text:
    John Zorn, Resp’t, v. Peter McParland, App’lt.

      (New York Superior Court, General Term,

      Filed March 4, 1895.)

    1. Vendor and purchaser—Recovery op money paid.
    Where the vendor stands upon his strict legal right to retrain the money which has been paid by the purchaser, on the ground that at law no recovery can be had if the purchaser is at fault in refusing to perform at the time fixed for the purpose, he cannot invoke the aid of any equitable principle in support of his position, but must submit to be bound to a full and exact performance of his part of the agreement at the time specified.
    2. Same.
    In such case, the vendor is bound to relieve the property from the liens and clouds upon his title and to discharge the taxes and the Croton water rents, before he can expect or demand performance on the part of the purchaser.
    3. Same.
    He cannot compel the purchaser to assume his obligation to pay the taxes, though accompanied by an offer to allow the amount out of the purchase money.
    Appeal from a judgment in favor of plaintiff.

      Reginald M. Arnold, for app’lt; Edward F. Hassey,, for resp’t.
   Beekman, J.

This action is brought to recover a portion of the purchase money paid by the plaintiff to the defendant upon a contract between them for the sale and purchase of a parcel of real estate in the city of Mew York, and also the expenses incurred by the plaintiff in the examination of the title, on the ground that the defendant failed to tender a good title, free from all charges and incumbrances other than those which wree specified in the contract. The time fixed for closing the sale was the 10th day of May, 1892. On that day, by agreement between the parties, the time for performance was extended to May 26, 1892, when the defendant tendered his deed, and demanded performance on the part of the plaintiff, which the latter refused, alleging the following defects of title: An unsatisfied mortgage made to one William Ganed for $8,100, nine other unsatisfied mortgages,, unpaid taxes, and Croton water rents, and a notice of the pendency of an action covering the premises in question, but to which we do not consider it necessary to refer further. The holders of the nine mortgages above referred to were all present on the occasion, with releases of their respective mortgages duly executed, which releases the defendant offered to deliver to the plaintiff upon the payment by the latter of the purchase money, out of which it was expected that a simultaneous payment to the mortgagees would be made, and the releases thus obtained from them. The defendant also offered to allow to the plaintiff out of the purchase money the unpaid taxes and Croton water rents.' He also tendered to the plaintiff a satisfaction piece of the “Graned mortgage,” so called, executed by one Grauld, and duly acknowledged by him, which the plaintiff, however, refused to accept. It appears that the. mortgage last mentioned was really made to one William Grauld, but the copying clerk of the register, in recording the same, erroneously inserted the name of the mortgagee as_ “Graned,” instead of “Grauld.” The record was, however, correctly indexed under the latter name. The original mortgage was in the possession of defendant’s counsel at the time fixed for the closing of the contract, and was exhibited to the plaintiff at the time the satisfaction piece in question was tendered. It had been actually paid some months before, and the satisfaction piece delivered, but the register had refused to discharge it of record, owing to the discrepancy between the name of the mortgagee on the record and that mentioned in the satisfaction piece. The plaintiff expressed his willingness to complete his purchase upon the removal then and there by the defendant of the objections which he had made to the title, which the defendant was unwilling or unable to do under the circumstances. This action was brought on the 27th day of May, 1892. Subsequently thereto the record of the Grauld mortgage was corrected, and on the 26th day of July, 1892, the satisfaction piece was filed by the defendant, and the mortgage thereupon canceled and discharged of record by the register. Upon the trial of the action, judgment was awarded to the plaintiff for the full amount claimed.

The defendant in this case has not set up any equitable defense or counterclaimed for the specific performance of the contract, but stands upon his strict legal right to retain the money which has been paid by the plaintiff, on the ground that at law no recovery can be had if the plaintiff was at fault in refusing to perform at the time fixed for the purpose. In this situation he cannot invoke the aid of any equitable principle in support of his position, but must submit to be bound to a full and exact performance of his part of the agreement at the time specified. He had agreed to deliver to the plaintiff a title to the premises in fee simple, free from all incumbrances except those mentioned in the contract, and the plaintiff had a right to demand that this obligation should be fully complied with at the time when completion of the contract on his Dart was required.

In Smyth v Sturges, 108 N. Y. 495; 13 St. Rep. 801, which was a similar action, the court says:

“The vendor, having two remedies,^one damages, and the other performance,—chose the former. This right, if any, to damages, he assigned to the plaintiff, and the plaintiff has' sued. In such an action the vendor must be held strictly to the very terms of his engagement, and show the performance of all the conditions on his part necessary to be performed to put the other party in default.”

The rule so clearly laid down by the court is one founded upon an essential distinction between actions for damages and actions for specific performance. In the latter the action proceeds upon the ground of the continuance of the contract, and the court can, upon equitable principles, enforce performance with due regard to the equities of the parties. In the case of actions at law, the question is not one of performance, but of damages for nonperformance. The contract is deemed to be at an end, and the remedy afforded is satisfaction for its breach. The defendant was bound to relieve the property from the liens and clouds upon his title before he could expect or demand performance on the part of the plaintiff. He was well advised of the condition of his title, and, so far as the Grauld mortgage was concerned, he had been for several months in a position to secure a proper change of the record, and the cancellation of the same by the register. He did nothing, however, to compel proper action by the latter, but seems to have rested under the refusal of the register until tw'o months after this action was brought, when he succeeded in securing a discharge of the mortgage. If the register would have discharged the mortgage, as the defendant now claims, upon the exhibition of the original and the filing of the satisfaction piece, it was the duty of the defendant to have had this done when the contract came to be closed, but he has failed to show the slightest excuse for not having done so. If, however, the register still stood upon his original refusal, it was still more the duty of the defendant to have taken appropriate legal action to compel the discharge. He had no right to expect the plaintiff to assume any such burden. He did not even attempt to remedy his situation by causing the mortgage to be satisfied immediately upon plaintiff’s refusal to take, and again tendering his deed, but allowed two months of inactivity to pass by, apparently upon the assumption that he had been under no obligation to the plaintiff in the matter. The defendant was bound also to discharge the taxes and the Croton water rents. It was not sufficient for him to offer to allow the same to the plaintiff out of the purchase money and thus cast upon the latter the obligation of seeing to the payment and discharge of the same. Morange v. Morris, *42 N. Y. 48. In this case the court says:

“In the present case the vendor was unable to perform his agreement, for the reason that the premises were incumbered with the liens for taxes and assessments admitted in the answer. By his agreement, he was not only to convey a title in fee simple, but he was to convey and assure it free from all incumbrances except as therein specified, and the incumbrances referred to were not within the exception. The existence of the incumbrances at the time fixed in the agreement for the execution and delivery of a deed was a breach of the agreement on his part, which put it out of his power to perform, and excused the plaintiff from tendering payment. The averment in the answer that the defendant would have discharged the incumbrances * * * if the plaintiff had been ready and willing to perform on his part- is wholly immaterial. The act of conveying the premises free from all incumbrances was to be concurrent with that of the payment of the purchase money. The plaintiff was under no obligation to pay his money to the vendor, and trust to a remedy by action for damages in case the vendor failed to remove the incumbrances. It waé the duty of the defendant to have caused them to be discharged before the time arrived at which he had stipulated to convey.” (The italics are ours.)

It may also be said that, a fortiori, the defendant had no right to compel the plaintiff to assume his obligation to pay the taxes, although accompanied by an offer to allow the amount out of the purchase money. He had not entered into any such contract, and, however such an offer may be looked upon in a court of equity, the case is one at law resting upon strict legal right, and is without equitable aspect. Oppenheimer v. Humphreys, 31 St. Rep. 622; affirmed 125 N. Y. 733; 36 St. Rep. 1011. It is easy for vendors of real estate to secure the insertion of appropriate stipulations in contracts of sale which will relieve them from the harshness of the rule in cases where they rely upon the money they expect to receive from the purchaser for the discharge of liens. In most cases they can also find relief from the stress of the situation, in actions for specific performance, but, where they assume the position exacting a forfeiture of the money paid by the vendee upon the contract, they do so under claim of compliance with the conditions of the contract on their part, and they cannot justly complain of the demand which the law makes that such compliance shall be full, exact, and timely. The defendant cannot now claim that he had or was entitled to any additional time in which to remedy the defects complained of. Where the contract is treated as at an end, by reason of the failure to perform at the time fixed for the purpose, and the equitable power of the court is not invoked to compel specific performance, time is of the essence of the contract, and certainly may be made so by the acts of the parties. Schmidt v. Reed, 132 N. Y. 108; 43 St. Rep. 490. In this case the court says:

“While, at law, the stipulated time of performance of a contract of sale and conveyance of land is of the essence of the contract, it is not essentially so .in equity, and there, where the situation of the parties and property remains unchanged, relief will not necessarily be defeated by delay.”
Also: “The parties to a contract may, by its terms, make the time of performance essentially important, and its observance in that respect requisite to relief. Benedict v. Lynch, 1 Johns. Ch. 370. And, when that is not so, either of the parties to the contract may, by a reasonable notice to the other party for that purpose, render the time of performance as of the essence of the contract, and avail himself of forfeiture on default. Myers v. De Mier, 52 N. Y. 647.”

The case shows that, several days prior to the adjourned day for closing the contract, the counsel for the plaintiff notified the defendant’s attorney that he would insist that the liens and charges upon the property should be discharged or released of record on the day and at the time so fixed for closing the title. There is no claim that the notice was not sufficient, or that the defendant was ignorant of the matters upon which the objections of the plaintiff were founded. He was bound to comply with ins part of the contract on the day fixed, and, upon his failure to do so, the plaintiff was entitled to consider it at an end. The cases cited by the counsel for the appellant are actions for specific performance, which, as we have seen, rest upon other principles. We are of the opinion that the case was correctly disposed of below, and that the judgment should be affirmed, with costs.


source: Caselaw Access Project

author: Beekman, J.

license: Public Domain

text:
    Anna Maria Franck, Resp’t, v. Christian A. Franck et al., App’lts.

      (New York Superior Court, General Term,

      Filed March 4, 1895.)

    Judgment—Correction.
    The appellate court cannot amend a judgment of dismissal, but not on the merits, so as to be on the merits, in the absence of findings of fact in the decision which are necessary to support such a conclusion.
    Appeal from a judgment, dismissing the complaint, but not on the merits and without costs.

      Walter I. McCoy and Henry P. Starbuck, for app’lts; David Leventritt, for resp’t.
   Beekman, J.

The plaintiff claims that she executed a deed of certain property without knowledge of the fact, but believing, that the paper she was signing was her will,—a belief which she charges was induced by representations made to her by her husband, who profited by the transaction. This action was brought to set aside the conveyance, and, the husband being then deceased, the devisees under his will were made parties defendant. At the close of the plaintiff’s case a motion for a nonsuit was made, which was denied, to which exception was taken. The defendants then went into their proofs, which were sharply antagonistic to those of plaintiff, and upon the close of the whole case a motion was made by the defendants to dismiss the complaint on the merits, which was denied. To this ruling no exception was taken. The trial judge, having then taken the case under advisement, made the following decision, which, omitting the preamble, reads as follows:

“ Findings of fact: That the plaintiff herein, Anna Maria Franck, has failed to establish her case by a fair preponderance of the evidence. Conclusions of law : (1) That the plaintiff ■herein, Anna Maria Franck, has failed to establish her case by a fair preponderance of the evidence. (2) That the complaint herein should be dismissed, but not upon the merits, and without costs to said defendants or either of them, and that judgment be entered accordingly.”

