text:
    Ransford Button, Resp’t, v. Andrew Kinnitz, App’lt.

      (Supreme Court, General Term, Fifth Department,

      Filed June 3, 1895.)

    1. Negligence — Indemnity.
    The owner of cattle, which are permitted to commit damage through the negligence of the person in charge of them, may pay such damage without waiting until it is assessed by the action, and recover it from such negligent person.
    2. Conversion — Joint ownership.
    A joint owner of a wagon, who, on removing from premises owned by his cotenant,takes it with him and stores it in a barn of a third person, is not liable for its conversion, in the absence of evidence that he in any manner ignored his cotenant’s interest therein.
    •3. Interest — Unliquidated damages.
    - Interest cannot be recovered on unliquidated damages for breach of contract which cannot be ascertained by computation.
    Appeal from a judgment in favor of plaintiff.
   Lewis, J.

— The plaintiff, by a written lease dated the 5th day of April, 1890, leased to the defendant, to work upon shares, his farm in Seneca county, for the term of one year, with the privilege to the defendant of continuing the lease for one or two years longer. The defendant entered into possession, and remained through the first year and into the second year, until February, when he surrendered possession. Misunderstandings arose between the parties, find this action was commenced in September, 1891, while the defendant was still in possession of the farm. The items of the respective accounts of the parties were very numerous, and ranged, in amount from twenty-five cents up to hundreds of dollars. The trial occupied — so it is stated by the counsel in their briefs — from thirty to forty days. The referee appears to have discharged his onerous duties with a desire to do justice to the parties, as is evidenced by the fact that, put of thirty-seven pages of his findings, the appellant excepted to only four of the findings in favor of the plaintiff, which are as follows:

“(1) To damages to Russell’s garden, $5; (2) to damages following 18 acres less wheat than in 1891, $96.86; (3) for one-half of the value of the Yosburgh wagon, $17.50; (4) damages to cows,. $340.”

In considering the questions presented by this appeal, we are confined to a review of questions of law only, as the case fails testate that all the evidence bearing upon the question sought to be-reviewed has been included in it.' The plaintiff was the owner of a large number of cows kept upon the farm, and by the arrangement the defendant had charge of them. Through the negligence-of the defendant, the cows escaped from the barn in which they were kept, and damaged a neighbor’s garden to the extent of five dollars. The defendant neglected to pay this damage. On demand of the owner of the garden, the plaintiff paid the five dollars. This he did without the defendant’s having requested him so to do. The plaintiff being the owner of the cattle, he was liable to the owner of the garden for the damages caused by the trespass. He was not required to wait until the damages were assessed by an action, before paying them, as the defendant had negligently caused the damage.

By the terms of the lease the defendant agreed to leave as much wheat growing upon the ground as there was upon the farm at the date of the lease. There were forty acres of wheat upon the ground at the commencement of the term, and the defendant left only twenty-two acres, being eighteen acres short of the amount-agreed to sow the last year. The wheat upon the ground when the defendant took the farm produced 410 bushels, which was. was then worth $1.05 per bushel, making $430.50. The defendant was entitled to one-half of this amount. The defendant, having been guilty of a breach of his contract, was liable to the plaint- ■ iff for the damages which he sustained. The referee, in arriving at' his finding upon this claim, seems to have proceeded upon the theory that the transaction amounted to a sale by the plaintiff to-the defendant of the wheat crop of the first year, and that the defendant was therefore liable for 18-40 of the 205 bushels which he received from the first crop, at $1.05 per bushel, which he found amounted to $96.86. We do not see upon what principle the plaintiff was entitled to the $1.05 per bushel, for the evidence shows that, at the time of the breach of the contract, wheat was-selling for only 75 cents a bushel. Had the defendant’s agreement been to deliver to plaintiff at the end of the term an amount of wheat equal to the first year’s crop, the measure of damages would have been the value of the wheat at the time of the breach of the contract, and not its value when the first crop was harvested. The lease provided that the plaintiff'was to furnish one-half of the seed wheat for the last crop. The evidence shows it would have required one bushel per acre. The plaintiff was obliged to harvest the crop, which was worth one dollar per acre. There was an absence of any evidence as to the cqst of marketing the crop. The evidence tended to show that the twenty-two acres which the defendant sowed the last year produced but five bushels an acre. We are not furnished with any evidence from which to determine how much the eighteen acres would have probably produced, if sown, and in the absence of this information the referee correctly held that the plaintiff was entitled to recover the value of 18-40 of 205 bushels, being 92¿ bushels, which he should have computed at 75 cents a bushel, making ,$69.18. From this sum there should be deducted the value of eighteen bushelsof seed wheat at 75 cents, a bushel, $13.50, and the expense of harvesting, $18.00, making $31.50, which taken from the $69.18 would leave $37.68 as the amount of damages to which the plaintiff was entitled for the breach on the part of the contract.

There was a wagon used upon the farm, which was the joint property of the parties. When the' defendant left the farm he took the wagon with him, and stored it in a neighbor’s barn. The referee found its value to have been $35, and charged the defendant with one-half thereof, $17.50. There was an absence of any evidence showing that the defendant in any manner ignored the plaintiff’s -interest in the wagon. As the joint owner with the plaintiff, he had an equal right to its possession. We are not aware of any principle of law upon which he could be charged with this item. The defendant was required by the lease to take charge of the cattle upon the farm, and to return them to the plaintiff, at the termination of his lease, in as good condition as when taken, natural wear and damage thereto excepted. The evidence tended to show that during the last year of his term he failed to take proper care of the cows, and when he left the farm they were in a very poor and bad condition. The referee found that in consequence of this neglect of the defendant the cattle was worth $10 a head less, being $238, in the spring of 1892 than they would have been, had they been properly cared for and in fair condition. This item seems large, and raises a suspicion in our minds that injustice was done the defendant in .this finding; but as we are not at liberty to review the facts, this finding cannot be disturbed.

The referee included in the amount for which judgment was directed and recovery had against the defendant $49.42 interest. This was error. The damages were for breach of contract, and were unliquidated, and could not be ascertained, by computation. Mansfield v. N. Y. C. & H. R. R. Co., 114 N. Y. 331; 23 St. Rep. 739; 24 id. 534.

The referee found that the plaintiff sold a calf for $2.50, one-half of which belonged to the defendant, and for which the plaintiff had not paid the defendant. By an obvious oversight, his conclusion of law was that this item should be disallowed. He evidently intended to allow this sum to the defendant.

There should be deducted from the recovery on account .of wheat $59.18, $17.50 for the wagon, the $1.25 mentioned, and the interest item of. $49.42, making in all $127.35. The judgment should be reversed, and a new trial granted, with costs to abide the event, unless the plaintiff stipulated to deduct from the amount of his recovery the sum of $127.35 ; and, in case such stipulation be given, then the judgment, as thus modified, should be affirmed, without costs of this appeal to either party.

All concur.


source: Caselaw Access Project

author: Lewis, J.

license: Public Domain

text:
    Edward A. Throne et al., App’lts, v. Lehigh Valley Railroad Company, Resp’t.

      (Supreme Court, General Term, Fifth Department,

      Filed June 21, 1895.)

    "Railroads — Fences.
    Section 32, chap. 565 of 1891, as amended by chap. 367 of 1891 and chap. 676 of 1892, does not apply to a railroad company which had, be- , fore May 1, 1891, leased its road and given exclusive possession and con-1 trol thereof to another company, but such lessee is alone liable.
    Motion for a new trial upon exception, ordered to be heard at general term in the first instance.

      J. A. Hull, for pl’ffs; Martin Cary, for def’t.
   Lewis, J.

— This action was brought to recover for the negligent killing of two horses, belonging to plaintiffs, at Rush, Monroe county, on or about June 29, 1893. The alleged negligence consisted in the omission to fence the sides of the defendant’s railroad, opposite the field from which it is claimed the horses strayed onto the railroad land; and where there killed by a passing train. It was alleged in the plaintiff’s complaint that, in consequence of said negligent omission on the part of the defendant to provide the fences required by statute at the place aforesaid, two of plaintiffs’ horses, at the time stated, strayed from a pasture onto what was known as the “ Budlong Farm,” onto the defendant’s road, and were there struck and killed by a passing engine, to the plaintiffs’ damage of $250. The defense was, in substance, a general denial, and an allegation that if the horses were killed or injured it was done solely by the negligence of the plaintiffs, or some person or corporation other than the defendant. There was evidence showing the organization of the defendant as a railroad corporation, and that its line of road passed through the premises upon which the horses were being pastured, in the town of Rush, Monroe county. For the purposes of the trial the following facts were conceded:

“ That the defendant was at the time of the accident referred to in the complaint, and now is, the owner of the right of way. That the defendant, under lease dated April 14, 1891, leased all its property, real and personal, and franchises, except the franchise to exist as a corporation, to the Lehigh Valley Railroad Company, a foreign corporation, for the period of 999 years from January 1, 1891, and that said lease has at all times continued and still continues in force. That the said Lehigh Valley Railroad Company, by lease dated February 11, 1892, leased all its property, real and personal, and franchises, except the franchise to continue as a corporation, to the Philadelphia & Reading Railroad Company, a foreign corporation, which immediately went into possession of the road, and operated it, and continued to operate it up to and past the time of the happening of this accident. That, at the time the Lehigh Valley Railway Company leased its property to the Lehigh Valley Railroad Company, the right of way was practically acquired by the defendant named in its action, along the entire line, but the grading for the road was not completed — was under headway; that no track was laid. The grading and construction of the roadbed was in progress at the time of the lease, but none of the track for the completed railroad was laid at the time. That, immediately upon the execution of the lease, the lessee went into the exclusive possession of the road, and continued and finished the grading and the laying, and, together with its lessee, the Philadelphia &. Eeading Eailroad Company, equipped the road, and opened it for use on the 1st day of September, 1892. That the defendant in this action constructed none of the road under the lease, laid no track, never had any rolling stock or personal property, never operated the road, had no officers except those necessary to maintain its corporate existence, had nothing to do with the road, except to draw its rentals under the lease with the Lehigh Valley Eailroad Company. That at the time of the accident the railroad was in possession of the Philadelphia & Eeading Eailroad Company, which was operating it under the lease aforesaid, and that the engines and cars in question by which it is agreed the injury was inflicted at the time of the accident were operated by the said Philadelphia & Beading Eailroad Company. That at the time of the leasing of the road by the Lehigh Valley Eailway Company to the Lehigh Valley Eailroad Company, and at the time of the accident, there was no fence of any kind along the lines of the road across the Budlong farm, and never has been since they have acquired the right of way.”

