text:
    Abel C. Vail, Resp’t, v. The Broadway Railroad Company of Brooklyn, App’lt.

      (Court of Appeals,

      Filed November 26, 1895.)

    1. Pleadings—Railroads.
    When a railroad company, in an action to recover damages by a passenger sustained in consequence of a breach of the duty which the corporation owes to him as such, claims immunity under some provision of a statute, it should plead all the facts upon which such immunity rests.
    3. Railroads—Street—Act oe 1850.
    Section 46, chap. 140 of 1850, which exempts railroad companies from liability for injuries to passengers while on the platform of a car in violation of duly posted regulations, provided sufficient accommodation inside the car is furnished, applies only to steam railroads, and has no application to street railroads using horse power.
    3. Same.
    The fact that the charter of a street railroad contains a provision permitting to organize under the Act of 1850, and that, in such case, the provisions of that Act should apply to it, does not render section 46 thereof applicable to the company.
    4. Same—Riding on platform—Waiver.
    A rule of the company that “ smoking on closed cars is prohibited except on the front platform,” modifies a notice, placed in the car, prohibiting passengers from standing on the platforms and operates as a waiver of any immunity, from liability for injury to one while smoking on such platform, conferred by the Act of 1850.
    Appeal from judgment of the general term of the city court of Brooklyn, entered upon an order, which affirmed a judgment in favor of plaintiff entered upon a verdict, and also affirmed an •order denying defendant’s motion for a new trial.
    This action was brought to recover damages for personal injuries sustained by the plaintiff in consequence of the alleged negligence of the defendant company in the operation of one of its street cars drawn by horses.
    The articles of assocation of the defendant company stated that the organziation was under the act of April 2, 1850 (the General Bailroad Law), and also under chapter 303 of the Laws of 1858. Section 6 of the latter act is as follows: “It shall be lawful for said Augustus Ivins, solely or with his associates, to organize under an act of the legislature, entitled ‘An act to authorize the formation of railroad companies and to regulate the same,’ passed April 2, 1850, and, in the event of such organization, all the provisions of said last-mentioned act, except the number of persons designated in the first section thereof, shall apply to the said grantee and his associates, also except the provision of section 57’ of said act."
    There was posted in the car on which the accident in suit happened the following notice: “ Passengers are not allowed to ride on the front platform with driver. Any passenger breaking this rule does so at his own risk.”

      Percy S. Dudley, for app’lt; Thomas M Pearsall, for resp’t.

      Affirming 58 St. Rep. 124.

   O’Brien, J.

The plaintiff recovered a verdict against the defendant for his damages sustained in consequence of a serious personal injury while riding in one of the defendant’s cars as a passenger on the 20th of October, 1892. It is conceded that there was evidence of the defendant’s negligence in the case sufficient to require its submission to the jury. It is quite clear also that upon the question of the plaintiff’s negligence contributing to the injury, so far as that question depends upon general principles, and not upon special statutes, the case was one for the jury. The plaintiff was at the time of the accident, riding upon the front platform of the car, smoking a cigar, which he had when entering it from the street.

The only question in the case which this court has the right to review is whether the action was defeated by. the provisions of section 46 of the General Railroad Law of 1850. (Laws 1850, chap. 140, section 46.)

That section reads as follows : “In case any passenger on any railroad shall be injured while on the platform of a car, or any baggage, wood or freight car, in violation of the printed regulations of the company, posted up at the time in a conspicuous place inside of its passenger cars then in the train, such company shall not be liable for the injury; provided said company at the time furnished room inside its passenger cars sufficient for the proper accommodation of the passengers.”

The fact that the defendant has omitted to plead this statute as a defense would ordinarily be a sufficient answer to the point. When a railroad company in an action to recover damages by a passenger, sustained inconsequence of a breach of the duty which the corporation owes to him as such, claims immunity under some provision of a statute it should plead all the facts upon which the immunity should rest. Weymouth v. Broadway & Seventh Avenue R. R. Co., 2 Misc. Rep. 507; 51 St. Rep. 612; S. C., 142 N. Y. 681; 60 St. Rep. 872. But as this question was not raised at the trial, we prefer to dispose of the objection upon broader grounds. The question is whether this statute was not intended to have any application to a street railroad. It is quite certain that the companies themselves have not so regarded it, since it is a matter of common knowledge that they receive passengers every day when there is noplace for them except upon the platforms, and have for years. The construction which such corporations themselves have for many years given to this statute should not be entirely disregarded when seeking for its true meaning and when urged as a defense by one of the companies to an action in which it admits its own negligence. It may be conceded that the general langnage is broad enough to cover the case, but words and language must, in the construction of a statute, always yield to what appears to have been the intention of the lawmakers. The literal meaning of words or phrases should never be permitted to pervert the purpose of the law, or to defeat the end which the legislature had in view, or to enlarge the operation of the law and extend it to subjects not within the legislative mind, or the evils intended to be remedied. When the intention of the law can be ascertained the courts will not allow this intention to be thwarted or perverted because the proper words were not used, but all will be made to conform to reason and good discretion. 1 Kent, 462 ; People ex rel. Jackson v. Potter, 47 N. Y. 375. The general purpose of the act of 1850 was to provide for the operation of steam railroads. It is perfectly manifest and has always been conceded that many of its provisions can have no application whatever to street railroads. In the nature of things a provision of this character, intended primarily to prevent accidents and injuries to passengers on trains operated by steam and running at a high rate of speed, is not applicable to a street railroad, the cars of which are drawn through city streets at the rate of a few miles per hour. The danger to passengers standing upon the platform of steam cars when in motion is great and obvious, while that to passengers on the platform of street cars is almost nothing, as is fully demonstrated by the practice of the general public and the companies themselves. Moreover, the words employed in construing the section indicate quite cleaiiy'that what the legislature had in mind was riding on the platform of steam railroads. The section speaks of “ trains'' and of “ baggage, freight and loood cars," terms which can have no application to the defendant. The notice required was to be posted in the cars “ then in the train,” an expression which never was in popular use with reference to street railroads. The use of the words “ any railroad" cannot be permitted to control the meaning of the law, in view of the notorious fact that at the time of its enactment, or since, there is not the slightest reason to believe that the legislature apprehended any evil or danger from riding on the platform of street cars. To hold at this day that a passenger riding on the platform of a street car, under the circumstances urged by defendant, is doing so at his own risk, because in violation of the statutes, would be to impose upon the public and the railroads themselves duties and obligations that have not heretofore been generally supposed to exist. Such a construction would unnecessarily extend the operation of the statute to cases and to a state of things manifestly not within its original scope or purpose.

We do not think that the incorporation in the defendant’s charter of all the provisions of the Gfeneral Railroad Law, with the exception of two sections mentioned, strengthens the defendant’s position. All that was intended by that was that such portions of the general law as were applicable to street railroads should become a part of the charter. It was not intended by reference to the general law in the act incorporating the defendant to give to the section in question any other or broader application than that which was in the mind of the legislature when originally enacting it.

The law means nothing more when specifically made a part of the defendant’s charter than it does as it appears upon the statute book, or as it came from the legislature in the first instance.

