 519; Laning v. K. Y. O. R. R. Go., 49 id., 532; Ackerson v. Dennison, 117 Mass., 407; Fords,. The Fitch-burgh R. R., 110 id., 260; Planks. D., L. <& W. R. R. Go.,,. 1 S. C. R. Thompson and Cook, 319; aff’d, 60 N. Y., 607; Ruow.s. Housatonic R. R., 8 Allen, 441; Ryan s., Fowler, 24 N. Y., 410; Pattersons. Wallace, 28 Eng. L. & Eq., 48; Gayzers. Taylor, 10 Gray, 274; Gilman s. Eastern R. R. Go., 13 Allen, 440; Gibson v. Erie R., 5 Hun, 31; Sherman & R. on Reg,, 115, 116, § 92; Ooughtry s. Globe JMilb, 56 N. Y., 126, 128; Gonolly s. Poillon, 41 Barb., 366; Kirkpatrick s. JT. Y. G. '<& II R. R.R., 6 W. Dig., 105; Mehan s. S. (& JB. R. R., Ct. of Ápp., March, 1878, 6 N. Y. W. Dig., 362.) . ^ ,
   Smith, J.:

The plaintiff was in, the employment of the' defendant as a, car repairer. While the plaintiff was' engaged' iiy examining a. car . with a view to repairing it, which was standing on a side track of the defendant’s at Richfield Springs, another car, which ivas also Standing on the same track a few feet distant from the car which the plaintiff was examining, and Avhich Avas attached to an engine, took motion from the engine after he went upon the track, and ran against him, in such a manner that he ivas caught between the tAvo cars, and seriously injured. It is to be presumed the jury found that the accident occurred Avithout any fault oh the part of the plaintiff. The evidence tended to shoiv that the engine took motion in consequence of steam escaping into the cylinder through a leaky valve, and that tlie- defect in the valve had been known for months by the defendant’s superintendent, but.Avas not knoAvn by the plaintiff. There Avas- also. evidence tending to shoiv that the defendant’s employe, Roberts, who was in charge of the engine, left it standing on the track Avhile tlie plaintiff Atas examining the car, and that he was aivare of the defect in the valve,'and omitted to use certain means in his poiver, which, if used, wohld have prevented the engine from taking motion in consequence of the leaking of steam.

The principal question in the case is Avhether the defendant is liable by reason of the defect in the engine, notAvithstanding the neglect of the .plaintiff’s co-employe, Roberts, ,to guard against such defect. The question is one of first impression,- so far as we are aware. We think it should be answered in the affirmative. The liability of the defendant in this case rests upon the Avellsettled principle that the master owes a duty to the servant to furnish proper, perfect; and adequate machinery or other materials and appliances necessary for the work in Avhich the servant is employed. (Laning v. New York Central R. R. Company, 49 N. Y., 521; Flike v. The Boston and Albany R. R. Company, 53 id., 549.) We think the circumstance that Roberts, Avho was in charge of the engine and knew that it was defective, neglected to guard against the defect, does not relieve the defendant; The adjudged cases Avhich hold that a master is not liable to his’ servant for an injury resulting from the negligence of a fellow-servant in the same common employment, proceed upon the ground stated by Chief Justice Shaav in the leading case of Farwell v. Boston and Worcester R. R. Corporation, (4 Metc., 49, 57)“that he-Avho engages in the employment of another for the performance of specified duties and services for compensation, takes upon himself the natural and ordinary risks and perils incident to the performance of such services, and, in legal presumption, the compensation is adjusted accordingly.” “And we are not aware,” the learned judge proceeds to say, “of any principle which should except the perils arising from the carelessness and negligence of those who are in the same employment. These are perils which the servant is as likely to know, and against which he can as effectually guard as the master. They are perils incident to the service, and which can be as distinctly foreseen and provided for in thé rate of compensation as any other.” (See, also, Priestley v. Fowler, 3 Mees, and Wels. 1; Coon v. The Syracuse and Utica R. R. Company, 6 Barb. 231, aff’d 1 Seld. 492.)

