author: Ward, J.

text:
    Arthur J. Baldwin, Resp’t, v. Marie Golde et al., App’lts.

      (Supreme Court, General Term, Fifth Department,

      Filed June 21, 1895.)

    1. Vendor and purchaser — Bona pide — Notice.
    The fact that an adult son lives with his father on land, of which the record title is in the father, does not show such possession of the premises by the son as to charge a purchaser from the father with notice of the son’s equity.

      2. Deed — Lunacy.
    The deed of a lunatic, or person of unsound mind, made before inquisition of lunacy found, is not void, where it is executed upon a valuable consideration received by the lunatic, and the other party to the conveyance had no knowledge or notice of his mental infirmities.
    3. Same — Burden.
    Ordinarily, the burden is upon those who allege the unsoundness of mind to establish the fact to avoid the instrument, the want of equity in the transaction and notice, to the party dealing with the lunatic, of his mental condition.
    4. Same — Who may maintain action.
    The wife and children of the grantor cannot, during his lifetime, question his mental capacity to convey land.
    Appeal from a judgment in favor of plaintiff.

      W. B. Simpson, for app’lts; Leonard D. Baldwin, for resp’t.
   Ward, J.

— The premises sought to be recovered by the plaintiff in this action were village lots 71, 72, and 73, and parts of 69 and 70, in the village of Tonawanda, and also lot 74. All except lot 74 had been conveyed by the owner in possession, in 1884, to Christian Golde, the husband of the defendant Marie, and the father of Cornelius, Herman, and Thomas Golde, the other defendants. Lot 74, in 1885, had been conveyed by the owner to Christian Golde and Marie, his wife, as tenants by the entirety. Christian went into possession of all these lots, under the deeds, and continued such possession until January, 1893, when he sold and conveyed the premises, by warranty deed, to the plaintiff, for a valuable consideration, of $965. The wife and sons of Golde occupied the premises with him, as a part of his family. Christian Golde, after the sale, departed from the state, leaving the family in possession of the premises. The plaintiff demanded possession of them, and was refused, and brought this action to recover the premises. The defendants all answered, alleging, first, that the defendant Cornelius Golde had constructed a house and barn upon the lots after his father had purchased them, and before the deed to the plaintiff, at the cost of about $1,200, under a verbal arrangement with his father that the father should execute a mortgage to him for the cost of the buildings, and until he did so Cornelius was to live on the premises, with his father, free of rent, which should offset the interest that would accrue on the costs of the buildings ; that the plaintiff knew of this arrangement at the time of his purchase. The defendants further answered that Christian Golde and the plaintiff had entered into a fraudulent arrangement, whereby the plaintiff was to purchase the premises for less than they were worth, in order to defraud Cornelius Golde of his rights in the premises, and that the said Christian Golde, at the time of the execution and delivery of the deed to the plaintiff, “was of unsound mind, was mentally incompetent to transact business and to deed real property, and was so far deprived of his reason and understanding as to be altogether unfit to manage his affairs, * * *” and that the plaintiff at that time was aware of such condition of Christian Golde, and procured him to execute the deed to the plaintiff for a consideration much less than the actual value, “with intent to defraud such Christian Golde and Cornelius Golde of their respective rights in said premises.” Upon the trial the plaintiff gave testimony tending to show that he was a purchaser in good faith and for value, and had no notice of any claim or equity of Cornelius Golde, or any knowledge or notice of any unsoundness of mind of Christian Golde, and was protected by the recording acts, in his title. , The defendants offered to show the contract as to the buildings, and the verbal mortgage, alleged in the answer, between Christian Golde and Cornelius, without offering to show any knowledge in or notice to the plaintiff of the same. This evidence was excluded, under objections made, and the defendant, excepted, and then the defendants offered to show “that, at the time of the execution of the deed from Christian Golde to Arthur J. Baldwin (the plaintiff), he was of unsound mind and incompetent to transact business or to give the deed in question.” This was objected to and excluded, and the defendants excepted. There was ho offer by the defendants to prove, or proof given of, any knowledge in or notice to the plaintiff of the matters embraced in this offer. The evidence was closed, and each party asked the court for a direction of a verdict in his.favor, respectively. The court dismissed the complaint, as to lot 74, and directed a verdict for the plaintiff as to the other lots.

The questions before us come here upon the two exceptions taken by the defendants. The first exception, as to the equitable claim of Cornelius Golde, is clearly untenable. It was a private arrangement between the father and the son, of which the plaintiff had no notice or knowledge. The counsel for the appellant claims that Cornelius Golde was in such possession of the premises as gave constructive notice of his rights. He was living in his father’s family, and, to all appearances, bore only such relations to the property as a son in the family would have who had not departed from the family hearth. The father had the record title, and the inference was that the son’s possession was under him, and in subordination to that title. Pope v. Allen, 90 N. Y. 298.

The other exception is more formidable, and involves a question about which there is confusion in the authorities, and has been much considered and discussed in the courts of this state. The defendants were strangers to the title of Christian Golde, although his wife and children, until his decease. They had no more right to the possession of the premises, as against this grantee, than any other person who might enter upon the premises wrongfully, and hold them against the plaintiff. And the appellants’ counsel here takes the bold position that any person in possession of real estate, even if such possession be wrongful, may hold it against the grantee of one having lawful and record title, by showing the insanity of his grantor, as a fact, upon the trial of an action brought by the grantee who purchases in good faith and for value, and without notice of the insanity; and he cites in support of this position Van Deusen v. Sweet, 51 N. Y. 878. That was a case where a parent had deeded to his son-in-law, without consideration, certain premises, and had also devised the same premises, by will, to his daughter. The daughter sued to recover the premises, alleging the deed void to the son-in-law upon the ground of the insanity of the father, and the court held that a deed by one non compos mentis is absolutely void, and where a defendant in-an action to recover the possession of real property claims under such' a deed, the fact of the incapacity of the grantor may be shown by the plaintiff, to defeat such claim, although no fraud is alleged, and such incapacity has not been legally or j udieially determined at the time. This decision was made by the commission of appeals, and it will be observed that the parties to the action had notice of the mental condition of the father, and neither of them was a purchaser for value. He also cites Goodyear v. Adams, 29 St. Eep. 31. That was a family controversy, where one party claimed under a deed, and another under a will, where the mental condition of the grantor was known to the parties, and where there was an allegation of fraud as to the obtaining of the deed. The deed was held void in that case, but the court say :

“ It was not shown that the deed was taken in good faith, or for the benefit of the grantor, in any manner, or for an adequate consideration, but obtained by fraud.”

He cites, also, Aldrich v. Bailey, 132 N. Y. 85; 43 St. Rep. 568. That case came before the court on a submission of facts as to whether a contract was void for insanity of one of the contracting parties. In referring to the case of Van Deusen v. Sweet, supra, Judge Haight says:

“Assuming, for the purposes of this case, that the rule is there correctly stated, aud that a deed would not be merely voidable, but absolutely void, when executed by an insane person, yet under the rule in that case a deed is absolutely void only when it appears that the person executing it was at the time so deprived of his mental faculties as to be wholly and absolutely and completely unable to understand or comprehend the nature of the transaction.”

Tiie judge further says, in speaking of the case before him:

“No allegation appears as to the extent to which the mind was unsound, or as to whether it was so affected as to render him wholly and absolutely incompetent to comprehend and understand the nature of the transaction.”

Judged by this standard, the answer of the defendants falls far short of alleging such a mental condition in Christian Grolde as would make his deed void. The answer alleges that he is capable of committing a fraud upon his son, with the plaintiff, and at the same time charges him with incapacity to carry out the fraud. The " offer of proof, under the answer we are now considering, falls short of this rigid standard; and we might repose upon this distinction, and sustain the ruling of the trial court without further investigation, but we will consider a few other cases and authorities, and assert what we regard the true rule established by them. But before doing so we will notice another case cited by the appellants,

— Valentine v. Richardt, also reported as Valentine v. Lunt, 22 St. Rep. 847. In that case, Mrs. Valentine, being the owner of considerable real estate, and an invalid, employed a physician, one Eichardt, who obtained such influence over her that he established illicit relations with her, and, by most villainous contrivances and fraud, induced her to deed to him her real estate, and, after recording the deed, borowed considerable money, on the strength of his record title, of innocent persons, and executed mortgages to them. Upon the death of Mrs. Valentine her son brought an action in equity to set aside the mortgages and deed (making the mortgagees parties), alleging the fraudulent methods of Richardt, and that his mother, when she executed the deed, was of unsound mind, and incompetent to manage-herself or her affairs. The general term of the second department held the deed and mortgages void, even as against the innocent mortgagees. Upon appeal to the court of appeals this judgment was reversed (115. N. Y. 496; 26 St. Rep. 254), the court holding that the innocent mortgagees should be protected, notwithstanding the fact of the mental condition of Mrs. Valentine, and fraud practiced upon her. Blackstone says (2 Comm. 291) that:

“ Idots and persons of nonsane memory, infants, and persons under duress, are not totally disabled either to convey or purchase, but sub modo only, for their conveyances and purchases are voidable, but not actually void.”

Kent says (Id. 451):

“ The general rule is that sanity is to be presumed until the contrary be proved, and, therefore, by the common law, a deed made by a person non compos is voidable only, and not void.”

In Ex parte Beckwith, 3 Hun, 443, the general term of the fourth department say:

“A contract with a person not known to be of unsound mind, and who has not been found, upon a commission de lunático inquirendo, to be insane, may be sustained if it shall be proved to have been fairly made, and without advantage being taken of the lunatic.”