The statute making it obligatory upon railroad companies to erect and maintain fences on the sides of their road, in force at the time of this accident, was chapter 565. ■§• 32, Laws, 1890, as amended by chapter 367 of the Laws of 1891, as amended in 1892 by chapter 676 (volume 2, p. 2068), as follows:

“ (1) Every railroad corporation and any lessee or other person in possession of its road shall before the lines of its road are opened for use and so soon as it has acquired the right of way for its roadway, erect and maintain fences on the sides of’ its road of height and strength sufficient to prevent horses, cattle, sheep and hogs from going upon jts road from the adjacent lands,” etc.
“(2) Sj long as such fences are not made or are not in good repair the corporation, its lessee or other person in possession of its road shall be liable for any damages done by their agents, or engines, or cars, to any domestic animals thereon. When made and in good repair they shall not be liable for any such damages unless negligently or wilfully done. * * * No railroad need be fenced when not necessary to prevent horses, cattle, sheep and hogs from going upon its track from the adjoining land.”

This act of 1892 took effect May 18th of that year. The next precedingstatute upon this subject was section 32, Laws 1890, amended by chapter 367, Laws 1891, which was passed May 12,1891. The pr eceed i n g stat u te (sectio n 3 2, chap. 565,Laws 1890) went into effect May 1, 1891. As stated, on the 14th of April, 1891, at a time prior to the enactment of these statutes, the defendant had leased all its property, real and personal, and franchises, except the franchise to exist as a corporation, to another company. At the time of said leasing section 8 of chapter 282 of the Laws of 1854, was in force. It was therein provided that “every railroad company formed or to bé formed, but whose lines are not now open for use, shall, before the lines of such railroad are open, erect and thereafter maintain fences on the sides of the road of the height and strength of division fence required by law," etc. The duty of maintaing such fences' was by section 2 of chapter 582 of the Laws -of 1864 imposed upon the lessees of the railroad of any railroad corporation.

It is the contention of the plaintiffs that, notwithstanding the defendant was not, at the time of leasing its road, obliged, under the statutes- then existing, to erect line fences, the subsequent acts above referred to imposed that duty upon the defendant. The lines of this railroad were not opened for use until September 1, 1892. The terms of the statute in force at the time of the leasing would have been fully complied with if the fences had been constructed at any time prior to September 1, 1892. The defendant, therefore, had not neglected any duty imposed upon it by statute at the date of the lease. It had, at the time of the leasing, acquired the right of way for its roadway, and if the statutes of 1890, 1891, and 1892, referred to, imposed the duty upon the defendant, as well as any lessee or other person in possession of the road to erect and maintain fences on the sides of the road, notwithstanding it had, prior to their taking effect, leased its road, then the defendant’s negligence, so far as the omission to construct the fences, was established. The plaintiffs cannot invoke the rule that the defendant was responsible for the continuance of a nuisance existing at the time of the leasing of its road. For, as we have seen, it had not omitted an'y statutory duty then devolving upon it. The plaintiff’s counsel, in his brief, states that the trial court held that the statutes enacted after the defendant leased its road imposed upon the defendant, equally with its leesee, the duty to erect and maintain the fences. This ruling was as favorable to the plaintiffs as they could wish. At the time the later statutes were passed, the defendant was not in possession of the road, had no control over it; it was in.the exclusive possession of another company. It is not entirely clear that the defendant would have the right to enter upon the roadbed for the purpose of complying with the'terms of the statute, but, without deciding this question, we think the trial court correctly held that the damages in this case were not done by the defendant’s agents, engines, or cars. It did not own, neither had it any interest in, any of the rolling stock upon the road. The clause in the statute of 1892 which follows the sentence “so long as such fences are not made or are not in good repair the corporation, its lessees or other person in possession of its road shall be liable for all damages done by their agents, engines or cars to any domestic animals thereon,” and which reads, “when made and in good repair they shall not be liable for any such damages unless negligently or wilfully done,” cannot, with any propriety, be claimed to apply to a party sustaining the relation to the road this defendant did. We are of the opinion that the word “agents,” in the statute, has reference only to the agents of the corporation or person operating the road, and that neither the engines nor cars which in this case caused the damages, nor the employes operating them, can be said to have been the agents of the defendant. Tiie injuries to these horses were caused by the acts of the employes of the Philadelphia & Reading Railroad Company. Miller v. N. Y., L. & W. Railroad, Co., 125 N. Y. 123 ; 34 St. Rep. 607. The proximate cause of the injuries to the horses was not from a failure to fence the road, nor were they injured in going from the pasture onto the railroad track. They were injured by the acts of the agents of another company.

The authorities to which we are referred by the plaintiff’s counsel, of injuries to animals caused by their straying upon the lands of a railroad company, and receiving injuries from other causes than coming in contact with railroad trains, do not seein to have .any application to the question involved here. Where, or how, or from what pasture these horses got upon the railroad track was not very clearly established upon the trial. That question does not seem to have been much considered upon the trial. It was probably assumed that they strayed upon the railroad lands, as claimed by the plaintiffs. We place our decision upon the ground that the plaintiffs failed to show that the injuries to their property were caused by the agents, engines, or cars of the defendant.

The motion for a new trial should be denied, and judgment directed for the defendant upon the nonsuit.

All concur.


author: Per Curiam.

text:
    Aultman and Taylor Company, Resp’t, v. Frederick J. Syme, App’lt.

      (Supreme Court, General Term, First Department,

      Filed June 14, 1895.)

    .Execution — When issued.
    The time, within which an execution may be issued, commences to run on the day upon which the judgment is entered, and expires upon the termination of five years thereafter.
    Appeal from an order, denying a motion to vacate an order for the examination of defendant in supplementary proceedings.

      E. F. Brown, for app’lt; W. H. Blymyer, for resp’t.
   Per Curiam.

— The judgment in this action was entered on the 14th of November, 1889¡ The execution which formed the foundation of this order was issued on the 14th day of November, 1894, and was, therefore, not issued within five years after the entry of the judgment, the five years having expired upon the 13th of November, 1894. The court, in considering the questions of time, takes no notice of the fractions of a day. The time commenced to run on the day upon .which the judgment was entered, and expired upon the termination of five years thereafter, which was the 13th of November, 1894. The authority to issue an execution only existed during those five years. After the expiration of that time execution can only be issued upon application to the court. The execution not having been issued until after the expiration of that period, and no application to the court having been made, no jurisdiction was conferred.

The order appealed from should be reversed, with $10 costs and disbursements, and the motion granted, with $10 costs.


author: O’Brien, J.

text:
    Nichollas Ennis, Resp’t, v. Henry Winthrop Gray, as Receiver, etc., App’lt.

      (Supreme Court, General Term, First Department,

      Filed June 14, 1895.)

    1. Hesligehce — Duty.
    Whenever one person is by circumstances placed in such a position with regard to another that every one of ordinary prudence would recognize that, if he did not use ordinary care and skill in his own conduct with regard to those circumstances, he might cause injury to the person or property of the other, a duty arises to use ordinary care and skill to avoid such danger.
    2. Same — Privity.
    In sucii case, no contractual relation or other privity between the parties is essential to a recovery.
    3. Same — Proof.
    The evidence was held to have established a prima facie case of negligence, which was properly submitted to the jury.
    Appeal from a judgment entered on a verdict in favor of plaintiff, and from an order denying a motion for a new trial.

      Henry L. Sprague, for app’lt; James Cowden Meyers, for resp’t.
   O’Brien, J.

— The action is brought to recover damages for injuries due to negligence. The plaintiff, a roofer by trade, was at work on a cornice over a liquor store at the corner of Twenty-third street and Third avenue, in the city of New York, which was owned, as were the premises, by one McCaffrey. There -was, upon the south end of the cornice, an iron box, a converter or transformer, used to change a high-tension electrical current of 1,000 volts, to a low-tension current, maintained and operated by the defendant. The cornice was two feet two inches wide, and the distance between the converter and the wall was fourteen and one-quarter inches. The space between the converter and the westerly edge of the cornice was one and three-quarters inches. The converter was connected by wires to a cable in a stand-pipe coming up from the street at the south end of the cornice. Those wires wmre joined from the standpipe to two fuse boxes upon the top of the converter, the primary wires hanging between the converter and the wall of the house. The plaintiff was on his knees, facing south, and had in his hand a small whisk broom, with which he was sweeping the tin roof around the northeast corner of the converter. He received a shock, and became unconscious. He was found with his clothes in'flames, lying upon the wires between the converter and the wall. That his injuries were serious and* justified the damages as reduced by the court is not disputed. Neither were exceptions taken to the admission or rejection of evidence, nor to the judge’s charge, the defendant urging upon this appeal questions relating to the merits of plaintiff’s cause o£ action, which are presented by his motion to dismiss the complaint at the close of the plaintiff’s case, and after the verdict by the motion for a new trial, upon the ground, among others, that such verdict was against the weight of- evidence.