But how can it be said that a servant takes upon himself the risks and perils consequent upon the existence of defects, unknown to him, in the machineiy, implements or materials provided by the master, or consequent upon the neglect of his fellow-servants, cognizant of such defects, to guard against them? We are not referred to any case holding that the servant assumes risks of that nature. The appellant’s counsel takes the position that any injury to a servant, which might have been prevented by the diligence of a co-servant, is chargeable solely to the latter, and that, too, even if negligence might be imputed to the master. He cites several cases which will be briefly referred to. It will be seen that they do not sustain his position.

In Salters v. The Delaware and Hudson Canal Company (3 Hun, 338), the injury complained bf was caused by a switch being carelessly loft open, whereby an engine was overturned and the fireman was killed. It was a common switch, properly constructed and in good . repair. In an action brought by the representatives of the deceased, the plaintiff’s counsel argued that the company was negligent in not having provided a target switch. In answer to that argument, the court said, that assuming that the presence of a target would have indicated to the plaintiff’s intestate that the switchman was negligent, to require its presence as a matter of right, is to require that the master shall, by mechanical appliances, exempt one servant from the negligence of another, and the case was decided upon the ground that the master was not under that duty. At the same time, the doctrine was reaffirmed that a railroad company is bound to place its employes under no risk from imperfect or inadequate machinery.

In Sammon v. New York & Harlem R. R. Co. (62 N. Y., 251), the injury resulted from the displacement of a switch, caused by the dropping out of a pin used to fasten the lever. It appeared that the pin was rather large for the hole which received it, so that it would not go clear through. By reason of this defect, it was claimed by the plaintiff’s counsel that negligence was imputable to the company. But it appeared that the switch was new, and had been put in the day before the accident; before that, the rails were moved by a crow-bar; the switch-tender had changed the switch a number of times during the day, and he had not reported any defect. The court held that the accident, within the rules of law, was attributable to the switchman, and that the slight defect shown was not imputable to the company as a principal.

In Hayes v. The Western R. R. Co. (3 Cush., 270), a brakeman was injured by a collision of two trains belonging to the defendant, resulting from the negligence of another brakeman. The plaintiff’s counsel insisted that the company neglected to furnish a sufficient number of brakemen to manage the train which ran against the other. Three brakemen were provided for it; one of them, without leave of any officer or agent of the company, failed to go with the train, and of the two who were on, the one whose duty it was to be on the rear car was not there, and the proof was that if a man had been stationed on the rear car, the collision could have been prevented. The evidence was conflicting as to whether two brakemen were a sufficient number to manage the train. The court charged that, as to the number of brakemen, the defendant would be responsible, if the number was not sufficient to insure safety, if the biakcmen had all done their duty ; but if the jury believed that if the brakeman, whose duty it was to have been on the rear car, had been there doing his duty, the injury would not have taken place, then it was immaterial whether the train was short of hands or not. Held, no error. In the light of its facts, the case asserts the. doctrine that. • while a master is not liable to his servant for an injury caused by the negligence of a fellow-servant, he is liable for the consequence of his own neglect. In Hofnagle v. The New York Central & Hudson River R. R. Co. (55 N. Y., 610) and Wright v. The New York Central R. R. Co. (25 id., 562), the injury was caused solely by the negligence of a fellow-servant. And in Tinney v. The Boston & Albany R. R. Co. (62 Barb., 218), the act which caused the injury was not traced to the defendant or either of its employes.

It was said by Rtjggles, Ch. J., in Keegan v. The Western R. R. Co. (4 Seld., 175), that the cases which hold that a principal is not liable to one servant for an injury sustained by him in consequence of the negligence of a fellow-servant, are only applicable when the injury complained of happened without any actual fault of the principal.

We think the true rule is, that for an injury to the servant resulting from the negligence of the master, the latter is liable, although, by diligence on the part of a fellow-servant, the -injurious effects of the master’s negligence might have been prevented or averted. If the injury would not have happened but for the negligence of the master, contributory negligence on the part of the fellow-servant is no defense to the master. Within that rule the defendant is liable in this case. Not only would the injury not have happened if the engine had been in suitable condition, but, in that case, no negligence could have been imputed to the engineer.