In Fitzhugh v. Wilcox, Judge Johnson, speaking for the general term of the seventh district (12 Barb. 237), says, in a case where an alleged lunatic had been a contracting party:

“ The distinction between the void and voidable contracts of a lunatic does not appear to be entirely settled, upon authority, but I apprehend that it will be found to be substantially this: that the deeds and contracts of a lunatic, made before office “found, are not void, but voidable, while those made afterwards are absolutely void;” citing cases, among which is Jackson v. Gumaer, 2 Cow. 552.

in Riley v. Bank, 36 Hun, 519, where it was alleged that an insane person had deposited money in a bank, the court says, at page 519:

“ An executed contract, made in the usual course of business, and founded upon a valuable consideration, cannot be set aside by one of the parties thereto, nor by his representatives after his death, on the ground of his unsoundness of mind when he received the benefits stipulated in the contract, and the other party has no notice of his incapacity, and was guilty of no fraud or imposition ; ” citing Insurance Co. v. Hunt, 79 N. Y. 541, and other cases.

This case was affirmed, without opinion, in 103 N. Y. 669. Many other cases might be cited to the same effect, and the rule the cases establish is this: That the deed or contract of a

lunatic, or person of unsound mind, made before inquisition of lunacy found, is not void, where it is executed upon a valuable consideration received by the lunatic, and the other party to the contract or conveyance had no knowledge or notice of his mental infirmities. The burden of proof may be one way or the other in such cases, according to the circumstances; but ordinarily the burden is upon those who allege the unsoundness of mind to establish the facts to avoid the instrument, and the want of equity in the transaction, and notice, to the party dealing with the lunatic, of his mental condition. No transaction with a lunatic is void, unless it is void as to both parties, so that either could assert it. No one would claim that the plaintiff in the case before us could assert the absolute invalidity of the deed he received, and ask for a restoration of the consideration he had advanced for it. The deed, therefore, at best, being only voidable, and the offer of proof as to the grantor’s mental condition not being accompanied by any proof¡ or offer to prove notice to the plaintiff, the trial court was right in rejecting the evidence, and the exception was not well taken.

The respondent makes a point that the defendants in this case are strangers to the title of Christian Gfolde, and cannot litigate here the question of his sanity. This position is supported both by reason and authority. It must be remembered that Christian Gfolde was not dead at the time of the trial, so that any rights that he may have had devolved upon his widow and children. In Ingraham v. Baldwin, 9 N. Y. 45, evidence to show that a mortgagor, at the time he executed the mortgage, was a lunatic, was offered against a mortgagee in good faith, and without notice. The evidence was excluded, and the court of appeals say that the mortgage was only to be avoided at the election of the lunatic or his personal representatives, or those claiming some interest under him in the premises; that a lunatic was not absolutely disqualified from making a contract. And the court concludes:

“ Again, there was no privity between the defendant and mortgagor shown, or proposed to be shown. * * * A stranger would have no more right to insist upon the insanity of the mortgagor, to avoid a security executed by him, than upon his infancy.”

The same principle is asserted in Jackson v. Gumaer, 2 Cow. 552.

The questions of fact in the case are all found with the plaintiff by the court, as both parties asked for a direction of a verdict.

The judgment should be affirmed.

All concur.


source: Caselaw Access Project

license: Public Domain

text:
    The People ex rel. Mary C. Hanford et al., App’lts, v. James A. Thayer et al., as Highway Commissioners, etc., Resp’ts.

      (Supreme Court, General Term, Fifth Department,

      Filed June 21, 1895.)

    Certiorari — When will not lie.

      Certiorari to review the decision of commissioners of highways will not lie.
    Certiorari to review proceedings in laying out a highway.

      William S. Briggs, for relators ; M. A. Leary, for resp’ts.
   Ward, J.

— Upon due application the county court of Yates county, on the 19th of June, 1894, appointed the respondents commissioners, pursuant to section 84 of the highway law, to certify as to the necessity of altering a highway in 'the town of Jerusalem, Yates county, which alteration consisted of opening a new road through the premises of the relator and others, and abandoning a portion of an old road, as useless, and to assess the damages therefor. The commissioners, upon notice to the parties interested, examined the routes, heard the testimony, and such reasons as were offered for and against the laying out or discontinuing of the highway, and assessed the damages, and made a certificate thereof in due form, which was filed in the county clerk's office of Yates county, with the minutes and evidence of their proceedings, on the 19th day of October, 1894, and filed a duplicate of such decision in the town clerk's office of said town •on the 18th day of October, 1894. The papers before us contain the appointments of the county court of Yates county, by which it appears that terms of that court for the hearing^ and decision of -motions and appeals and other proceedings, without a jury, were appointed for the first Tuesday of several months in the year, .among which were November and December. Various objections were taken by the relators to the proceedings, and the special term of this court, on the 26th of November, made an order directing the issuing of a certiorari, and a certiorari was issued, which brings the subject before us.

The respondents meet us upon the threshhold of this case with the objection that a certiorari does not lie to review these proceedings, because, by section 2122, Code Civil Procedure, a writ of certiorari cannot issue in either of the following cases:

“ First, to review a determination which does not finally determine the rights of the parties with respect to the matter to be reviewed. Second, where the determination can be adequately reviewed by an appeal to a court or to some other body or officer.”

Section 89 of the highway law (1890, chap. 568) provides that:

“ Within thirty days after the decision of the commissioners shall have been filed in the town clerk’s office any party interested in the proceedings may apply to the court appointing the commissioners for an order confirming or modifying their decision, and ¡such court may confirm, vacate or modify such decision. If the decision be vacated the court may order another hearing of the matter before the same or other commissioners. If no such motion is made, the decision of the commissioners shall be deemed final. Such motion shall be brought on, upon the service of papers upon adverse parties , in the proceeding, according to the usual practice of the court in actions and special proceedings pending therein; and the decision of the county clerk shall be final, excepting that a new hearing may be ordered as herein provided. If the final decision shall be adverse to the applicant, no other application for laying out, altering or discontinuing the same highway shall be made within two years.”

The order appointing commissioners, having been made • by a court of record, cannot be reviewed here. Section 2121, Code. Therefore, if permitted to review at all, we are limited to the consideration of such matters as arose after-the making of this order. The language of section 89, above quoted, seems broad enough to-empower the county court, upon a motion to confirm or vacate, to review all the proceedings in the laying out of the highway after the granting of the order appointing the commissioners, whether those proceedings relate to the merits of the application, or otherwise. In other words, the county court can review any question that this court can upon this writ. Prior to the adoption of the-present Code, the rule established in practice and by many cases was that the writ of certiorari could only be resorted to in cases-where an appeal or other proper and appropriate remedy was not available, and could not be resorted to unless necessary to obtain a. review in .cases where no other provision therefor was made by law. Fiero, Spec. Proe. 107, and eases there cited. There was-conflict in the decisions as to just what this broad language meant, and how far the prohibition extended, and the result was the legislation embraced in section 2122 of the Code. We think the purpose of this section was to deny the writ where the action of the inferior body could be adequately reviewed by a court or some other body or1 officer, whether by a technical appeal, or by a proceeding which was the review that the legislature aimed at, and its purpose is accomplished as well by a motion bringing up the whole proceeding as by a direct appeal from the order. An appeal is simply a “ removal of a cause from a court of inferior to one of superior jurisdiction for the-purpose of obtaining a review and retrial.” Bouv. Law Diet. And the Imperial Dictionary defines “ appeal ” as: “In law, to remove a cause from an inferior-to a superior judge or court.” In this broad sense the term “appeal ” was used in the Code. The relators therefore had a complete and adequate remedy by bringing the record evidence and all the proceedings laying out this highway before the county court. The court had the power to vacate those proceedings, if any of the grounds of error alleged in the petition for this writ, or that appear by the return before us, were well taken. The county court was open and a term appointed for the first Tuesday of November, at which this motion could have been made, and the review had before the court appointed by. the statute to make the same; and this review of the county court was a part of the scheme-of the revision of the highway laws in 1892, and was undoubtedly intended to cut off the almost constant application to this court for writs of certiorari in highway cases. The. case before us is readily distinguished from People ex rel. Titsworth v. Nash, 88 St. Rep. 730, which holds, in effect, that, under the highway law prior to the revision, the order of a county judge confirming the report of commissioners appointed by him in proceedings to lay out a highway is not a final determination that could be adequately reviewed by appeal, and hence certiorari would lie. In re De Camp, 77 Hun, 478 ; 60 St Rep. 670, the general term of the fourth department held that the order of .the county court upon review of the proceeding to lay out a highway was final, under section 89, above cited. The learned judge holding the special term at which this writ was granted, in his opinion, seems to concur in the view here expressed, — that the motion to review by the county court is equivalent to an appeal as specified in the Code ; but he concludes that the power of review given the county court embraces the right to modify the assessment of damages made by the commissioners, and to that extent the act would violate the state constitution (article 1, § 7), which requires the. damages to be fixed by a jury, or by not less than three commissioners appointed by a court of record, and hence certiorari to this courtis proper. Section 89 of the highway law certainly does not in terms, provide that the court may modify any award of damages that may be made by the commissioners, and the construction of the general terms used as to the right to modify, the decision of the commissioners would be that the county court could modify the decision only to the extent which the constitution would permit, and not make a modification that would violate the-constitution. The courts only hold a legislative act unconstitutional in plain aud clear cases; and where, as in this ease, a construction can be fairly adopted that sustains the validity of the law, the courts do so. By section 2141, Code Civ. Proa, this court, upon the hearing of & certiorari may make “a final order annulling or confirming wholly .or partly or modifying the determination reviewed as to any or Tall the parties.” This is the same power, substantially that is conferred, as we have seen, upon the county court, so far as the proceeding before it is concerned. The supreme court cannot modify the damages, any more than the county court, under the constitution. Therefore, in this respect, no additional relief can be given by this court, under the writ,, than the county court may grant in the review given by the statute.