This so-called finding of fact was made pursuant to a request so to do tendered by each of the appellants, and was the only finding of fact, as such, which they asked the trial judge to make, and its repetition as a conclusion of law was also requested by them. The trial judge was also requested to find as a conclusion of law that the complaint should be dismissed on the merits, which he refused to do, and exception was duly taken to this tuling, as well as to the so-called “second couclusion of law,” which was embodied in the decision rendered and filed. The judgment entered by direction of the trial judge adjudged “ that the complaint of the plaintiff herein be dismissed, and that said plaintiff be nonsuited, but not upon the merits, and without prejudice and without costs to either party as against the other, and that said defendants and each of them have judgment accordingly.” Each of the defendants Christian A. Franck and Alphonsus A. Franck has appealed from so much of the judgment “as decrees, decides, and'adjudges that the dismissal of the complaint be ‘ not upon the merits and without prejudice’; and also from so much and such part of said judgment and decree as decrees, decides, and adjudges that such dismissal of the complaint be without costs to said defendant." The notices of the appeal, however, expressly state that the appellants do not appeal from so much of the judgment as decrees, decides, and adjudges that the complaint be dis.missed. The defendant Kraeht has appealed from the judgment as a whole. The cause was tried and judgment rendered before chapter 688 of the Laws of 1894, amending section 1022 of the Code of Civil Procedure, was passed.

We do not think that the so-called “findings of fact" was such a finding, within the meaning of that section. It is true, taken as it stands, it expressed a stage in the mental process of reaching a conclusion upon the facts which logically should have led to a finding of the facts themselves against the plaintiff; but the facts were not so found, and we have no power to supply the deficiency. Preponderance of evidence is, ex vi termini, superior weight of evidence, and necessarily presupposes proof on each side sufficient, considered by itself, to'support the allegations to which it relates. The weighing of the whole evidence is the function of the trial judge in equity cases, and of a jury in common-law cases, and involves a consideration of the credibility of witnesses, the probabilities of the case, and the marshaling of evidentiary facts in their true relations, all leading up to a conclusion as to the ultimate facts upon which the judgment of the court is to be placed. In short, the quantum of proof is sufficient; it is the quality of the proof which enters into the question of its weight. If the quantum of proof is sufficient, a nonsuit cannot be granted, but a decision upon the merits should be made. If the evidence does not preponderate, but stands equally balanced, the allegations of the party who has tendered the issue must be deemed to have been fully met by his opponent, and the facts should be determined against him. This, however, was not done in the present case. Had the appellants presented proper requests to find, or perhaps if they had excepted, to the denial of the motion to dismiss the complaint on the merits made' at the close of the case, and had they also appealed from the judgment as a whole, we might have afforded them proper relief, but the condition of the record is such that the only question we can determine is whether the decision was such as to warrant a dismissal on the merits. How can we so determine, in the absence of findings of fact in the decision which are necessary to support such a conclusion ? The only “ finding of fact,” so called, in the decision, was the one, and the only one asked for by the appellants, and that is not sufficient on which to rest the direction for judgment which they asked. We cannot supply findings of fact which the trial judge has not made. The appellants contend that there is authority for the correction of the judgment, which they ask, and refer us to the cases of Knight v. Sackett and Wilhelms Lithographing Co., 46 St. Rep. 866, and Beach v. Cooke, 28 N. Y. 508, at paige 538. In each of these cases, however, the court was controlled by the condition of the record in relation to findings of fact. In the case of Knight v. Lithographing Co. the judgment appealed from was in terms a dismissal of the complaint on the merits. The appellate court corrected the judgment by striking out the words “on the merits,” saying: “ As the dismissal was upon the plaintiff’s own showing, and without making any findings, it should not have been upon the merits.” The absence of findings thus contributed to the conclusion that the dismissal was not upon the merits. In the case of Beach v. Cooke, snpra, the court of appeals conceded the power of the appellate court to correct a judgment which was inappropriate without sending the case back for a new trial, but predicated its decision upon the existence df findings of fact, and confined the power of the appellate court to framing a new judgment in harmony with the correct legal conclusions to be drawn from the facts so found in the court below. The-record in the case at bar closely approaches the conditions which existed in Knight v. Lithographing Co. Here, as there, proper-findings of fact are absent, and we have therefore nothing upon which we camproceed in order to make the desired correction. In fact, the judgment as it stands is more consistent with the record than if it had been made upon the merits. The situation is largely of the appellants’ own making, and they cannot, therefore, justly complain of the barrenness of their appeal. We are-not inclined, however, to give costs to the respondent, especially as no costs were awarded against her below. The judgment should therefore be affirmed, but without costs of this appeal.

All. concur.


author: Beekman, J. McAdam, J.

text:
    George Solomon, As Assignee, etc., App’lt, v. Continental Insurance Company, Resp’t.

      (New York Superior Court, General Term,

      Filed March 4, 1895.)

    1. Insurance—Fire—Notice op loss—Delay.
    While a compliance with a provision requiring immediate notice in writing of loss is a condition precedent to a recovery upon the policy, the requirement is to he liberally construed in favor of the assured.

      2. Same.
    Where the explanation given is of such a character as to show diligence on the part of the assured in attempts to comply, associated with the fact that the company was possessed of actual knowledge of the loss immediately after its occurence, or where the company had assumed a position or done some act, which either prevented timely notice being given or had misled the assured in reference thereto, or which was'tantamount to a waiver of strict performance, a case is presented which excuses the delay.
    3. Same.
    The words, “ forthwith” or “ immediate,” when used in reference to the notice of loss, mean within a reasonable time, considering the circumstances of each case.
    •4. Same.
    Such question is one for the jury.
    Appeal from a judgment dismissing the complaint.