The first question, therefore, is, had the plaintiff, when he rested, made out a prima facie case of negligence ? It appeared that the wires which caused the damage were exposed to contact by any one who went to the south end ,of the cornice, and that they were in front of a window, between the wall of the building and the converter, and this arrangement of the box and wires was characterized, by an electrician who went to the place of the accident, as improper. The evidence also tended to show that the wires were improperly insulated, the insulation having worn off in five places on the primary wires ; that at one point there was a bad splice, entirely uninsulated; and that the defective insulations were old. Such evidence, we think, made out a prima facie case of negligence, because it tended to support two grounds relied on by the plaintiff, viz. that the wires were improperly placed, without safeguards, and were improperly insulated. It is insisted by appellant that there were no contractual relations or other privity between plaintiff and defendant which required the latter to protect the former from iujury while he was working for Mc-Caffrey, and while he was on McCaffrey’s premises, and in support of such insistence our attention is called to the well-settled rule that, in order to maintain an action for injury arising from neglect, it must appear that there was a legal duty from the peison inflicting the iujury to the person on whom it was inflicted, and that such duty was violated; that a mere general duty to the-public is not sufficient, but it must be a special duty to the individual inj ured. Reliance is placed upon the cases of McAlpin v. Powell, 79 N. Y. 130 ; Victory v. Baker, 67 id. 368, and Cosulich. v. Standard Oil Co., 122 N. Y. 118; 33 St. Rep. 287. In the first case cited (McAlpin v. Powell), where a child of a family in a tenement house was injured by falling through a trap in a fire-escape which was improperly secured, it was held that, it having only been put up for a fire escape, to be used for the protection of life in case of danger from fire, and not being intended and never » used as a balcony, the owner owed no duty to the tenant or his family to keep the platform of the fire escape in such repair that it might be used as a balcony ; and the distinction is there pointed out between that case and the one requiring a party to protect a structure on his own property which is dangerous to others. In Victory v. Baker, supra, where a boy lost his life by falling into a vat of boiling water in defendant’s factory, whither he had gone by direction of his employer, it was held that the manner in which the owner of the factory chose to use or appropriate his property could not be questioned, and if in the lawful exercise of his right, and without negligence on his part, a third person sustains injury from this use by the owner, the owner is not answerable. The case of Cosulich v. Standard Oil Co., supra, was an action to recover damages sustained by the burning of a vessel through the negligence of the defendant. The defendant owned and managed a petroleum refinery. Plaintiff's vessel was lying at a wharf adjacent thereto. An: explosion took place, the oil within defendant’s inclosure took fire, and a quantity of it, while burning, flowed down a pipe used by defendant for pumping oils from vessels into its refinery, connected with a lighter laden with petroleum moored •at defendant’s wharf. The lighter exploded and burning oil therefrom was thrown upon plainliff’s vessel, which set it on fire. As said in the opinion in that case:

“ The defendant was not maintaining a common nuisance. Its business was lawful, and in its conduct the law does not impose the obligation of saving harmless others from the consequences resulting from the occurrence of inevitable accident, but rather burdens it simply with the duty of using reasonable care and caution to save others from injury.”

There being no evidence of negligence, except such as it was insisted should be presumed from the proof of the explosion, it was held that such proof was not sufficient to authorize an inference of negligence, and for that reason it was error not; to have granted the motion for a nonsuit.

None of these cases, upon the facts here appearing, is in point. These were all cases where inj ury resulted from the use of premises belonging to the party sought to be charged, and that caused the injury to persons to whom was owing no obligation, either of •contract, duty, or service, and were controlled by the well-settled law that “ a man may upon his own lands build factories and dams, and employ the use of machinery, without liability for any damage which* may accidentally and unavoidably ensue.” Without quarreling with, the rule invoked by the appellant, or the cases •cited by him, we think the facts here presented sufficiently show ithe distinction. The defendant .was engaged in the business of supplying electricity for lighting purposes in houses and streets of the city, and, considering the high voltage which it was necessary to carry over the wires, thus rendering the business in the highest degree dangerous, unless handled with care and skill, we think that, outside of any contractual relation, a duty was created on the part of the defendant, not only towards the public generally, who, in the streets, might be likely to come in contact with the wires, but also with respect to any individual engaged in a lawful occupation in a place where he was entitled as of right to be. The relation and obligation of-parties are accurately expressed in Heaven v. Pender, L. R. 11 Q. C. B. 503, the substance of which is, that whenever one person is by circumstances placed in such a position with regard to another that every one of ordinary prudence would recognize that if he did not use ordinary care and skill in his own conduct with regard to these circumstances he might cause injury to the person or property of the other, á duty arises to use ordinary care and skill to avoid such danger. Here "the defendant was engaged in placing wires in the streets, and making connections with houses intended for occupancy, and as its business was of a character highly dangerous and likely to result in injury to others unless it was conducted with care and prudence, the duty was created, in the conduct and management of such business, of using the necessary care and prudence to prevent such injury. That the defendant did not perform this duty the plaintiff presented evidence tending to show, and the court, therefore, properly denied the motion to dismiss the complaint at the end of the plaintiff's case.

It is claimed, however, that in view of the testimony given by the defendant the motion for a new trial should have been granted upon the ground that the verdict was against the weigh t of evidence. We have examined the record, and while it is true the witnesses for the defendant outnumbered those for the plaintiff, we do not think the weight of evidence so clearly preponderated in defendant’s favor that the court would have been justified in granting the motion for a new trial. If anything, the plaintiff’s case was strengthened by the showing that a change was made in the manner of construction between the time of tlie accident and the trial; and upon cross-examination of defendant’s expert as to the relative safety of the two modes of construction, such evidence tended to show that the present construction is safer than that which existed at the time of the accident. We think, therefore, that the question as to whether the defendant exercised ordinary care in the constitution and maintenance of the electrical converter and its appliances was, under proper instructions, to which no exceptions were taken, properly submitted as a question of fact to the jury.

A further question is presented, considering the nature of the accident, whether, merely from its happening, a presumption of negligence, did not arise. As said in Breen v. N. Y. C. & H. R. R. Co., 109 N. Y. 300; 14 St. Rep. 885:

“There must be reasonable evidence of negligence, but when the thing causing the injury is shown to be under the control of a defendant, and the accident is such as in the ordinary course of business does not happen if reasonable care is used, it does, in the absetice of explanation by the defendant, afford sufficient evidence that the accident arose from want of care on its part.”

And, as said in Millie v. Manhattan Railway Co., 5 Misc. Rep. 301:

“Since every man is presumed to discharge his duty, it results that whoever asserts negligence in another must prove the fact, and must prove it by a preponderance of evidence. But there are cases in which the maxim ‘res ipso loquitur' applies, — that is to say, in which the very occurrence itself imports negligence. The specific question here is whether the occurrence in controversy carries with it an imputation of negligence against the defendant with the effect of imposing upon the appellant, the burden of repelling this prima facie presurnption of negligence.”

So here we might ask whether the happening of this accident does not carry with it an imputation of negligence, it being self-evident- that, if the wires had been properly insulated, it would not have occurred, and it being equally clear that with the exercise of ordinary care defective insulation could be avoided. It is unnecessary for us, however, to decide that the rule of “res ipso loquitur” applies, and we do not therefore put our decision on the ground, because, as we have already pointed out, the plaintiff assumed the burden of establishing the negligence of the defendant, and in that connection presented evidence from which the jury properly could infer that the position and manner of construction of the wiring and the electrical converter were improper, and that in five places the wire was imperfectly insulated, and bore evidence of having been in that condition for some time. If, therefore, we apply the rule most favorable to the the defendant, that “in order that liability shall attach for an injury occasioned by something not inherently dangerous and defective, which is found upon the grounds of, or in use by, one who is under a qualified obligation to the injured person, it must be shown that the defendant either knew, or that, by the exercise of such reasonable skill, vigilance, and sagacity as are ordinarily possessed and employed by persons experienced in the particular business to which the thing pertains, he should have known, of its defective and dangerous condition, and that the natural and probable consequence of its use would be to-produce injury to some one,” then, under this rule, we think a case was made out for the jury.

The only other ground relied upon by the defendant is that the plaintiff by his own negligence contributed to the injury. The question having been submitted to the jury under proper instructions, and there being ample evidence to sustain their finding thereupon in plaintiff’s favor, we should not interfere with the Verdict reached. The judgment should be affirmed, with costs.

All concur.


author: Parker, J.

text:
    Annie Bryant, as Executrix, etc., Resp’t, v. Jacob A. Ondrak, Impleaded, etc., App’lt.

      (Supreme Court, General Term, First Department,

      Filed June 14, 1895.)

    1. Contract — When made.
    The circumstances that the parties, after arranging the terms of a proposed contract, decide to have a formal "written agreement, is strong evidence that the oral agreement is not understood or intended to be binding.
    3. Same.
    In an action to recover the purchase price of the interest of a deceased partner, it was held that the transactions, looking towards a purchase, were mere negotiations, that no contract existed and that the complaint should have been dismissed.
    Appeal from a judgment entered on a verdict in favor of plaintiff, and from an order denying a motion for a new trial.