The relators have mistaken their remedy. They should have gone to the county court, under section 89. It becomes unnecessary, therefore, to examine the other questions raised upon this writ. The writ of certiorari should be quashed, but without costs,, as the question raised is new.

All concur.


author: Martin, J. Merwin, J.

text:
    Edward P. Bates et al., Resp’ts, v. Salt Springs National Bank of Syracuse et al., App’lts.

      (Supreme Court, General Term, Fifth Department,

      Filed June 21, 1895.)

    Mechanic's lien — Sub-conteactobs—Payment.
    A provision in a building contract, which makes a certificate from the county clerk that there are no liens unsatisfied of record, an absolute condition of payment under the contract, operates, unless limited to the protection of the owner, for the benefit of the claimants, and an assignment by the contractor will not affect a claimant whose lien was filed after such , assignment, but before such certificate was obtained.
    Appeal from a judgment in favor of plaintiffs.

      J. William Wilson, for app’lt Salt Springs Nat. Bank; William M. Boss, receiver, app’lt, in pro. per.; W. S. Andrews, for app’lt Catherine Dickison; Risley & Robinson, for resp’t Bates;

      William Kernan, for resp’ts Miller & Murray; S. M. Lindsley, for resp’t Utica Planing Mill.
   Martin, J.

— On December 5, 1890, the firm of Dickison & Allen entered into a contract with the trustees of the Masonic Hall and Asylum Fund for the erection of a Masonic home near Utica. The contract price was $139,500, to be paid in twelve installments, eleven of which were to be made during the progress of the work, and the twelfth, which was the sum of $28,500, was to be paid when the buildings were completely finished and accepted.^ The contract between the parties also contained the fol- ' lowing provision:

“It is also agreed that no payment shall be made hereunder until the said parties of the second part shall have obtained a certificate from the clerk of Oneida county, showing that at the date of such payment no liens or claims have been recorded or filed against said premises or building, which are then unsatisfied of record ”

On February 14, 1891, the contractors, Dickison & Allen by an assignment in writing, which recited, among other things, that by the contract between the trustees and Dickison & Allen the trustees were to retain out of the moneys which became due from time to time the sum of twenty per cent until the final completion ■of the contract, at which time the entire sum so retained was to become due and payable, sold,' transferred, and set over to the Salt Springs National Bank all their right, title, and interest in and to the aforesaid “last payment of twenty per cent, pursuant to the terms of the contract, ” as collateral security for the existing and future indebtedness to the bank. Notice of this assignment was given to the trustees on the 28th of April, 1892. On May 31st, Patrick and William H. Cahill, who were subcontractors of Dickison & Allen, and assignors of Miller & Murray, filed a mechanic’s lien upon the building. On June 4th the Utica Planing Mill also filed a mecanic’s lien upon the- building and premises. On the same day Dickison & Allen assigned to the bank, as collateral security, “all payments now and which hereafter may become due and payable upon said contract, including payments due and to become due from time to time during the progress of the erection of said building, and said twenty per cent., * * * and also all sums and moneys due or which may become due for extras, including labor and materials furnished in the erection of said building.” Notice of this assignment was received by the trustees on June 6th. Thereupon Dickison & Allen, finding themselves insolvent, abandoned the work and requested the trustees to finish the building. Subsequently, and between June 5 and July 17, 1892, the other liens of the parties, aggregating over $18,-000, were filed by the creditors of Dickison & Allen. If the home had been finished on June 6th, there would have been due the contractors, including $1,672.92 for extra work, the sum of $33,-067.31. In completing the work upon the building, as the contract permitted them to do the trustess expended $8,478.32, and it was conceded that they were entitled to $800 as damages for a breach of the contract, thus leaving unpaid thereon the sum of $23,788.49. A judgment for $27,494.24 in favor of the bank and against Dickison & Allen was recovered and entered in Onondaga county on the 6th of June, 1892. Subsequently, and on the same day, in proceedings supplementary to execution, the defendant Boss was appointed receiver of the joint and several property of Dickison & Allen, and he duly qualified as such as provided by the order of his appointment. On the 9th day of June, 1892, another judgment for $10,585.42 in favor of the bank and against Dickison & Allen was entered in Onondaga county, and on the following day the receivership of the defendant Boss was extended to this judgment. This case was tried before the court without a jury, and it was held that the parties who were lienors by virtue of mechanics’ liens filed by them were entitled to be first paid the amount of their respective liens, with costs, and that the bank was entitled only to the balance. The correctness of this decision is challenged by the appellan ts, who persistently contend that it cannot be upheld, either upon principle or authority. This question is the most important one in the case, and, if the decision of the trial court was correct, practically the only one that need be considered on this appeal.

The respondents seek to uphold the judgment upon the ground that the amount unpaid upon the contract was not due, by reason of the clause in it which provides that no payment shall be made until the contractors produce the- certificate of the clerk of Oneida county that no liens were unsatisfied. We do not think the judgment can be sustained upon the ground. It may be assumed that, as between the trustees and the contractors, nothing became due until the clerk gave the required certificate; but that in no way aids in solving the question here. Under the mechanics’ lien law (Laws 1885, chap. 342), the filing of the prescribed notice originates the lien, and until this is done the laborer or material man has no preferential right to be paid out of the sum due the contractor from the owner of the building. If the contract contains no provision to the contrary, and, before notice is filed, the contractor assigns to a creditor, in payment of his debt, the whole or any portion of the moneys due or to become due to him on his contract, the assignee, is entitled to the same in preference to the lienor. The court cannot extend purely statutory rights, such as are given by that act, beyond the terms of the statute. There is no provision in the statute of 1885 which in any way prevents a contracta rfrom paying his creditors out of the money due or to become due upon his contract, to the exclusion of laborers or material men who have not filed liens. Stevens v. Ogden, 130 N. Y. 182 ; 41 St. Rep. 331.

The question to be determined in this case is whether the amount unpaid on the contract belongs tothebankby virtue of its assignment, or whether it belongs to the lienholders to the extent of their liens. If it belonged to the former, then it was clearly the duty of the court to set aside the liens, so that the bank could procure the proper certificate, and thus obtain the fund to which it was in fact entitled. To say that the bank was not entitled to this fund because it could not procure the proper certificate in no way-established the fact that the fund belonged to the lienholders. It may be, if this action had not been brought, that before the bank could have recovered this fund it would have been compelled to bring an action against the lienors to have their liens set aside as invalid upon the ground that there was no fund or property to which their liens attached, and that the existence of such liens was-an obstacle to its recovery of the fund to which it had title, which should be removed. But, if so, it has no bearing whatever upon-the question in whom the title to this fund'rested. If the judgment in this case can be sustained, it must be upon the ground that it was the intention of the parties to the original contract that persons who labored or furnished materials in the performance of the contract should be protected, and that such was the purpose of the provision quoted. The learned trial judge found:

“ That the provision above quoted was inserted in the contract to protect the trustees of the Masonic Hall and Asylum Fund in making payments, and was intended for the benefit and protection of all persons, including the parties to this action, who should file-in the proper clerk’s office lawful liens or claims upon said building or premises against the interests or right of Dickison & Allen under said contract, and the payments to be made thereunder to-them by the said defendant, the trustees of the Masonic Hall and Asylum Fund."

If this finding can be sustained, it must be upon the ground that that was a pi'oper construction of the contract. An examination of the provision upon which the court based its decision discloses-that the agreement was that no payment should be made until the required certificate was obtained. The provision -seems to be one absolutely prohibiting payment until such certificate is furnished. From this provision, can it be properly said that its purpose was the protection of those having liens or claims upon the property as well as the protection of the trustees ? In Mechanics’ & Traders' Nat. Bank v. Mayor, etc., 58 How. Prac. 207, where the contractor had assigned to the plaintiff all moneys due or to grow due thereon, the contract contained the following clause:

“ And the said party of the second part hereby further agrees that he will furnish said commissioner with satisfactory evidence that all persons who have done work or furnished materials under this agreement, and who may have given written notice to the said commissioner, before or within tea days after the completion of the work aforesaid, that any balance for such work or materials is still due and unpaid, have been fully paid or secured such balance. And, in case such evidence be not furnished as aforesaid, such amount as may be necessary to meet the claims of the persons aforesaid shall be retained from any moneys due the said party of the second part under this agreement, until the liabilities aforesaid shall be fully discharged, or such notice withdrawn.”