It appeared that one of the rules of the defendant corporation, in force at the time of the accident, was to the effect that “ smoking on the closed cars is prohibited except on the front platform."

It might well be held, we think, that this corporate regulation was intended to and did modify the notice posted in the car, and so operated as a waiver of any immunity conferred tinder the provisions of the general law referred to. The true construction of the provision of the act of 1850 referred to was sharply involved in the case of Butler v. Glens Falls, etc., R. R. Co., 17 St. Rep. 565, and from the disposition of the case afterwards made in this court, it is quite evident that it was held that it did not apply to a street railroad. S. C., 121 N. Y. 112; 30 St. Rep. 678.

For these reasons the judgment should be affirmed, with costs.

All concur.

Judgment affirmed.


source: Caselaw Access Project

author: Haight, J.

license: Public Domain

text:
    Mary Clifford, Resp’t, v. Frederick Kampfe et al., App’lts.

      (Court of Appeals,

      Filed November 26, 1895.)

    1. Equity—Inchoate bight of doweb—Cancellation of fobged deed.
    Where land, in which a wife has an inchoate right of''dower, is conveyed by a duly recorded deed releasing dower, executed by the husband and one personating the wife, the latter is entitled to maintain an action in equity to' cancel of record, so far as she is concerned, such deed.
    3. Same.
    Her inchoate right of dower, even in'the lifetime of her husband, is such an interest in his real estate as entitles her to maintain such action.
    3. Same.
    She need not wait till after her husband’s death, and then obtain relief in an action for the admeasurement of her dower.
    Appeal from interlocutory judgment of the general term of the supreme court in the second judicial department, entered upon an order, which reversed a judgment in favor of defendants, entered upon a decision of the court on trial at special term, sustaining a demurrer to the complaint.

      William J. Griffin, for app’lts; Albert G. Aubrey, for resp’t.

      Affirming 65 St. Rep. 550.

   Haight, J.

The complaint iu substance alleges that the plaintiff is the wife of James Clifford, and as such was seized of an inchoate right of dower in the premises described in the complaint; that on or about the 6th day of June, 1892, the plaintiff’s husband as owner, together with some person to the plaintiff unknown, did make, execute and deliver to the defendants a deed conveying said property to them; that the deed purports to have been executed by one Maria Clifford, as the wife of James Clifford, and to have been duly acknowledged before a commissioner of deeds in the city of New York. The deed was recorded in the office of the register of the county of Kings in liber 3021 of Conveyances, at page 454. , The complaint further alleges that the plaintiff never signed, executed, acknowleged or delivered the said deed of conveyance, and in so far as the same purports to have been signed by the plaintiff the same is a forgery and is not her deed. Judgment is demanded that the deed of conveyance, so far as the plaintiff is concerned, may be set aside and canceled of record.

The demurrer to the complaint is upon the grounds that it does not state facts sufficient to constitute a cause of action, and that the plaintiff, being a married woman, has not the legal capacity to sue for the reason that the action does not affect her separate property.

The Revised Statutes provide that “a widow shall be endowed of the third part of all the lands whereof her husband was seized of an estate of inheritance at any time during the marriage.’’ 1 R. S. 740, § 1. _ _ _

_ _ _ Dower accrues to the widow, and not to the wife, and until she becomes a widow her right is inchoate and contingent. Her claim can only become effective on the death of her husband and her survival. Being inchoate and contingent, her interest does not amount to an estate or title, and yet she has an interest which attaches to the land as soon as there is a concurrence of marriage and seizin. 4 Kent’s Com. 50.

The right of a doweress to her dower is not only a legal right, and so adjudged at law, but it is a moral right, to be provided for. She is entitled to maintenance and sustenance out of her husband’s estate to live upon. She is, therefore, in the care of the law, and a favorite of the law. 1 Story’s Equity, § 629.

The inchoate right of dower is a valuable, subsisting, separate and distinct interest which is entitled to protection, and for which the wife may maintain a separate action. Simar v. Canaday, 53 N. Y. 298-305; Mills v. Van Voorhies, 20 id. 412; Jackson v. Edwards, 7 Paige, 408 ; Madigan v. Walsh, 22 Wisconsin, 501; Burns v. Lynde, 6 Allen, 305; Davis v. Wetherell, 13 id. 60; Petty v. Petty, 4 B. Monroe, 215; Babcock v. Babcock, 53 How. Pr. 97; Taggert v. Rogers, 49 Hun, 265; 17 St. Rep. 646.

The action may not be, strictly speaking, one to remove a cloud upon title, for the inchoate doweress is not the owner of the title. But she has an inchoate interest which attaches to the land, and this she may protect in an action similar and in analogy to one to remove a cloud upon title. Equity is not limited to actions to remove clouds upon title, but reaches out to protect the rights of persons where they are threatened. It will restore property rights where fraud has intervened, and will annul contracts if public policy requires. All of these elements are embraced in the present case. It is claimed that the complaint alleges no fraud, and that there is no allegation of forgery. But the facts are set forth, and it is alleged that in so far as the deed purports to have been signed by the plaintiff, the same is a forgery. The deed purports to have been executed by Maria Clifford. The plaintiff’s name is Mary. Bat the person executing the deed describes herself as the wife of James Clifford, thus personating the plaintiff with a name so similar as to be liable to deceive those not intimately acquainted with the plaintiff. This was a fraud upon her and tended to impair her rights as an inchoate doweress.

It is said that this action is unnecessary; that the plaintiff could wait until her husband’s death and then maintain an action to have her dower admeasured. Possibly such an action might be maintained, but this brings to our attention the question affecting public policy. This deed, as we have seen, purports to have been executed by Clifford and his wife. It purports to have been acknowledged before an officer authorized to take an acknowledgment of deeds, and it has been recorded in the office of the clerk of the county, thus showing a transaction of a good record title free from all claim of dower or other interest. It there remains-of record to deceive innocent purchasers until such time as the plaintiff shall be permitted to assert her claim. This, it appears to us, she should be allowed to do at once whilst her evidence is at hand and the public may thus be protected from the fraud.

The judgment appealed from should be affirmed, with costs, but with leave to the defendants to answer in twenty days upon payment of the costs of the demurrer and of the appeals.

All concur.

Judgment accordingly.


text:
    William M. Tebo, Resp’t, v. Henry Gregory Jordan el al., App’lts.

      (Court of Appeals,

      Filed November 26, 1895.)

    Vessels—Seaworthiness—Competent pilot.
    Though the requirements of section 4401 of the United States Revised Statutes are wholesome and should be faithfully complied with, yet a vessel is not, as a matter of law, unseaworthy because it is navigated by-an unlicensed pilot, provided he is competent, experienced and otherwise qualified.
    Appeal from a judgment of the general term of the supreme court in the first judicial department, entered upon an order, which affirmed a judgment in favor of plaintiff .entered upon a verdict.

      Everett Hasten, for app’lts; William W. Goodrich, for resp’t.

      Affirming, 57 St. Rep. 149.

   Haight, J.

This action was brought to recover the balance due on a contract for the use and hire of a steam tug.