      Abram Kling, for app’lt; Michael H. Cardozo, for resp’t.
   Beekman, J.

The plaintiff sues to recover a loss under a policy of insurance against fire issued by the defendant. The policy was for the sum of $2,500, and covered certain merchandise contained in the buildings 797 and 799 Third avenue. The language of the policy required the assured to give the company immediate notice, in writing, of any loss in case of fire. A fire took place on the 15th day of December, 1893, which resulted in the total destruction of the buildings above referred to, and their contents, including the merchandise of the assured. ¡Notice of loss in writing, however, was not given to the company by the assured until February 6, 1894, some fifty-three days after the fire had occurred.

At the close of the plaintiff’s case, the trial judge dismissed the complaint on the ground, among others, that the notice in question was not immediate; which was duly excepted to by the plaintiff, and an appeal has been taken by him from the judgment of nonsuit. If no other facts were before us, we should unhesitatingly affirm the judgment, on the ground that a notice fifty-three days after the event is obviously not immediate. But the plaintiff has tendered proof in excuse of the delay, and it therefore becomes our duty to consider wdiether it was of such a character as to call for the submission of its reasonableness to the jury. Where the plaintiff is nonsuited, the evidence offered by him must be taken to be true, and considered in the light most favorable .to his claim, and if there is proof from which an inference might be drawn by the jury which would support his contention it is the duty of the appellate court to reverse the judgment and ■send the case back for a new trial. It appears that the policy in question had been originally taken out by one Henry Thoesen, who subsequently made an assignment for the benefit of creditors to the plaintiff. Application was made to the defendant for the transfer of the policy in suit to the plaintiff, which was accordingly done. The policy, with others upon the same property issued by other companies, was placed in a safe which was in the same building with the merchandise, and which was buried in the ruins of the fire, from which it was taken six days later, and removed to the yard of a safe manufacturer, where it was opened, the contents placed in boxes, transferred to a building in which the plaintiff had an office, and there placed in a vault suitable for the storage of papers. This deposit was made late in the evening ■of the day on which the safe was opened. The next morning plaintiff instituted a search among the papers for the policies of 'insurance; but failed to find them. He states that his search was a thorough one, and was repeated several times, but without success. In the last week in January, the bookkeeper of the plaintiff, having occasion to get some articles from the vault, by chance found the missing policies, which had slipped between the framework of che pigeonholes and the wall behind, and were thus screened from ordinary observation. They were then taken by the plaintiff to the office of his attorney, and the company was notified by letter of the loss. The letter in question is dated February 3d, and was received by the company on February 6th. On February 13th the company wrote to the plaintiff, acknowledging the receipt of the notice, but refusing to recognize it as a sufficient compliance with the terms of the policy, on the ground that it was not given until more than fifty days after the fire, whereas the policy required it to be immediate. On the same day that the above notice of loss was given, the proofs of loss required by the policy to be furnished by the assured were also received by the company. The plaintiff swears that he did not know that he was insured in the defendant company, or what the terms and conditions of his policy were, until the latter was found. He knew that the policy had been obtained by Barbour & Durbrow, who for several years had been the insurance agents of Thoesen, and he called at their office the day after the fire for information, but was referred to Mr. Barbour, who was not in. Subsequently, he says, Mr. Thoesen, who was then acting as his clerk, called upon these insurance agents, but with what result does not apappear; and as Mr. Thoesen had died before the trial his testimony upon this point was not available. The plaintiff also testified that there was no record in any of the books belonging to the estate of which he was assignee containing any mention of the insurance from which the names of the companies would appear. He also stated that he called a second time upon the insurance agents relative to the insurance, but it does not appear why he failed to get the information he sought. He nowhere states that it was refused him, or that the agents were unable to give it to him. He simply did not obtain it. It must be confessed that the evidence upon this point is quite unsatisfactory. Proof was also given that the defendant was informed by the fire patrol, on the morning after the fire, that the buildings in question and their contents had been totally destroyed. This information was conveyed in a printed sheet containing a list of all the fires of the previous day, which it is the daily practice of the fire patrol to furnish to the insurance companies. The item which called attention to the fire in question was noted by the officers of the defendant, and the fact that the policy in suit had been issued upon goods within the burned buildings was discussed in the office. While the knowledge thus obtained was not as complete as it would have been if the buildings had been the subject of the risk, owing to the fact that it required to support it the further inference that the goods insured were within the place when the fire occurred, still it cannot be said that the information was not sufficient to prompt such action by the company as it would have considered prudent to take for its protection if notice of loss had proceeded from the assured.

Upon this state of facts the plaintiff claims that he was entitled to go to the jury upon the question as to whether his delay in giving notice of loss was excusable. The law governing the case, briefly stated, is that, while a compliance with such a provision is á condition precedent to a recovery upon the policy, the requirement is to be liberally construed in favor of the assured; and while the delay in giving the notice, standing by itself, and disconnected from the circumstances explaining it, would be a clear violation of the obligation that the notice should be immediate, yet where the explanation given is of such a character as to show diligence on the part of the assured in attempts to comply, associated with the fact that the company was possessed of actual knowledge of the loss immediately after its occurrence, or where the company had assumed a position or done some act which either prevented timely notice being given or had mislead the assured in reference thereto, or which was tantamount to a waiver of strict performance, a case is presented which excuses the delay. Evah Brothers v. Insurance Co., 20 St. Rep. 207; Weed v. Hamburg, Breman Fire Insurance Co., 183 N. Y. 394; 45 St. Rep. 405; Hermann v. Niagara Falls Insurance Co. 100 N. Y. 412; Kendall v. Holland Purchase Insurance Co., 2 Thomp. & C. 375; affirmed 58 N. Y. 682; Griffey v. N. Y. Central Insurance Co., 100 N. Y. 417; McNally v. Phoenix Insurance Co., 137 N. Y. 389; 50 St. Rep. 680; Carpenter v. German American Insurance Co., 135 N. Y. 298; 47 St. Rep. 862; Bumstead v. Dividend Mutual Insurance Co., 12 N. Y. 81.