In that case it was held that the purpose of this provision was to protect those who had performed labor or furnished materials in the execution of the contract; that the lienors who had filed their claims in accordance with the terms of the contract were entitled to be paid in the order in which their claims were filed; and that the plaintiff, as assignee of the contractor, took subject to the equities existing between the contractor and the parties doing the work and furnishing the materials under the contract, or which, under the contract, the lienors might enforce against him. That case was affirmed by the general term of the first department, 27 Hun, 467. In Murphy v. Bank, 30 Hun, 40, where substantially the same provision was contained in the contract, the same doctrine was held, and persons performing labor and furnishing materials were allowed to recover in preference to the contractor’s assignee. Again, in Mechanics', etc., Nat. Bank v. Winant, 16 St. Rep. 902, where the contract contained practically the same provision, the -contractor, Gravin, assigned to the plaintiff the moneys due and to grow due under such contract, in November, 1875. In July, 1887, the defendant filed notice of lien with the com'ptroller for the amount due him from Gravin. The plaintiff subsequently brought suit for the balance due upon Gravin’s contract, and the defendant was made a party because of the notice he filed with the comptroller, and the principal controversy between the parties was whether the defendant had a lien upon the moneys. It was held by the general term that under the provisions of the contract, if the defendant had served the notice required, he would be entitled to be protected against assignment to the plaintiff, made before the moneys were earned by the contractor. That court, however, held that the notice was not filed with the proper officer. Upon appeal to the court of appeals in that case (123 N. Y. 265; 33 St. Rep. 51), it was held that it was to be assumed that the plaintiff, in advancing moneys to the contractor under the security of the assignment, did so in the belief that the contractor’s compensation, over and above his outlays, would reimburse such advances, and that it contemplated only such sums as would belong to the contractor after the discharge of his indebtedness those engaged under him in doing the work, and that the plaintiff was only entitled to be paid whatever moneys the contractor himself could, legally demand of the city under the contract In delivering the opinion in that case, GrRAY, J., said :

Plaintiff must be deemed to have contemplated only such receipts of moneys, from the payments by the city, as would belong to the contractor after the dischaage of his indebtedness to employes and others engaged under him in the doing of the work called for. Certainly, any other view of the situation, at the time of the assignment of plaintiff, would seem to involve some expectation by plaintiff of gain through technically defeating thé payment of its assignor’s just contractual debts. That is not a very moral attitude for it to take, nor is it one which appealsto the consideration of the court; and yet it would come to that if it should be held that the appellant’s claim is not to be paid for the alleged want of a strict compliance with the contract requisites as to notices of claim. The plantiff cannot occupy any better position than the contractor would occupy if he was now demanding payment from the city.”

An examination of the case of Merchants & Traders' Nat. Bank v. Mayor, 97 N. Y. 355, discloses the; fact that the provision in the contracts to which we have already referred was required by an ordinance of the city of Hew York to be inserted in every contract for work for the city, and in that case it was held that the purpose of the ordinance was to secure to persons furnishing labor and materials some of the advantages given by the mechanic’s lien law; that,where notice had been given, the city held the money as trustee for the benefit of the persons giving such notice1; and, while the city assumed no express liability to them, there was an implied obligation which could be enforced by the court. Thus the only distinction between the cases cited and the case at bar, except so far as the language employed in the contracts is different, is that the contracts in the cases cited were made in pursuance of an ordinance which required such a clause to be inserted, while in this case the contract was a voluntary one, made by the parties without any provision of law rrequiring it to be made in any given form, or to contain any such provision. The appellants contend that, as the contracts in the Hew York cases were made in pursuance of an ordinance of the city, which has the force of a statute, and provides for the actual payment to the subcontractor who-entered upon the work with the ordinance in force, it creates a trust fund in the hands of the commissioner, and makes him an equitable assignee of the fund for the purpose of paying the debt due the subcontractor. It may be that such was the effect of the ordinance and contracts in those cases, but the error in the appellants’ claim is that they assert that the ordinance provides for the actual payment to the subcontractor, when in fact neither the ordinance nor the contracts contain any such provision. It only provides for the retention in the hands of the commissioner of a sufficient sum to pay such lienors until their liabilities are discharged. The distinction contended for the appellants between those cases and the case at bar is not quite apparent. If the ordinance and contract in those cases are to be construed as making a provision for the protection of the lienors, we can see no good reason why a contract voluntarily made between individuals containing the same provision should not be construed in the same way. We are aware of no rule of construction which would justify a court in holding that the provisions in the New York contracts were to protect the lienors, and at the same time in holding that, in a similar contract between individuals such a provision was not for the protection of the lienors. When we compare the contracts, we find that in those considered in the cases cited the provision was that the contractor should furnish the commissioner with satisfactory evidence that all persons who had done work or furnished materials and given notice had been fully paid or secured, and, in case such evidence was not furnished, the amount necessary to meet the claims should be retained until the liabilities were discharged or the notice withdrawn. In the case at bar the agreement was that no payment should be made until the required certificate had been furnished, showing that there were no liens or claims unsatisfied of record. If it was properly held that the purpose of the ordinance of the city and the contract under it was to protect the interest of the laborers and material men, it would seem that the provision in the contract in this case might well be construed as having for its purpose the protection of the lienors and material men, as well as the protection of the trustees. If such was its purpose, then clearly the judgment in this case was right, and should be affirmed.

In Lauer v. Dunn, 115 N. Y. 405; 26 St. Rep. 412, by the terms of the contract, eighty per cent, of the estimated value of the labor and materials furnished was to be paid as the work progressed, and the remaining twenty per cent, within thirty days after its completion. The contract also provided that:

“In case any lien or liens * * * shall exist upon the property * * * at the time or times when * * * any payment is to be made, such payment, or such part thereof as shall be equal to hot less than double the amount of or for which such lien or liens shall or can exist, shall not be payable at the said stipulated times, notwithstanding anything in this agreement to the contrary contained.”

In that case it was held that the provisions 'quoted were for the protection of the owner, and meant simply that if, when the moneys were payable to the contractor, liens existed, the owner might reserve from the fund in his hands double the amount claimed under the liens, and also held that, after notice of the assignment of the contractor’s interest in the moneys in the owner’s hands, the owner was bound to apply the fund to the payment of the claim assigned, and that it could not be paid to the lienor. While it must be admitted that it is somewhat difficult to distinguish clearly the case last cited from the case at bar, yet it is equally difficult, to harmonize the decision in that case with the decisions in the cases previously cited. It is therefore not easy to determine whether the case at bar is controlled by the last decision or by those previously cited. In this case the provision in the contract, is different from that in the contract in the case last cited, as in that double the amount was to be retained, thus perhaps showing that its only purpose was to compel the contractor to relieve the owner from any liens that might exist, and in case of their existence it was not to become payable as stipulated; while in the ■contract in the case at bar the provision was an absolute one that no payment should be made until the proper certificate that there were no liens had been furnished. While the question is a border one, and by no means free from doubt, still we are disposed to hold that the construction placed upon this provision of the agreement by the trial judge was the correct one, and that the judgment should be sustained.

As there are no other questions raised by the appellants which need be discussed, we think the judgment should be affirmed.

Judgment affirmed, with costs.

Hardin, P. J. — concurs.

Merwin, J.

— I think this judgment should be affirmed, not only npon the ground stated in the opinion of Brother Martin, but also on the ground that, aside from the clause referred to in the contract, the equities of the lienors are superior to those of the bank or of the receiver. The liens were filed before the contract was -completed and before the moneys were due.


author: Bradley, J.

text:
    Bertha W. Berry, App’lt, v. Daniel Gavin et al., Resp’ts.

      (Supreme Court, General Term, Fifth Department,

      Filed June 21, 1895.)

    Pabties — Undisclosed pbincipal.
    An undisclosed principal may enforce a mechanic’s lien, hut the defenses, which would have been available against the agent, are available against him.
    Appeal from a judgment, dismissing.the complaint

      Herve Isbell and Philip A. Laing, for app’lt; George M. Osgood-by, for resp’ts.
   Bradley, J.

— The purpose of the action was the forclosure of an alleged lien, and for other relief, founded upon a claim for labor and materials and a notice of a lien filed in the Brie county clerk’s office. It appears that Stephen E. Berry, husband of the plaintiff, made with the defendant Lobee the contract which was made to perform the work of repairing the building upon the premises in question. It does not appear that any formal decision was made by the county court; but in a brief memorandum of "the judge the chief ground indicated for the result is that it did riot appear that the wife had such relation to the claim as was necessary to enable her to prosecute the action as plaintiff. The •evidence, however, was such as to fairly require the conclusion that, as between the husband and the plaintiff, he made the contract, and caused the work to be done as her agent, pursuant to a written agreement and power of attorney. He appeared as a witness in her behalf on the trial. The fact that he did not disclose his agency or the name of his principal has, so far as appears, no importance in the present case. Ludwig v. Gillispee, 105 N. Y. 658; 7 St. Rep. 527. The defendants, however, cannot be prejudiced in their legal rights as against the husband arising out of his apparent relation to the contract and the work performed, but they are available in the action brought by the plaintiff as the principal. The contention of the defendants’ counsel that the cause of action as alleged in the complaint is not founded upon the notice of lien which was filed is not supported. The notice of lien is fully set forth in the complaint by a copy annexed. If there were any matters alleged in the complaint not consistent with or permitted by the notice of lien, they appeared on the face of the pleading. There was no such variance between the allegations in the complaint and the notice of lien as to deny to the plaintiff the benefit of the latter in the action if the facts proved supported the claim founded upon it. The contract to do the work was made in June, 1893. At that time the defendants Bart Lobee and Daniel Gavin were in possession of the premises, having the equitable title to them as vendees in a contract of date May 1, 1893, made with them by Austin R Preston as vendor. He, by deed of date July 1, 1893, conveyed the premises to the defendants Daniel Gavin and Sarah A. Gavin (his wife). This was evidently done with the consent of Lobee. In making the agreement with Berry, Lobee acted for himself and Gavin, and they, with the wife of the latter, were cognizant of the performance of the work as it progressed. The notice of lien was filed November 15,1893, •and in it the defendants Daniel Gavin and Lobee were named as the owners and persons in interest. The incorrectness of that statement did not vitiate the notice, or defeat the plaintiff’s lien. Laws 1885, chap. 342, § 4. The work seems to have been performed with the consent of the defendant Sarah A. Gavin as well as of the other defendants, which was sufficient to bring her interest within the operation of the lien. Id. § 1; Schmalz v. Mead, 125 N. Y. 188; 34 St. Rep. 779; Pell v. Baur, 133 N. Y. 377; 45 St. Rep. 241.