On October 23, 1888, the defendants chartered from the plaintiff the steam tug B. F. Haviland until the first day of May, 1889, at the price of $2,200.00 per month. The plaintiff was not to be liable for the damages resulting from the dangers of the sea, and either party could terminate the contract on giving thirty days’ notice..

The tug went into the service of the defendants and was engaged in towing coal barges until December 8,1888, when they gave notice to the plaintiff that the Haviland would not be employed by them longer on account of the stranding on December 2, 1888, of the coal barges in tow by the tug. The plaintiff refused to accept the discharge of the vessel and to cancel the charter until the thirty days’ notice provided for by the con Whet had expired. The controversy arises out of the claim of the plaintiff to recover under the charter for the use of the vessel for the thirty days after the notice was given.

Under the charter the plaintiff doubtless was deemed to undertake to furnish a seaworthy vessel, and for the purposes of this case we shall assume that to be seaworthy it required the services of a competent pilot. What is a competent pilot ? The defendants claim that he must be licensed by the United States inspector of steamboats,. whilst the plaintiff insists that the license adds nothing of his competency and skill, and that a vessel is just as seaworthy in the hands of an unlicensed as a licensed pilot, provided lie be equally skilled and experienced. This question is sharply presented by the requests to charge, and is the only one that we deem it necessary to here consider.

The Revised Statues of the United States, section 4401, require coastwise, sea-going steam vessels not sailing under register, when under way, except on the high sea, to be under the control and direction of a pilot licensed by the inspectors of steamboats. A failure to comply with the provisions of the statute subjects the offender to a penalty of $100.00 for each offense. This statute is founded upon principles of public policy, and is in aid of the owners and shippers as well as the passengers, and is designed to furnish qualified and competent pilots to masters of vessels arriving from foreign ports, and thus prevent the intrusting of a vessel and cargo to incompetent and unqualified persons. The position of a pilot is one of great responsibility, and his duties at times are grave and important, requiring a skilled, trusty and experienced man. Occasions, however, may arise when it is not convenient or possible to procure the services of 'a licensed government pilot, and the master may be compelled to proceed without such a pilot. It will be observed that the statute does not impose a liability for a failure to employ a licensed pilot. It only imposes the penalty mentioned, which may be excused when the master has discharged his whole duty. The general term speaks of the statute, and we think aptly, as not unlike the statutes or municipal ordinances prescribing the speed of trains in thickly settled localities, a violation of which is evidence but not proof of negligence, and being evidence only may be rebutted.

Parsons, in his work on Marine Insurance, volume 1, at page 384, says: “ So as to pilotage, the ship is unseaworlhy if she is without a pilot where usage and the reason of the case require that she should have one, whether in entering or leaving a port, and yet if a vessel sails to a port where it is not always possible to obtain a pilot, then the law only requires that the master should use all reasonable efforts to obtain one, and if such efforts are made, the want of success does not make the ship unsea worthy in any sense which discharges the insurers. If a pilot be necessary and a person, falsely representing himself as one, is in good faith and without gross negligence received as such, there is no breach of the warranty of seaworthiness, nor is there if the master or some o?ie else on hoard can direct, the ship over the pilotage grounds and has sufficient skill to perform the duty as a pilot should perform it, nor should we say on general pn'inciples that the neglect to receive a pilot where one was required to be taken by a law of the port necessarily made the ship unseaworthy.”

In Flanigan v. The Washington Insurance Company, 7 Barr, 306, Rogers, J., after referring to the act of Congress and the Pennsylvania statute with reference to pilots, says: “We have come to the conclusion that there is nothing in the statutes which makes it obligatory upon the owner or master of a vessel, whether engaged in the foreign or coasting trade, to employ a pilot. 'This proposition being thus established there is an end of the argument based as it is on the supposition that the act is imperative. The argument is founded on the hypothesis that there is a statutory unseaworthiness prescribed, that failing or omitting to comply with the provisions of the act is a breach of an implied warranty in the policy which avoids it, and, further, that there is a penalty imposed which renders the voyage illegal. * * * It is not my intention to deny that it is part of the implied warranty of seaworthiness that there should be on board the vessel at the time the risk commences not only a sufficient crew and a master of competent skill and ability to navigate her, but if she sails from a port where there is an establishment of pilots, and the nature of the navigation requires one, that the master should take a pilot on board. Phillips v. Headlam, 2 Barn. & Ad. 390. This as a general proposition is true, with some exceptions. It is not necessary in all cases to take a pilot without regard to the burden of a vessel or the nature of the trade. In 1 Emerigon, 402, it is laid down that a captain who knows the place to which he is bound is not obliged to employ a coast pilot. The matters must be regulated by the custom of the port, and hence the necessity of inquiring into the custom, which can be done only through the medium of a jury. Is it customary or necessary for a vessel engaged in the coasting trade of the burden of the one in question to take a pilot when the master, in the opinion of the owner, has competent skill to conduct her to the ocean? That the river and bay of Delaware is pilot ground for all vessels engaged in the foreign or coasting trade is most true, but it is made so, not by force of the act of 1803, but by the usage of the trade or port. * * * That the usage may be modified by statute may be conceded, but not to the extent of creating a statutory seaworthiness.”

In the case of The Boston Tow Boat Company v. The Charlotte, 51 Federal Reporter, 455, there were cross libels arising from a collision in the Patapsco river, between the coal barge Lone Star in tow of the steam tug Mercury and the steamer Charlotte. It. was contended that presumption of fault against the tug was to be drawn from the fact that her master did not have a pilot licensed for the Chesapeake oay and its tributaries, but it was held that the master of the tug was competent for the duties he was performing, and that the fact that he did not have a pilot’s license was immaterial.

In The Blue Jacket, 144 U. S. 371, a collision occurred between the ship the Blue Jacket and the steam tug Tacoma near Ediz Hook light, in the straits of Fuca, in the territory of Washington. It was held that the tug was not at fault for the reason that its mate had no license, he being competent and having faithfully performed his duties. See, also, McDowell v. General Mutual Insurance Company, 56 American Decisions, 619 ; Hayes v. Miller, 18 American Reports, 445 ; Keeler v. Fireman's Insurance Company, 3 Hill, 250 ; Carrol v. Staten Island Railroad Company, 58 N. Y. 126; Patterson’s Railway Accident Law, section 40.

Whilst we do- not wish to be understood as approving of all that has been said in the cases referred to, it is quite apparent that the general trend of the authorities is to the effect that a vessel is not as a matter of law unseawortby because it is navigated by an unlicensed pilot, provided he is competent, experienced and otherwise qualified, and, whilst we think that the requirements of the statute are wholesome and should be faithfully complied with, yet the rule adopted by thé courts in the cases referred to appears to us to be reasonable and just, and has our assent. It consequently follows that, unless the stranding of the barges was owing to the incompetency of the plaintiff’s pilot, or that such stranding would not have occurred if a licensed pilot had been on board, the defense of the defendants must fail. Upon these questions the evidence is to some extent conflicting. The facts have been determined by the jury and its verdict has been approved by the general term. The evidence bearing upon the stranding after the barges had passed Handkerchief light vessel, and the testimony bearing upon their grounding whilst entering Boston harbor, have been considered and discussed in the courts below, where the facts were open for consideration. It is sufficient to here say that the evidence was of such a character as to justify the submission to the jury of these questions of fact, and that the evidence is sufficient to sustain its verdict to the effect that the accidents were in consequence of the perils of the sea, and not because of the failure to employ a competent pilot.