In McNally v. Insurance Co., supra, O’Brien, J., says:

“These conditions which relate to matters after the loss have, for their general object, to define the mode in which an accrued loss is to be esablished, adjusted, and recovered after the reciprocal rights and liabilities of the parties have become fixed by the-terms of the contract, and are to recieve a more liberal construction in favor of the insured. In determining the liability of the defendant, it is entitled to the benefits of the contract fairly construed, and can stand upon all of its stipulations. Bu-t when its liability has become fixed by the capital fact of a loss within the range of the responsibility assumed by the contract, courts are reluctant to-deprive the insured of the benefit of that liability by any narrow or technical construction of the conditions and stipulations which-prescribe the formal requisites by means of which this accrued right is to be made liable for his indemnification. A liberal and reasonable construction of the stipulations of the contract which prescribe the formal acts on the part of the insured necessary to-the recovery of the loss is sanctioned and required by the rules-of law.”

Applying this rule, the courts have held that the words “forthwith” or “immediate,” when used in reference to the notice of loss, mean within a reasonable time considering the circumstances of each case; and an examination of the cases shows than notices required to be “immediate" or “forthwith” have been upheld although not served until, after a lapse of time following the fire exceeding that of the case at bar. The latest decisions of the court of appeals have settled it that the question is one to be determined by the jury. Griffey v. N. Y. Central Insurance Co., 100 N. Y. 417-421; McNally v. Phoenix Insurance Co., 137 N. Y. 389-402; 50 St. Rep. 680; Carpenter v. German American Insurance Co., 135 N. Y. 298-303; 47 St. Rep. 862. The case of Quinlan v. Providence, etc., Insurance Co., 133 N. Y. 356; 45 St. Rep. 200, upon which the respondent relies, presents a case where no notice of loss was served at all, and in which the proofs of loss were not supplied until months after the sixty-days limitation in the policy had expired.

We are aware that the cases we have cited are much stronger in their facts, and show greater evidence of diligence, than the case at bar, but still we cannot say that the evidence before us is so deficient that, with every inference which it is permissible for the jury to draw from it, a verdict for the plaintiff should not stand. We do not think the other grounds upon which the motion for a dismissal was made, are tenable. In view of the conclusion to which we have come, the judgment should be reversed, and a new trial ordered, with costs to abide the event

Sedgwick, C. J., concurs.

McAdam, J.

I dissent from the conclusion reached by my associates. The action is founded on an allegation of performance of the condition of the policy that, “if fire occur, the insured shall give immediate notice of any loss thereby to this company.” The proofs do not sustain the allegation, nor could a finding by the jury to that effect be sustained. The facts being undisputed, the question of what constituted timely notice was one of law for the court, VanTassel v. Insurance Co., 72 Hun, at pages 146, 147, and was, in my opinion, correctly decided by it,—a conclusion which ought to lead to affirmance.


author: Martin, J.

text:
    Henry L. Manning, Resp’t, v. Cornelius L. Wells, App’lt.

      (Supreme Court, General Term, Fourth Department,

      Filed February, 1895.)

    Parent and child—Necessaries.
    Where a party notifies a father that his son is at the farmer’s house, in a destitute condition, and without the physical ability to provide himself with the necessaries of life, an implied promise on the part of the father to pay for necessaries furnished his son arises, where he has refused to furnish them and has driven him from home.
    Appeal from an interlocutory judgment, overruling a demurrer to the complaint.

      John Z. Lott, for app’lt; Millard, & Stewart, for resp’t.
   Martin, J.

The allegations of the complaint, briefly stated, are that L. B. Wells was the infant son of the defendant; that about June 1, 1893, the defendant’s son came to the plaintiff’s home, “ in a destitute condition, and without the physical ability of providing himself with the necessaries of life; ” that the plaintiff thereupon caused the defendant to be notified of the whereabouts of his son, and of his destitute condition; that, just prior to that time, the defendant had refused longer to furnish his son with the necessaries of life, had denied him shelter under his roof, had abandoned and repudiated him as his son, and refused longer to provide for him, either in sickness or in health; that the plaintiff furnished the son with the necessaries of life, consisting of board, lodging, clothing, work and labor in repairing his clothes and caring for him while he was ill at the plaintiff’s house, and money to secure his return to the defendant, to the value of $125.51; that the necessaries thus furnished the son were reasonably worth that sum; that, prior to the commencement of the action, the plaintiff demanded payment of the defendant for the-necessaries thus furnished; and that the same was not paid. The complaint was demurred to, upon the ground that facts sufficient to constitute a cause of action were not stated therein.

The first question presented is whether, upon the facts alleged, the law raises an implied promise on the part of the defendant to-pay for the necessaries furnished to his infant son by the plaintiff. That it is the duty of parents to provide for the maintenance of their infant children is a principle of natural law, and the obligation to discharge this duty continues until the child is in a condition to provide for himself or becomes twenty-one years of age. The questions, however, whether that duty is a legal one or only a moral duty, and whether it is sufficient to raise an implied promise upon the part of the parent to pay for necessaries furnished his child, are questions as to which there seems to be a conflict in the authorities; one class holding that, independent of statute, a parent is not liable for necessaries furnised his infant, child, while another class holds that a person furnishing such necessaries may recover of the parent therefor. The principle upon which the latter proceed is that, as a parent is under a natural obligation to furnish necessaries for his infant children, if he neglects that duty a person who supplies such necessaries is deemed to have conferred a benefit upon the delinquent parent, for which the law raises an implied promise on his part to pay. If the latter doctrine is correct, it would follow that the plaintiff’s complaint is-sufficient, as it shows a clear and palpable omission of duty in that respect on the part of the defendant. Without discussing in detail or attempting to harmonize the various opinions that have been expressed upon this question, we are disposed to hold that, upon the facts alleged in the complaint, the law raised an implied promise on the part of this defendant to pay for the necessaries furnished his infant son. This conclusion is sustained by the-principle of the following authorities: Van Valkinburgh v. Watson, 13 Johns. 480; Forsyth v. Ganson, 5 Wend. 558; Clinton v. Rowland, 24 Barb. 634; Cromwell v. Benjamin, 41 id. 558, 561; Smith v. Church, 5 Hun, 109; Parker v. Tillinghast, 19 Abb. N. C. 190.