. It is now urged on the part of the defendants that the notice of lien was not filed within ninety days after the performance of the work, as required by the statute (Laws 1885, chap. 342, § 4). No such question seems to have been raised upon the trial, nor is it suggested in memorandum of the county judge. There is, however, some evidence tending to prove that the work was finally completed within that time. The complaint was dismissed" at the close of the plaintiff’s evidence. The facts which that tended to prove were sufficient to put- the defendants upon their defense. We do not consider the questions which may finally arise upon the merits.

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

All concur.


text:
    Daisy B. Miller, Resp’t, v. John E. Richardson, as Executor, etc., App’lt.

      (Supreme Court, General Term,, Fifth Department,

      Filed June 21, 1895.)

      1. Married women — Liability.
    Though the ser vises are those which the husband, in his relation as such may be deemed to have been required to provide, the wife can, bjr her promise, intended to create her personal liability, charge herself and her separate estate for the.price or value of the services.
    2. Same — Proof.
    The evidence, in this case, was held to warrant a conclusion that she personally undertook to pay for the services-.
    3. Evidence — Opinion.
    A witness may give his opinion as to the value of services, based on the-character and extent thereof, as described by another witness.
    Appeal from a judgment in favor of plaintiff.

      McDonald Bros., for app’lt; Charles Kellogg, for resp’t.
   Bradley, J.

— The matter of the plaintiff’s alleged claim against the estate of the defendant’s testatrix was referred pursuant to the statute. The referee found that the plaintiff stayed with the defendant’s testatrix, did her work, and took care of her, from in March, 1892, until her death, in July, 1898, for the period of sixty-nine weeks ; that this service of the plaintiff was performed upon and in consideration of the promise of the defendant’s testatrix that she would treat the plaintiff as a daughter and remember her in her will; and that the value of such, services of the plaintiff was $12 per week. The referee directed judgment accordingly for the plaintiff. The decedent was a married woman, upwards of eighty years of age, in ieeble health, and there is evidence tending to prove that during the time in question she required and had from the plaintiff much care and attention, and that the-service performed by her in that behalf was of a character not at all times the most agreeable to the. senses. The defendant’s testatrix had a separate estate. She made no provision by will for the plaintiff. It is urged upon the part of the defendant that the presumption prevails in this ease that the service of the plaintiff was performed for or on the credit of the husband of the decedent. This would be so unless the promise of the wife may be treated as having been such as to charge her estate. Kegney v. Ovens, 18 St. Rep. 482 ; Winkler v. Schlager, 64 Hun, 83; 45 St. Rep. 507. But, notwithstanding the services were those which the husband, in his relation as such, may be deemed to have been required to provide, the decedent could, by her promise intended to create her personal liability, charge herself and her separate-estate for the price or value of the services. Maxon v. Scott, 55 N. Y. 247; Tienmeyer v. Turnguist, 85 id. 516; Ackley v. Westerveil, 86 id. 448. There is evidence tending to prove that the-decedent, by her promise, intended to charge herself personally for the services performed by the plaintiff. It appears that a short time before the commencement of the services on one occasion she said to a witness that if the plaintiff would come and live with her she (the decedent) “ would treat her as a daughter, and remember her in her will,” and, on another occasion, that if the plaintiff would come and stay with her 'as long as she lived, she would remember her well in her will.” The plaintiff was not present at those conversations, and for that reason it is urged that such purpose, so expressed by the testatrix, is not available to the plaintiff to charge her estate with the claim. It is true that the mere expression of intention to pay, not having the nature of an agreement or promise, may not support an action. While the relations between the Miller family and the testatrix were friendly, and somewhat intimate, thejr were not relatives, so as to characterize the services as gratuitous in the absence of an express agreement In the present case the inference is permitted that the plaintiff entered upon the service on a promise made to her by the decedent to in some manner pay her. She went there soon after the statements before mentioned were made by the testatrix of her purpose in the event the plaintiff came and remained with her. And, after the plaintiff had been there some time, the decedent said in her presence that “ Daisy should wait on her, and do for her, and it would be all right.” The witness did not recollect that she then stated in what way she would make it right with Daisy.” The plaintiff remained with the decedent until her death.

In view of all the circumstances as represented by the evidence, the conclusion was warranted that the defendant’s testatrix personally undertook to pay the plaintiff for the services, that they were performed by the latter upon her credit, and that their value was equal to the amount of the recovery. There was no error in the reception of evidence offered to prove the value of the services performed by the plaintiff as described by the testimony of another witness. The opinion in such case is deemed based only upon the character and extent of the services as they had been so described, the same as if the statement furnished by such description had been embraced in a hypothetical question. In this there was no error. McCollum v. Seward, 62 N. Y. 316; Seymour v. Fellows, 77 id. 178. In Reynolds v. Robinson, 64 id. 589, the opinion of the expert called for was not confined to and based upon the description given by any witness, but, after hearing the testimony of several witnesses, he was asked what would be the value of services mentioned in the question put to. him. That case is not necessarily applicable to the question here, and between it and the McCollum and Seymour Cases above cited, there is a clear distinction. None of the exceptions were well taken.

The judgment should be affirmed.

All concur.


text:
    John E. Hoffman, App’lt, v. Henry Markham, Resp’t.

      (Supreme Court, General Term, Fifth Department,

      Filed June 21, 1895.)

    1. Pleading — Replevin.
    The alleged title in the plaintiff and wrongful taking by the defendant are the requisite substantial facts, to be alleged in the complaint, in replevin, in order to justify the demand for a judgment for the recovery *of the possession, or, if delivery cannot be had, for the value and damages.
    2. Same — Exceptions.
    In replevin, it is unnecessary to allege that the action is not within the exceptions mentioned in section 1690 of the Code.
    Appeal from a judgment in favor of defendant.

      John K Robsen, for app’lt; George W. Atwell, Jr., for resp’t.
   Bradley, J.

— The questions presented on this review have relation only to the form of the action and of the recovery. The plaintiff, by his complaint, charged that he was the owner of the personal property in question of the value of $30; “ that the defendant seized and wrongfully took possession of said property, and refused to deliver it to the plaintiff upon his demand made therefo.r, and unjustly and wrongfully refused to deliver the same, to his damage of $25.” The plaintiff demanded judgment for the recovery of the possession, or, if delivery could not be had, for $30 as the value, and for $25 damages. The referee found that title to the property was in the plaintiff, that the defendant wrongfully took it from his possession, and that its value was $30; and, as conclusions of law, that the plaintiff was entitled to recover that sum. Exception was. taken to such conclusion, and to the refusal of the referee to find that the plaintiff was entitled to the possession of the property, and, if it could not be delivered to him, to the value of it. In the complaint were alleged the facts essential to replevin in the cepit, as it was formerly termed. The action in that form could be sustained "only when trespass would lie. Dunham v. Wyckoff, 3 Wend. 280; Barrett v. Warren, 3 Hill, 348. The same causes which then permitted recovery in an action of replevin will support “an action to recover a chattel.” The peculiarity of the action under the Bevised Statutes was that it was commenced by writ, while now the action for the like relief is commenced by summons as are other actions. The alleged title in the plaintiff and wrongful taking by the defendant were the requisite substantial facts to justify the demand for judgment with which the complaint was concluded. Code Civ. Proc. § 1720; Pattison v. Adams, 7 Hill, 126; Lalor, Supp. 426; Bond v. Mitchell, 3 Barb. 304; Vandenburgh v. Van Valkenburgh, 8 id. 217; Seifret v. Kraft, 13 Civ. Proc. R. 321. And as those facts were found by the referee, the plaintiff was entitled to a conclusion of law which would permit the recovery of judgment in the form demanded. It is not necessary, in such case, to allege in terms detention of the property by the defendant. That is only necessary in an action in the nature of replevin in the detinet. The action founded upon the wrongful taking can be maintained although'the defendant, before it commencement, may have parted with the possession of the property. Brockway v. Burnap, 16 Barb. 309; National Steamship Co. v. Sheahan, 122 N. Y. 465; 35 St. Rep. 35. The nature of the action is to be ascertained by reference to the complaint. In replevin it is unnecessary to there allege that the action is not within the exceptions mentioned in section 1690 of the Code. That is matter to appear in the affidavit made for the purpose of requisition. This is not essential to the action. § 1718. The plaintiff’s exceptions before mentioned were well taken with a view to the form of recovery. The importance of it in that respect relates only to the question of costs. Code Civ. Proc. § 3228.

The judgment should be reversed, and a new trial granted, costs to abide the event, unless the defendant stipulates to so modify the judgment as to make it conform to a judgment in favor of plaintiff as in an “ action to recover a chattel ” by striking out its provisions relating to costs and to recovery by the defendant, and inserting the recovery of $30 costs by the plaintiff; and in that event the judgment be so modified, and, as modified, affirmed.

All concur.


author: Lewis, J.

text:
    Henry S. Anderson, Resp’t, v. Edward T. Dickson, App’lt.

      (Supreme Court, General Term, Fifth Department,

      Filed June 21, 1895.)

    Appeal — Reversal.
    Where the judgment on a former trial was reversed on appeal and a new trial granted, a judgment, on the secend trial, in favor of the same party upon substantially the same facts, will also be reversed upon appeal.
    Appeal from a judgment in favor of plaintiff.