      Charles M. Demond, for app’lt; Albert H. Atterbury, for resp’t.
   Parker, J.

— We shall onY discuss one of the several questions brought to our attention, by the appellant, because the conclusion we have reached in respect to it calls for a reversal of the judgment. We think the plaintiff failed to establish the contract upon which recovery was sought, and therefore the defendant’s motion to dismiss the complaint should have been granted. The preliminary iacts essential to an undertaking of the situation which led up to the meeting of the parties, which the plaintiff alleges resulted in the making of the agreement sued on, are as follows : Prior to February 25, 1894, the defendant, Jacob A. Ondrak, and the plaintiff’s testator, William E. Bryant, were partners in business as ladies’ tailors at No. 314 Fifth avenue, New York city. They had a written partnership agreement, which provided that, in the event of the death of either partner, the- survivor might carry on the business for six months succeeding the 1st of January or July next ensuing, and two months thereafter to close up the business. On the date above named, William E. Bryant died, leaving him surviving a widow, this plaintiff, and six adult children, who were joined as defendants. By his will he gave all of bis property to his widow, whom he appointed executrix. The will was not proved until April 23, 1894, letters testamentary thereon being issued to the plaintiff on the day following. About a week after the death of Bryant, Ondrak told Miss Kate Bryant, a daughter -of the deceased, and who had been for a long time in the employ of the firm, that he would purchase her father’s interest in the business forthwith and suggested an appraisal to that end. Over a month before the will was proved, and without any knowledge on the part of Mr. Ondrak of its contents, and on March 18, 1894, Mr. Ondrak, with his appraiser, John S. Whetherley, and his lawyer, Charles S. Hayes, met Miss Bryant, representing her mother, the plaintiff, and her brothers and sisters, together with her appraiser, Jonas H. Monheimer, and her lawyer, Boudinot Keith, at the store. The fixtures, stock, book accounts, and will were appraised separately, and after a discussion of several hours, in which all of the parties present, including the appraisers and lawyers, took part, the terms of the agreement were, as the parties seem to-have supposed, arrived at, by which Ondrak was to pay $11,000 for the interest of his deceased partner, including the good will of the business. The agreement was to be reduced to writing and the fixtures, steck, book accounts, and good will to be assured to him by the execution of the agreement by the widow and six children. After discussing the various questions which were presented, and arriving, as the parties supposed, at the terms of the agreement, one or both of the lawyers were instructed to prepare a written contract for execution. For some reason the contract was not at once prepared, and the day following Miss Bryant called upon the defendant, and informed him that they were in need of ready money for the payment of funeral and other expenses, and so he advanced to her the sum of $2,500. Ondrak’s lawyer, who insists that it was the understanding that he was to prepare the contract, a few days after the meeting of the parties, prepared and sent to Mr. Keith, the attorney for the Bryants, a proposed agreement, to be signed by Mrs. Bryant and the children. It was not acceptable, and the Bryants refused to sign it, asserting that it embraced matters not concluded in the'oral arrangement, although jt appears from the testimony of Ondrak and his lawyer to have been actually in conformity therewith as they understood it. Mr. Keith then submitted a proposed agreement, to be signed by Mrs. Bryant, and a supplemental agreement, to be signed by the children, as an estoppel; but they never were signed, and Miss Bryant, who alone represented the Bryants’ interest on the 13th of March, upon her examination in relation to said contracts, was asked this question : “But you were not willing that you and your brothers and sisters should sign the agreement that your counsel had prepared?” ■ To which she replied, “No; not to sign any agreement.” Ondrak’s lawyer subsequently proposed a modification of the proposed agreement prepared by Mr. Keith, and also made some change in the draft of the one which he had submitted, but neither of them proved acceptable to Miss Bryant, and the attempt to' prepare a written contract which should meet with the approval of all of the parties was then abandoned by both lawyers. The main point of difference between the parties seems to related to the manner by which the good will, which it was conceded Ondrak was to have, and was to pay for, should be assured to him. But the negotiations, did not stop with the failure to agree upon a writing which should express the understanding of the parties. Mr. Atterbury, who had formerly been the attorney for the Bryants, on his return from Europe, early in April following, undertook to adjust the difficulties between the parties. As he testifies, he attempted to bring about some compromise and for that purpose met Miss Bryant and Mr. Ondrak, with his counsel, Mr. Hayes. In the course of this interview Mr. Atterbury suggested, tentatively, as he expresses it, a new appraisement, conveying at the same time an intimation that, as a result of it, Mr. Ondrak might be obliged to pay more money. He also intimated that it might be proper to have a receiver appointed as a last resort, although one of the things that he was most anxious to avoid. On another occasion Ondrak was'asked by Miss Bryant’s counsel, in her behalf, what he would take to sell out, Without further detailing the various conversations • between the parties, and the attempts to adjust the matters in pontroversy, it is sufficient for present purposes to say that they continued all through the month of April. But about the 1st of May, plaintiff’s counsel apparently reached the conclusion that, notwithstanding it was' a, part of the original arrangement that the terms of the agreement should be reduced to writing, and signed by all of the Bryants, the failure of the Bryants to execute an agreement embodying its. terms even as they claimed to have understood them to be, and the various other negotiations and propositions looking to a settlement and adjustment of the differences bétween the parties, they could treat the conversations between the parties, of March 13th, as resulting in a completed contract, and recoverthe price agreed on. If it were a completed contract, the position taken was correct. But it seems to us very clear that the contract was not completed; that as a matter of fact the minds of the parties never met upon the terms of the agreement. This appears from the dispute which the parties had over the terms of the proposed written contracts, to which we have already paid sufficient attention. There is other and conclusive evidence that the minds of the parties did not meet either as to the nature of the agreement affecting the transfer of the good will of the business to Ondrak, or as the persons who were to be parties to it. But to that we shall refer later. Did the parties to this alleged oral agreement understand that the contract was so far completed that nothing more needed to be done in the premises? It would seem not, for several reasons.

First. They provided that a written agreement should be prepared and executed. The authorities have always recognized that the circumstance that the parties decided to a formal written agreement as strong evidence that the oral agreement was not understood or intended to be binding. 1 Whart. Cont. § 5; Pol. Cont. (3d ed.) p. 41; Brown v. Railroad Co., 44 N. Y. 79-86.

Second. Again, Ondrak was attempting to make an arrangement with all the Bryants, and this could only be accomplished by having* them parties to an agreement in some form. They were not present, and Miss Bryant neither produced not pretended to have any written authority to act for them, and under such circumtsances it is hardly to be presumed that his attorney would advise that he would be sufficiently protected as against all of them by her assurances. That Ondrak understood that he was to have the agreement of all the Bryants, — not of the plaintiff alone, — is evidenced not only by the fact that he did not have knowledge of the contents of the will, but by his conduct and language, and that of his counsel, at the time of the negotiations. The testimony of Keith, the counsel for the Bryants on that occasion, sufficiently establishes that fact. He said, “I think Mr. Hayes (Ondrak’scounsel) said, 11 hand you this dollar on behalf of Mr. Ondrak as representing yourself, your brothers, your sisters, and your mother, — to you on behalf of your mother and brothers and sisters.’ ” It was not pretended at that time, nor was it on the trial, that Miss Bryant had been authorized by her monther, or her brothers and sisters, to sign for them any contract to which she and Ondrak might agree. Necessarily, therefore, it could not have been intended that Ondrak should be bound before the other parties, which was intended to be provided for by the execution of the agreement, which all understood was to be prepared by one or both of the lawyers.

Third. The minds of the parties did not meet. This not only appears from their subsequent conduct over the several proposed agreements, and the efforts for compromise on other lines than, that expressed in the writings prepared by the attorneys, but it appears from the testimony of the parties. The testimony of Ondrak and his counsel, Hayes, shows that they understood that the agreement which Ondrak was to have was not to be from Mrs. Bryant, but from her and all of the children. From Ondrak’s standpoint, there were two reasons for it: (1) He had no knowledge of the disposition which Bryant had made of the property, and (2) two of the Bryant children were experts in the business,, and one of them had been for a long time employed in the store under the name of Miss Williams. He was desirous, therefore, of securing such an agreement as would cover all the Bryants’ interest, in the first place, and, in the second, to assure to him the good will of the business beyond doubt. This he may well have supposed might not be fully accomplished if two experts in the business by the name of Bryant should be in no way obligated to him. Not only is the defendant’s testimony corroborated by his counsel, and by the reasons we have suggested, but it is fully supported by the testimony of Keith, counsel for the Bryants, in the quotation, which we have already taken from his testimony, which purports to give what Mr. Hayes said to Miss Bryant when he handed her the dollar. But Miss Bryant testifies that the understanding was not that all of her brothers and sisters, as well as her mother, were to sign the agreement, but to sign a writing consenting that their mother should sign the agreement with Ondrak. It may well be that that was her understanding of the terms of the agreement, but it certainly was not ■the understanding of the other parties. The difference between them was substantially as we have observed, and it operated to prevent them from uniting in the written agreement, which all of the parties understood should contain a full and complete expression of the terms and conditions of their arrangement. Other facts might be cited in support of the position we have taken, but we think enough has been said to make it reasonably clear that the defendant was entitled to a dismissal of the complaint upon the ground that the plaintiff had not established the contract alleged in her complaint.

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

All concur.


author: Van Brunt, P. J, O’Brien, J.

text:
    The People ex rel. Rachel Purdy, Resp’t, v. Ashbel P. Fitch, as Comptroller, etc., App’lt.

      (Supreme Court, General Term, First Department,

      Filed June 14, 1895.)