The judgment, should, therefore, be affirmed, with costs.

All concur. Judgment affirmed.


author: Finch, J.

text:
    Albert Baer, App’lt, v. Charles W. Bonynge, Resp’t.

      (Court of Appeals,

      Filed November 26, 1895.)

    Principal and agent—Personal liability.
    A husband, who negotiates a lease of his wife’s land, is not liable to the proposed lessee for the failure of his wife to execute the lease, where the only contract contemplated was one between the proposed lessee and the wife, and such lessee knew that the husband was merely acting as her adviser as to the terms she should require.

      Appeal from judgment of the general term, of the supreme court, in the first judicial department, entered upon an order, which overruled plaintiff's exceptions ordered to be heard in the first instance at general term and dismissed the complaint.
    This action was brought for the recovery of damages resulting from the defendant’s refusal to execute a lease to the plaintiff. Amos R. Eno, the former owner of No. 922 Broadway, leased it until May 1, 1891, to John W. Salter, who assigned his lease to the plaintiff, under which the plaintiff occupied the premises fora butcher’s shop and market for four years. Whether he occupied the whole or but part of the premises does not appear. At some time prior to 1890, Eno conveyed the premises to Rodie S. Bonynge, the defendant's wife. The plaintiff testified that five or six months before October 27, 1889, which would be in May or June, he had a conversation with defendant about a new lease, in which it was stated, “ I (plaintiff) told him (defendant) I wished to renew the lease, as I wished to make some alteration about the building, and if I would not get the lease I would not do it, so he said,1 You can go right ahead. No one will get the lease but you.’ I said, 11 am never sure of anything unless I have it. I would rather have it in my pocket than wait for it.’ He said, you can take my word for it. That is all you will have, my word; you can go ahead and paint the house and do all the repairs you want.’ So he said, ‘You can go ahead with all the alterations you want todo.’ I said I wanted to put a new front in the building, as it was getting a kind of old now and bad, and he said, 1 You can go right ahead.’ So I went and .got the house painted, and got the roof fixed, and got the sidewalk all around fixed, and put the building in good condition.”
    September twenty-fourth defendant wrote the plaintiff as follows :
    “London, Sept. 24th.

    “Dear Sir.—I would have been in New York before this. *" * * However, I am due in New York in the first week of November, and will call and see you. Have not offered the lease to any one. Glad to hear you are doing well.
    Very truly, "
    " “0. W. Bonynge.”
    Early in November the plaintiff received from the defendant the following letter:
    “ 42 Prince’s Gate, London, Oct. 27, ’89.
    “ Dear Mr. Baer.—I expect to be in New York a week or so after this letter reaches you; and if you wish' to renew a lease, please have the names of the parties you offered to go on your security ready to submit, as I will be there but a short time. I hope to find the building painted, and that the roof has been put in good condition as agreed on. I need not tell you other people •want it. Hope you have a good business and doing well.
    “Very truly,
    “ 0! W. Bonynge."

      The defendant returned to New York the first week of November, when he called on the plaintiff and told him that he would let him know the terms of the lease within a few days; that he would get an appraiser and see what the lease was really worth. A few days afterwards the defendant gave the plaintiff the following documents:
    “ Fifth Avenue Hotel, )

      “ Madison Square, New York, >
    “ Friday. )
    “ Dear Mr. Baer.—I had a valuer to-day to look at building and situation, a man of very good judgment, and I asked him to make a fair estimate of the rent for the next ten years. I told him what you were paying and what I thought it worth. He said I was much too low; that since Salter took that lease property and rents had gone up there fully forty per cent, and he put the lease of the same nature as the present at $14,000 a year. So I have made up my mind to drop $1,000 off this and make it $13,-000 for the next ten years. You to make any terms you like about the upper portion of the building, but you must let me know what the rent of the basement is to be and have it agreed ■on; from what I hear I would not make his lease less than $3,000 a year.
    “ Now let me tell you what I find. When Salter went in there the rent from the basement was only $900 the first year, then $1,200, and the rooms up stairs $2,500, making, say, $3,500 in all for the first two years. Take his rent and taxes at $12,000 and deduct the $3,500, and you find Salter paid $8,500 for his part ten years ago. Now, if you wish to have it at $13,000, say, with taxes, $15j000, deduct basement, $3,000, rooms, $3,500, making $6,500, making your rent just the very same as Salter paid ten years ago. This is my conclusion after getting two very good ■opinions on it. I inclose a card with my ideas of the lease.
    “Yours truly,
    “ 0. W. Bonynge.
    “ We think inside of ten years this lease will be a very low ■one.”
    “ Rent, $13,000 with, in addition, to pay all taxes and improvements. Roof to be painted every year, outside of building every three years. Rent in gold coin tobe paid Julj 1st, October 1st, January 1st, April 1st. No structures to be allowed in or about the building nor on the roof. No flagstaffs or anything similar to be permitted.
    “ Violations to work forfeiture of lease. No transfer of lease without consent of owner. Two good signers to be provided. Taxes, water to be paid on maturity and receipts for same furnished the owner. No-objectionable business to be allowed on premises.”
    The day following the receipt of these documents the plaintiff told the defendant he would accept the terms offered, and a few days afterwards the defendant procured to bo •drafted in duplicated a proposed lease, the material parts of which are as follows: “Lease dated November 28, 1890, between Rodie S. Bonynge, of St. Louis, Missouri (but now temporarily residing in London, England), and Albert Baer, duly executed and acknowledged by said Baer, demises the lot of land and building 922 Broadway, New York city, for the term of ten years from May 1st, 1891, at the yearly rent of thirteen thousand dollars in gold coin, payable in quarterly payments on the first days of July, October, January and April, containing the usual covenants and the following special provisions: That the tenant will pay on maturity the annual rent or charge for Groton water, and deliver to the landlord proper receipts showing such payment; that the tenant will also pay on maturity all taxes aud deliver proper receipts showing such payment; that the tenant will, at his own expense, do all the repairs and keep and maintain the premises in good condition, and will not permit any flagstaff or poles on the roof, will paint the roof once in each year, and the. whole building, inside and out, once in every three years, the first painting to be completed by August 1, 1891; that the tenant will not assign the lease or underlet without the written consent of the landlord, and will not use the premises for any purpose deemed extra hazardous or a nuisance, and that if default be made in any of said covenants, the landlord may re-enter and re-possess the premises. There are also covenants that in case the premises be destroyed by fire the landlord shall have the right to cancel the lease and apportion the rent, unless she elect to repair, in which case the repairs shall be made with reasonable dispatch, and during the period of repairs no rent shall accrue; also, that in case of an assessment for public improvement six per cent, interest on the amount of such assessment shall be added to the rent.”
    The plaintiff signed the proposed lease and procured Semuel Liehenstein and Lewis Samuels to execute and acknowledge the guaranty indorsed thereon. Thereupon the plaintiff personally mailed one of the duplicates so executed to the defendant’s wife at London for execution by her. A few days after the duplicate had been mailed the defendant told the plaintiff that he should write and advise bis wife not to execute it because the plaintiff refused to lease the basement to Mr. Streuver for ten years at not less than $8,000 per year. The defendant’s wife refused to execute the lease, and December 20, 1890, this action was brought, and May 1, 1891, the plaintiff vacated the premises, which had been leased to another person.