      Herbert Green, for app’lt; F. D, Wright, for resp’t.
   Lewis, J.

— This is the second time this case has been before this court upon appeal from a judgment entered upon the report of a referee. We held, in deciding the first appeal, that the referee had erred in his construction of the contract upon which the plaintiff’s cause of action was based, when the contract was read in connection with the evidence on the trial, and we reversed the judgment and granted a new trial. 72 Hun, 556; 55 St. Rep. 233. The case was retried, and before the same referee, and it appears by his second report that he has adherred to his former conclusions. His findings on the second trial are more elaborate than were his first finding, but they were based upon substantially the same evidence. Both parties were present and testified upon the first trial. The defendant is • a resident of* France, and was not present at the second trial, but his testimony given on the first trial was read by stipulation. The plaintiff was called and testified on the last trial, and in relating a conversation he had with the defendant, and which he had assumed to fully state upon the former trial, he added new matter, not before stated. When asked why he had omitted it on the first trial, he replied that he was not then interrogated in reference to ft. He did not claim that it did not occur to his mind. It is upon this new matter that the plaintiff mainly relies to distinguish the case as now presented from the former appeal.

It is apparent from the record that the plaintiff is an intelligent man, of considerable business experience, and that he fully comprehended the questions involved in the litigation, and the effect of the evidence, and it is altogether improbable that the new matter would have been left out by him on the first trial, when he was stating the conversation, if it, in fact, was a part of it. We are satisfied, after an examination of the evidence on this appeal, and a re-examination of the evidence in the former record, that the facts are substantially the same. If there be any material change, it is in favor of the defendant. A number of letters written by the defendant, not read in evidence on the former trial, were in evidence on the second trial. It is quite difficult, if hot impossible, to reconcile their contents with the plaintiff’s alleged cause of action.

We find no reason for changing our conclusions upon the former appeal.

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

Werner, J., concurs, Ward, J., dissents. Bradley, J., not voting.


text:
    James D. Cobb, App’lt, v. Henry T. Hanford et al., Resp’ts.

      (Supreme Court, General Term, Fifth Department,

      Filed June 21, 1895.)

    1. Parties — Enjoining probate.
    An action to enjoin tile probate of a will, on the ground that the testator had no right to dispose of the property as therein provided, will lie against the person named in the will as executor.
    2. Pleading — Relief.
    A plaintiS will not be denied the relief to which he is entitled, for the reason that he has claimed too much in his complaint.
    Appeal from an interlocutory judgment, sustaining a demurrer, to the complaint.

      W. A. Sutherland, for app’lt; Albert H. Harris, for resp’ts.
   Lewis, J.

— The complaint alleges that on January 12, 1881, the plaintiff was the husband of Elizabeth M. Cobb; that he on that day conveyed to her certain real estate in Monroe county, in consideration of which she agreed to make her irrevocable will, in and by which she should devise the premises conveyed and their increase to her husband; that she did on the same day duly execute her will in accordance with said agreement, and delivered the same to the plaintiff; that she died August 23, 1894, leaving only the said property and the produce and income of the same; and that the defendant Hanford has filed with the surrogate of Monroe county his petition, reciting that a few days before her death Mrs. Cobb made another will, dated August 18, 1894, whereby she attempted to make a different disposition of the property, in which will she named the defendant Hanford as the executor thereof, and constituted and appointed him as trustee of .an undivided half interest in the property for the plaintiff. The plaintiff asked for judgment that the defendant be enjoined from proving said last will; that the will of 1881 be decreed and ■adjudged to be the irrevocable last will, and as such entitled to probate; and that the plaintiff be adjudged to be the owner of said property. The defendant Hanford demurred to the complaint on the ground that it did not state a cause of action against him. It is conceded by his attorney that if the facts pleaded be true the plaintiff will have, after the will is probated, a cause of action against all of the defendants except Hanford, and will have a good cause of action against him in his official capacity as executor, so that the question presented is as to whether there is ■a cause of action stated in the complaint against Hanford personally. The plaintiff unquestionably had such a right in this property, under the agreement by which his wife became possessed of it, that if she had attempted to convey or incumber it in her lifetime she could have been restrained"from so doing by this plaintiff. Such an attempt would have been a wrongful interference by her with his property, because she never acquired from, the plaintiff the right to convey away the property, either by deed or will. It is alleged in the complaint that the defendant Hanford Is making such an attempt in the name of the testator, and by her authority, and if he should succeed he would throw a cloud upon the plaintiff’s conceded right and title to the property, and place the same in his own custody wrongfully, and would create a charge and incumbrance upon the same in his own favor, to the injury of the plaintiff’s rights. ■ It is conceded that as soon as he had completed the wrongful act by proving the will, an action by the plaintiff would lie against him in his official capacity as ■executor, to declare wrongful and illegal all that he may have •done, and to set aside such probate and adjudge the plaintiff to be the owner of the property; but until this last will has been actually proved, and Hanford has been appointed executor thereof, it is claimed that no action will lie against him. This position, which would be absurd if applied to a contract, a deed, or a mortgage, is claimed by respondent to apply to a will, because of its exceptional and peculiar character, and that courts of equity are powerless to deal with wills as they do with other instruments. It is not contended but that Mrs. Cobb could have been herself enjoined from executing the second will, but it is claimed that, having in fact executed it, and assumed to revoke the former will, her last will must be allowed to go to probate. The law is administered as well for the prevention, as for the redress, of wrongs, and it would seem, upon principle, that courts should possess as full power and authority to prevent such an attempt or threatened wrongful act as to render compensation for the wrongful act when committed. It is .true that the plaintiff in his complaint asks to have the last will adjudged fraudulent and void, and that the first will be proved and established.

That, however, is not all the relief asked for. The plaintiff is not to be denied the relief to which he is entitled for the reason that he has claimed too much in his complaint. The principal question here presented is whether the defendant Hanford can be prevented, from placing a cloud upon the plaintiff’s conceded and unquestionable title to the property in question, and. from creating a charge thereon, and from taking the same into his own custody and control against the consent of the rightful owner, and from raising an apparent illegal and wrongful barrier against the right of the-plaintiff to enforce the lawful and binding contract set out in the complaint, or whether the plaintiff must wait until the wrongful acts are committed before lie can obtain relief. It is the contention of the respondents’ counsel that the plaintiff’s complaint asks this court to take cognizance of a question which exclusively belongs to the surrogate’s court. It is the policy of this, state to commit to the courts of probate the decision of questions-arising upon the execution of alleged wills, and it is only in exceptional cases that courts of equity will assume to interfere. Anderson v. Anderson, 112 N. Y. 104 ; 20 St. Rep. 344. We do not understand that the purpose of this action involves the consideration by the supreme court of any question which can arise upon the probate of a will. The question here for adjudication, precede any action which can take place upon the probate of the will. The court is asked to enforce a legal contract made by the testatrix which, if enforced, will prevent the presentation of the will to the surrogate’s court for probate. It is the contention of the plaintiff that Mrs. Cobb did not possess the power legally to dispose of the property in question by the second will; that in attempting to do so she was guilty of a fraud upon her husband’s rights, and that the second instrument never became a will; and hence that the former will was never revoked, and is the one that should be presentid to the surrogate for probate. The defendant claims that if the plaintiff has any cause for action it is against-him in his official capacity as executor, and not against him individually. Until a will is admitted to probate, the person named therein as executor is not vested with the power to act as such. Letters testamentary may never be issued to him. Having been named in the will as executor, he is authorized by the Code of Civil Procedure to offer the will for probate. This he can do, although he may not intend to accept the letters. ' The defendant, in addition to being designated as executor, is made trustee of an undivided half interest in the testator’s property for plaintiff’s benefit. We see no reason for holding that he is not individually a proper party defendant in such an action. We are referred to many authorities bearing upon the questions presented for our decision, but none of them seem to be decisive of the questions before us. Although not free from doubt, we incline to the opinion that a good cause of action was stated in the complaint against the demurring defendant- individually, and that the interlocutory judgment appealed from should be reversed, but with leave to the defendant to interpose an answer within twenty days, without costs-

All concur.


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    Benjamin F. Wheeler, Resp’t, v. Sarah J. Eastwood, as Administratrix, etc., App’lt.

      (Supreme Court, General Term, Fifth Department,

      Filed June 21, 1895.)

    1. Decedent’s estate — Claims.
    Where one of the parties to a contract is dead, claims, arising thereunder, should be scrutinized with great care and should be rejected," unless they are sustained by very clear, competent evidence.

      2. Same — Proof.
    A claim against decedent for money loaned was, in this case, held not-to be sustained by the evidence.
    Appeal from a judgment in favor of plaintiff.

      John F. Dorthy, for app’lt, Charles D. Newton, for resp’t.
   Lewis, J.