    Municipal corporation — Streets—Grade.
    The appointment of commissioners, pursuant to chapter 567 of 1894, to ascertain damages ‘ ‘ suffered by reason of change of grade of streets and avenues, made pursuant to chapter 721 of the Laws of 1887,” is a defective exercise of the power of appointment and confers on the commissioners no authority to do the additional things, which are provided for by the act of 1894.
    Appeal from an order, granting a peremptory writ of mandamus.

      Theo. Connoly, for app’lt; T. S. Bassford, for resp’t
   Van Brunt, P. J,

— In May, 1893, the legislature passed an act entitled “An act providing for ascertaining and paying the amount of damages to lands and buildings suffered by reason of -changes of grades of streets or avenues made pursuant to chapter 721 of the Laws of 1887, providing for the depression of railroad tracks in the twenty-third and twenty-fourth wards in the city of New York, or otherwise.” By the first section of this act certain property owners were entitled to recover and prove certain damages as in said act provided. By the second section, within thirty days after its passage, the mayor of the city of New York was authorized and directed to appoint three commissioners for the purpose of estimating such loss and damage. The duties and powers of the commissioners were then provided for in the act. On the 8th day of May, 1893, the mayor appointed Daniel Lord, James M. Varnum and James A. Deering as commissioners “ to ascertain and pay the amount of damages to lands and buildings suffered by reason of the changes of grades of streets or avenues made pursuant to chapter 721 of the Laws of 1887 •or otherwise.” On the same day the said commissioners accepted said appointment, and each subscribed a'nd took the •oath required by said act of 1893 (chapter 537, Laws 1893). On the 7th of day June, 1893, one Rachel Purdy filed her claim with the comptroller, and hearings were had upon said claims, commencing in October, 1893, and continuing until the 6th of July, 1894. On the 28th of February, 1894, the claimant moved to amend the amount of damages alleged in the claim filed with the 'Comptroller and the corporation counsel, by increasing the amount of the damage. On the 2d of May, 1894, the legislature passed another act, known as “ Chapter 567 of the Laws of 1894,” which was entitled as follows : “An act to amend chapter 537 of the Laws of 1893, entitled ‘An act providing for ascertaining and paying the amount of damages to lands and buildings •suffered by reason of changes of grade of streets or avenues made pursuant to chapter 721 of the Laws of 1887, providing for the depression of railroad tracks in the Twenty-third and Twenty-fourth wards in the city of New York or otherwise.” By this act sections 1-7, inclusive, of chapter 537 of the Laws of 1893 were amended. The amendment to section 1 consisted of inserting after the words “have sustained damage,” the words, “or will sustain damages; ” and also inserting therein reference to certain other session laws. Section 2 of said act was amended by inserting therein the words, “or will sustain by reason of such change.” Sections 3 and 4 are substantially the same in both acts. Sections 5, 6, and 7 were amended in particulars not necessary to mention here. By the said act the title of the act of 1893 was amended so as to read as follows: “An act for ascertaining and paying the amount of damages to lands and buildings, suffered by reason of changes of grades of streets or avenues in the Twenty-third and Twenty-fourth wards of the city of New Y ark, made pursuant to chapter eight hundred and forty-one of the Laws of eighteen hundred and sixty-eight, chapters three hundred and twenty-nine and-six hundred and four of the Laws of eighteen hundred and seventy-four, chapter four hundred and thirty-six of the Laws of eighteen hundred and seventy-six, chapter seven hundred and twenty-one of the Laws of eighteen hnndred and eighty-seven, and chapter three hundred and twenty-nine of the Laws of eighteen hundred and ninety-two.” Subsequent to the passage of this act, on the 6th of June, 1894, James A. Deering, one of the commissioners appointed under the provisions of chapter 537 of the Laws of 1893, having theretofore, and on the 10th of November, 1893, resigned as one of said commissioners, and Daniel P. Hays having been appointed a commissioner in his place and stead, the then mayor of the city of New York, under the provisions of chapter 567 of the Laws of 1894, appointed Daniel Lord, James M. Varnum, and Daniel P. Hays as commissioners “to ascertain and pay the amount of damage to lands and buildings suffered by reason of changes of grades of streets and and avenues made pursuant to chapter 721 of the Laws of 1887.” The said commissioners accepted the appointment, and qualified as commissioners, and entered upon the discharge of their duties as such commissioners, holding their first public meeting on the 11th of June, 1894. On the 14th of November, 1894, the said commissioners made an award to said Rachel Purdy, claiming to actas commissioners appointed pursuant to the provision of chapter 587 of the Laws of 1893, as amended by chapter 567 of the Laws of 1894; and said award purported to be for damages sustained, or which will be sustained, by reason of change of grade to certain premises located in the Twenty-third ward of the city of New York, and designated on the tax map of the city of New York as “Ward No. 4 in Block No. 1667.” The comptroller having refused to issue bonds to pay the amount of said award, a motion was made for a peremptory mandamus diricting the issue of such bonds. That motion having been granted, this appeal from the order thereupon entered was taken.

It does not seem to he necessary to consider all the numerous objections which are raised to the constitutionality of the laws as they appear upon the statute book, the mistakes contained therein in their references to statutes, or the various omissions in the proceedings. It must be conceded, however, that in the amendment of chapter 537 of the Laws of 1893, made by chapter 567 of the Laws of 1894, a new statute was substantially enacted; and that proceedings which had been taken prior to the passage of the act of 1894, and not completed, in order to be made the foundation of a claim against the city, must be shown to have complied with the provisions of the act of 1894. It seems also, in view of the nature of the acts, to have been necessary for the mayor to reappoint commissioners, for the reason that by the provisions of the law of 1894 additional powers were conferred uponxthe commissioners appointed under the act of 1893 to those which they had originally enjoyed. The act of 1894 enjoined additional duties upon the commissioners, looking to the assessment of future damages, which was not the province of the commissioners appointed under the act of 1893. Hence the act of 1894 provided that commissioners should be appointed under that act for that purpose as well as the other. This was the construction placed upon the act by the mayor in making the appointment which he did under the act of 1894. But, unfortunately, in the making of this appointment he did not follow the act of 1894, but varied the language of the previous appointments; and hence he did not appoint the commissioners to do the things for which he was authorized to appoint them under the act of 1894. This would seem to make bis appointment fatally defective. The authority of the commissioners to act was necessarily derived from the appointment of the mayor, and the attempted appointment of commissioners under the act of 1894 seem to fail of effect because of the defective manner of its execution. This is an objection which seems to lie at the root of the whole of these proceedings. It is more than a mere clerical omission, and the additional powers cannot be attached to the appointment because the mayor had the authority to make an appointment of commissioners to do additional things. He appointed commissioners to ascertain the amount of damages to lands' and buildings suffered by reason of changes of grade of streets and avenues pursuant to chapter 721 of the Laws of 1887. He did not apppoint new commissioners to assess any damages which might be sustained in the future by reason of such change; neither did he appoint new commissioners to ascertain any damages which might have been sustained by reason of changes of grade arising under other acts. It seems, therefore, that there has been a defective exercise of the power of appointment upon the part of the mayor, and that under such defective exercise of that power these commissioners had conferred upon them no authority to do the additional things which were provided for by the act of 1894. It is contemplated in those acts that these commissioners shall take an oath to faithfully perform their duties as such. It is clear that such oath could not cover acts which they had not been commissioned to perform. These considerations seem to show that this irregularity of proceeding is of substance, and cannot be treated or overlooked as trivial. It appears from the award of the commissioners themselves that they have given prospective damages, which certainly was not embraced within the terms of their appointment We see no method in which this difficulty can be met except by commencing anew under the acts of 1894, or by some legislative action such as was resorted to for the purpose of curing the defects alleged to exist in the legislation of 1893.

The order appealed from should be reversed, with costs, and the motion denied, with costs.

Parker, J., concurs.

O’Brien, J.

(dissenting). — I do not concur in the conclusion reached by the presiding justice as to the effect of the recital in the appointment of the commissioners. The facts bearing upon such appointment are stated in the affidavit of the comptroller, and are as follows:

“ That subsequently to the passage of the said act, on or before the 8th day of June, 1894, James A. Peering, one of the commissioners, appointed under the provisions of chapter 537 of the Law's of 1893, having theretofore, and on November 10, 1893, resigned as one of said commissioners, and Daniel P. Hays having been appointed a commissioner in his place and stead under the provisions of said chapter 537 of the Laws of 1893, and having duly qualified, on or about the 15th day of November, 1893, Thomas F. Gilroy, then mayor of the city of New York, under the provi■sions of chapter 567 of the Laws of 1894, on 8th June, 1894, appointed Daniel Lord, James M. Varnum, and Daniel P. Hays as commissioners 1 to ascertain and pay the amount of damages to lands and buildings suffered by reason of changes of grades of streets and avenues made pursuant to chapter 721 of the Laws of 1887,' and the said Daniel Lord, James M. Varnum, and Daniel P. Hays, and each of them, accepted the said appointment, and duly qualified as commissioners, under chapter 567 of the Laws of Í894, and thereafter entered upon the discharge of their duties as said commissioners.”

