author: Hardin, P. J. Merwin, J.

text:
    Fred E. Van Aernam, App’lt, v. Sophronia E. Granger, Resp’t.

      (Supreme Court, General Term, Fourth Department,

      Filed May 4, 1895.)

    Evidence — Declarations—Assignor.
    The declarations of an assignor of a citóse in action, constituting no part of the res gestee, are not competent to prejudice the title of the assignee.
    Appeal from a judgment entered on a verdict in favor of defendant.

      James D. Smith and C. S. Mereness, for app’lt; Merrell, Ryel & Merrell, for resp’t.
   Hardin, P. J.

I have carefully read the evidence found in the appeal book, and I am of the opinion that the weight of the evidence indicates that the two notes mentioned in the plaintiff’s complaint, bearing date April 4, 1891, payable to Catharine J. Hess or bearer, were transferred by the payee to the plaintiff before due, for value, and that the plaintiff thereby became the lawfui owner and holder of the notes. And I am also of the opinion that the evidence does not indicate that the defendant had a valid offset to the same, and that the verdict is against the weight of eivdence.

_ 2. Upon the trial, Corwin was allowed to testify to a conversation he had in November, 1891, with Catherine J. Hess, with reference to the two notes in question, after objections thereto were overruled and exceptions taken. Mrs. Wormwood, the payee of the note of $100, was put upon the stand by the defendant, and asked in respect to a conversation which she had in September, 1891, with Mrs. Hess, at her residence, in regard to the $100 note. When she was asked to state that conversation an objection was raised by the plaintiff, and an exception taken, and the witness was permitted to give the statements and declarations of the former holder of the notes in suit. Granger, the husband of the defendant, was called as a witness in her behalf, and testified that he held a conversation with .Mrs. Hess in June, 1891, with reference to the notes in suit, and when he was asked to state that conversation several objections thereto were taken, and they were overruled, and an exception was taken; and he was allowed to give the declarations' of Mrs. Hess, the former owner of the notes in suit. The production of the notes by the plaintiff upon the trial gave rise to a presumption that he was the owner thereof, and acquired title to the same before they were due. Wilson v. Law, 7 St. Rep. 672; Benson v. Gerlach, 20 id. 939. That presumption is strengthened by the evidence given upon the trial, and the evidence offered by the defendant was insufficient to overcome the presumption and the proof of ownership given by the plaintiff during the progress of the trial. If it be correct to assume that the ownership of the notes was in the plaintiff from April, 1891, ¡as the evidence strongly tends to indicate, the declarations received, 1 to which allusion has been made were improper. Paige v. Cagwin, 7 Hill, 381. In Vidvard v. Powers, 34 Hun, 223, in an opinion of this court, it was said, viz.: “ In Truax v. Slater, 86 N. Y. 630, the general doctrine is laid down by Judge Earl that the mere declarations of an assignor of a chose in action forming no part of the res gestos are not competent to prejudice the title of his assignee, whether the assignee be one for value, or merely a trustee for creditors, and whether such declarations be antecedent or subsequent to the assignment.” The same quotation is made with approval near the close of the opinion in Bush v. Roberts, 111 N. Y. 284; 19 St. Rep. 122.

. The foregoing views lead to the conclusion that the verdict ought not to be sustained. Judgment and order reversed, and a new trial orderd, with costs to abide the event.

Martin", J., concurs.

Merwin, J.

I concur on the ground that declarations of the former owner were improperly received in evidence.


source: Caselaw Access Project

author: Brown, P. J.

license: Public Domain

text:
    Eli Valentine, App’lt, v. Edward Applebee et al., Resp’t.

      (Supreme Court, General Term, Second Department,

      Filed May 13, 1895.)

    Principal and agent — Relation.
    The relation of husband and wife alone is insufficient to establish the fact that the husband was the agent for his wife in incurring an indebtedness for materials and labor in the erection of a house, where the debt was contracted by him upon his credit and under the belief that he was the owner, and the wife is not shown to have given him any authority whatever in the premises.
    Appeal from a judgment dismissing the complaint.

      Frank L. Young, for app’lt; William G. Valentine, for resp’ts.
   Brown, P. J.

The complaint in this action was dismissed as to the defendant Alice B. Applebee upon the ground that it did not state a cause of action against her. The action was brought to recover the value of materials furnished and used and labor performed in the erection of a dwelling house on property of which said defendant is alleged to be the owner. The complaint alleges that the defendants are husband and wife, and that on April 2, 1892, the property on which the house was erected was conveyed to the wife for a consideration paid by the husband.

The fifth, seventh, and eighth allegations of the complaint are as follows:

“Fifth. That, at the special instance and request of the said Edward Applebee, the plaintiff sold and delivered material and furnished work, labor, and service in the construction of a dwelling house on the said premises, between the 1st day of July, J 892, and the 1st day of January, 1893 ; and that the said material and work, labor, and service were reasonably worth the sum of one hundred and seventy-three 46-100 ($173.46) dollars.”
. “Seventh. That the said materials were furnished and delivered and said work, labor, and service rendered, to and with the knowledge of the said Alice B. Applebee, and that all said materials were furnished, and the work, labor, and service rendered, as it now appears, for the benefit of her separate estate; and that the said Alice B. Applebee interposed no objection thereto.”
“Eighth. That at the time said materials were furnished, and the work, labor, and service rendered, the plaintiff believed that the said Edward Applebee was the owner of the said premises; and that the plaintiff received no intimation, suggestion, or information from the said Alice B. Applebee or any other person that the said Edward Applebee was not the owner of the said premises.”

These facts did not create a cause of action, against the wife. Jones v. Walker, 63 N. Y. 612; Travis v. Scriba, 12 Hun, 391; Bannen v. McCahill, 30 St. Rep. 305 ; Ainsley v. Mead, 3 Lans. 116. The agency of the husband cannot be presumed; it must be alleged and proved. While the agency may be applied from facts alleged, the allegations in the complaint do not permit such implication in the case before us. The only fact upon which agency is claimed is the relation of the parties. This is not sufficient. The debt was contracted by the husband, and the plaintiff gave him credit believing he was the owner. The wife is not, alleged to have given any authority to the husband whatever in the premises, and, so far as the allegation of the complaint show, the contract was the husband’s alone. 'The case cannot be considered, therefore, as one of an undisclosed principal. While the fact may be that the husband was the wife’s agent, we must affirm the judgment, because that fact is not made to appear. If such was the fact, instead of permitting judgment to go against him and appealing, the plaintiff should have applied for leave to amend his complaint.

The judgment must bé affirmed, with costs.

All concur.


text:
    Elisa Beck et al., Resp’ts, v. Brooklyn Elevated Railroad Company et al., App’lts.

      (Supreme Court, General Term, Second Department,

      Filed May 13, 1895.)

    Damages — Elevated railway.
    To establish a right to recover, where abutting premises have increased in value since the road was built, it is necessary for the owner to show that there has been some general advance in the value of property upon side or parallel streets, not attributable to the road, of which he has been deprived by the presence of the elevated structure in front of his property.
    Appeal from a judgment in favor of plaintiff.

      William H. Page, Jr., for app’lts; Francis Russell Whitney, for resp’t.
   Brown, P. J.

This is one of the usual actions in equity to recover damages for injuries to the easements pertaining to the plaintiffs’ property, caused by the erection, operation, and maintenance of an elevated railroad in front thereof, and to restrain the defendants from further maintaining and operating said railroad in the street adjacent tu plaintiffs’ property. Upon the trial no damages were awarded for loss of rental, but the sum of $250 was awarded for damages to the fee. We are of the opinion that the testimony does not sustain the finding of the court, and the judgment must be reversed. The plaintiffs purchased the property in January, 1888, for $4,500. At that time the railroad structure had not been erected in front of the property, but it was in process of erection, and the stone for the foundation for the pier was lying in the street. Upon the property was a frame building, h> which an addition was erected by the plaintiffs, and since the purchase the upper part of the building has been occupied by the plaintiffs as a residence, and the other part as a manufactory for dolls and baby carriages. The plaintiff George Peck testified that subsequent to the purchase of the property he was offered for it $7,000. Of the two witnesses called by the plaintiffs upon the question of value, one testified that the present market value of the property was $5,000, and the other that the present value of the lot without the building was $5,000. No diminution of valuation was therefore shown, and to establish a right to recover it was necessary for the plaintiffs to show that there had been some general advance in the value of the property in the vicinity upon side or parallel streets not attributable to the defendants’ road, of which they had been deprived by the presence of the elevated structure in front of their property. Ho proof of that character was offered. Indeed, it appears clearly from the testimony of the plaintiffs’ experts that there has been no general advance in value in the surrounding streets. The value* of property in the vicinity has either remained stationary or retrograded, but this has been due to causes for which the defendants are in no way responsible. The desire of people to live further out along the railroads, where newer buildings afford them better-accommodations for less money, and the erection of large stores in other parts of the city, which have drawn to themselves business that was formerly done in smaller stores in the vicinity of plaintiffs’ property, have changed the character of the neighborhood, and lessened the value of rents for store or residential property. The general opinion of the witnesses appears to be that the buildings on the plaintiffs’ property are worthless in any estimate of the market value thereof, and we have the fact, therefore, clearly established, that their land is worth more at the present time than when they purchased it. The judgment must be reversed, and a new trial granted, costs to abide the event.

All concur.


text:
    Edgar A. Briggs et al., as Executors, etc., Resp’ts, v. Elizabeth C. Thompson et al., App’lts.

      (Supreme Court, General Term, Second Department,

      Filed May 13, 1895.)

    Mortgage — Assignment—Notice.
    The possession of a portion of the mortgaged premises by the grantee of the mortgagor is not constructive notice to the assignee of the mortgage of an unrecorded release of such part of the mortgaged premises, from the mortgage.
    Appeal from a judgment in favor of plaintiffs.