      Albert Sticlcney, for app’lt; George L. Rives, for resp’t.

      Affirming 55 St. Rep. 474.

   Finch, J.

If the conclusion of the general term in this case, that the defendant did not .bind himself personally, is correct, it determines the result without need of a consideration of the question raised as to the effect of the Statute of Frauds. The action against him was to recover damages for a breach of an agreement to give plaintiff an extended lease of the premises occupied by him. A former owner of the property had given a lease which, by an assignment, had passed to the plaintiff, and the property itself had been conveyed to the defendant’s wife. That fact was well known to the plaintiff.and when he asked the husband for a renewal of his lease .it plainly implied that his contract was to be with the wife, as owner, and that his negotiations with the husband were steps to that end.

At their conclusion the proposed new lease was drawn between the wife as lessor and the plaintiff as lessee, and the latter insisted on himself mailing it to her in London, for the purpose of its final ■execution.

These facts tend to show that the only contract contemplated between the parties was one between plaintiff and the wife of the husband, and that the understood attitude of the defendant was that of her adviser, upon whose judgment as to the terms of the lease she was expected to rely. The letter and memorandum of the defendant, read in the light of these facts, disclose no other intention or purpose on his part, and justify no other interpretation on the part of plaintiff.

He could hardly misunderstand what was explicitly stated, that the defendant was giving his ideas of the lease, that is, his judgment of the terms and conditions which his wife ought to require, and which he should advise her to insist upon.

There is no agreement, either in letter or memorandum, that the defendant will give a lease or procure one to be executed. Con•ceding, that although known to be the agent of the wife and acting in that capacity, he might nevertheless have bound himself personally, it is quite apparent that he did not do so by any language having that meaning, and that all he said and wrote was in the character of an adviser of his wife, and as an effort to agree upon terms which he could advise her to accept. There is no sufficient proof of any prior verbal agreement which bound anybody. The fact is entirely evident from the subsequent negotiations in which, for the first time, the terms of the ne.w arrangement were discussed, and which went upon the concession that those terms remained to be agreed upon.

They were agreed upon as between the husband and the plaintiff, but were understood to bind nobody until accepted by the wife, who owned the property, and to be evidenced by her executors of the lease. Undoubtedly, both parties assumed that thfe terms which were satisfactory to the husband would be so to the wife and lead her to execute the lease, but he did not bind himself to give or procure a lease, and both parties understood that the actual contract when made was to be between the wife and the plaintiff. All that preceded that was preliminary and tentative, and understood to be dependent upon the ultimate assent of the wife, as owner of the land. That was the view of the general term, and we think it correctly interpreted the negotiations between the parties.

The judgment should be affirmed, with costs.

All concur.

Judgment affirmed.


author: Andrews, Oh. J.

text:
    Lemon Thomson, Resp't, v. John O. Poor et al., App’lts.

      (Court of Appeals,

      Filed October 26, 1895.)

    Contract—Performance—Waiver.
    Where one party to a contract, before the time for performance by the other party has arrived, consents, upon his request, to extend the time of performance, he must be presumed to know that the other party relies upon the consent, and, until he gives notice of withdrawal, he has no just right to consider the latter in default, though meanwhile the contract time has elapsed. This rule is not affected by the character of the original contract, whether one within or outside the statute of frauds.
    Appeal from judgment of the general term of the supreme court in the third judicial department, entered upon an order which affirmed a judgment in favor of plaintiff entered upon a decision of the court on trial at circuit before the court without a jury. This action was brought to recover a balance claimed lO' be due under a contract.
    On the 1st of April, 1885, the parties entered into a contract in writing under seal for the sale by the plaintiff to the defendants of the bark on the hemlock trees on the “ Karris ” lot, owned by the plaintiff, at a specified price per cord, to be peeled by the defendants, eight hundred to a thousand cords in 1885 and not. less than one thousand cords in each year thereafter. The defendants were to pay on the first day of January in each year for the bark peeled during the previous year. The complaint alleges* that in the year 1886 the defendants peeled 935 cords, but paid for it only in part, and alleged that there was still due and owing for the bark so peeled the sum of $752.82. The answer denied certain of the allegations in. the complaint, and sets up as an affirmative defense that in the year 1885, after the making of the written contract of April 1, 1885, the parties thereto, by an agreement between them modified and changed the contract by limiting the amount of bark which the defendants should be required to peel in the year 1886 to 500 cords, and alleged performance of the modified contract. The plaintiff, on the trial, to maintain his cause of action, proved the written contract of April 1, 1885, and also proved and put in evidence, under objection, a certain contract made by him with one Wakeley, dated August 3, 1885, to cut and deliver all the hemlock, spruce and pine logs on the Harris lot “in such manner as to comply with the agreement for peeling and selling the hemlock bark on said lot.” He also gave proof that the defendants had peeled and paid for during 1886 only 500 cords of bark. The plaintiff having rested, the defendants moved for a nonsuit on several grounds, and, among others, that the plaintiff had failed to prove the cause of action alleged in the complaint. The motion was denied. The defendants then proved that their tannery where the bark was to be used was burned in July, 1885, and'then offered to prove a conversation between their agent and the plaintiff in November, 1885, which proof was objected to by the plaintiff on several grounds: (1) That its only relevancy would be to prove the agreement alleged in the answer, which was an agreement to extend the time for peeling the bark and not for extending the time of payment; (2) that a sealed contract could not be changed by an oral agreement made without consideration, before breach; (3) that the written contract being for the sale of an interest in lands (required to be in writing) could not be added to or varied by any oral contract.
    Thereupon, before the objection was ruled upon, the defendants offered to prove, in substance, that in November or December, 1885, the defendants entered into an oral contract with the plaintiff reducing the quantity of bark to be cut and peeled in each year to 500 cords, conditioned upon such change being made satisfactory to Wakeley, and that the defendants performed the condition, and on the 25th day of February, 1886, they entered into a written contract with Wakeley to peel all the bark on the “ Harris ” lot for them for a price fixed, 500 cords in the season of 1886 and 500 cords in each year thereafter, or more, to the extent of 1,000 cords a year if the defendants should elect; that on the same day (February 25, 1886,) they entered into a contract with the firm of Shaw & Co. to sell that firm all the bark they had agreed to purchase of the plaintiff, to be delivered only in quantities of 500 cords a year, and all their rights under the contract with the plaintiff of April 1, 1885, as modified by the agreement of November or December, 1885; that the contracts made by the defendants with Wakeley and Shaw & Co. were entered into by them in consideration of the modified contract made by them with the plaintiff in November or December, 1885, and that they would not have been made except by reason thereof; that the defendants agreed to pay Wakeley a larger sum for peeling the bark than they would otherwise have paid except for his agreement to peel 500 cords and no more annually; that in pursuance of the several agreements the defendants peeled 500 cords in 1886, and paid therefor for the work of peeling and the purchase price as provided in the several contracts, and haVe performed their several contracts, and that they fully performed the contract of April 1, 1885, as changed and modified; that the plaintiff had knowledge of all the facts offered to be proved as they transpired. It was admitted in connection with the offer that the contracts made by the defendants with Wakeley and Shaw & Co. formed the only consideration upon which the oral contfact of modification of November or December, 1885, can rest. The plaintiff objected to the proof offered upon the same grounds upon which he objected to the proof of the proposed conversation, adding thereto the objection of want of consideration for the alleged modified agreement. The court rejected the proof offered, and no further proof being given by either party, the case was submitted. The judgment proceeded on the ground that the defendants by not peeling more than 500 cords of bark in the year 1886, had broken their contract and that plaintiff was entitled to recover the purchase price thereof, and judgment was rendered in favor of the plaintiff for $757.82, with interest.