Here we have the statement that they “duly qualified as commissioners” under the Laws of 1894, and this is supplemented by evidence in the record that in the discharge of their duty they conformed to such law. Upon these facts, it seems to me, it would be giving too' narrow and critical a construction to the language used in the appointment, which has reference to the law of 1887. This at best is but a mere recital, and should not be regarded as a limitation upon the powers of the commissioners. It was a very natural recital, for,' as appears, such act of 1887 (chapter 721) was the original act which provided for ascertaining and paying the amount of damages for lands and buildings suffered by reason of the changes of grade, which, as amended by the Laws of 1893 (chapter 537), and as finally amended by the Laws of 1894 (chapter 567), .comprises the legislation on the subject, and a mere reference to the original act therefore should not be held restrictive upon the powers and duties of the commissioners, who, as stated, “ duly qualified,” aud entered upon the discharge of their duties as commissioners, under the Laws of 1894. .


text:
    Booth Bros. and Hurricane Isle Granite Company, Resp’t, v. Matthew Baird et al., App’lts.

      (Supreme Court, General Term, First Department,

      Filed June 14, 1895.)

    1. Evidence — Custom.
    Usage in relation to matters embraced in a contract, when it is reasonable, uniform, well-settled, not in opposition to fixed rules of law nor in contradiction to the expressed terms of the contract, and so far established and known to the parties that it may be supposed the contract was made in reference thereto, is deemed to form part of it, and may be shown in order to enable the court to declare what the contract expressed to the parties.
    2. Same — Local.
    Where the usage is local, it must appear that the party, sought to be bound by it, had notice or knowledge of its existence at the time of contracting.
    3. Same.
    The evidence, in this case, was held insufficient to establish a local custom in Brooklyn to the effect that a measurement by superficial yards contemplated the official measurement by the engineer of the city of Brooklyn, which included the space occupied by railroad tracks and manholes.
    Appeal from a judgment entered in favor of plaintiffs. This action was brought to recover of the defendants a balance claimed to be due under the following contract :

      “New York, March 19th, 1889. .
    “ Messrs. Matthew Baird, John G. Smith, William Kelly, Charles Hart — Gentlemen: We will furnish you ten million granite paving blocks, nine inch and upwards in length, three and one-half to four and seven-eight inches wide, and from seven to eight inches deep, which shall be acceptable to the departments under which they are to be used, provided the specifications are the same as named by the said departments for the year 1888, during the season ending December 81st, 1889. The blocks to be used in the cities of New York and Brooklyn, and to be delivered on such docks in said cities as you may designate, in equal monthly installments, as near as may be, subject to delays in transportation and obtaining transportation, occasioned by the dangers of the sea and the acts of God, for the following sums : For all the blocks used by you in the city of New York, one dollar sixty-seven and one-half cents per superficial yard. For all blocks used by you in the city of Brooklyn, one dollar and sixty-five cents ($1.65) per superficial yard. For all blocks sold by you to be used an contracts other than your own, seventy-nine dollars ($79) ver M., to average twenty-one blocks to the superficial yard, said blocks to be paid as follows: Twenty dollars per thousand on the Wednesday following the delivery of each thousand ; forty dollars per thousand on the 10th of each month for all blocks delivered the preceding month; and the balance on eleven blocks laid by you, the time of the completion and acceptance of the contract in which said blocks are used; and the balance of blocks sold to you aforesaid, thirty days after delivery of same. You to provide good and suitable docks for each vessel forty-eight hours after notice of her readiness to deliver blocks under this arrangement, and to receive said blocks at the rate of not less than one hundred tons per day, Sunday, holidays, and rainy days excepted. In the event that both of the cities of New York and Brooklyn do not make contracts requiring the use of ten millions of blocks, then the number of blocks to be taken by you under this arrangement shall be equal only to the number required under the said contract made by the said cities. We will also carry for you at our quarries a number of blocks not exceeding three millions during the time covered by this arrangement upon your payment to us, on account thereof, $40.00 per thousand for so many as shall be thus carried. Your early reply to this is waited. “Very respectfully yours,
    “Booth Bros. & Hurricane" Isle Granite Co.,
    “John Booth, Treasurer. “New York, Me. Granite P. Block Co.,
    “By John Pierce, President. “Rockport Granite Co.,
    “By Chas. S. Rogers, Treas.

    “Accepted :
    “Matthew Baird. “William Kelly.
    “John G. Smith. “Charles Hart.
    “Witness :
    “Charles S. Ferguson.”

      The plaintiffs recovered a judgment for $42,641, besides costs. The recovery is on the basis of the engineer's measurements in Brooklyn, which includes the space occupied by railroad tracks aud manholes, where necessarily there was no granite. The importance of this item is suggested by the testimony of Mr. Dwyer, an engineer, who says that, on the work done by the defendant Hart, the basis of computing the number of yards adopted by the referee gives to the plaintiffs 6,258 square yards where no granite blocks were in fact laid, which, at $1.65 per yard, amounts to $10,-317.15. The recovery includes a large amount for granite where none was in fact laid by each of the other defendants. But enough has been said to show that the controversy involves a substantial amount. Tne referee did not hold that the language employed in the contract, in the absence of evidence as to custom, would entitle the plaintiff to recover for the entire superficial area of the streets paved, less cross walks or bridges, but that the evidence adduced as to the meaning of the term “superficial yard” was the superficial yard measurement as given by the engineer in charge o£ the work for the city. His finding upon that subject reads as follows: “Third. That the price of the blocks sold by the plaintiffs to the defendants in and by the said contract as laid or used in the cities of New York and Brooklyn was fixed by a rate per “superficial yard.” That the meaning of the term “superficial yard,” on the evidence, is the superficial yard measurement of the pavement laid and measured by the engineer in charge of the work for the city, and returned to the city department. That said measurement in Brooklyn included a superficial area of the street paved, less or excluding the cross walks or bridges and the receiving basins at the street corners, but including all the other superficial area of street paved. In Brooklyn no allowance upon or deduction from such measurement was made for railroad tracks, nor for sewer manholes, when there were such in the street. In New York an allowance upon and deduction from such measurement was made for railroad tracks.”

      Jesse Johnson and John C. Shaw, for app’lts ; George F. Harriman, for resp’ts.
   Parker, J.

— It is conceded that in the absence of evidence establishing that the term “superficial yard,” as used in the contract, has by long-established usage come to mean the measurement of superficial yards as made by the engineer of the city of Brooklyn in charge of the work, there could have been no recovery for the space occupied by railroad tracks and manholes. Whether the referee was right in deciding that the contract should be read as if it had been written, “For all blocks used by you in the city of Brooklyn, one dollar and sixty-dive cents per superficial yard, to be determined by the measurements made by the engineer of the city of Brooklyn in charge of the work,” we shall consider. It has long been the law of this state that usage in relation to matters embraced in a contract, when itjis reasonable, uniform, well settled, not-in opposition to fixed rules of law, not in contradiction of the express terms of the contract, and so far established and known to the parties that it may be supposed the contract was made in reference thereto, is deemed to form part of it, and may be shown in order to enable the court to declare what the contract expressed to the parties. Walls v. Bailey, 49 N. Y. 464 ; Newhall v. Appleton, 114 id. 140; 22 St. Rep 670; Smith v. Clews, 114 N. Y. 190; 23 St. Rep. 166. In Walls’ Case, in which Folger, J., delivered a well-considered opinion, reviewing at length the authorities bearing on the question, a contractor, who had agreed to plaster defendant’s building at a certain price per yard, made no deductions in his bill for cornices, baseboards, or openings for doors and windows. On the trial it was proved that it was the uniform and well-settled custom of plasterers in Buffalo to so measure. It was held that the evidence was proper, and raised a presumption that ■defendant contracted with reference to that usage. The judgment was reversed, however, because the defendant was not allowed to testify that he did not have knowledge of the custom claimed, ■and this was because the plaintiff had established a local usage as distinguished from one that is general.

The distinction pointed out after full discussion was that there are usages so general, and so universally received and acted upon, as that they have become a part of the common law, and no one can be heard to profess ignorance of them; while, on the other hand, there are usages so restricted to locality or trade or business as that ignorance of them constitutes a valid reason why a party may not be held to have contracted with reference to them. It was the local usage in Brooklyn that the plaintiffs attempt to establish. It is not suggested by the testimony that the usage claimed is general. Indeed, it affirmatively appears that such custom does not prevail in the city of New York. There deductions such as the defendants contend for here are required. The defendant Hart testified that, down to the time of the making of the contract, he never knew or heard of any such custom, usage, or practice as that contended for by the plaintiffs. His testimony brought him within the ruling of Walls Case, but, as he was a party to the action, the referee was not bound by his testimony, although not directly contradicted. While he made no finding upon the subject and may have treated this case as one where the general rule as to the effect of usage upon parties applies rather thaii the restricted rule applicable to a special locality, we must, nevertheless, assume that he has found as a fact that he did know of it; and, so assuming, we pass it without special consideration, because we think the ■evidence fails to show that the term “superficial yards,” as between contractors and producers of granite, has by local usage become so firmly established to mean “superficial yards as determined by the measurements of the engineer in charge of the city of Brooklyn” -as to be ingrafted upon all contracts containing it, on the assumption that the parties contracted with reference to it.

A brief analysis of the testimony will suffice to justify our conclusion. The first witness called by the plaintiffs on the question of usage was John Pierce, who testified that he had had considerable experience in selling paving blocks, and that he had never .sold them in any other way than on the engineer’s measurement. But there is nothing in his testimony which shows that the words “superficial yards,” as used in this contract, had a definite and well-established meaning in the trade, such as is claimed for them by the plaintiffs. The inference to be drawn from his testimony seems to be otherwise, for he stated that he usually sold the blocks by written contract, and that, while he received pay for them on the basis of the engineer’s measurement, he further stated : “I can’t say whether it was put that way in the contract or not. I can’t say.” It seems that, in the early days of granite pavement in Brooklyn, the Rockport Company, of which Pierce wras the president, sold a quantity of granite blocks to the contractor by the name of Dady : and, when- the time came for settlement, Pierce in behalf of his company, claimed the right to be paid on the basis of the engineer’s measurements, while Dady insisted that he was only entitled to receive payment according to the number of yards, to be ascertained by actual measurement. Pierce’s company finally settled with Dady, making in the main the deductions insisted upon, after which Pierce stated that in the future his contracts should specify engineers’ measurements.