      M. A. Fowler, for app’lts; Hackett & Williams, for resp’ts.
   Brown, P. J.

The question presented on this appeal is whether the plaintiffs, who are assignees of a mortgage, can enforce it against a purchaser of a part of the mortgaged property, who is in possession,, and who holds his title under a prior recorded deed from the mortgagor and a prior unrecorded release from the mortgagee. The facts of the case are undisputed. On May 4, 1863, Jacob M. Ousterhout executed the mortgage in question to David and Mary Fish. On May 2, 1867, the mortgages released to Ousterhout twenty-seven acres of the mortgaged land, and on the same day Ousterhout conveyed said twenty-seven acres to Benjamin Ilicks. The deed from Ousterhout to Hicks was recorded on June 27, 1868, but the release had not been recorded at the time of the commencement of this action. Benjamin Hicks conveyed the land to [Try Hicks in 1875, and the deed was recorded. On May 15, 1876, the mortgage and accompanying bond were duly assigned to Simmons White, and by several mesne assignments were transferred to the plaintiffs’ testator, who became the owner thereof on May 1, 1882. All of the several assignments of the bond and'mortgage were duly recorded. Benjamin Hicks and Ousterhout owned adjoining farms in the town of Milan, Dutchess county. The property which is the subject of this litigation consists of twenty-seven acres of land, all inclosed, of which three and one-half acres are woodland. It was- on the northwest corner of the farm, some distance from the highway, without any building on it. While Ousterhout owned it, he cultivated it for the •usual farm products, and Hicks used it in the same manner, and for the same purpose. The year it was sold to Hicks the land was surveyed, and a division fence built. Hicks took immediate possession, and cultivated the land, and has continued to cultivate it ever since. The plaintiffs’ testator resided in the town of Hyde Park about twenty-t.wo miles from the mortgaged . property, and had no actual knowledge of the sale of the property to Hicks, or that he was in the occupation thereof. The assignment of the piortgageand release are both conveyances, within the provisions of the recording act. Brewster v. Carnes, 103 N. Y. 562; 4 St. Rep. 264; Baker v. Thomas, 61 Hun, 17; 39 St. Rep. 816; St. John v. Spalding, 1 Thomp. & C. 483. Independent of that statute, the plaintiffs acquired no right to sell the twenty-seven acres conveyed to Hicks. The rights of the parties therefore depend solely upon that statute. By its terms, conveyances not recorded are void against subsequent purchasers in good faith and for a valuable consideration. That plaintiffs are purchasers for a valuable consideration is undisputed. But notice of a prior unrecorded conveyance, or of any title to the premises, or knowledge of facts which would put a prudent man upon inquiry, impeach the good faith of a subsequent purchaser. Hence the pertinent inquiry in this case is, did the plaintiffs’ testator have notice of Hicks’ title, or knowledge of such facts concerning his possession that should have put him upon inquiry in reference thereto? That open and visible possession of property is equivalent to notice of the rights of persons other than those who have title on the record is the rule established by an unbroken line of decisions, and, if the decision of this case depended upon the question whether the character of Hicks’ possession of the land was sufficient to have put the assignee of the mortgage upon inquiry as to his title, I think it would be difficult to sustain the judgment. Hicks went into immediate possession of the land conveyed to him, inclosed it, and cultivated and cropped it in the manner usual with farm property. His acts .in that respect were sufficient to constitute an adverse possession, as that term is defined in section 370 of the Code of Civil Procedure; and I can see no reason why such a possession was not constructive notice of Hicks’ title. He certainly could have made no greater use of the land than he did, and his possession could not have been more open and notorious than it was, unless he had erected buildings on the land, and actually occupied them. Baker v. Thomas, 61 Hun, 1739 St. Rep. 816, is not a controlling authority on this question. In many of its facts it was quite like this case, but there the land was used us a pasture for cattle. . It has been many times decided that using land occasionally for pasturage or cutting of timber was not such an occupancy as would charge a purchaser or incumbrancer with notice, and the report of that case does not state the extent of the use to which the land was put. In the case before us the land was inclosed, cultivated, and improved. No more open and visible use could be made of farm land, and to hold that such an occupation and use was not constructive notice of the rights of the occupant would be to deny the application of that rule to that ■class of property. But the question still remains, was Hicks’ possession notice of a claim adverse to the mortgage? In my judgment, it was not. His title was derived primarily from the mortgagor, and under that title he went into possession. The release was not made to him, and, if it had been, he could not have taken possession under it. His occupation was not inconsistent with the existence of the lien of the mortgage, and there was nothing in the mere fact of his possession to lead a prudent man to believe that he claimed a title adverse to the mortgagee. When a person is a stranger to an apparent or recorded title, the case is different In such a case his possession is an assertion of an adverse right. But when, as in this case, title is derived from a mortgagor, there is nothing in the possession of the land apparent to an observer which is hostile to a prior mortgage. The occupant is supposed to hold subject to the mortgage, and there is nothing to put an assignee of the mortgage on inquiry. Notice of an unrecorded title will be imputed only when it is a reasonable and just inference from visible facts. This proposition was substantially decided in Cook v. Travis, 20 N. Y. 400, and in Fassett v. Smith, 23 N. Y. 252. It was also so decided by Justice Pratt, at special term, in Insurance Co. v. Wilcox, 55 How. Pr. 43, and that case has been ■cited at general term and in the court of appeals with approval. The judgment must be affirmed, with costs.

All concur.


text:
    Walter L. Kent, App’lt. v. Susan W. Hopkins et al., Resp’ts.

      (Supreme Court, General Term, Second Department,

      Filed May 13, 1895.)

    Descent — Advancement.
    Section 23, 1 R. S. 754, refers only to persons who die without a will and does not apply in cases of partial intestacy.
    Motion for a new trial on exception at general term.

      J. T. Maren, for pl’ff; Elihu Root, Bronson Winthrop, and Edwin B. Root, for def’ts.
   Brown, P. J.

This action was brought for the partition of real estate among the heirs and devisees of Henry A. Kent deceased. The plaintiff and the defendants Susan W. Hopkins, Francis K. Sanger, and Sheldon L’. Kent were children of said deceased, and the complaint alleged that said deceased made advancements to each of said defendants of the value of $75,000, and made none to the plaintiff. The bill of exception states that on the trial the plaintiff offered proof that such advancements were made to said defendants ; that objection was made to the admission, of such proof, on the ground that said deceased left a will by which he disposed of one undivided quarter of his estate; and that the advancements were therefore not to be taken into áccount hi the division among his children of so much of his real estate as was undisposed of. The fact that the deceased left a will having been admitted by the plaintiff, the objection was sustained, and the proof excluded, to which ruling the plaintiff took an exception.

The question presented is whether section 23 and 24 of the statute of descent are applicable to a case where a testator has disposed by will of only a portion of his estate. The sections are as follows:

“Sec. 23. If any child of an intestate shall have been advanced by him, by settlement or portion of real or personal estate, or of both of them, the value thereof shall be reckoned, for the purposes of this section only, as part of the real and personal estate of such intestate descendible to his heirs, and tobe distributed to the next-of-kin, according to law; and if such advancement be equal or superior, to the amount of the share, which such child would be entitled to receive, of the real and personal estate of the deceased, as above reckoned, then such child and his descendants shall be excluded from any share, in the real and personal estate of the intestate.
“Sec. 24. But if such advancement be not equal to such share, such child and his descendants shall be entitled to receive so much-only, of the personal estate, and to inherit so much only, of the real estate of the intestate, as shall be sufficient to make all the shares of the children, in such real and personal estate and advancement, to be equal as near as can be estimated.”

1 Rev. St. pp. 754, 755.

This question was decided in the negative by Judge Sanford in 1845 in the case-of Thompson v. Carmichael, 3 Sandf. Ch. 180, and the reasoning of that case commends itself to our judgment-. The appellant contends that the word “intestate” is not used in the statute to indicate a person who dies without a will, but one who dies without devising all his real estate, and that the term includes, therefore, a case of partial intestacy. This argument is considered in the case cited. In all the sections preceding the twenty-third the term is used in reference to real estate and to the inheritance therein which is provided for by the particular section in which the term is used. The twenty-third section has reference to a new subject, and its provisions relate to personal estate as well as real; and the term “an intestate” describes one of a class of persons who-in their lifetime have made advancements with which the section deals, and the word is used in its legal and popular sense to indicate one who died without a will. The purpose of the statute was to make equality of division in the distribution of an estate when no disposition was made by will. But, when a person who has-made advancements to his children makes a will, he is presumed to make his will with reference to his advancements, and the two acts represent his'intention with reference to the disposition of his estate. The injustice which the statute would work if applied to cases of partial intestacy is pointed out by Judge Sanford in the case cited, and is aptly illustrated in the brief of Mr. Charles O’Connor. Nothing need be added to the opinion in that case. The construction there put upon the statute is in harmony with the decisions in other jurisdictions, many of which are cited in the opinion. Others to the same effect are cited upon the briefs of defendants’ counsel. No other reported case in this state has ever given a contrary interpretation to this statute. The decision has stood unchallenged for half a century, and is cited with approval by all the text writers upon the subject. In our opinion, it correctly interprets the statute.

The judgment must be affirmed, with costs.


author: Putnam, J.

text:
    Richard B. Rock, Resp’t, v. James D. White et al., App’lts.

      (Supreme Court, General Term, Third Department,

      Filed May 14, 1895.)

    Appeal — Cubing ekbor.
    Error in the admission of evidence is cured by striking out such evidence on the motion of the objecting party.
    Appeal from a judgment entered on a verdict in favor of plaintiff, and from an order denying a motion for,a new trial.