      J. S. L'Amoreaux, for app’lts; Isaac Lawson, for resp’t.

      Reversing 51 St. Rep. 350.

   Andrews, Oh. J.

It was assumed by both parties on the argument that under the ease of Green v. Armstrong, 1 Den. 550, the contract of April 1, 1885, for the sale by the plaintiff to the defendants of the bark on the hemlock trees on the “ Harris ” lot, to be peeled by the purchaser, was a contract for the sale of an interest in lands required by the Statute of Frauds to be in writing. We shall determine the case upon this assumption without examination of its correctness. See Nettleton v. Sikes, 8 Met. 34. ‘The contract was in fact in writing, and it validity is not questioned. The stress of the argument at the bar related to the competency of the evidence offered by the defendants to prove the oral modification of the original contract, made in the fall of 1885, by which the plaintiff, on the request of the defendants, consented on the condition that it was made satisfactory to Wakeley, the contractor with the plaintiff to do the lumbering on the lot, to reduce the amount of bark to be peeled by the defendants during each of the years subsequent to 1885 to 500 cords per year. The plaintiff’s counsel, in support of his objection to the competency of the evidence (which was ruled in his favor by the trial judge), relies upon the general principle that a written contract, falling within the statute of frauds, cannot be varied by any subsequent agreement of the parties unless such new agreement is also in writing. The further objection that a sealed contract, irrespective of its character, cannot be changed by a subsequent paroi executory agreement under the maxim quodque dissolvitur eodem ligamine quo ligatur, and the objection that the consent of the plaintiff to reduce the quantity of the bark to be peeled in each year was conditional, will be referred to after considering the objection founded upon the statute of frauds.

In disposing of this objection it is important to notice that the controversy in the present action relates solely to the performance of the contract of April 1, 1885, as respects the year 1886. By that contract the defendants were to peel in that year not less than 1,000 cords. In fact they peeled only 500 cords, and they allege as an excuse for not peeling the full 1,000 cords in that year, the oral agreement made in the fall of 1885. ■ The effect of the oral agreement if made and valid as a contract was to change the terms of the original written agreement as to the time and manner of performance. It did not diminish the aggregate amount of bark to be peeled and taken by the defendants, but it extended the time within which it was to be peeled and taken to double the time fixed by the original contract and as a necessary incident extended the right of entry for the same period, and meanwhile during such extended period, by natural growth of the trees, bark might be brought within the sale, which otherwise would not come within the contract. If we were now required to decide the question whether a contract in writing within the statute of frauds can be altered as to the time of performance by a subsequent oral executory agreement made between the parties upon sufficient consideration, we should find the question under the authorities involved in distressing perplexity. It is now the settled doctrine of the English courts, contrary to the earlier rule declared in Cuff v. Penn, 1 M. & S. 21, that such a contract cannot be changed as to the mode or time of performance by an oral executory contract. Stead v. Dawber, 10 Ad. & El. 57; Hickman v. Haynes, L. R, 10 C. P. 598. In many of the states in this country the courts have adopted the rule laid down by Lord Ellenborough, in Cuff v. Penn, supra, and have held such proof admissible on the distinction between the contract which it was said the statute requires to be in writing and its performance, 4o which the statute does not apply. This is the rule in Massachusetts, New Hampshire, Maine, Ohio and Pennsylvania, and, perhaps, other' states. The cases are referred to in a note in Wood on Frauds (p. 758). In this state the rule does not seem to be authoritatively settled. In Blood v. Goodrich, 9 Wend. 68, Ch. J. Savage expressed the opinion that the time of performance of a written contract for the sale of land could not be enlarged by paroi, but the case was decided on another ground. There are dicta in this court and some decisions in other courts of the state to the contrary. Blanchard v. Trim, 38 N. Y. 225 ; Flynn v. McKeon, 6 Duer, 203 ; Stone v. Sprague, 20 Barb. 509. But we deem it unnecessary to determine this important question here, for the reason that, without disputing the doctrine contended for by the learned counsel for the plaintiff, that the oral agreement sought to be proved was inadmissible to change the terms of the written contract, it was competent to establish, in connection with other facts offered to be shown, a waiver of the plaintiff of the requirements of the original contract that the defendants should peel 1,000 cords of bark in 1886, which had been acted upon and become executed by the lapse of time before the commencement of the action. We know of no principle of law which will permita party to a contract, who is entitled to demand the performance of the other party of some act within a specified time ■and who has consented to the postponement of the performance to a time subsequent to that fixed by the contract, and where the other party has acted upon such consent and in reliance thereon has permitted the contract time to pass without performance, to subseqently recall such consent and treat the non-performance within the original time as a breach of the contract. The original contract is not changed by such waiver, but it stands as an answer to the other party who seeks to recover damages for nonperformance induced by an unrecalled consent. The party may, in the absence of a valid and binding agreement to extend the time, revoke his consent so far as it has not been acted upon, but it would be most inequitable to hold that a default, justified by the consent, happening during its extension, should furnish a ground of action. It makes no difference, as we conceive, what the character of the original contract may be, whether one within or outside the Statute of Frauds. The rule is well understood that if there is forbearance at the request of a party, the latter is precluded from insisting upon the non-performance at the time originally fixed by the contract as a ground of action. The case is not ,as manifest where the party who solicited the forbearance alleges consent of the other party as an excuse for non-performance. But in such a case, where one party to a contract, before the time for performance by the other party has arrived, consents, upon his request, to extend the time of performance, he must be presumed to know that the other party relies upon the consent, and until he gives notice of withdrawal he has no just right to consider the latter in default, although meanwhile the contract time has elapsed. We think the principle of equitable estoppel applies in such case. See Pierrepont v. Barnard, 6 N. Y. 279 ; Hoadley v. McLaine, 10 Bing. 482; Leather Co. v. Hieronimous, L. R., 10 Q. B. 140 ; Longfellow v. Moore, 102 Ill. 289. The proofs offered by the defendants, if it had been received, would have permitted the inference that the omission of the defendants to peel more than 500 cords of bark in the year 1886 was owing to the oral arrangement unrevoked, which, if it did not amount to an enforceable contract, operated nevertheless to excuse the legal breach.