The Van Valkinburgh case is directly in point In that case the court said :

“ A parent is under a natural obligation to furnish necessaries for his infant children; and, if the parent neglect that duty, any other person who supplies such necessaries is deemed to have conferred a benefit on the delinquent parent, for which the law raises an implied promise to pay on the part of the parent.”

In the Forsyth case the court recognized the liability of a parent for necessaries furnished his infant child where the father improperly neglects or refuses to provide them.

This doctrine’was also recognized in the Clinton and Smith cases, where it was held that, to make a parent liable for purchases of a child, a failure on the part of the parent to discharge the obligation to provide necessaries for the infant, and that the goods supplied were necessary, must be shown; thus at least inferentially holding that in case of such neglect the parent would be liable.

It was held in Cromwell v. Benjamin that the liability of a father to furnish necessaries for his minor and invalid children, who were members of his family, and unable to support themselves by their labor, depended upon principles analogous to those which govern the relation of husband and wife, and that as to the wife, if he did not provide for her support, he was legally liable for necessaries furnished to her by tradesmen, even though against his. orders, and that he was also liable for necessaries furnished for his children.

In Crane v. Baudouine, 55 N. Y. 256, 259, in discussing the question of the liability of a parent for necessaries furnished a daughter, Folger, J., said:

“And were she a daughter for whom, by reason of her minority and dependence upon him, the defendant was under a natural obligation to provide necessaries, this fact would be strong, with others to be mentioned, to sustain an implication of a promise.”

In the Parker Case it was held that where a parent sent his boy away from home to attend school in a distant place, and failed to supply him with clothing suitable to the climate, and required by the boy’s growth, he was liable to the person furnishing such necessaries.

The doctrine of the Van Valkinburgh Case was again recognized, and approved in Poock v. Miller, 1 Hilt. 108, and in Henry v. Betts, Id. 156.

In Furman v. Van Sise, 56 N. Y. 439, where this question incidentally arose, it was said by Grover, J.:

“That parents are bound to provide for and maintain their infant offspring results from the law of nature, and is enforced upon both according to their ability.”

In Re Ryder, 11 Paige, 185,188, in discussing this question, the chancellor said:

“Or a stranger may furnish necessaries for the child, and recover of the parent compensation therefor, where there is a clear and palpable omission of duty, on the part of the parent, in supplying a minor child with necessaries.”

While it may be that the doctrine of these cases is somewhat in conflict with the cases of which Raymond v. Loyl, 10 Barb. 483, is an example, yet we are of the opinion that, in view of the fact that the plaintiff at once notified the defendant that his son was at the plaintiff’s house, in a distitute condition, and without the physical ability to provide himself with the necessaries of life, as was alleged in the complaint and admitted by the demurrer, under all the cases it must be held that an implied promise-on the part of the defendant to pay for the necessaries thus furnished arose. In such a case very slight evidence would be sufficient from which to infer such a promise by the parent. When we assume the facts as stated in the complaint, together with such reasonable and fair"intendments as are to be implied from the allegations therein, we are satisfied that a cause of action is alleged, and that, upon the admission of those facts, the plaintiff would be entitled to recover the amount claimed. It follows that the judgment should be affirmed. •

Judgment affirmed, with costs, with leave to the defendant to answer upon the payment of the costs of the demurrer and of this appeal. All concur.


author: Merwin, J.

text:
    First National Bank of Syracuse, Resp’t, v. New York Central & Hudson River Railroad Company, App’lt.

      (Supreme Court, General Term, Fourth Department,

      Filed February, 1895.)