      Van Alstyne & Hevenor, for app’lts; Robert G. Scherer, for resp’t.
   Putnam, J.

The question raised by the pleadings in. this ease as to whether plaintiff was prevented by unfavorable weather from filling the ice house of defendants, or whether he was slow and negligent in the performance of the contract between the parties, was fairly submitted to the jury by the learned trial court. On the questions of fact thus submitted there was conflicting evidence, and the verdict of the jury ¡cannot be properly disturbed. The error, if any, in admitting in evidence the resolution of the common council of the city of Albany was cured by the striking out of such evidence on the motion of the defendants. Pettee v. Pettee, 77 Hun, 595; 60 St. Rep. 529. If the refusal of the trial court to charge that if 1,100 tons of the ice placed in plaintiff’s ice house came from the district specified in the contract, plaintiff was bound, unless prevented by defendants, to place the same in defendants’ ice house, — as requested, — was an error, such error was subsequently cured by the court’s substantially charging as thus requested. Besides, there was evidence tending to show that plaintiff had harvested large quantities of ice outside of the district described in the contract, and placed the same in defendants’ ice house, defendants consenting. If the amount so harvested was equal to the amount taken from the district specified in the contract, and placed in plaintiff’s ice house, defendants were not injured. We have examined the various other exceptions to the rulings of the learned trial judge in the reception of evidence and 'to his charge or refusals to charge, and are of opinion that neither ■of said exceptions require discussion or necessitate a reversal of the judgment.

Judgment affirmed, with costs.

All concur.


text:
    Charles N. Smith, App’lt, v. John Kiniry, App’lt.

      (Supreme Court, General Term, Third Department,

      Filed May 14, 1895.)

    Livery stable keeper — Liability.
    A person, who purchases a horse at an auction sale held at livery stable, and afterwards claiming a breach of warranty on the part of the vendor ■and a right t.o return the horse, leaves it with the hostler at the stable, but does not notify the keeper that he does not expect to be liable for the keep of the horse or that he is returning it to the vendor, is liable therefor, in the absence of evidence to show that the keeper was legally bound to receive the horse at his stable for the vendor, or that he was in any way a party to the vendor’s contracts to take back the horse.
    Appeal from a judgment entered in favor of defendant.

      G. E. Phillips (H. V. Borst, of counsel), for app’lt; Weller & Moore (L. M. Weller, of counsel), for resp’t.
   Putnam, J.

The action was brought to recover for the care and keeping of a horse at plaintiff’s stable. There was no conflicting evidence in regard to the facts establishing defendant’s liability for the claim on which the action was brought. The, latter purchased the horse in question at an auction sale had by one Snell at the plaintiff’s stable on January 6, 1894. A few days afterwards, claiming a breach of warranty on the part of Snell, and a right to return the horse under the terms of sale announced by him at,the auction, defendant took the horse to plaintiff’s stable, and left it with the hostler. He did not notify plaintiff when he left the horse at the stable that he (defendant) did not expect to be liable for its board and keep, or that he was returning the horse to Snell at the stable in pursuance of the terms of-sale as announced at the auction. Plaintiff was not present at the auction sale, nor was it shown that he knew of the terms of sale, or that he had agreed, or was obligated, to receive any horses at his stable after the purchase by defendant for Snell. All that appeared material to the issues in this case from the evidence was that defendant took and left the horse at plaintiff’s stable, and plaintiff furnished board and attendance and medical care for it. We think the evidence clearly sustains the judgment rendered in the justice’s court. The justice properly excluded evidence offered to show the terms of sale at the auction, it appearing that plaintiff 'was not present; also evidence tending to show a breach of warranty by Snell, and that Snell had in case of such breach agreed to take back the horse. Plaintiff was not responsible for Snell’s warranties or contracts. There was no evidence given to show that plaintiff was legally bound to receive the horse at his stable for Snell, or that he was in any way a party to Snell’s contracts - to take back the horse, if any such contract was made.

The judgment of the county court should, be reversed, with costs in this court, and in the county court, and the judgment of the j ustice’s court affirmed.

All concur.


text:
    Webster Sherwood et al., Resp’ts, v. New York, Ontario and Western Railroad Company, App’lt.

      (Supreme Court, General Term, Third Department,

      Filed May 14, 1895.)

    Carrier — Goods—Burden.
    When the liability of a common carrier is limited by contract, the burden of proof that the loss occurred in consequence of the negligence of the corporation rests upon the shipper.
    Appeal from a judgment entered upon a verdict in favor of plaintiffs.

      George H. Carpenter, for app’lt; J. M. Mabee (T. F. Bush, of counsel), for resp’ts.
   Putnam, J.

On July 4, 1893, plaintiffs delivered to defendant a car load of calves at Livingston Manor, N. Y, to be transferred to Sixtieth street, New York. The calves were shipped on the train known as No. 30,” which should have left Livingston Manor on or before 5.30 p. m., and reached New York, about 129 miles distant, on the morning of the 5th, about 4 a. m. But No, 80 did not reach New York until after 3 o’clock in the afternoon, to late for the market on that day, so plaintiffs could not dispose of the calves until July 6. In consequence of the delay, plaintiffs suffered damages. Defendant introduced in evidence a contract between the parties purporting to have been executed at the time of the shipping of said calves, by which the plaintiffs agreed to take “ all risk of any loss or damage which may be sustained by reason of any delay in such transportation. ’’ A question of fact was raised on the trial whether this contract was executed by the plaintiffs when the calves were shipped or otherwise, which was properly submitted to the jury. The trial court, as we will assume in our discussion of the case, properly instructed the jury that the release, if duly executed on the day it bears date, did not release defendant from liability occasioned by the negligence of its servants.

The only question we deem it necessary to consider arises from the instructions given by the learned trial court in his charge to the jury as to the burden of proof. The charge is as follows :

“The duty, therefore, devolves upon the defendant to show or to excuse the delay in the transportation of this car; that is if you find this delay was an unreasonable delay on the part of the defendant.”

Again the court in his charge said:

“ I explained that when the delay of the freight had been shown it devolved upon the defendant to explain the delay; if they failed to explain it satisfactorily, the plaintiff is entitled to recover.”

To the last statement the defendant duly excepted.

The judge, therefore, instructed the jury that the plaintiffs, showing the delay of ten hours in the delivery of the calves, could rest their case, and recover, unless defendant proved that said delay was not caused by its negligence. His instruction was not that the jury could consider the delay on the question of fact as to defendant’s negligence, but as matter of law that, the delay being shown, unless excused, the plaintiffs were entitled to recover. We think the judge in thus instructiug the jury went too far. There was a contract, or evidence from which the jury could have found one, between the parties, by which the plaintiffs took the risk of damage occasioned by delay in transporting the calves, and the defendant hence could not be made liable for such delay unless occasioned by its negligence. It is well settled that .negligence, being a wrong, will not, ordinarily, be presumed, but must be proved. The contract exempting the defendant from liability for damage occasioned by delay, it was, we think, for the plaintiff' to show that such delay was on account of defendant’s negligence. In Lamb v. Railroad Co., 46 N. Y. 271, it appeared that the plaintiff had delivered a quantity of cotton to the defendant for transportation. There was a contract exempting the corporation from liability for loss occasioned by fire. The cotton was destroyed while on the pier of the defendant. The court held that the exemption from loss by ñre did not exonerate defendant if the fire resulted from its wrongful negligence; that plaintiff, to maintain the action, must have shown affirmatively such negligence ; and that the trial court erroneously instructed the jury that the burden was on the railroad corporation to show that the destruction of the cotton by fire was not caused by negligence on its part. In French v. Railroad Co., 43 N. Y. 108 ; 2 Abb. Dec. 196, it was held that, when the liability of a common carrier is limited by a contract, the burden of proof that the loss occurred in consequence of the negligence of the corporation rests upon the plaintiff. To the same effect see Whitworth v. Railway Co., 87 N. Y. 413-419. In the case last cited there was a clause in the contract limiting the liability of the company. Andrews, J., in delivering the opinion of the court, says :

“ The burden was upon the plaintiff to show facts taking the case out of the operation of the exemption clause.”

See, also, Cochran v. Dinsmore, 49 N. Y. 249.

The case of Tierney v. Railroad Co., 76 N. Y. 305, and other cases cited by respondent, are not parellel. A different rule from that above stated will apply in cases where the liability of a common carrier was not limited by any contract. Under the authorities above cited, it devolved upon the plaintiffs on the trial to show, not only the delay of defendant in transporting the calves, but that such delay was occasioned by the wrongful negligence of defend ant. The plaintiffs had agreed with defendant to take the risk of any loss occasioned by any delay, and it was for them on the trial, as held in Whitworth v. Railway Co., supra, to show facts taking the case out of the operation of the exemption clause contained in the contract. The court, however, instructed the jury that, the delay being shown, unless explained by defendant, the plaintiffs were entitled to recover. In other words, that the burden was upon the corporation to show the absence of negligence. We think the court erred in so instructing the jury, and hence that the judgment should be reversed, a new trial granted, costs to abide the event.

All concur.


text:
    Lucinda J. Wiley, App’lt, v. Village of Rouse’s Point, Resp’t.

      (Supreme Court, General Term, Third Department,

      Filed May 14, 1895.)

    1. Pleading — Demurrer—Separate defenses.
    Upon a demurrer to a separate answer, the allegations of the complaint .are admitted for the purposes of the demurrer, where such separate answer contains no denials.

