author: Lewis, J—The

text:
    Joseph P. Toms, Resp’t, v. The Buffalo Creek Railroad Co. App’lt.

      (Supreme Court, General Term, Fifth Department,

      Filed June 23, 1893.)

    Master and sebvant—Railboads—Defective machinery.
    Plaintiff, a switchman in the employ of defendant, had his arm crushed while attempting to uncouple cars. He claimed that the cars had come to a stand before he went in between them and that afterwards the engine started without warning and that such starting was caused by a defective condition of the engine, the throttle valve being liable to cock, so as to permit the steam to continue to flow. It appeared from the evidence that the engine had been repaired in the spring and the valve had not been known to cock thereafter; and a number of witnesses testified that there was no liability of its doing so if kept in order, and all agreed that it could not cock while the engine was standing still. Held, that there was a failure to prove any negligence on defendant's part, and that its motion for a direction of a verdict should have been granted.
    Appeal from a judgment recovered in the superior court of Buffalo upon the verdict of a jury in favor of the plaintiff, and from an order made by that court denying a motion for a new trial upon the court’s minutes. Two of the judges of that court being disqualified to hear the appeal, it was certified into this court.

      A. D. Scott, for app’lt; Porter Norton, for resp’t.
   Lewis, J—The

plaintiff recovered a verdict in the month of

August, 1882, against the defendant for injuries sustained by him, alleged to have been caused by the negligence of the defendant.

The defendant is a steam railroad in the city of Buffalo. The plaintiff, at the time of receiving his injuries, was in its employ .as a switchman.

His complaint alleges that it was part of his duty as such switch-man to go in between cars for the purpose of coupling and uncoupling them ; that there was, on the day he was injured, a train composed of a locomotive and twelve cars belonging to the defendant and under its management and control, and that he was directed by the defendant to go in between two of the cars for the purpose of uncoupling them; that after the locomotive and cars had come to a stop he went in as directed, and that without any notice or warning to him and without any signal being given and without any one causing it so to do, the locomotive started and pushed the train so as to bring the cars plaintiff was attemping to uncouple together in such a manner that his arm was caught between the cars and crushed; that the machinery of the locomotive was at that time in such a defective and insecure condition that the engine was liable to become unmanageable, and that because of such defects it on this occasion started and moved the train and caused the injuries, and that its defective, unsafe and insecure condition was and had for a long time prior thereto been known to the defendant.

The alleged defect was in a valve the office of which was to regulate the flow of steam used in propelling the locomotive. The plaintiff's evidence tended to show that on some occasions previous to the time of the accident this valve had failed to obey the lever of the engine; that when it was lifted by the steam from its seat it had on one or more occasions failed to drop back into its proper place and had tilted over upon its side, and thereby permitted the steam to continue to flow so that the engineer was not able to stop«the locomotive. This falling over of the valve was called by the witnesses “ cocking of the valve.”

The mechanism and operation cf this valve and the functions it was intended to perform were very minutely and particularly described by the witnesses. From the view we have taken of the «case we do not- deem it necessary or profitable to more particularly describe the valve or its operation.

All the witnesses testified that when the engine was standing still the valve must necessarily be in its proper position and properly perform its functions and prevent the flow of steam. They all agreed that the act of cocking could only occur when the engine was being propelled by steam.

As stated, the complaint alleged that the train was standing still when plaintiff attempted to uncouple the cars. Plaintiff testified : “ William Murray, the assistant, told me to cut off the two cars. I went in and pulled the pin. It was pretty hard work. It was one of those pins you could not get out altogether, and I gave him the signal to go ahead and shove the car on the side and he the steam. The in and a couple of the cars went together again. I could not pull the pin until he stopped. I gave him the signal to stop and he stopped and I went in. Upon working the pin the cars came ahead and caught me over the elbow. * * * When I went in between

the cars the second time the train had stopped and the timbers of the cars that I went between were three or four inches apart. There was slack enough to pull the pin if it had not stuck. There was no signal given by me, nor by any other person to my knowledge, to start the train. When I went in between the cars they had stopped. I couldn't see any signal when I was working at the pin, but the cars came upon me. When working at this pin my elbow was between the timbers, what they call the dead-wood. The dead-wood is a piece of wood that saves the draw-heads from coming together. I was shaking the pin and trying to loosen it, and my arm came in that position.”