The case of Booth v. The Boston & Albany R. R. Co., recently decided by the Court of Appeals, and which has come to our notice since the foregoing was written, seems to sanction the views above expressed. (MS. opin. of Andrews, J.) That was an action to recover damages alleged to have been caused by the negligence of the defendant. The case arose out of the same accident as the FWce Case, which is reported in 53 N. Y., 550. The negligence imputed to the defendant was the sending out of the train of cars, without a sufficient number of brakemen.' On the trial of Booth’s case, the counsel for the defendant requested the court to charge that, if the jury believed it was negligence in Hughes (the servant of the defendant in charge of the train) to start up his tram after stopping at Chatham, to reach the coaling place, without knowing that there were two brakemen on the train, or on the eleven rear cars, and that that was the cause of the accident, the plaintiff could not recover. The court said: “ I so charge; that is, if the jury believe that this was the sole cause of the accident,” and added, “ but it must be taken with this allowance, that he (Hughes) had but two brakemen; and, if it was the duty of one to be at the coal heap and one at the train, the question still remains whether, if there had been a third brakeman, the accident would not have been avoided.” The defendant’s counsel excepted to the modification. Mr. Justice Andrews says, in his opinion: “ The modification was not ground of exception. The plain meaning of the court was that, if Hughes’ negligence was contributory with that of the defendant, in not sending three brakemen with the train, and both together caused the accident, the negligence of Hughes did not relieve the company from liability. This was unobjectionable.” These remarles, which are understood to have been concurred in by the court, appear to be decisive of the present case.

We have carefully examined the other points made by the appellant’s counsel, but do not discover that any material error was committed on the trial. .

The judgment and order should be affirmed.

Talcott, P. J., and Hardin, J., concurred.

Judgment and order affirmed.

       Decided March 19, 1878


text:
    GILBERT MILK, Respondent, v. CHARLES J. RICH, Appellant.

      Guaranty of note — when it need not he in writing.

    Wliere, upon the sale of a promissory note, the vendor warrants that it is good and will be paid at maturity, such guaranty is not within the Statute of Frauds, ánd is valid, though not in writing.
    Appeal from a judgment in favor of the plaintiff, entered on a verdict rendered at the Cattaraugus Circuit, and also from an order of the Special Term, denying defendant’s motion for a new trial on a case and exceptions.
    The action was brought to recover the amount of a note for $500, made by one C. E. Marsh to tlie order of, and indorsed by, S. S. Marsh, which had been sold by the defendant to the plaintiff. The latter claimed that defendant had warranted that the note was good and would be paid at maturity. The note not having been paid, this action was brought upon the warranty.

      C. D. Murray (H. M. Herrick, att’y), for the appellant.

      Henderson & Wentworth, for the respondent.
    The facts bring this case within the third class of cases mentioned by Kent, Ch. J., in Leonard v. Vredenburgh (8 John, 29, 89). And also in the third class, as classified* by Comstock, Ch. J., in Mallory v. Gillett (21 N. Y., 412, 423). The defendant’s guarantee or agreement is not collateral to the debt or liability of the parties to the note, but is an independent-agreement based upon new considerations moving from the plaintiff, the promisee, to the defendant, the promisor. (See, also, Brown v. Curtis, 2 N. Y., 225; Car dell v. McNeil, 21 id., 336; Banders v. Gillespie, 59 id., 250; Bruce v. Burr [Ct. of App., 1876], 3d vol., W. Dig., p. 533, 67 N. Y., 237; Dauber v. Blaclcney, 38 Barb., 432.)
   Smith, J.:

The evidence warranted the conclusion that the defendant sold the Marsh note as his own property, for a valuable consideration received from the plaintiff, and the jury are presumed to have so found. They are also presumed to have found, upon sufficient evidence, that, at the time of selling the note to the plaintiff, the defendant promised and warranted that it was good, and that it would be paid at maturity. In fact, it was not good and was not paid. The only question presented by the facts found, is whether the guaranty of the defendant, not being in writing, is void by the Statute of Frauds, as a promise to answer for the debt or default of another. In form, it was a promise that the makers of the note would perform their obligation, but, in reality, it was an undertaking by the defendant, for his own benefit, upon a full consideration received by himself. He contracted on his own account, and. not as a surety for the makers of the note. It has been decided frequently, that such a promise is not within the statute. (Johnson v. Gilbert, 4 Hill, 178; Cardell v. McNiel, 21 N. Y., 336; Bruce v. Burr, 67 id., 237.)

The judgment and order should be affirmed.

Mullin, P. J., and Talcott, J., concurred.

Judgment and order affirmed.