      Ü. Same — Answers—Denials.
    Where the answer, in an action against a village for personal injuries, does not deny any of the allegations of the complaint except so far as it alleges that, if plaintiff fell on the street and suffered any injury thereby, tne same was caused solely by the contributory negligence of the plaintiff, denies the allegation that plaintiff was free from contributory negligence and is not subject to the objection that it did not show what facts defendant controverted.
    8. Same — Hypothetical.
    The remedy in case of a hypothetical and improper allegation is by motion, and not by demurrer.
    Appeal from, an interlocutory judgment, overruling a demurrer.
    W. H. Dunn, for app’lt; Egbert C. Everest, for resp’t.
   Putnam, J.

On a demurrer to a separate answer the court has before it, and can only consider, the complaint, the answer demurred to, and the demurrer. Hence, although parts of the answer may contain denials, if there is none in the separate answer to which the demurrer is interposed, in the consideration of the case the allegations of the complaint must be deemed admitted. Douglas v. Insurance Co., 138 N. Y. 209-215; 52 St. Rep. 164; Valentine v. Lunt, 51 Hun, 544-547; 22 St. Rep. 847 ; Boyd v. McDonald, 35 St. Rep. 484; Hammond v. Earle, 58 How. Pr. 426. In this case the second paragraph of defendant’s answer, to which the demurrer was interposed, contained no denial of the allegations of the complaint or either of them, except that the averment in such answer that the injury to the plaintiff, if any, was caused by her contributory negligence, may be regarded as a denial of the allegation in the complaint that the accident occurred without any fault, negligence, or carelessness on her part. The answer admits the plaintiff's fall on the street or sidewalk of the village of Rouse’s Point, and the suffering, injury, and damage resulting therefrom, because it does not deny the allegations of the complaint in that regard. It admits all the allegations of the complaint except as to contributory negligence. We think, therefore, that the answer is not subject to the objection suggested by the appellant. The allegations therein that “ if the plaintiff fell,” etc., does not deny, and hence admits, the averments in the'complaint. Therefore plaintiff is mistaken in stating that she is unable to ascertain from defendant’s answer what facts in her complaint are controverted. All the facts stated in the complaint are clearly admitted, except the fact of the absence of contributory negligence. The defendant, not denying that plaintiff fell on one of the streets of Rouse’s Point and was injured, as alleged in the complaint, could, we think, properly use in his pleading the language to which plaintiff objects, — that “ if the plaintiff fell,” etc., such fall was caused by her contributory negligence. Taylor v. Richards, 9 Bosw. 679; Ketcham v. Zerega, 1 E. D. Smith, 553.

It is not apparent how plaintiff is in any way injured by such an averment in the answer. If the allegation, however, should be deemed hypothetical and improper, the remedy of plaintiff was by motion, and not by demurrer. The pleading alleged a defense, —the contributory negligence of plaintiff, — and hence a demurrer thereto could not be sustained. The learned counsel for the appellant suggests that:

“If the defendant had been content to have alleged (upon information and belief or otherwise) that the negligence of plaintiff contributed to cause her injuries, then its answer would have been clear and concise, enabled all parties to have known what was really in issue in the case, and would not have been subject to the criticism of being hypothetical and uncertain.”

■ In fact, defendant has alleged in the answer in question just what the counsel thinks she should have alleged. By not denying, it is admitted-that plaintiff was injured ds alleged in the complaint, and it is plainly averred-that such injury was caused by her contributory negligence. The answer in question was not necessarily interposed by the defendant It was a proper and necessary allegation in the complaint that the injury to plaintiff was caused by her negligence. On the trial plaintiff, as a part of her cause of action, will be compelled to show the absence of contributory negligence. Hence a general denial in the answer of defendant would have enabled it to show contributory negligence on the part of plaintiff, and it was not necessary for it to allege that fact by way of affirmative defense. But, although not compelled to do so, we think the defendant could properly, as a separate answer, allege such contributory negligence on the part of the plaintiff, although such defense could be proved under a general denial contained in other parts of the answer.

The judgment should be affirmed, with costs.

All concur.


author: Per Curiam.

text:
    Anthony H. Lawatsch, Resp’t, v. John J. Cooney, App’lt.

      (Supreme Court, General Term, Third Department,

      Filed May 14, 1895.)

    1. Conversion — What constitutes.
    Where the parties agree upon the amount of plaintiff’s interest in a draft, and deliver it to a third parLy to collect and divide the proceeds, and after-wards the defendant wrongfully obtains possession of it with plaintiff’s indorsement thereon, claiming to be the sole owner and denying that plaintiff has any interest therein, his action is such a wrongful appropriation of the draft, in violation of the contract of the parties, as to constitute a conversion.
    2. Same — Bill of Exchange.
    An action in the nature of traver can be maintained for the conversion, of a bill of exchange.
    3. Former adjudication — Subject-matter.
    The pendency of an equitable action for the specific performance of an agreement as to the division of the proceeds of a draft is no bar to an action for a wrongful conversion of such draft by the defendant subsequent, to the contract.
    Appeal from a judgment entered on a verdict in favor of platntilf, and from an order denying a motion for new trial, made on the minutes.
    The complaint, verified January 9, 1889, was as follows:
    “(1) That he was and is the owner of certain premises situate on the southerly side of Union avenue, in the city of Kingston, (Sí. Y., which he improved, and on which he erected a mill and machinery; andón or about the 18th day of February, 1888, Henry W. Palen filed in the Ulster county clerk’s office a notice of lien thereon for lumber and material furnished therefore, to the amount ■of $181.06, and duly perfected the same.
    ‘“(2) That afterwards the Hew York Bowery Fire Insurance Company insured the buildings, grain, etc., on said premises, to the amount of $1,000.
    “(3) That afterwards said buildings, grain, etc., were destroyed by fire, and the said insurance company, to pay said loss, issued its draft for $1,000, payable to the order of this plaintiff, John J. Cooney, and Margaret Cooney, his wife; that the plaintiff’s property and interest in said draft, and the money called for by the same, amounted to about the sum of $344, and the plaintiff refused to indorsed said draft to the defendant until he was secured for his property and interest therein; that thereupon the defendant, agreed that William D. Brinnier should be the trustee and medium between them, and should hold and have the custody of said draft, until after the defendant had paid, satisfied, and discharged said lien of Henry W. Palen, and had delivered to the said Brinnier or this plaintiff the proper voucher or certificate showing that the same had been done, and until after two hundred dollars had been deposited in the hands of said Brinnier by the defendant for the use and benefit of this plaintiff, to be applied on two certain notes made by the plaintiff and indorsed by the defendant, and until after a satisfaction piece of the mortgage held by the defendant's wife on said premises had been delivered to said Brinnier; and thereby, on or about January 2, 1889, induced this plaintiff to indorse said draft, and said Brinnier took the said draft into his custody, pursuant to said understanding and agreement, and the next morning the defendant, under pretense of wanting to see the amount of said draft, snatched it from the custody and possession of said Brinnier, and took and negotiated and sold and collected the same, and converted the rights, interests, and property of the plaintiff therein, and in the moneys called for by the same, -to his •own use; to the plaintiff’s damage $844, for which amount, with interest and costs, the plaintiff demands judgment.”
    Defendant pleaded, among other things, that another action was pending “between the same parties as this action, and for the same cause as that set forth in the complaint.’’ In support of such defense ho offered both complaints in evidence. The complaint in the action pleaded .in abatement, also verified on January 9,1889, was identical with the complaint in this action, down to and including the words “to his own use,” in the last line but one thereof, as above set forth, and then it continued as follows:
    “Without satisfying said lien, or producing any vouchers or certificate showing that the same had been done, and without placing in the hands of said Brinnier the said $200, and without satisfying the said mortgage of his wife which had been paid, and without doing any of the acts and things which he had stipulated .and agreed to do. Wherefore, the plaintiff demands judgment that the defendant specifically perform his said agreement in regard to the satisfaction of the mortgage of his said wife, and in regard to said lien, and that he pay, satisfy, and discharge the same, and produce to said Brinnier, or to his plaintiff, certified copies of said satisfactions and discharges, and receipts of 'the application of said moneys as per agreement, and for such further or •other relief as shall be just and equitable, with costs.”

      George Van Etten (John J. Linson, of counsel), for app’lt; J. E. & L. E. Van Etten (John E. Van Etten, of counsel), for resp’t.
   Per Curiam.

The evidence was such that the jury could properly find that plaintiff was part owner of the draft described in the complaint. The parties had agreed upon the amount of his interest therein, and that the draft should be delivered to Brinnier, to collect and divide the proceeds; and on the faith of that agreement plaintiff had indorsed the draft. Afterwards the defendant wrongfully obtained possession of the paper with plaintiff’s indorsement thereon, claimed to be the sole owner, and denied that plaintiff had .any interest therein. We think defendant’s action- was such a wrongful appropriation of the draft in violation of the contract of the parties as to constitute a conversion. Delaney v. Root, 99 Mass. 547; Osborn v. Schenclc, 83 N. Y 201. Probably the agreement and the delivery of the draft to Brinnier operated as a separation of the tenancy in common therein. Lobdell v. Stowell, 51 N. Y. 70; Channon v. Lusk, 2 Lans. 211. An action in the nature of a trover can be maintained as well for the conversion of a bill of exchange or a note as any other kind of property. Murray v. Burling, 10 Johns. 172 ; Develin v. Coleman, 50 N. Y. 531; Decker v. Matthews, 12 id. 313. We do not regard the pendency of the •other action, commenced at the same time as this, as a defense. That action is an equitable one, brought for a specific performance -of the Contract between the parties. This action is for a wrongful conversion by the defendant of the draft subsequent to the contract. Paige v. Wilson, 8 Bosw. 294; Webb v. Van Zandt, 16 Abb. Pr. 190. , The judgment should be affirmed, with costs.


text:
    First National Bank of Champlain, App’lt, v. Orville K. Wood et al., Resp’ts.