    1. Cabbiee—Bills of lading.
    The discount of a draft drawn by a consignor upon his consignee, which is accompanied by the delivery of a bill of lading to the party making the advance, passes to him the legal title to such property and subrogates him to the rights of the original holder.
    3. Same.
    The fact that the bill of lading is drawn to order, does not prevent its transfer by delivery to a third person without any indorsement.
    8. Same.
    Where the bill of lading is upon its face transferable, the carrier, if it delivers the goods without requiring its production, is liable to third persons who have acquired rights in the property.
    4. 'Same.
    The words upon the face and back of the bill of lading in question were held not to render it non-transferable.
    5. Same.
    Under § 633 of the Penal Code, the delivery of goods without surrender of the bill of lading is unlawful, where the words “not negotiable” do not appear on the face, though printed on the back, of the bill of lading.
    6. Same—Laches.
    Laches on the part of the owner of a bill of lading cannot be assumed merely from delay in presenting it to the carrier.
    Appeal from a judgment, entered on the decision of the court on a trial without a jury.
    The facts, as found by the trial court, are substantially as follows: On the 2d September, 1892, O. E. Drake delivered to the defendant, at its station at East Pembroke, N. Y., a car load of wheat in bulk, owned by him, to be carried by the defendant to its station at Marcellus, N. Y; and the defendant thereupon duly delivered to Drake or his agent a bill of lading. This was dated. September 2, 1892, and acknowledged the receipt of the property, and stated the agreement to carry, and also that it was agreed “that •every service to be performed hereunder shall be subject to all the ■conditions, whether printed or written, shown or indorsed hereon, and which are hereby agreed to by the shipper, and by him, accepted for himself and his assigns as just and reasonable.” Upon the face of this bill,.and under the words “Marks, consignees, and designation,” there was the following, “Order of G. E. Drake, Mar-cell us, N. Y. (Notify C. E. Drake, Rochester, N. Y.) ” There then followed a description of the property and a statement that the freight was prepaid. Upon the back of the bill of lading there was printed the word “Conditions,” and under it the words “ Not negotiable” and under these, in smaller type, a number of conditions two of which are claimed to be material here, and are as follows: “(5) Property not removed by the person or party entitled to receive it within twenty-four hours after its arrival at destination may be kept in the car, depot, or place of delivery of the carrier, at the sole risk of the owner of said property, or may be, at the option of the carrier, removed and otherwise stored at the owner’s risk and cost, and there held subject to lien for all freight and other charges. The delivering carrier may make a reasonable charge per day for the detention of any car, and for the use of track, after the car has been held forty-eight hours for unloading, and may add such charge to -all other charges hereunder, and holds such property subject to a lien therefor. Property destined to or taken from a station at which there is no regularly appointed agent, shall be entirely at risk of ■owner when unloaded from cars, or until loaded into cars, and when received from or delivered on private or other sidings, shall be at owner’s risk until the cars are attached to, and after they are •detached from trains.” “(9) If the word ‘Order’ is written hereon immediately before or after the name of the party to whose order the property is consigned, without any condition or limitation other than the name of a party to be notified of the arrival of the property, the surrender of this bill of lading properly indorsed shall be required before the delivery of the property at destination. If any other than the aforesaid form of consignment is used herein, the said property may, at the option of the carrier, be delivered without requiring the production or surrender of this bill of lading.” Other facts were found as follows : Fourth. That on, the 3d day of September, 1892, said C. E. Drake, then being the holder of the said bill of lading, and the owner of said wheat, drew his draft, in writing, upon H. C. Smith & Co., of Marcellus, N. Y., of which the following is a copy:
    “$465.49.
    Rochester, N. Y., September 3d, 1892.
    “At sight, pay to the order of P. R. McPhail, cashier, four hundred sixty-five and 49-100 dollars, value received, and charge to account of
    “C. E. Drake, per C. E. Drake.
    “To Mess. H. C. Smith & Co. [Indorsed on face.]
    “Cash. Syracuse, N. Y,”

      —And attached the said bill of lading to the said draft, and delivered the said draft and bill of lading, the latter indorsed. “Deliver to the order of H. C. Smith & Co. [Signed] C. B. Drake,” to the Mecbants’ Bank of Rochester; and said Merchants’ Bank of Rochester, on said day, discounted the said draft, and placed the avails thereof to the credit of said Drake upon the books of said bank. Fifth. That on the said 3d day of September, 1892, said Merchants’ Bank of Rochester indorsed the said draft as follows : “For collection for account of Merchants’ Bank of Rochester, N. Y. P. R. McPhail, Cashier,”—and transmitted the same, with the bill of lading attached, to the plaintiff, First National Bank of Syracuse, for collection ; and the same were received by said plaintiff on the 6th day of September, 1892, upon which day said plaintiff duly notified said H. C. Smith & Co. of the receipt thereof. Sixth. That on the 10th day of September, 1892, H. C. Smith, .a member of the firm of H. C. Smith & Co., called at the banking office of the plaintiff at Syracuse, N. Y., and requested the cashier of said bank to remit to the Merchants’ Bank of Rochester the amount of said draft, and to hold the bill of lading as security for such advancement until said draft was paid by said H. C. Smith & Co. j and that thereupon said plaintiff did remit to said Merchants’ Bank of Rochester, on said 10th day of September, 1892, the amount of said draft, by its draft upon New York, which said remittance was received by said Merchants’ Bank of Rochester on the 12th day of September, 1892, and said draft on New York was thereupon collected, and the proceeds thereof retained by said Merchants’ Bank of Rochester. Seventh. That on the 5th day of September, 1892, the firm of H. C. Smith & Co. presented to the station agent of the defendant at Marcellas, N. Y., a postal card signed by said C, E. Drake, of which the following is a copy:
    “Rochester, N. Y., Sept. 4, ’92.
    Messrs. H. C. Smith & Co.: This is your authority ,to unload
    car wheat No. 41,383, consigned from B. Pembroke 9 2 to my order Marcellus. Unload without B. L., and deliver B. L. to agent when you get it from First National Bank of Syracuse, where we sent it on Saturday for delivery to you.
    “Yours, truly, C. B. Drake.”
    —And that thereupon said defendant delivered to said IT. C. Smith & Co. said car load of wheat, shipped under the bill of lading aforesaid, without requiring the surrender and cancellation of said bill of lading; and the same was wholly removed from said car on the 5th, and before 8 a.m. of the 6th of September, 1892, by said H. 0. Smith & Co., and said wheat was converted into' flour by said H. C. Smith & Co. before September 10,1892. Eighth. That on or about the 1st day of November, 1892, after the failure of said H. C. Smith & Co., the plaintiff duly presented the said bill .of lading, and duly demanded from the defendant the possession of the said car load of wheat mentioned therein, and that the said defendant refused to deliver the same to the plaintiff. Ninth. That at the time of such shipment, and up to the time of such de mand for the possession thereof, said wheat was of the value of $465.49. Tenth. That after the receipt of said bill of lading by the plaintiff, not earlier than September 10,1892, andlbefore the ¿demand for the property therein mentioned from the defendant, the said H. C. Smith & Co. indorsed the said bill of lading by writing across the back thereof the words “H. C. Smith & Co.” Eleventh. That said H. C. Smith & Co. never paid the said draft; and that said bill of lading was never delivered to said H. C. Smith & Co., but remained in the possession of the plaintiff until after the demand aforesaid. Twelfth. That Marcellus station is about fifteen miles west of the city of Syracuse, plaintiff’s place of business, and there is telegraph and railroad communication between the two places. As conclusions of law, the court found that the delivery by the defendant of the grain to said H. C. Smith & Co. without the cancellation and surrender of the bill of lading, and the subsequent refusal to deliver the same to the plaintiff upon demand, constituted a conversion thereof, and that the plaintiff is entitled to judgment against the defendant for the sum of $465.49, the value of said wheat, with interest from the 10th day of September, 1892. The appeal is heard on the judgment roll alone.