— This was a reference, under the statute, of a claim made by the plaintiff against the estate of Josiah K. Eastwood, deceased. Eastwood died in October, 1892. The defendant was. appointed administratrix of the estate. The plaintiff, in the month of November, 1893, presented to the defendant a claim against the Eastwood estate for $296.85, consisting of the following items:

1892. Sept. 5. To money loaned................ $250 00

Sept. 17. Money loaned... ................. 27 85

October 4. Services and labor............... 19 00

The claim was rejected by the administratrix, and was duly referred, and the referee found as facts, that on the 5th day of September, 1892, the deceased, Josiah K. Eastwood, executed and delivered to the plaintiff a bill of sale of personal property consisting of a one-fourth interest in some cord wood, farm products, buggy, etc., to secure the payment of the sum of $250, and that thereafter, and in November, 1893, Eastwood having died, and the defendant, Sarah, having been appointed administratrix, a written agreement was made between the plaintiff and the administratrix and one Frank C. Eastwood, by which the property described in the said bill of sale or chattel mortgage for the security of the plaintiff was discharged, but leaving the question of a claim under the said bill of sale to the extent of $250, with some other items of account against said estate, unsettled, which were to be referred according to law, and that no part of the $250 had been paid; and he found, as a conclusion of law, that the plaintiff was entitled to recover against the defendant, as administratrix, said sum of $250. The referee assumes, without evidence to sustain the assumption, that the instrument was intended as a chattel mortgage. The evidence, we think, fails to sustain the conclusions of the referee; but, on the contrary, it tends, quite conclusively, to show that the bill of sale upon which the referee bases his findings was not given by the deceased to the plaintiff to secure to him the payment of any sum of money whatever, but was given, through the advice of the plaintiff, for the purpose and with the intention of preventing a Mr. Herron from collecting a grocery bill he had .against Eastwood, and for the collection of which Herron had brought suit against Eastwood. The bill of sale bore date September 5, 1892. It recites that the deceased, in consideration of the sum of $600 paid to him at or before the execution of the instrument by Benjamin F. Wheeler, “the receipt whereof is hereby acknowledged, has bargained and sold to” Wheeler a buggy and harness, and a quarter interest in some farm products; that the property so transferred was in the possession of Eastwood, upon his farm, in Wyoming county. The instrument was a simple bill of sale. It, in terms, acknowledges the payment of the consideration for the property sold. It contains no promise or agreement to pay any sum of money to the plaintiff. •Claims of this character, presented against estates, should be examined, before they are allowed, with great care. One of the parties to the contract being dead, claims made, arising thereunder, should be scrutinized with great care, and should be rejected unless they are. sustained by very clear, competent evidence.

The plaintiff was permitted, without objection, to testify to personal transactions with the deceased. This evidence, it is claimed, tended to sustain his cause of action. This evidence would undoubtedly have been excluded, had it been objected to; but we think, giving full credit to it, it fails to satisfactorily sustain plaintiff’s claim. It was fairly established upon the trial that the bill of sale mentioned was executed by the deceased, by the suggestion and through the connivance of the plaintiff, with the intenion of hinderering and preventing the collection of a claim against him in favor of a Mr. Herron. An action had been commenced by Herron against the deceased just prior to the date of the bill of sale, and was then pending, undetermined, to collect a grocery bill ■the deceased owed him. The testimony of Mr. and Mrs. Hume as to conversations between the deceased and plaintiff at the time of the execution of the bill of sale pretty clearly established that it was given to cover up the property so as to prevent the collection of the grocery bill.

There was evidence tending to show that the plaintiff was not in a condition, financially, at the time the bill of sale was given, to loan Eastwood money to any amount. Mrs. Hume testified that shortly before its execution the plaintiff came to the deceased’s house to live; that he was without means; that all he had was a “piece pail” and a pair of “overhauls.” Mr. Manchester testified that plaintiff did not have money enough to pay his fare to Hornellsville, and that he furnished him a ticket. Michael Pension, an hotel keeper, testified that the plaintiff was working for him about the hotel, that “ he wasn’t any good around the hotel, tending bar, so I put him in the barn, and he wasn’t any good there, and after the fair I let him go. I paid him somewhere about $18 or $19 for labor.” Plaintiff testified : “I have been confined in the jail at Warsaw, and am not ashamed of it, either. I refused to pay costs on an execution.” The plaintiff and the deceased appear, from the evidence, to have had some real estate dealings! In the month of November, 1893, after the appointment of Mrs. Eastwood as administratrix, a settlement was had between the plaintiff and Eastwood’s representatives which resulted in a written agreement being executed, dated the 13th day of November, 1893, which recites that “whereas divers disputes have arisen between the parties to the contract, growing out of transactions between the plaintiff and Eastwood.” Then follow some conditions as to the transfer of property between the parties, and then it states :

“ The parties of the second part (the administratrix and Frank C. Eastwood) agree to pay the interest on said Halstead mortgage to party of the first part (the plaintiff), $350, upon receipt of which $350 the party of the first part agrees to release and discharge said parties of the second part, and the estate of said Josiali K. Eastwood, deceased, from all bills of sale, chattel mortgages, damages, bonds, notes, and liabilities of every kind which he may have against said estate of Josiah K. Eastwood, deceased, or these parties individually, except an account of $296.85 which he claims against said estate, which is to be referred under the statute for disputed claims.”

The administratrix paid to the plaintiff this $350. It is stated in the record that it was admitted by the plaintiff that the bill of sale heretofore mentioned was canceled by this agreement. Notwithstanding this admission, the referee has found that it was not in fact canceled, but that there was due thereon from the estate to the plaintiff $250. Not much attention seems to have been paid to the rules of evidence upon the trial, resulting, undoubtedly, from the failure of the defendant’s counsel to interpose proper objections.

An examination of the case has satisfied us that the plaintiff’s alleged claim is fictitious and without any merit, and that the judgment appealed from should be reversed, and a new trial had before another referee, with costs to abide the final award of costs.

All concur.


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    Sarah J. Cushman, App’lt, v. Samuel N. Oothout, Resp’t.

      (Supreme Court, General Term, Fifth Department,

      Filed June 21, 1895.)

    Conversion — What is.
    The refusal of the janitor to deliver to plaintiff goods left by her in defendant’s building does not constitute conversion by the defendant, where he did not have the keys to the rooms in which the goods were, and had never been intrusted with the control or keeping of them.
    Appeal from a judgment in favor of defendant. z

      Hyland R Wood, for app’lt; James Havens, for resp’t.
   Lewis, J.

— The household goods in controversy were placed in an apartment house belonging to the defendant, by a Mr. Cook, a tenant of the defendant. Cook thereafter, and while the furniture was in said house, gave a chattel mortgage thereon to the plaintiff, as security for her indorsement of his promissory notes. Plaintiff got title to the property mortgaged by the default of the mortgagor in paying such notes. The plaintiff sued for a conversion of the mortgaged property. Her claim is that she demanded of the defendant the possession of the property, and that he refused to deliver it. Whether a demand was ever in fact made upon the defendant for the possession of the goods was a controverted question upon the trial.' The plaintiff gave evidence tending to show that a demand was made upon the defendant personally, and that a demand was also made upon the janitor of the defendant’s apartment house, a Mr. Hagadorn, and that there was a refusal to deliver in both cases. The defendant testified that no demand was ever made upon him, but that, on the contrary, when the mortgagor, Cook, left the rooms in which the property was, he called upon the plaintiff and requested her to remove the furniture from his building, as he wished to lease the rooms to another tenant. The plaintiff gave evidence tending to show that in the spring of 1893 she demanded possession of. the property of Hagadorn, the janitor, whom she found upon St. Paul street, in the city of Rochester. That Hagadorn refused to let her have the goods unless she paid a bill for storing them, and also paid rent due for the rooms in which the goods had been stored.

The property, at the time of the alleged demand, was in defendant’s building, on Monroe avenue, in another part of the city, and there was evidence tending to show that the janitor did not, at the time of the alleged demand, have the key to the rooms in which the furniture was at the time stored. Hagadorn was shown to have been employed, at the time of the alleged demand and refusal, in the capacity of a janitor, simply. He had never been intrusted with the control or keeping of the goods. He testified that he had never been instructed by the defendant not to deliver the goods to the plaintiff. Assuming that the demand was made upon the janitor, as sworn to by the plaintiff’s witnesses, we do not think his refusal to deliver possession constituted a conversion by the defendant. Goodwin v. Wertheimer, 99 N. Y. 149. We agree with the trial court that there was not sufficient evidence to establish a cause of action based upon the alleged transaction with the janitor on St. Paul street.

Defendant gave evidence tending to show that intermediate the times of the demands, as testified to by the plaintiff’s witnesses, and the commencement of the action, he informed the plaintiff that he made no claim upon the goods, and that he wished her tq remove them from his building, and that the plaintiff neglected so to do, and allowed the goods to remain in the defendant’s building for a. long time thereafter, before commencing her action.

We fail to find any reason for disturbing the verdict. The judgment and order appealed from should be affirmed.

All concur.


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    Edward Smith, App’lt, v. Robinson Brothers Lumber Company, Resp’t.

      (Supreme Court, General Term, Fifth Department,

      Filed June 21, 1895.)

    Carriers — Agent or shipper — Limitation.
    A carrier, in contracting with the agent of the owner of goods for their transportation, is not affected by any limitation of the agent’s authority.
    Appeal from a judgment in favor of the defendant, and from an order denying a motion for a new trial, made on the minutes of the court

      George Clinton, for app’lt; Spencer Clinton, for resp’t.
   Lewis, J.