      (Supreme Court, General Term, Third Department,

      Filed, May 14, 1895.)

    Fraudulent conveyance — Organization op corporation by debtor firm.
    The organization of a corporation by the members of a financially embarrassed firm and the transfer to it of the firm assets in exchange for the corporate Stock, do not show a fraudulent intent, though general assignments were executed two years subsequently by the firm and by the members thereof, where no connection is shown between the act of forming the corporation and the assignments.
    Appeal from a judgment entered in favor of defendants.

      Royal Corbin, for app’lt; Beckwith, Barnard & Wheeler (George H. Beckwith, of counsel), for resp’ts.
   Putnam, J.

This action was brought by plaintiff, as a judgment creditor, to set aside a general assignment executed on May 10, 1884, by O. K. Wood & Co., composed qf Orville K., Albert G. H., and Victor A. Wood, and also individual assignments of Orville K. and Victor A. Wood, executed at the same time. On the trial it was shown that in the spring of 1882 the above-named firm of O. K. Wood & Co., being financially embarrassed, its members organized a corporation called the Queen of the Harvest Manufacturing Company, with a capital stock of 4,000 shares at $25 each. On July 1, Í882, the said copartners transferred to said corporation copartnership assets to the amount of $127,000. Said firm, or its members, received and remained the owners of all the stock of said corporation, and when the general assignments were executed the copartnership owned 1,288 shares of the stock, and the members of the firm owned the balance thereof. At the time of the transfer of the property of said’ O. K. Wood & Co., the firm was indebted in the sum of $115,000, and the property transferred to the corporation embraced all the copartnership property, except some real estate, worth very little, and accounts, mortgages, and judgments, nominally amounting to about $134,000, which were of uncertain value. The members of the copartnership were the sole stockholders, trustees, and officers of said corporation. On the 7th of May, 1884, when the firm and its members were contemplating the several assignments sought to be set aside, said Orville K., Albert G. H., and Victor A. Wood, as- officers of the corporation, executed a mortgage on its real estate to one Williams for $25,000, and as stockholders thereof made the written consent to the execution of said mortgage, "required by statute. The mortgage recited an indebtedness of $25,000, but was in fact given for advances to be made to the corporation thereafter. The learned counsel for the appellant insists that the mortgage executed three days before the assignments m question, and Ivhen the copartnership and its members were contemplating the execution thereof, by which the above-named parties, the sole stockholders, trustees, and officers of said corporation, and the equitable owners of its property, covered up its real estate with a mortgage for money to be advanced thereafter, was conclusive evidence of a fraudulent intent on the part of the firm and its members to deceive, binder, delay, and defraud their creditors; that the property of the corporation was, in a sense, the property of the partnership and copartners, and the effect of the incumbrance was to hinder and delay the creditors of the firm and its members from collecting their demands from the corporate stock, which represented the property of the corporation; that the intent of the stockholders, acting as officers of the corporation, in executing the said mortgage was to use said mortgage to keep the control of said corporate property in their own hands, and, under cover of the incumbrance, to use its real estate and prevent the application thereof to the payment of creditors. We are unable, after a careful examination of the evidence, to see how the acts of the assignors as stockholders and officers of the Queen of the Harvest Manufacturing Company, in mortgaging its real estate when they were about to execute the assignments, indicated an intent on their part to hinder, delay, and defraud the creditors. The mortgage was only valid (if at all) -for the amount that should be advanced by Williams to the corporation,-i-about $7,000. Although the corporation placed the incumbrance on its real estate, it received 17,00o from Williams; that being the amount for which the mortgage was a valid security. It was not satisfactorily shown that the corporation did not require the money, or that the execution of the mortgage was not for its true interest. We are unable to see any indication of any attempt to defraud creditors in the execution of the mortgage. The assignors could not have contemplated that it would enable them to retain control over the corporate affairs or property, as, after the execution of the assignments, by which they transferred.to Clark their interest in the stock of the corporation, ceasing to be stockholders, they would naturally cease to act as officers of the corporation. It seems "hat their was some delay in the removal of the assignors as officers of the corporation, but it was a delay that could not have been anticipated. Of course, it is possible to imagine that the assignors executed the mortgage with a view of covering up their property and that of the corporation, and as part of a scheme to hinder, delay, defraud, and embarrass creditors. We do not think the evidence compelled the referee to come to that conclusion. He was not bound to presume fraud. Although the stockholders and officers of the corporation made the assignments which are assailed by plaintiff, it did not necessarily follow that the corporation should cease to exist. The interest of the assignors therein was as stockholders. It was for their benefit that the corporation should continue. Their stock would probably be more valuable in an existing than in an extinct corporation. The evidence was such that the referee could well reach the conclusion that the mortgage was not executed with any fraudulent intent whatever, but honestly; and with a view of promoting the interest of the corporation.

It is urged by the appellant’s counsel that the firm of O. K. Wood & Co. and its members, in organizing the Queen of the Harvest Manufacturing Company in 1882, while financially embarrasséd, and transferring to the corporation the greater part of their available assets, evinced a fraudulent intent. But the corporation was organized two years before the assignments. No connection was shown between the act of forming the corporation and the assignments. If the corporation was organized, and the property of O. K. Wood & Co. transferred to it as a fraudulent scheme to defraud creditors of the firm, the assignee, Clark, could properly proceed, under the provisions of chapter 314 of the Laws of 1858, as amended by chapter 487 of the Laws of 1889, to set aside such fraudulent transfer. Under the evidence it did not appear that the action of the copartners in organizing the corporation and transferring their assets to it two years before the execution of the assignments which are assailed had any connection therewith, and hence the prior fraudulent act of the copartners, if any, did not vitiate the assignments. For the same reason we are of the opinion that if the cancellation of the mortgage of W. W. Wood six weeks before the execution of the assignments in question was a fraud on the creditors of the copartnership, the referee was not, on that account, compelled to find fraud in the assignments. vHe found, on sufficient evidence, that the assignors did not contemplate making the assignments sought to be set aside in this action for more than a week before the execution thereof. It is true that he held in another finding that in March, 1884, the firm had began making preparations for an assignment, but he does not find, nor did the evidence require him to do so, that they had at that time began making preparations for the assignments in fact executed, or that the cancellation of the said mortgage was part of a fraudulent scheme, consummated by the assignments sought to be set aside, or had any connection whatever therewith. It is held that prior fraudulent transfers by the assignor do not necessarily avoid an assignment, but may be considered in determining whether there was any fraud in the assignment itself. Loos v. Wilkinson, 110 N. Y. 195; 18 St. Rep. 110. Although the cancellation of the mortgage of W. W. Wood was in fact a fraud on creditors, if the assignments were otherwise valid the referee could properly sustain them, and the assignee named therein could attack the satisfaction of the mortgage under the provisions of chapter 314, Laws 1858.

The point suggested by counsel for appellant as to the preferred notes of the wives of the assignors does not require a discussion since the opinion of the court of appeals in this case, reversing the judgment first entered herein. 128 N. Y. 35 ; 38 St. Rep. 422.

Other objections are made by plaintiff to the validity of the assignment, whicli we do not deem it necessary to discuss. We think, on the questions of fact raised by such objections, the conclusions of the referee were sustained by the evidence. We are also of the onioion that neither of the exceptions to the rulings of the referee on the trial require us to award a new trial. The judgment should be affirmed, with costs.

All concur.


text:
    Catharine E. Pawling, as Administratrix, etc. et al., Resp’ts, v. William M. Pawling et al., Individually and as Administrators, etc. et al., App’lts.

      (Supreme Court, General Term, Third Department,

      Filed May 14, 1895.)

    Statute of frauds — Oral agreement — Part performance.
    A paroi contract for the sale of land, where the vendee has paid the whole, purchase price and entered into possession under the contract, may he specifically enforced.
    Appeal from a judgment in favor of plaintiffs.

      Edward P. White, for app’lt Mary Jane Herrick ; W. Davidson Jones, for app’lt William M. Pawling; Westbrook, Burke & Hover (Z. S. Westbrook of counsel), for resp’ts.
   Putnam, J.

Henry Pawling, father of the original plaintiff, Henry Haskell Pawling, and the defendants William M. Pawling and Mary Jane Herrick, died in 1892, leaving said parties his only heirs, and the defendant Margaret Pawling his widow, and owning the lot of land described in the complaint. In 1874, Henry Pawling and Etenry Haskell Pawling entered into a partnership, and the former conveyed to the latter an individed half of the premises in question. In 1877 the firm borrowed from one Stairs $2,-600, which it used in its business. For this loan Henry Pawling and Henry Haskell Pawling executed their joint and several bond secured by a mortgage on the property. In 1882 the partnership was dissolved, and Henry Haskell Pawling reconveyed to his father the undivided one-half of said premises. In. December, 1889, Stairs demanded payment of said bond and mortgage of Henry Pawling, who said he would furnish the money, and then made proposition to Henry Haskell that, if the latter would pay off said bond and mortgage to Stairs, the said Henry Pawling would give him a deed of the property in question. Henry Haskell at first objected, but afterwards accepted said proposition, and in pursuance of the verbal contract paid said bond and mortgage, and obtained a satisfaction thereof. The amount paid was $2,865.63. Afterwards, and about June 1, 1892, Henry Pawling, being in poor health and intending to carry out said agreement, requested Henry Haskell to have a proper deed dravyn to convey said premises in pursuance or said verbal contract, and promised to execute the same. Said Henry Haskell thereupon procured a deed to be drawn, and presented the same to Henry Pawling for execution. Said deed was read to and approved by Henry Pawling, and he promised to execute the same, but soon afterwards, and before he had performed his promise, died. The learned trial court, on sufficient evidence, found the facts substantially as above stated, and also found as follows :