      Frank Hiscock, for app’lt; White & Cheney, for resp’t.
   Merwin, J.

The plaintiff, upon its advancement- to the Merchants’ Bank of Rochester of the amount of the draft, at the request of H. C. Smith & Co., was subrogated to the rights of that bank to the draft and bill of lading. Cans v. Thieme, 93 N. Y. 225 ; Acer v. Hotchkiss, 97 id. 403; 13 St. Rep. 506 ; 24 Am. & Eng. Enc. Law, 290, 294. In Commercial Bank v. Pfeiffer, 108 N. Y. 250, it is said to be settled law in this state that the discount of a draft drawn by a consignor upon his consignee, which is accompanied by the delivery of a bill of lading to the party making the advance, passes to such party not only the legal title to such property, but, in the eye of the law, the transfer of the bill of lading is regarded as an actual delivery and an actual change of possession of the property. As supporting this proposition, there are cited the cases of Bank of Rochester v. Jones, 4 N. Y. 497 ; First Nat. Bank v. Kelly, 57 id. 37; City Bank v. Borne, W. & O. R. Co., 44 id. 136; Merchants' Bank v. Union R. & T. Co., 69 id. 379. The fact that the bill of lading is drawn to order does not prevent its transfer by delivery to a third person without any indorsement. Merchants Bank v. Union R. & T. Co., supra. The acts of Drake after delivery of the bill of lading to and discount of the draft by the Bochester Bank did not affect the rights of that bank. It would seem, therefore, that the right of plaintiff to the property under the bill of lading was perfect, unless it is affected by the printing on the back of the bill of lading of the words “Not negotiable.”

By section 633 of the Penal Code, it is provided that any person who is the master, owner, or agent of any vessel, or officer or agent of any railway, express, or transportation company, or otherwise being or representing any carrier, “who delivers to another any merchandise for which a bill of lading, receipt or voucher has been issued, unless such receipt or voucher bears upon its face the words ‘Not negotiable,’ plainly written or stamped, or unless such receipt is surrendered to be cancelled at the time of such delivery, or unless, in the case of a partial delivery, a memorandum thereof is indorsed upon such receipt or voucher, is punishable by imprisonment not exceeding one year, or by a fine not exceeding one thousand dollars, or by both.” The bill of lading in this case did not have written or stamped on its face the words “Not negotiable,” and therefore the delivery of the property by the agents of the defendant without its surrender and cancellation, was unlawful. In 1 Kent, Comm. 467, it is said, if a statute inflicts a penalty for doing an act, the penalty implies a prohibition, and the thing is unlawful, though there be no prohibiting words in the statute. As the printing of the words “Not negotiable” oh the back of the bill did not comply with the statute, it may be doubtful whether they in any way affected the rights of the Rochester Bank. It had a right to assume that the defendant would not deliver the property without production of the bill, and so it would be able to obtain payment of the draft. Aside from this, by reference to condition No. 9, it was apparently within the contemplation of the parties that, if the consignment was in the form which it in fact appears to be on the face of the bill,, it then became the subject of transfer, and the rights of third parties might intervene, and so the property must not be delivered without surrender of the bill. I am of the opinion that the Rochester Bank had a valid .claim on the property to the extent of the draft, and this inured to the benefit of the plaintiff, although the property had passed from defendant’s control before the plaintiff made its advancement. Serat v Utica, I & E. Railroad Co., 102 N. Y. 681. The improper delivery by defendant did not relieve it from its liability. Corsan v. Oliver. 2 Abb. N. C. 356.

It is, however, urged by the defendant that, at the time the plaintiff advanced its money, the bill of lading was “spent,” and therefore the plaintiff could acquire no rights to it. This might perhaps be so if plaintiff only took the right which H. C. Smith & Co. could give. As, however, it stood in the place of the Rochester Bank, it was not affected by what had occurred between the defendant and Smith & Co. It is not found that the plaintiff knew any thing about these occurrences.

The defendant also claims that t^e plaintiff is chargeable with loches by reason of its delay in presenting the bill of lading and making a demand of defendant. The fact of loches or consequent injury is not found. From the delay simply we cannot assume the existence of loches or injury, especially in view of the fact that the unlawful delivery by defendant’s agents, which is the basis of plaintiff’s claim, occurred on or before the 6th September, 1892. No facts are found showing an estoppel. Galway v. Met. E. Railraad Co., 128 N. Y. 133 ; 40 St. Rep. 145. Nor can we say, without any finding on the subject, that the defendant, by reason of the delay and the failure of the consignees, has lost any remedy it might have had against them, or did not protect itself in the transaction. The defendant claims that the plaintiff ratified the delivery to Smith & Co. But that is not found. No question is made about interest.

The appeal being heard upon the judgment roll, the question is whether, in any view of the facts found, the proper judgment was ordered. Agricultural Insurance Co. v. Barnard, 96 N. Y. 525. We are of the opinion that the judgment must be sustained

Judgment affirmed with costs.

All concur.