Charles S. Ferguson, the assistant secretary of one of the plaintiffs, did testify that there was a custom among granite block sellers and layers in the cities of Brooklyn and New York in relation to the method of measurement when blocks are sold by the superficial or square yard, and that such custom is to take the measurements filed by the city engineer. His testimony, therefore, may be said, in a general way, to fairly meet the situation, although he failed to state a single instance where a written contract in which the term “superficial yard” was used was construed by the parties to mean that which he says was the established custom.

William Kelly one of the defendants not appealing, also testified, in a general way, that it was the custom to make settlement, according to engineers’ measurement. He does not suggest an instance where a written contract providing that payment should be at a certain price per superficial yard was construed by the parties to mean superficial yards as determined by a measurement of the city engineer. Indeed, he testified that, prior to the making of the contract in question he had had but one contract where railroad tracks ran along the length of the payment, and that was on Front street, in Brooklyn. With reference to that contract he-testifies: “It was agreed that they were to be paid by the engineer’s estimate. I made the agreement, and signed it, to pay Booth Brothers that way, and I paid them by engineers’ measurements.” Had a similar agreement been made here, there could have been no such question as is now presented. While his testimony shows what he did under the particular contract, it does not show, or even tend to establish, that the term “superficial yard ” has that well understood and settled local meaning for which plaintiffs contend.

The defendant John Gr. Smith also testified that he made payments to the plaintiffs, under this contract, according to the engineer’s measurements, but he admits that he purchased of the plaintiffs all of the blocks which he used during the six years last past in Brooklyn, by the thousand. His personal experience touching the established local meaning of the term “ superficial yard" is confined to this contract, and therefore does not tend to establish that it had a meaning other and different from that given to it by the dictionary prior to the making of this contract. Ho other witnesses were called by the plaintiffs upon this branch of the case. Their testimony does not justify a finding that, at the time of the making of the contract, the local usage of the term “superficial yards” was firmly established in the granite trade to mean something different than the term ordinarily imports. When, however, this testimony comes to be considered, in connection with the evidence introduced by the defendants, it will appear that there never was any such established custom. It is testified to, and not disputed, that until 1885 it was the custom to purchase blocks by the thousand. That custom has been continued by many, but some of the contractors have from time to time made contracts for the blocks to be paid for by the yard. ' Whatever of custom there is, therefore, has grown up during a period of less than six years immediately preceding the making of this contract. One of the witnesses produced by the defendants to prove that, there was no such custom was Van Brunt Bergen, who for many years had the general superintendence and charge on behalf of the city of all the paving done for it. It is fair to assume that his position was such that any custom between contractors and sellers of granite would be more likely to come to him than the average business man. He testified that the fact was that the city, in paying the contractor, measures in the railroad iron ; and it is so understood when the contracts are let, and the bids are made accordingly. But he declared that he had never heard of any custom or a claim of a custom that the persons who furnished stone by the yard should have the railroad iron included in their measurements. He gave an instance where the city had purchased granite blocks of one of these plaintiffs within two years of the time of the making of the contract in controversy. The stone was purchased by the square yard of pavement on the requisition of the commissioner. One of the plaintiffs talked with the witness about making allowance for the space occupied by the railroad tracks before requisition was made, but the representatives of the city refused to make any such allowance, and the result was a requisition which was an equivalent to the contract in question. It was subsequently carried out, the expression being treated as meaning precisely what would be its ordinary dictionary meaning. This transaction of itself affords-the most satisfactory proof that Booth Bros., who are plaint! ffshere, and the superintendent of paving in the city of Brooklyn, did not know of the existence of any such custom as the plaintiffs claim on this trial. One of the earliest departures from the plan of buying blocks by the thousand was through a contract between the Bockport Company, one of these plaintiffs, and Dady & Cox,, contractors. This contract was spoken of in considering the testimony of Pierce, the president of the company. We refer to the subject again, because of the testimony of Dady & Cox. Cox points out that the real difference between Pierce and his firm was that they refused to pay for the space taken by the railroad iron, •whilePierce demanded payment for railroad iron on engineers’ measurements. But, finally, he says Pierce agreed to accept actual measurement, and a settlement was had on that basis. Dady testifies that, after the settlement was made, Pierce said that hereafter he would have a provision for engineers’ measurements inserted in their contracts. That statement Pierce did not deny. Nor did he attempt to make it appear that he ever caused to be executed a contract, other than the one in question, in which it was not provided tliat payments should be made according to the engineers’ measurements if the parties had so agreed.

Thomas Monahan, who is largely engaged in paving streets with Belgian block, coble stone, and other material, says that he usually purchased his blocks by the thousand; but in the year 1889 he -did make a purchase of blocks by the yard, but the contract provided that they should be paid for by the engineers’ measurements.

John EL O’Rourke never had but one contract by which he agreed to pay for blocks by the yard prior to June, 1889. Up to that time he bought mostly by the thousand. In answer to an inquiry whether the engineers’ measurements are usually specified in contracts or agreements, whether in writing or verbal, he answered : “ I can only speak for myself. When I made a contract with Mr. Pierce (president of one of the plaintiffs), it was always agreed between us that it was engineers’ measurements. * * * That is all the custom there is about it, — the agreement that I make. I think that is all.”

Edward J. McKeever testified that the firm of which he was a member purchased blocks of one of the plaintiffs by the yard, and paid for them by actual measurements. This the plaintiffs felt -called upon to answer in rebuttal, and they produced the contract -by which the parties agreed that the settlement should be upon the basis of engineers’ measurements, but, if the engineers’ measurements should include space occupied by rails, that such space should be deducted and allowed on the final payment. This only emphasizes, what was undoubtedly the fact, that in some eases it was agreed, in the first instance, that the engineer’s estimate should be accepted as final, without any deduction for rails or manholes, while in others it was agreed that there should be deductions.

We have already referred to the testimony of the defendant Hart, to the effect that he never knew or heard of any such custom -or usage as that claimed by the plaintiffs and found by the referee; and he refers specially to a contract made between him and the plaintiff the New York & Maine Granite Company, in which the price was fixed by the company as follows : $1.75 per square yard on the engineer’s measurement “when laid in the street.” A reply was prepared by its president (Pierce), and by it Hart was made to say : ‘T accept your proposition” at so much per square yard, “on engineer’s measurement when laid in the street.” In this particular case, therefore, it will be observed that he was careful to have engineer’s measurements incorporated twice, evidently intending that there should be no room for dispute as to whether iron and manholes should be measured as stone delivered by the company.

The testimony in this voluminous record would permit of a more extended discussion of the evidence bearing on this subject, but our purpose has been, as briefly as possible, to make it clear that there is nothing in this testimony to support plaintiffs’ claim that by an established custom the term “superficial yards” has come to mean superficial yards according to the city engineers’ measurements. If the evidence may be said firmly to establish anything about the question, it is that sometimes the parties agree to include rails and manholes in the measurements of stone, and pay for the space they occupy as such, and in other cases they do not. Whatever they agree to, if the contract is reduced to writing, finds expression"™ it. The term “superficial yards” is not used in one case to mean the engineers' measurements, without deduction for rails and manholes, and in the other that only actual measurement of stone shall be paid for. According to the testimony of Engineer Dwyer, whether this contract shall read as its language imports, or as the plaintiffs claim the evidence shows it should be read, involves to one of these appellants something over $10,000, and justifies him in insisting that the plaintiffs shall be compelled to establish, it before he shall be deprived of the right apparently secured to him by the provisions of the contract. We agree with him that the testimony contained in this record does not establish the custom which has been found to exist. •

The judgment should be reversed as to the.appellants, Hart and Baird, and a new trial granted, with costs to the appellants to abide the event. All concur.


author: Follett, J.

text:
    Central Trust Company of New York, Resp’t. v. New York Equipment Company, App’lt.

      (Supreme Court, General Term, First Department,

      Filed June 14, 1895.)

    1 Subrogation — Collateral.
    Upon the transfer of notes, the transferee becomes subrogated, by operation of law, to the rights of the transferer in the securities held by him or as collateral for their payment.

      2. Same — Parties.
    In such case, the transferer is not a necessary party in an action by the transí rec to enforce rights in the collateral security.
    3. Appeal — First instance.
    Tile question that a person or corporation is a necessary party to an action, cannot be raised for the first time on appeal. .