“And the plaintiff has for the use and purpose of his said mill and business, ever since his said agreement with sáid decedent in December, 1889, and for some time prior thereto, talcen and used the water from said dam, and maintained a-pipe for his said purposes extending from his said mill and premises into said dam above, and drawing and conducting the water therefrom, and supplying his said mill therewith, with the knowledge and assent of said decedent, until the time of his death, and still uses the same for such purposes ; and ever since said agreement was made in December, 1889, the plaintiff has also used and occupied a portion of the said old mill building as a carpenter shop, and a portion thereof for storage purposes, in connection with his said mill and manufacturing business adjoining on the west thereof, and with the knowledge and assent of said decedent to the time of his said and still uses and the same for such

The subject of the special performance of oral contracts for the conveyance of land void by the statute of frauds has been extensively discussed by elementary writers and by courts in many cases. It is well settled that equity will, to prevent injustice, enforce the performance of a paroi contract partly carried into execution, on the ground that otherwise one party would be enabled to practice a fraud on another, and that it could not be the intent, of the statute to enable one party to commit such a fraud with impunity. Story, Eq. Jur. § 759; Dygert v. Remerschnider, 32 N. Y. 629-642. A paroi contract for the sale of land, where the vendee has paid the whole purchase price, and entered into possession under the contract, may be specifically enforced. Pom. Spec. Perf. § 115. In. Dunckel v. Dunckel, 141 N. Y. 427-435 ; 57 St. Rep. 618, Earl, J., remarks:

“We think it is a general rule to be gathered from the authorities that mere payment of the purchase price of land is not sufficient to authorize the specific performance of the contract of sale, unless the peculiar circumstances of the case be such that an action at law to recover back the money paid would not give the purchaser an adequate remedy. But'it is also a general rule that when the consideration has been paid, and possession under the contract of sale has Ipeen taken, the contract will be specifically enforced, and to take the case out of this rule the. circumstances must be peculiar and exceptional.”

A multitude of cases might be cited holding the same doctrine. Malins v. Brown, 4 N. Y. 403-410; Dugan v. Gittings, 8 Gill, 138, 139; Gregorys. Mighell, 18 Ves. 328; Fitzsimmons v. Allen, 39 Ill. 440 ; Shirley v. Spencer, 9 id. 583 ; Bigelow v. Armes, 108 U. S. 10 ; Fannin v. McMullen, 2 Abb. Pr. (N. S.) 224. There are some authorities holding that the mere payment of the whole of the purchase price by the vendee, and full" performance by him of the verbal contract, will entitle him to a specific performance. Will. Eq. Jur. p. 284; Morill v. Cooper, 65 Barb. 512-517.

In this case there is no serious dispute as to the facts. The deceased, Henry Pawling, in December, 1889, was the owner of the premises described in the complaint which were subject to the mortgage held by Stairs, on which was due $2,865.63. Stairs demanded the money on the mortgage. Deceased, being unable to pay him, then made a verbal contract with his son, the original plaintiff, Henry Haskell Pawling, by which, if the latter would pay up the mortgage, he would convey the premises in question to him: Henry Haskell accepted the proposition; paid up the mortgage, and procured a satisfaction thereof, and remained in occupation of the premises from that time until the death of Henry, in 1892. Shortly prior to this event, Henry Haskell, at the re-, quest of Henry, prepared a deed for the latter to execute, which he was prevented from doing by his death. I do not regard it as of much consequence whether Henry was legally bound to pay the whole mortgage or only one-half of it. The evidence1 indicates an undertaking between the parties that it was for Henry to pay off the whole mortgage. But whether so or not, he was liable for his proportion of the mortgage debt, and it was clearly shown that he agreed with Henry Haskell that, if the latter would satisfy the mortgage, he (Henry) would convey the premises in question to him; that Henry Haskell did pay up the mortgage, and remained in possession of the premises, and, according to the terms of the verbal contract, was entitled to a conveyance thereof.

I think that the paroi contract entered into between the father and son, in 1889, and which the former was about to carry out at, the time of his death, should be enforced by this court. It would be most unjust, and a virtual fraud, if the defendants, the heirs of Henry Pawling* after the acts of part performance done by the plaintiff’s intestate, could be allowed to interpose successfully the statute of frauds as a bar to plaintiff’s rights. There has been such a part performance of the original oral contract by Henry Haskell as enables this court to decree a specific performance. There has been a payment of the full purchase price, and. possession of the premises under the oral contract, for a period of three years. See Pom. Eq. Jur. § 409, and note, and cases above cited. It is suggested by the learned counsel for the appellants that, although Henry Haskell remained in possession of the premises in question from the time of the making of the oral contract to the time of the death of Henry Pawling, such possession was not under or referable to the oral contract, as he was also in occupaucy of the premises at the time and prior to the making thereof. It is true that Henry Haskell was in possession of the premises in question before and at the time of the making of the oral contract. It is not shown how, - whether by license from deceased or as a tenant. I think, however, that on the making of the oral contract, and the payment of the purchase price according to its terms, and when Henry Haskell was entitled to a deed of the premises by the terms of said contract and to the possession thereof thereunder, Miller v. Ball, 64 N. Y. 286, that his possession should be deemed as under the contract. It is held, in reference to a tenant, that his possession after the expiration of his term, and a payment of an increased rent, are together a part performance of a verbal contract fora renewal of the lease. So possession after the term, and a payment shown, which could not be referred to the old rent, but could only be explained ón the1 supposition of a contract, should be part performance of a verbal contract for the lessee to sell and convey the land. Pom. Spec. Perf. § 124. Henry Haskell was in possession before he made a verbal contract to buy the land. In pursuance of the verbal contract, he afterwards paid the purchase price,and remained in possession, to which he was legally entitled under the contract His possession thereafter should be deemed thereunder. In Dunckel v. Dunckel, 56 Hun, 28 ; 29 St. Rep. 477 ; id, 144 N. Y. 430; 57 St. Rep. 618, the plaintiff, at the time of making the contract for a life lease sought to be enforced in that action, was in possession of the premises, and the general term, in reversing the judgment first rendered in the action, adverted to the fact as follows:

“ The plaintiff was at the time in possession and actual occupancy of the premises in question ; had no occasion to move or make any change in her business or condition in consequence of the agreement. She simply continued to occupy the same as she had done while her husband was living.” 56 Hun, 28; 29 St. Rep. 477.

But the court of appeals in effect held (141 M. Y. 430 ; 57 St. Rep. 618) that, although the plaintiff was in possession of the house and lot affected by the action when the verbal contract was entered into, after the making thereof her possession was referable to and under such contract. In this case, as in the one cited, there was a possession of three years by Henry Haskell prior to the death of his father, and after full performance by him of the contract. As we have seen, on the full performance by Henry Haskell he was entitled to the possession of the premises thereunder, and it seems proper that his actual possession should be deemed taken, rather under the contract, as he lawfully could, than in any •other way. See Spear v. Orendorf, 26 Md. 37-44; Wills v. Stradling, 3 Ves. 379. We conclude, therefore, that the learned trial justice properly disposed of this case, and that the judgment should be affirmed, with costs.

Herrick, J., concurs ; Stover, J., not acting.


text:
    Village of Fort Edward, App’lt, v. Wilbur W. Fish, Resp’t.

      (Supreme Court, General Term, Third Department,

      Filed May 14, 1895.)

    1. Municipal corporations — Bonds—Sale below par.
    An agreement to sell village bonds with several months’ accrued interest at their face value, is an agreement to sell them below par, and is void.
    2. Same — Compromise.
    The compromise by village officers of an illegal claim against the village is not binding.
    3. Contract — Conditional.
    Where the acceptance of the offer for the sale of village bonds is made conditional by the proposed purchaser upon the approval of the regularity and validity of the bonds by certain persons, the village, on the refusal of such persons to give their approval, may withdraw from the contract of sale, and an attempted waiver of the condition by the purchaser, after such refusal, is too late.
    Appeal frorn a judgment, dismissing the complaint.

      R. O. Bascom (Edgar T. Brackett of counsel), for app’lt; Herendeen & Mandeville (Edward C. Herendeea, of counsel), for resp’t.
   Putnam, J.

It was shown upon the trial that the plaintiff, at the times stated in the was a

with a board of trustees and president. In the year 1893, said "board of trustees, for the purpose of supplying the village of Fort Edward with waterworks, organized themselves into a board of water commissioners; and the proper proceedings having been had, pursuant to the provisions of chapter 181 of the Laws of 1875 and chapter 30 of the Laws of 1893, coupon bonds of said village were issued to the amount of $97,000, by their terms drawing interest from May 1, 1893. Thereupon the water commissioners: entered into a contract with the defendant, in writing, dated July 20, 1893, whéreby they agreed to sell him $50,000 of said bonds, with "the accrued interest from May 1, 1893, for $50,000, thereon. The interest that had then accrued amounted to the sum of $444.44. The contract, at the end thereof, contained the following clause:

“This agreement is not binding on the party of the second part unless Miller, Peckham & Son of No. 80 Broadway, N. Y., approve of the irregularity and validity of said bonds in writing.”

It appeared upon the trial, that after several interviews and communications had between the agents of the water commissioners and Miller, Peckham & Dixon, named in said contract, the latter, on the morning of July 28, 1893, telegraphed to R. Armstrong, Jr. who was acting for the water commissions, as follows

“ July 28, 1893.
“R. Armstrong, Jr., Stanwix Hall, Albany: Yesterday wrote
you. Think that the present board of trustees must reorganize as water board, and give new bonds before bonds can be issued.
Miller, Peckham & D.”