The objection that a sealed contract can only be changed by a contract of equal solemnity according to the principle of the common law to which we have averted (assuming that the principle has any longer any practical existence, see McCreery v. Day, 119 N. Y. 1; 28 St. Rep. 597), is answered by what has been said on the subject of waiver which applies equally to sealed and unsealed contracts. The objection that the modified agreement was conditional is met by the offer which, by fair construction included an offer to prove that the proposed limitation of the amount of bark to be peeled was made satisfactory to Wakeley. The learned counsel for the plaintiff criticizes the offer of proof as indefinite and as not in some respects conforming to the defense in the answer. The plaintiff is not in a position to insist upon great exactness in these respects in view of the character of his own pleading and the ground upon' which the recovery proceeded. We think the offer fairly disclosed the substantial matter of defense, and although it treated the modified agreement as a binding contract, the proof offered, though it may have been ineffectual to accomplish this result, would we think upon the case as disclosed by the record, if received, have authorized the inference of a waiver completely executed.

The judgment should be reversed and a new trial granted.

All concur.

Judgment reversed.


text:
    Alfred Higgins, App’lt, v. Jacob Crouse, Resp’t.

      (Court of Appeals,

      Filed November 26, 1895.)

    1. Appeal—Court of appeals.
    Where the general term, upon reversing a judgment, specifies in the order that the reversal was upon both the law and the facts, and the conclusion involves a different view of both the facts and the law from that adopted by the trial court, the facts are open to review, and, to sustain the reversal, the court of appeals must be satisfied that one or more of the findings of the trial court are against the weight of evidence or that the proofs clearly preponderate in favor of a contrary result.

      2. Limitations—Fraud.
    Where the circumstances are such as to suggest to a person of ordinary-intelligence the probability that he has been defrauded, a duty of inquiry arises, and, if he omits that inquiry when it would have developed the truth, and shuts his eyes to the facts which call for investigation, knowledge of the fraud will be imputed to him, and he will be held, for the purposes of the statute of limitations, to have actually known what he might, and ought to, have known.
    3. Same.
    But, where there are no suspicious or significant facts, the party defrauded owes no primary duty of active vigilance to discover a merely possible fraud.
    4. Same—Failure oe investment.
    The known fact of the failure of an enterprise, in which one has been induced to invest, does not raise the implication that such failure had already occurred when he made such investment, and that, instead of getting as he supposed a hopeful business chance, he was saddled with a loss already certain. There must be something else and more to raise the duty of inquiry and justify a suspicion of fraud.
    5. Demand—Stale.
    A demand cannot be regarded as stale when it is enforced within the period which the law explicitly permits.
    Appeal from an order of the general term of the supreme court in the fourth judicial department, which reversed a judgment in favor of plaintiff entered upon a decision of the court on trial at special term and granted a new trial.

      T. K. Fuller, for app’lt; Watson M. Rogers, for resp’t.

       Reversing 55 St. Rep. 94.

   Finch, J.

This action was brought to rescind a contract for

the purchase of stock in an oil company, to vest title to such stock in the vendor and release the vendee from future liability as its owner, and to recover damages for the fraud alleged to have been perpetrated in the sale. .The special term found as a fact the fraud charged in the complaint; that the plaintiff did not discover it until shortly before the commencement of this action; that he was not negligent in failing to discover it earlier; and awarded judgment for a rescission and for damages. On appeal the general term reversed the judgment, specifying in the order that the reversal was both upon the law and the facts. The opinion of the court rendered upon the first appeal, (63 Hun, 134; 44 St. Rep. 151), and approved on the second, rested wholly upon the Statute of Limitations as constituting a defense to the action, and the conclusion involved a different view both of the facts and of the law from that adopted by the trial court. In such a case the facts are open to our review, and to sustain the reversal we must be satisfied that one or more of the findings of the trial court are against the weight of evidence or that the proofs clearly preponderate in favor of a contrary result. Barnard v. Gantz, 140 N. Y. 253; 55 St. Rep. 541.

The question mainly discussed turns, first, upon the construction of section 382, subdivision five, of the Code, which enacts that “ where the action is brought to procure a judgment other than for a sum of money, on the ground of fraud, in a case which, on the 31st day of December, 1846, was cognizable by the court of chancery,” the action must be begun within six years after the cause of action accrues, but that *• the cause of action in such a case is not deemed to have accrued until the discovery by the plaintiff or the person under whom he claims of the facts constituting the fraud.” The opinion of the general term does not dispute the finding of the trial court that the plaintiff did not actually discover the fraud perpetrated upon him until about the time of the commencement of the action, but holds that he might have discovered it earlier and ought to have done so, and was negligent for not doing so, and thereby lost his right of action. The appellant objects to this ruling, that it interpolates into the statute a condition not expressed or contained in it, and utterly without right or authority; and that it is an attempt by judicial legislation to pervert or override the plain words of the enactment. The learned counsel admits that some such condition has found its way into the text books and even into judicial opinions, but accounts for the fact as the product of a blind following of the English authorities without noting the circumstance that the foreign statute, unlike our own, contains the added condition of reasonable diligence. It is argued further that not only is such added condition absent from our statute, but we are debarred from imposing it by our own decisions that the person defrauded owes no duty of active diligence for a discovery of the fraud to the person who has wronged him, Baker v. Lever, 67 N. Y. 304; and so, not only the absence from the statute of the words requiring such diligence, but the fact that no such duty is due at all, make the condition imposed by the general term without authority, illogical and wholly unreasonable. The argument thus framed would be unanswerable if it exhausted the question. But it seems to me that it does not, and fails to take fully into account the words of the statute itself. Without effort to change it, or to interpolate some new clause or condition, there still remains the inquiry in a given case what is meant by a discovery of the facts constituting the fraud. That inquiry raises, ordinarily, a mixed question of law and fact. Fraud lies in the intent to deceive, but the mental emotion is inferred from the facts which indicate it, and it is with those facts and the inferences to which they lead that the law necessarily deals. When, therefore, facts are known from which the inference of fraud follows, there is a discovery of the facts constituting the fraud and within the precise terms of the statute. That the defrauding party did hot actually draw the inference, but shut his eyes to it, does not stop the running of the statute. He ought to have known, and so is presumed to have known, the fraud perpetrated. But a case may arise where he knows none of the facts, where no circumstance has occurred calculated to arouse his suspicion or disturb his confidence or suggest the need of injury. In such a case I think we are bound to say that he owes no duty of diligence to discover a fraud which he has no reason to suspect, and is not negligent for failing to enter upon an investigation which no fact within his knowledge indicates to be necessary or prudent. But still another emergency may arise. Let us suppose that the injured party does not know all the facts, is not aware of enough of them to justify a decided inference of .fraud, but does know sufficient to fairly arouse suspicion, to create a probability, to suggest the need of an inquiry. Can a party so situated omit all investigation, remain purposely blind, neglect the duty of inquiry, when reasonable and natural action would reveal the truth and disclose the fraud ? I think not. In such a case it seems to me that we are bound to impute to the party the knowledge which he ought to have had and would have had if he had done his duty, and say for the purposes of the statute of limitations that there was in law a discovery of the facts which constitute the fraud. Certainly there was a discovery of some of them, and the party should be charged with a knowledge of the rest when he might and should have known them. That is the doctrine laid down in Angelí on Limitations, § 187, and seems to be involved in Farnham v. Brooks, 9 Pick. 212. It accounts for and justifies the ruling in Mayne v. Griswold, 3 Sandf. 484, which appears to have been made and accepted without serious dispute. I think the true rule is that, where the circumstances are such as to suggest to a person of ordinary intelligence the probability that he has been defrauded, a duty of inquiry arises, and if he omits that inquiry when it would have developed the truth, and shuts his eyes to the facts which call for investigation, knowledge of the fraud will be imputed to him. He will be held, for the purposes of the statute of limitations, to have actually known what he might have known and ought to have known. The doctrine thus understood encounters none of the difficulties so ably presented in the argument for the appellant.