— This action was brought by the plaintiff, as assignee of a claim for transporting a cargo of lumber from Ontonagon, Mich., to Tonawanda, N. Y. It was alleged in the complaint that the assignor, the Davidson Transportation Company, of Hampton, Mich., was the owner of the schooner Harold and other vessels, was engaged in the business of transporting lumber and other property between different ports and places upon the Great Lakes for hire; that the company received on board the Harold a cargo of lumber, owned and shipped by the defendant from Ontonagon to Tonawanda, aforesaid; that the company carried and delivered said lumber at defendant’s request, and upon its promise and agreement to pay therefor as freight the reasonable value of the services; that the reasonable value thereof was the sum of $2,834.11, being at the rate of $3.50 per 1,000 feet, and that the freight for the transportation of said lumber was demanded of the defendant; that no part thereof had been paid, except the sum of $2,024.37, leaving due the sum of $809.74. The assignment of the claim to the plaintiff was alleged. > The answer admitted the ownership of the lumber, and its carriage, but put in issue the question of the reasonable value of the transportation, and denied that the lumber was carried at the defendant’s request, and ah leged that the Harold was chartered by one McGraw, and that the lumber was carried under an agreement made by one George H. Chamberlain, acting for the defendant, that said lumber should be so carried for the sum of $2.50 per 1,000 feet, and was so carried under said agreement, and not otherwise ; and thát the defendant had paid the freight, and the whole thereof, for the carriage of said lumber. At the close of the evidence a verdict was directed for the defendant, and a motion made by the plaintiff for a new trial upon the minutes was denied. There was evidence upon the trial tending to show that one McGraw was a manufacturer and dealer in lumber at Ontonagon, aforesaid ; that he was not a shipper of lumber, but sold his lumber on the dock at Ontonagon, to be delivered by him upon the rail of vessels there, and that the purchasers of lumber chartered their own vessels. A Mr. Chamberlain was. engaged in and about Ontonagon in the business of purchasing lumber for third persons and securing vessels to transport the same from the place where it was purchased to places of destination ; that in October, 1891, McGraw had a quantity of lumber which he wished to dispose of. He inquired of Chamberlain, at Bay City, if he intended to ship more lumber from Ontonagon that fall. Chamberlain replied that he did, but was not. able to obtain boats. McGraw undertook to find boats, and to-that end interviewed one James E. Davidson, who was an officer and agent for the Davidson Transportation Company. McGraw understood that Chamberlain desired to ship the lumber to San-dusky, and Davidson offered to furnish two boats for Sandusky at $2.50 a thousand, and McGraw so informed Chamberlain, who-stated that he would engage the boats at that rate, and McGraw so informed Davidson, who accepted the rate of freight. Chamberlain, finding that he could not make a sale of lumber to dealers in Sandusky, telegraphed to the defendant at Tonawanda as follows : “ McGraw has two boats chartered for Ontonagon loaded, one for Buffalo. Can I load one for you with five quarter. Answer.” The defendant replied : “ Yes, if freight is not over $2.59 and boat is good.” Lumber was at this time being loaded, as the carrier understood, for Sandusky. After the receipt of defendant’s telegram, and while the lumber was being loaded, Chamberlain, directed the master of the vesiel to take the cargo of lumber to the defendant, at Tonawanda. The transportation company knew nothing of this change of destination until after the vessel had sailed, and was on its way to Tonawanda, The master signed no bill of lading. When McGraw learned of Chamberlain’s intention to send the lumber to Tonawanda instead of Sandusky, he told him that the freight would probably be from fifty cents to one dollar a thousand more than the rate agreed upon for Sandusky. Chamberlain replied that “ they can fix that down there,” meaning the place where the consignee resided. Some of these facts Were controverted by the defendant, but, as the verdict was directed by the court, they are assumed to be the facts for the purposes of this appeal.

The assignment of the claim to the plaintiff was proven. The-court held that Chamberlain was a special agent of the defendant, and could not bind it to pay any greater rate than the $2.50 mentioned in the telegram of instructions. The question is whether the carrier was bound by the secret instructions given to the agent as to the rate to be charged, or can it recover a reasonable compensation for transporting the lumber? The transportation of the lumber from Ontonagon to Tonawanda was worth from $800 to-$1,000 more than the freight would amount to at $2.50 a thousand. Chamberlain’s business was obtaining customers for lumber and acting for them in- procuring boats to ship it, after consulting the customer as to the destination of the lumber and the time it should be shipped. The carrier found Chamberlain in control of this lumber, and its apparent owner. It contracted with him-in ignorance of the fact that he was not its owner,' and ignorant of any special instructions to him. It was not made to appear by any direct evidence whether Chamberlain had theretofore procured cargoes of lumber for the defendant. The tenor of his telegram to the defendant would lead to the inference that he had done so, for, without any explanation, he asks the defendant if he can load a boat for it. He did not even mention what the proposed cargo was to be; neither the price, quantity, nor quality is mentioned. The inference is reasonable that Chamberlain had theretofore dealt with the defendant in purchasing lumber, and that the defendant knew the manner in which he did his business. While we recognize the general doctrine that special agents with special instructions cannot bind their principals beyond the limits of the authority conferred, the rule, we think, has been somewhat modified in its'application to common carriers when dealing with agents in matters relating to transportation. To attempt to apply this rule of special instructions in its fullest extent to contracts for freight made by agents with common carriers when goods are presented to them for transportation, and require them at their peril to examine into the authority of the person presenting goods for transportation to make-contracts in relation thereto, would virtually destroy the utility of the business of common carriers. Meyer v. Express Co., 24 How. Prac. 290. The defendant here had clothed Chamberlain with the apparent title to the lumber. The assignor contracted with him in entire ignorance of the secret instructions, and the defendant now seeks to limit the plaintiff’s compensation by instructions it gave its agents which were not communicated to the carrier. Men engaged in the business that Chamberlain was may be found in large numbers in our country, especially in the ocean and lake ports and about railroad freight depots. They discharge important duties relating to commerce. Hot unfrequently carriers so far as agreements relating to freight are concerned, know one but these middlemen. The place where the contract for freight is made is not unfrequently a long distance from the place of the owner’s business,, and to require the carrier to communicate with the owner before accepting the property for transportation would be impracticable. While the general principles applicable to special agencies can be derived from the textbooks and from adjudging cases, yet, after all, each case must to a large extent depend upon its own circumstances, and be construed with reference thereto. Quotations from a few authorities may be made with profit. They may aid in the solution of the question under consideration.

It is stated in Shelton v. Transportation Co., 59 N. Y. 258, that:

“ An agent employed to ship goods to the owner has authority to make such contract with the common carrier as, in the honest-exercise of his discretion, lie sees fit.”

Parsons, in his work on Shipping (volume 1, p. 170), says:

“ A ship, as the great instrument of commerce, may be regarded as of great importance, not only to its immediate owner, but to the community. And the public policy or general expediency of promoting and assisting the profitable use and employment of the ship in the commercial interchange of commodities between distant nations has a considerable effect upon the law of shipping. It is probable that the system of liens hereafter spoken of, and many of the duties and rights of the owner and master of the ship on the one hand and of the shippers of goods on the other, if they do not arise from this policy, are, nevertheless, affected by it, and owe to it whatever modifications cause them to differ from what they would be under the ordinary rules of the law of contracts.” In Nelson v. Railway Co., 48 N. Y. 498, it is stated that:

“ An authority to deliver goods to a° common carrier for transportation includes all the necessary and usual means of carrying it into effect. It can only be executed by obtaining the consent of the carrier to receive them, and the agent is therefore authorized to stipulate for the terms of transportation.”

In Ryan v. Railway Co., 65 Tex. 15, it is stated that:

“ As a general rule, the consignor, as the agent to whom the owner trusts his goods to be delivered to the carrier, must be regarded as having authority to stipulate for the terms of transportation.”

In Howell v. Graff, 25 Neb. 130, it is stated:

“A special agent, who acts within his apparent power, will bind his principal by his contract, even if he have received private instructions which limit his special authority. But, if he exceeds his apparent power, his principal will not be bound.” Insurance Co. v. Kinneard, 136 Ill. 199.

It was held in Missouri Pac. R. Co. v. International Marine Ins. Co., 84 Tex. 149, that an agent who bought and shipped cotton to his nonresident principal was presumed to have authority to make any kind of lawful freight contract upon such shipment, as that the carrier shall have the benefit of any insurance that may have been effected upon the goods; that, in the absence of notice to the contrary, the carrier might rely upon the existence of such power in the agent. Mr. Justice Field, in York Co. v. Illinois Cent. R. Co., 3 Wall. 107, says that the consignees — who were not in that case the owner of the property shipped, but the mere agents of the consignee — were to be treated as the owners.

If we may assume, as suggested, that the defendant was fully advised of the character of the business that Chamberlain was pursuing, and had theretofore purchased cargoes of lumber through him, Chamberlain may be considered as the general agent for the transaction of that particular kind of business, and, if so, his acts, as between his principal and strangers, in that particular line of business, bound his principal, although he violated the private instructions given him by his principal, which he failed to communicate to the transportation company. Cox v. Albany Brewing Co., 56 Hun, 491; 31 St. Rep. 666. When the Davidson Transportation Company accepted this freight for transportation, reciprocal rights arose between it and the defendant, the owner of the property. Shippers of goods are bound to pay the owner of the ship the freight earned by the carriage. The shipowner has a lien on the goods to enforce his rights against them. This rule is one favored by the law merchant for the mutual benefit of the carrier and the shipper and for the general advantage of commerce. A charter party does not divest the owner of the vessel of his lein for freight, nor of his right to collect the same. Though the lien be waived by the master delivering the goods without demanding freight, the owner may afterwards compel the consignee to pay it. When the lumber, in this case, was put on board the vessel it became bound to the ship for-the freight. Had the secret instructions to Chamberlain been to the effect that the defendant would consent to his shipping the lumber upon condition that the vessel should not have a lien for its transportation, and the cargo had been taken aboard the vessel without the secret instructions having been communicated to the carrier, it would scarcely be claimed that the vessel would have lost its lien upon the lumber for its transportation. We are of the opinion that there were questions of fact in this case which should have been submitted to the jury, and that it was error to direct a verdict.

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

Bradley, J., concurs, Ward, J., dissents.