It does not appear that Millei’, Peckham & Dixon ever approved said bonds. It was not claimed upon the trial that in fact they were not regular and valid. On the same day that, Armstrong received the said telegram, and, I infer, after its receipt, the water commissioners arranged with the comptroller of the state to take the bonds in question, and subsequently telegraphed the defendant their election to withdraw from said contract. The defendant, after receiving such telegram, answered that he was satified with the opinion of the attorney general, and that he claimed the delivery of the said bonds in pursuance of the contract. On August 4,1893, the agents of the water commissioners and the defendant met, at the comptroller’s office in Albany, and the defendant then insisted upon the delivery of said bonds under the contract, or for the payment of damages. He claimed that the clause in the contract requiring the approval of Miller, Peckham & Dixon was for his benefit, and that he waived such approval. After some negotiation, the board of water commissioners entered into the following contract:

“A dispute having arisen concerning the fulfillment of a certain agreement made and entered into by and between the board of water commissioners of the village of Fort Edward, Washington county, N. Y., and W. W. Fish, of Elmira, N. Y, relative to the sale by said board and the delivery of certain water bonds to said Fish, now, for the purpose of settling said dispute, the said hoard agrees to pay, and the said Fish to accept, the sum of seventeen hundred and fifty dollars in full settlement, payment, and satisfaction, and discharge of all claims and liability of the said water commissioners to the said W. W. Fish for and on account of the failure of the said board to deliver said bonds to said Fish under the terms stated in said agreement, said sum to be paid within five days.
“ Dated August 4th, 1893.
W. Fish.
“ The Board of Water Commissioners of the Village of Fort Edward,
“By John R. Durkee, President.”

In pursuance of said agreement, the board of water commissioners paid the defendant $1,750, to recover which sum this action was brought. The case was tried at "a special term of this court, and the complaint was dismissed at the close of plaintiff’s case.

The question is presented to us whether the board of water commissioners of the village of Fort Edward had the power to execute the agreement of August 4th, 1893, and make the payment as herein agreed, and whether plaintiff was bound by the settlement effectuated by that contract. We have reached the conclusion that the contract in question was absolutely void, on the ground that, when it was executed, defendant had no legal claim against the village of Fort Edward, and the statute conferred no power upon the board of water commissioners to make such a settlement or to give away the funds of said village. When the original contract of July 20, 1893, between the parties was executed, there was secured by the bonds, of principal and interest, the sum of $50,444.44, which, by the agreement in question, the water commissioners agreed to sell for $50,000. The agreement, therefore, was a sale of bonds for less than par. Such a contract was expressly prohibited by the statute, and hence it was void. The interest accrued on the bonds when they were sold was as much a part of the amount secured thereby as the principal, and hence the agreement in question was a sale of bonds at less than par.

In the case of State v. Delafield, 8 Paige, 527, where a state had authorized its officers to borrow moneys for its use, and to sell its bonds or stock for that purpose, but for not less than their par value, it was held that a sale of bonds or stock drawing interest from the time of the sale, but which were to be paid for in future installments without interest, was a sale of bonds or stock for less than the par value ; Walworth, Oh., said :

“ The very idea of the sale of a bond or draft or other security for the payment of money at par is that it is to be sold dollar for dollar of the amount due and payable thereon.”

See same case, 2 Hill, 159-172 ; 26 Wend. 192-225.

The very question discussed in this case was passed upon in the case cited adversely to the position taken by the respondent. In that case, as in this, the bonds were issued at a rate of interest less than the rate authorized by the statute; and yet it was held that a sale for less than par and intrest accrued was a violation of law, and that the bonds were void. So in this case the board of water commissioners in entering into contract of July 20, 1893, with defendant, not only acted without power in arranging to-sell the bonds at less than the sum secured thereby, but in fact made a contract actually prohibited. Hence it was void, and defendant, under it, derived no legal claim, against plaintiff or its board of water commissioners. Again, under the contract of July 20th, defendant was not compelled to take the bonds unless the regularity and the validity tlfereof was first certified to by Miller, Peck-ham & Dixon. The latter, after several interviews and communivcations with plaintiff’s agents, declined to certify to the regularity and validity of said bonds. When plaintiff’s agent, on the morning of July 28, 1893, was informed of such refusal, plaintiff then, if not before, was freed from any obligation to defendant under the contract. Miller, Peckharn & Dixon refused to certify in writing the regularity of the bonds, nor does it appear that they have ever made such certification. Therefore, under the contract, by its very terms, on July 20, 1893, the defendant was not bound to take the bonds. It follows that plaintiff was not bound to deliver them. The doctrine that “ it is not just that one party should be bound when the other is not” is well established. Routledge v. Grant, 3 Car. & P. 267-273; Rathbone v. Warren, 10 Johns. 587-594; King v. Warfield, 67 Md. 246.

It is true that the provision requiring the approval of Miller, Peckharn & Dixon was for the benefit of defendant, and probably could have been waived by him. But he did not make such waiver until after plaintiff, as it lawfully might, had acted on the assumption that the contract was at an end. The waiver was too late. After the final refusal of Miller, Peckharn & Dixon, of July 28th, to approve the regularity and validity of the bonds, if not before, plaintiff’s position was like that of one who had made an offer before the acceptance thereof. Plaintiff offered the bonds to defendant at a certain price. He accepted if Miller, Peckharn & Dixon approved in writing the regularity and validity of the bonds. Miller, Peckharn & Dixon refused such approval. Plaintiff, therefore, had made an offer to defendant to sell the bonds to him, which offer remained unaccepted. Prior to acceptance, a party making an offer may withdraw it. See Railroad Co. v. Dane, 43 N. Y. 240; Pars. Cont. 481.

If the views above advanced are correct, when the contract of August 4, 1893, was made, the defendant had no legal claim against the village of Fort Edward, or its board of water commissioners, and it follows that such water commissioners bad no authority to make the settlement in question.

But it is claimed that plaintiff, through the water commissioners (who are the same persons as the trustees of the village of Fort Edward), when defendant asserted a claim for damages under the contract of July 20th, voluntarily settled such claim, and paid the defendant thereon the sum of $1,750; and that the transaction was an accord and satisfaction, a voluntary payment by plaintiff; and that the same cannot be recovered in this action. It is doubtless the fact that, if the controversy in this- case was between individuals or between defendant and a private corporation, the settlement made would have been conclusive, and the money paid to defendant could not be recovered. The contract of August 4th would have been an accord and satisfaction, and the payment made thereunder a voluntary payment. We see no reason why the doctrine as to voluntary payments should not apply to municipal corporations when the officers thereof act within the scope of their powers. If a controversy should arise in reference to a contract which a municipal corporation had power to execute, or in reference to the performance thereof, and that controversy has been duly settled by the corporate officers, such settlement will be binding and conclusive upon the corporation. People v. Stephens, 71 N. Y. 527-558, 561. And this is so in cases where there has been an irregular exercise of power conferred upon corporations. Moore v. Mayor, 73 N. Y. 238. But in this case, as we have seen,, the defendant had no legal claim against the plaintiff or its water commissioners when the contract of August 4, 1893, was made. The statute conferred. no power on the water commissioners to make the contract in question. They were merely agents of the village of Fort Edward, and, except as their acts were within the powers conferred upon them as agents, they did not represent it.

It is held in State v. Delafield, supra, that:

“It is a universal rule that, in order to bind the principal upon, a contract made by an agent, the contract must be within the authority committed to that agent, and that the authority must be strictly followed. If the agent’s acts vary substantially from his authority in nature or extent or degree, they are void as to the principal, and do not bind him.”

The officers of a municipal corporation are agents with a limited power, and cannot bind the corporation by any act or contract beyond their power; and in an action on such a contract the corporation may interpose the plea of ultra vires. Dill. Mun. Corp. (3d fed.) § 457 (381); Moore v. Mayor, supra. In fact, a contract made by the officers of a corporation beyond their power is not the contract of the corporation. It is the wrongful act of the corporation’s agents.

In People v. Fields, 58 N. Y. 495, an action was brought by the people against the defendant to recover moneys illegally paid to him by the comptroller of the city of Hew York. It was held that the people could not maintain the action, that right being in the people of the city of Hew York. The following doctrine, which seems decisive of the question involved in this case, was stated in the opinion :

“The payment was made and received without any lawful power in the comptroller to make it. The defendant is chargeable with knowledge of this. It was a payment by an agent, who had no authority as such to make it. It was, then, no payment by the principal in mistake of 'law or ignorance of facts. The principal, in legal view, had no part in the payment, and it was
made against its will. It was equivalent to an appropriation by the appellant of the moneys to his own use, with the acquiescence and help of the officer of the city, who was authorized to pay them out no otherwise than in accordance with law. He having made the payment unlawfully, it-was an act not within the scope of his agency, and does not bind his principal. U S. v. Bartlett, Daveis, 9 Fed. Cas. No. 14,532; Stevenson v. Mortimer, Cowp. 805 ; Taylor v. Plumer, 3 Maule & S. 562. There is, for these reasons, a right of action somewhere, against the appellant, to recover a whole or a part of these moneys.”

In Board of Supervisors v. Ellis, 59 N. Y. 620, 624, 625, it is held that a board of supervisors has no power to allow accounts not legally chargeable to the county, and, if it does so, the act is in excess of jurisdiction and void; that the board, as an agent of the county, has only limited jurisdiction, and acts beyond such jurisdiction are void. The same doctrine has been held in regard to the common council of a city. People ex rel. Coughlin v. Gleason, 121 N. Y. 631; 31 St. Rep. 903; Lyddy v. Long Island City, 104 N. Y. 218; 5 St. Rep. 665.

In Supervisors v. Van Clief 1 Hun, 464, affirmed in 60 N.Y. 645, it was held that money illegally paid to a supervisor of the county can be recovered back. See, also, People v. Starkweather, 42 H. Y. Supr. Ct. 333, 334.