The question of fact, therefore, becomes this: did any facts come to the plaintiff’s knowledge which fairly put him on inquiry as to the commission of a fraud, which in the mind of an ordinary man would have awakened suspicion, and which made it the duty of the plaintiff to further investigate? It is upon this question that I feel constrained to differ with the general term and to hold that nothing in the proof so put the plaintiff on inquiry respecting a probable fraud as to enable us to impute to him a knowledge of it more than six years before the commencement of the action.

The plaintiff testified that the defendant, under pretense of gratitude for a previous favor, induced the plaintiff to purchase the shares of oil stock by a representation that the company' had bought the Shaffer farm in the oil regions; that wells were being put down with every prospect of success; that it was going to be a big thing, and that the stock was selling readily at par. This was on November 4, 1865, and the plaintiff gave his note for the purchase which matured on the 7th of February, 1866. The plaintiff narrates another interview at that date. He said to the defendant that he had heard rumors on the street that the prospects for getting oil were not good, to which the defendant replied that the rumors were false: that they were putting down wells with prospects of success; that everything was all right and just as stated. The plaintiff thereupon paid part of his note and the balance later and took his stock. The fact was then proved that when each representation was made the value of the farm had already been tested and it had been proved to be destitute of oil. Two wells had been drilled to the usual depth and were wholly destitute of oil, the derrick and engine and drilling machinery had been sold and removed, aud the effort to obtain oil abandoned. The fraud charged consisted not in the ultimaté failure of the enterprise, which might have honestly happened, but in concealing the vital fact that the land had already been tested and found non-producing, and in the affirmative false representation that the test was then in progress with every prospect of success. The two facts of this concealment and this falsehood at the date of the purchase were never known or suspected by the plaintiff until in 1889, when Ely, the treasurer of the company, told him that when the certificate was issued he, Ely, knew that the thing had “busted" and the stock was worthless. There is no conflict of evidence as to the fact of the failure of the wells and the date of that failure. It was at least as early as July 4th, 1865. The conflict which does exist relates only to the date of Higgins’ purchase. He puts it at November 4th, 1865, the date of his note, while the defendant pushes it further back into late in 1864 or early in 1865, without fixing precise date, and without any memoranda to refresh a recollection running back twenty years. The finding of the special term as to the fact of the fraud was not against the weight of evidence. The cross-examination of defendant showed a decided balance of probability in favor of the version of the plaintiff.

But, assuming that, the general term still say that facts enough came to plaintiff’s knowledge to put upon him the duty of inquiry. What was said about it, and all that was said about it, was this: “The plaintiff during all this time was a business man in Syracuse, and the officers and corporators of the company were also there. The secretary and treasurer, Mr. Ely, and the foreman, Porter, were there. He apparently at any time could by inquiry have readily ascertained when the company stopped work. He, however, made no inquiries on the subject until May, 1889. ■ He says that he was satisfied, in 1871, that he had lost his money. He must have known that the company prior to that time had stopped. No dividends or assessments were made. Having made up his mind in 1871 that the company was a failure, he was then put upon inquiry as to whether his purchase was genuine.”

So much of this statement in the opinion as shows that the plaintiff could have applied for information to other officers of the company with some possibility of discovering the truth is quite immaterial to the question before us until it is first made to appear that the plaintiff was bound to inquire at all. If he was, the only facts known to him which originated that duty were the absence of dividends and assessments and the loss of his money by the collapse of the company, of which he became satisfied in 1871. But the enterprise might fail without raising even a suspicion that it had already failed when plaintiff bought his stock. He took the chances of a possible failure. He knew that oil might not be found, and when no dividends and no assessments came he might very well make up his mind that the investment was lost and his money gone. There was in that no hint or suggestion of the fraud previously perpetrated. The facts were entirely consistent with perfect honesty in the sale of the stock by defendant, and carried no suggestion and furnished no indication that a falsehood had been uttered and no actual failure concealed when the stock was sold. Why should the plaintiff have suspected his friend of such a deception ? The latter presumably had his money in the enterprise, had taken the same risk, had met the same fate. The plaintiff had only reason to suppose that both had risked their capital upon a hopeful and encouraging chance of profit, and both had lost it without fault or fraud on any hand or in any direction. It seems to me an inevitable conclusion that the known fact of the failure of the enterprise was not calculated to give to the plaintiff the remotest hint that such failure had already occurred when he bought his stock, and that instead of getting as he supposed a hopeful business chance he was saddled with a loss already certain. A contrary theory would commit us to the rash doctrine that every investment which fails implies that it had already failed when it was made, and the vendor knew it. Ho such inference is natural, and no man should be expected or required to draw i.t. There must be something else and more to raise the duty of inquiry and justify a suspicion of fraud. There was nothing more in this case. The facts known to the plaintiff were not the facts which constituted the fraud, and suggested only that he had bought a fair and hopeful chance of large profit; that in the end the chance had failed, and that the investment was lost. These facts gave no indication that he had never owned a chance at all, but had been tricked into a purchase when failure had come and was known to the vendor. It does not alter the situation if plaintiff bore his loss silently and make no inquiry into details. There was no motive for investigation, for there was no basis for suspecting anything but honest misfortune. Occasionally, he did inquire of the defendant, who, as president of the company, was presumed to know all that had happened, and was steadily encouraged by assurances that everything was right and would come out right. Be that as it may, I am unable to see proof of any fact brought to the knowledge of the plaintiff at all calculated to raise a suspicion of fraud in the mind of a reasonable man, and so put him upon the need of inquiry. Hothing had occurred to take the case out of the. rule, which applies where there are no suspicious or significant facts, that the party defrauded owes no primary duty of active vigilance to discover a merely possible fraud.

While it is not in all respects a pleasant duty to sustain a claim so long delayed as this, we must yet faithfully adhere to the rule which the statute has given us. A demand cannot be regarcled as stale when it is enforced within the period which the-law explicitly permits.

Most of the remaining objections to a recovery were sufficiently answered in plaintiff’s favor by the general term opinion. There were, however, numerous exceptions to the admission and rejection of evidence, some of which are now pressed to sustain the reversal. They have all been examined without bringing us to theconcl usion that they involve reversible error.

The order of the general term should be reversed and the judgment of the special term affirmed, with costs.

All concur, except Andrews, Oh. J., not sitting and Haight,. J., not voting.

Ordered accordingly.