      4. Pi,edge — Compensation.
    In the absence of a contract that compensation for service shall be made, joint pledgees of property cannot recover of each other compensation for •services‘rendered in caring for it and converting it into money.
    Appeal from a judgment entered in favor of plantiff. ' This action was brought to compel the defendant to account for two-fifths of the avails of certain property which it had taken, sold, and converted into money. March 28, 1889, the defendant entered into a written contract with the San Diego & Eastern Terminal Railway Company by which the former delivered to the latter two locomotives and sixteen railway cars. The agreement is in form a lease, in which the defendant is called “ lessor.” and the railway company “ lessee,” but in effect it is a conditional contract of sale of thd property. For this property the railway company agreed to pay $85,000, by thirty-five promissory notes executed by it March 28, 1889, for $1,000 each, numbered from 1 to 35, inclusive; the first to become due July 1, 1889, and the last May 1, 1892. The defendant delivered the locomotives and cars to the railway company, and received from it thirty-five notes, all alike except the number and date of payment. The following is a copy of No. 2 :
    “No. 2.
    “$1,000. San Diego, California, March 28, ’89.
    “ On the first day of August, 1889, we promise to pay to the New York Equipment Company, or bearer, one thousand dollars, with interest thereon at 6 per cent, per annum from May 1st, 1889, for rental of rolling stock under contract of lease of even date herewith, payable at the office of said New York Equipment Company in the city of New York.
    “San Diego & Eastern Terminal Railway Co., 4
    “By Wrn. H. Carlson, President. ”■
    By the terms of the contract upon the payment of all the notes and the further sum of five dollars, the title of the property was to vest absolutely in the railway company. The contract contains the following provisions: “In case the said lessee shall make default in payment of any of the notes aforesaid, or any part thereof, according to their tenor, on the day when the same must be payable, or in case the lessee shall violate this agreement in any respect whatsoever, this lease shall immediately cease and determine, and lessee shall and hereby agrees to deliver up the aforesaid equipment and rolling stock to the lessor as aforesaid; and the sums paid and payable upon all the aforesaid notes up to the date of such surrender and delivery shall be deemed an equivalent for the use of said property up to such date,, and shall be retained as such by the lessor. Said lessee further agrees that, in case of any such default, the lessor or its assigns may seize said equipment and rolling stock wherever the same may be found, and resume possession thereof, free from every legal and equitable claim of said lessee of, in, or to said equipment or rolling stock, and said lessee agrees that it will hold said lessor or its assigns harmless from and pay any and all debts, demands, or liabilities whatever which said lessor may incur by reason of any such seizure. In case said equipment and rolling stock shall be delivered up by said lessee to said lessor or its assigns as aforesaid by reason of such default, the said lessor or its assigns shall have the right to retain for its own use and benefit the said equipment and rolling stock so delivered up or seized, or, at its option, to sell the same on ten days’ notice to the lessee at public or private sale, and to apply the proceeds to the payment of any and all of said notes representing installments of rent of said equipment and rolling stopk for the whole of said term of thirty-six months, whether said installments shall then have fallen due or not, including interest at six per cent., and notwithstanding that said rolling stock be so taken possession of and removed and sold prior to the expiration of this lease. In case the proceeds of such sale shall not be sufficient to pay all of said notes in full, such proceeds shall be applied to the pro rata payment of all of said notes then outstanding aud unpaid, without preference or priority, and irrespective of the dates of their maturity, and said lessee shall be liable to pay the deficiency to the lessor or its assigns on demand until all said notes shall have been paid in full; but if the pioceeds shall be more than sufficient to pay all such unpaid notes representing installments of rent, with interest and expenses, then the surplús shall be paid to the lessee.”
    The United States Rolling-Stock Company furnished the sixteen cars delivered by the defendant to the railway company, and, in payment thereof, received from the defendant fourteen of said notes, to wit: No. 2, due August 1, 1889; No. 4, due October 1, 1889; No. 7, due January 1, 1890; No. 9, due March 1, 1890; No. 12, due June 1, 1890; No. 14, due August 1, 1890; No. 17; due November 1, 1890; Ño. 19, due January 1, 1891; No. 22, due April 1, 1891; No. 24, due June 1, 1891; No. 27, due September 1, 1891; No. 29, due November 1, 1891; No. 32, due February 1, 1392; Ño. 34, due April 1, 1892. These fourteen notes represented two fifths of the contract price for the locomotives and cars. To secure the United States Rolling-Stock Company, the defendant, by a written instrument, dated June 14, 1889, assigned to the rolling-stock company and its assigns, “an undivided two-fifths, interest of all its right, title, and interest thereunder (the contract of March 28, 1889), and in and to the railroad equipment and rolling stock therein described, together with the rights, remedies, and incidents thereunto belonging.” June 20, 1889, the United States Rolling-Stock Company transferred said fourteen notes, all payable to bearer, to the plaintiff, for a valuable consideration. The railway company made default in the payment of all the notes which fell due on and before January 1, 1891; and on or about January 9, 1891, the defendant, pursuant to the terms of the contract, took possession of the locomotives and cars, and afterwards sold a portion of them, and received the proceeds of the sale. Before this action was begun, the railway company defaulted on the remainder of the notes falling due after January 1, 1891. The defendant refusing to account for the avails derived from the sale of the property; this action was begun January 17, 1893, to compel an accounting.
    The foregoing facts are alleged in the complaint, are not denied in the answer, and have been found by the referee. As a defense, it is alleged that the defendant, in taking possession and selling the property, acted with the consent of the United States Rolling-Stock Company, upon an agreement that the defendant should be reimbursed for all expenses incurred and paid out of the avails of the sale for its services in taking possession of and selling the property. By a stipulation, the action was referred to a referee to hear and determine; and, by the interlocutory judgment entered on his report, it/ was adjudged that the defendant account for the property taken. By the final judgment the defendant was allowed all of its expenses in taking possession, caring for, and selling the property, which being deducted from the avails of the sale, left in its hands $6,283.95, two-fifths of which ($2,513.58) the defendant was adjudged to pay to the plaintiff, together with the costs of the action.

      Philip G. Bartlett, for app’lt; Henry W. Calhoun, for resp’t.
   Follett, J.

— The defendant alleges four grounds for the reversal of the judgments: (1) That the plaintiff failed to show that defendant was liable to account; (2) that the United States Rolling-Stock Company is a necessary party to the action ; (3) that the referee erred in refusing to allow the defendant compensation for its services in taking possession of, caring for, and selling the property; (4) that the referee erred in admitting evidence on the accounting.

The contract was, in legal effect, a conditional sale of the- property; by the terms of which the defendant, in case the railway company defaulted on any of the thirty-five notes, had the right to seize the property, sell it, and apply the avails in payment of the notes, or it had the right to rescind the contract, take possession of the property, and hold it as its own. The defendant did not resort to the second, but to the first, alternative, and elected to affirm the contract, treating the property as security for the payment of the notes; and it is alleged in the answer that this was done by an agreement with the United States Rolling-Stock Company. Had that company remained the owner of the fourteen notes-which, were transferred to it by the defendant, it would have had the right to compel the defendant to account and pay over two-fifths of the net avails of all sums realized on a sale of the locomotives and cars. That right was created and secured by the assignment by the defendant to the United States Bolling-Stock Company of June 14, 1'889. ' Upon the transfer of these notes to this plaintiff, the securities held by the transfer, or as collateral for their payment, passed in equity to the plaintiff, who became subrogated by operation of the law to the rights of the transferer;-, and it has the same right to compel the defendant to account that the United States Rolling-Stock Company would have had, had it not transferred the notes. It is argued in the behalf of the defendant that it is not liable to account because, under the contract it remained the absolute owner of the property. If the defendant, instead of affirming the sale, had elected to rescind it, and take the property into its possession as its own, a different question would have arisen; but even in that case it is difficult to see how, under its assignment of June 14, 1889, it could have escaped liability to account for two-fifths of its value. Again, it is not alleged in the answer that the defendant elected to disaffirm the sale and take possession.of the property, and hold it as its own ; and it is too late, after having substantially alleged the contract, to take this position on appeal.

The question that the United States Rolling-Stock Company is a necessary party to the action cannot be raised for the first time-on appeal. This objection is waived, unless it is taken by demurrer or answer. Code Civ. Proc. § 499. The objection was not taken, by answer or demurrer, on the trial, nor on the accounting before tlie referee; and it is too late to take it on appeal. Had it appeared on the trial that it was necessary that other parties should be brought in, in order to determine the action, the court might in its discretion, have ordered the case to stand over, and the necessary parties brought in. But there is no such necessity in this case. ' The United States Rolling-Stock Company is not shown to have any interest in this action. It had transferred all of its interest in these notes to this plaintiff, which is subrogated to all the United States Rolling-Stock Company’s rights in the contract, and it is not a necessary party to the action.

The defendant claims $3,000 for its services in taking possession of, caring for, and selling the property. The referee found that the plaintiff had not agreed to compensate the defendent for; such services. In the absence of a contract that compensation for services shall be paid, joint owners of property or persons jointly interested in property cannot recover of each other compensation for services rendered in caring for it and converting it into money. Franklin v. Robinson, 1 Johns. Ch. 157; Trustees v. Greenough, 105 U. S. 527; Baun v. Reynolds, 18 Cal. 276 Freem. Coten. § 260. The case of Woodruff v. N. Y., L. E & W. Railroad Co., 129 N. Y. 27; 41 St.. Rep. 193, is cited as holding a contrary doctrine. It is expressly stated in that case that the plaintiff, who was compensated for his services, was not acting in his own interest, but exclusively as a trustee for and in the interest of bondholders. 129 N. Y. 31, 32; 41 St. Rep. 193. Again, on looking into the record, we fail to find any evidence of the extent of the services performed by the defendant, or of their value, beyond the services performed by its employe, whose salary and expenses were allowed by the referee.

Four of the six exceptions taken to the admission of evidence are to the testimony of William C. Lane in the respect to the value of services for selling railroad rolling stock. Having held that, under the evidence, the defendant is not entitled to compensation for such services, the testimony as to the value of like services becomes entirely immaterial, and no harm was done to the defendant by its admission. The other two exceptions are_tothe ruling of the referee that the plaintiff’s vice-president might, testify that the plaintiff never assented to any payment or charges-for services by the defendant. This was clearly competent.'

We think that no error was committed by the learned referee and that the judgments are right, and should be affirmed, with costs.

All concü r.