The cases cited by respondent relating to voluntary payments or the effect of an accord and satisfaction are generally those referring to controversies between individuals or private corporations, and not where a municipal corporation was a party. In the case of Flynn v. Hurd, 118 N. Y. 19; 27 St. Rep. 744, it was held that the action of the highway commissioner in making a settlement was an individual act, and hence the rule as to voluntary payments applied.

It follows from the doctrines laid down in the authorities above cited that the action of the water commissioners of the village of Fort Edward, in making the contract with the defendant of August 4, 1893, and in paying him $1,750, was not the action of the village of Fort Edward. The water commissioners acted beyond their power, and hence did not bind their principal. The act of the agent is the act of the principal only when it is within the power conferred on him. There has been no accord and satisfaction- — no voluntary payment — in this case, because the village of Fort Edward never acted in the matter. The wrongful action of the assumed agents or water commissioners are not corporate acts. The water commissioners wrongfully and without any authority, as the defendant was bound to know, put their hands into the treasury of the village of Fort Edward, and wrongfully took therefrom the sum of $1,750, and delivered it to the defendant. It had no right to give the money to the defendant, and he had no right to receive it. We are of opinion that the plaintiff can recover the sum of money so wrongfully abstracted from its treasury by the illegal action of the water commissioners and the defendant. The judgment should be reversed, and a new trial, granted; costs to abide the event.


text:
    Ledyard Hale, as Receiver, etc., App’lt, v. Marcus P. Mason, Resp’t.

      (Supreme Court, General Term, Third Department,

      Filed May 14, 1895.)

    1. Costs — Security for — Receiver.
    A receiver of an insolvent corporation, appointed on the application of the attorney-general of the state, who prosecutes an action brought by the corporation before his appointment, will not be required to give security for costs, in the absence of any evidence- of bad faith or mismanagement.
    3. Same — Laches.
    Such motion will be denied on the ground of loches, where the motion is not made until sixteen months after the receiver’s appointment.
    Appeal from an order, requiring the plaintiff to file an undertaking as- security for costs, and staying all proceedings until such undertaking shall be filed.

      Russell, Poste & Percy (John G. Keeler, of counsel), for app’lt; A. E. Kilby, for resp’t.
   Putnam, J.

Assuming that the court below had power to grant the order from which the appeal is taken, we think, under the circumstances of the case,' such power should not have been exercised. The plaintiff was appointed receiver of the St. Lawrence Manufacturing Company, in proceedings to dissolve the «corporation on the application of the people, through the attorney-general. He did not commence this action, but found it pending. It was commenced by the corporation long before his appointment. It did not. appear that he was ’proceeding with the action in bad faith, or had been guilty of any mismanagement. He was about to bring the case to trial in the name of the original parties, as he lawfully might, Warehousing Co. v. Badger, 67 N. Y. 294, when, -on motion of defendant, he was substituted as party plaintiff, and afterwards the order from which the appeal is taken was made requiring him to file security for costs. The sole ground on which the order was granted appears to have been that the corporation, at the time of his appointment, was insolvent, and that, as receiver, he had no funds in his hands with which to pay the costs of the action. We think that fact did not justify an order requiring plaintiff to file security for costs in the absence of any evidence of bad faith or mismanagement; especially in an action like this, commenced by the corporation, and merely continued by a receiver appointed on the application of the attorney-general of the state. See Jenkins v. Stowe, 2 Law Bull. 57; Kimberly v. Goodrich, 22 How. Pr. 424; Darby v. Condil, 1 Duer, 599; Shepherd v. Burt, 3 id. 645 ; Ryan v. Potter, 4 Civ. Proc. R. 80; Wassinger v. Fennell, 13 id. 286; Bennett v. Goble, 43 Hun, 354; 6 St. Rep. 862; Ruthsrford v. Town of Madrid, 77 Hun, 545; 60 St Rep. 891. The above authorities hold that in an action brought by a trustee, receiver, administrator, or other party the plaintiff will not be compelled to file security for costs merely on the ground of insolvency, or that he has no funds in his hands; that it is necessary, in addition to the fact of insolvency, to show that the action was brought in bad faith or heedlessly, or that the plaintiff will not probably succeed. Certainly, such proof should be required in a case like this, where the action was commenced by the corporation long prior to the appointment of the receiver, and is merely continued by him.

We are also of the opinion that the motion of the defendant should not have been granted on account of the delay in moving. The receiver was appointed in January, 1893, and the motion to compel him to file security for costs was not made until May, 1894, sixteen months after his appointment, and after plaintiff had served a notice of trial on defendant. See Robinson v. Sinclair, 1 Denio, 628; Doyle v. Currey, 2 Law Bull. 48.

The order should be reversed, with costs and disbursements to the appellant, and the motion denied, with costs.

All concur.


author: Dykman, J.

text:
    Orpha D. Van Houten, App’lt, v. Isaac E. Pye, Resp’t.

      (Supreme Court, General Term, Second Department,

      Filed May 13, 1895.)

    1. Conversion — What amounts to.
    Receiving goods shipped under contract of sale after notifying the vendor that the goods would not be accepted at the contract price, but would be at a less price, and selling them under the mistaken belief that the vendor had accepted his offer, render vendee liable for conversion.
    3. Same — Who may sue.
    One who has title to goods may maintain an action for their conversion, though he never had possession.

      Frank Comesky, for app’lt; Snider & Hopper, for resp’t.
   Dykman, J.

In the month of August, 1893, the defendant purchased a car load of baled hay of Rupright Bros., of Wren in the state of Ohio, at $16.50 a ton, to be delivered at Nyack, in Rock-land county. The freight charges for the transportation of the hay were to be paid by the defendant, and credited upon the purchase price. On or about the 22d day of October, 1893, a bill of lading for the hay, accompanied by a sight draft upon the defendant for the price thereof, was received at the Nyack National Bank. The defendant refused to honor the draft, and assigned as a reason therefor the long lapse of time since the purchase of the hay. The draft was returned to the drawers, Rupright Bros., and the defendant wrote them a letter, in which he stated that he would not accept the hay at that late day at the price he had agreed to pay, but he would pay them $15.50 a ton if they would allow it to come in at that price. At that time the car of hay was on its way to Nyack. The defendant received no answer from the-drawers to his letter to them containing his refusal and proposition. On the 3d of November, 1893, the defendant was notified by the freight agent at Nyack that a car load of hay from Rupright Bros, had been received for him. Acting upon the supposition that the consignors had accepted his last proposition, the defendant paid the freight upon the hay, which was $43, and unloaded it, and delivered it to his customers. The suit is brought against the defendant for the wrongful conversion of the hay, and the plaintiff bases her right to the hay upon the following facts: Upon the receipt of the defendant’s letter rejecting the hay, Rupright Bros, sold the same to the plaintiff, who is a dealer in hay and grain at Nyack, and drew a draft on her for $80, in part payment for the hay. That draft, with a bill of lading, was received at the Nyack National Bank on the 8th day of November, 1893, and was paid by the plaintiff on that day. In the mean time the hay had reached Nyack, as we have seen, and had been received and sold by the defendant. The cause was tried at a term of the Rockland county court, and, at the close of the plaintiff’s case, a verdict in favor of the defendant was directed by the court. The plaintiff has appealed to this court from the order dismissing the complaint, and also the judgment for costs entered upon the verdict.

In the further consideration of the case, it may be assumed that the defendant had a right to repudiate his purchase of the hay, and be absolved from his contract therefor, by reason of the delay in the delivery of the property.

The assumption is justified as against the defendant, because it recognizes the legality of his action, and because his vendors acquiesced in his repudiation, and conceded his right to recede from his contract. His refusal to accept the draft of his vendors, and his letter to them declining to receive the hay, terminated his right, to the property, and he never acquired any right to the same thereafter. He made a proposition for a new purchase of the hay, but it was never accepted. The defendant received no bill of lading for the hay, and he had no legal right to it when he unloaded it from the car, and sold it. It is true he was misled by the notification of the freight master of the railroad company, but he knew he had no right to receive the hay, or, to make the statement more mild, he did not know he had any such right. He acted upon the supposition that his second offer had been accepted by his vendors, but the assumption was false, and he is himself responsible for all the complications which arose, for they all resulted from his refusal to accept the hay under his first contract. Moreover, the evidence fails to disclose any agreement by the defendant for the purchase of the hay, although the case has been thus far considered upon the theory that he has such a contract. He said he ordered the hay, but it does not appear, excep tby inference, that the order was accepted. There was, therefore, no note or memorandum of the contract in writing; none of the goods were received previous to the repudiation; and no part of the purchase money was paid. If, therefore, it can be assumed that there was a contract for the purchase of the property, it was void, under the Statute of frauds, and the defendant obtained no property in the hay.

Turning now to the consideration of the rights of the plaintiff, we find them foreshadowed in the foregoing observations. The plaintiff is a purchaser in good faith, for value. She bought the hay, and paid for it, and thus obtained the absolute title to it immediátely upon her purchase. Although she never had the possession of the hay, she had the title, and that gave her the legal right to the possession. The defendant had no right to the property, and his taking of the same was wrongful as against the plaintiff. The defendant is placed in an unfortunate position, without any apparent intention to do wrong. On the contrary, when he discovered that the plaintiff laid claim to the hay, he made a proposition to adjust the difficulty amicably, and, if his efforts at conciliation had been met by the plaintiff in the same spirit in which they were made, she would have sustained no loss, and the necessity for a lawsuit would have been saved. Even in this view, however, we cannot disregard the rules of law to meet a hard case. We therefore reach the conclusion that the dismissal of the complaint was erroneous, and the judgment must be reversed, and a new trial granted in the county court, with costs to abide the event.

All concur.