William Briggs, a witness called by the plaintiff, testified: “ I saw the accident to Toms; I was right behind taking the numbers of the cars, and he was ahead of me. * * * I know when he went in between the cars I was about thirty feet away from him, and the train was then standing still; I think it was about half a minute when he went in before I heard him holler, and the cars were then just moving; I saw the cars moving, and gave the signal to stop them; they moved about thirty feet after I heard him holler; I also gave the signal for the train to stop before Toms was hurt, about a couple of minutes before; there was nobody but myself and Toms who could give any signals to the engineer for the movement of the train; the cars were stopped there to get their numbers, and to get them receipted; the cars had been stopped a couple of minutes when the accident took place; the cars started slow and easy.”

The evidence of these witnesses was uncontradicted.

George L. Geyer was the engineer in charge of the engine at the time of the accident. His testimony tended somewhat to confuse the case, but if examined carefully will be found not to-contradict the fact testified to by the plaintiff and Briggs, that the train was standing still when the plaintiff went in between the cars.

Geyer testified: “When Toms was hurt I was on the engine; I received the signal to stop from Toms or Briggs. The signal indicated that I should stop quick. I shut off the steam and reversed the engine. There was a slight grade at that point in the direction that the engine was running. When I pulled up I was on a slight grade. "When I reversed the lever it had a tendency to check the train and the piston began to pump air back into the steam pipe. 1 shut off the steam at this time. We were running about six or seven miles an hour. The next thing I did was to throw the reverse lever ahead. After I had thrown the reverse lever back to shut off the steam the engine slowed down. I heard the valve drop back on its seat about three distinct times. This indicated that if I was not careful the valve was liable to cock. * * * It was about half a minute or forty-five seconds after I received a signal to stop before I heard the valve working up and down. The train had not then come to a standstill, but had slowed up about halt We were then running at the rate of three or four miles an hour. When I heard the valve rise in the manner I have indicated I opened the cylinder cocks and threw the reverse lever ahead, thereby taking off the pressure, and preventing the air from running into the steam pipe. When I did this the engine moved ahead. I next reversed my engine back. I did not hear anything then and the train came to a standstill. I looked out of the cab for signals and did not hear anything of Toms, but saw him come out from between the cars on the side of the track having hold of his arm. I then came down from the engine and went up to where he was. I found that his arm was crushed”

Greyer testified that he believed whén he let on the steam that the valve was about to cock, and that that was the reason for giving the engine the additional steam.

It will be observed that the engineer testified that when his train was running at the rate of three or four miles an hour on a down grade he heard the noise of the valve rising and falling, and fearing that it was about to cock threw the reverse lever ahead which caused the engine to move ahead, and that the train only moved thereafter about twenty-five or thirty feet before it came to a stop. It is quite improbable that such a train under such circumstances could be stopped in so short a distance. The account given by the plaintiff and Briggs is more probable. They testified that the train was standing still; that the engine started and pushed the train about thirty feet before it was again stopped, and that the plaintiff thereupon came out with his arm crushed.

While the account of the occurrence as related by the engineer might lead to the inference that he looked out of his cab immediately after he stopped his train and saw the plaintiff come out holding his arm, he does not however testify how soon he looked out of his cab after his train stopped His evidence is not necessarily contradictory nor inconsistent with the testimony of the plaintiff and Briggs. Plaintiff’s version of the transaction is undoubtedly the correct one, it coincides with his claim as stated in his complaint, and he should not have been permitted upon the trial to assume any other position.

There is but one rational conclusion to be drawn from the evidence as to the cause of the accident, and that is, that the engineer, from some cause which he fails to explain, while the engine and train were standing still let on the steam and .pushed the cars together and thereby caused the injury, and that the accident was caused by his and not the company’s negligence.

As we have seen, the valve "when the engine was at rest could not be lifted from its seat and tilted over. When the engine was in that condition the valve must necessarily and inevitably perform its proper functions in preventing the flow of steam. There is no reasonable ground for the contention that the plaintiff was entitled to recover if his version of the transaction was the correct . one, and yet the learned court refused to charge upon request of the defendant “ that if the jury find that the train was at a stand still when the plaintiff went in between the cars at the time of the accident and took hold of the coupling pin to uncouple the cars, there can be no recover}' in this action.” To such refusal defendant’s counsel duly excepted.

The valve in question was known as “the Winans valve." It was the kind of valve in use on all the defendant’s locomotives.

The plaintiff called engineers and mechanics who testified that they were familiar with the construction and parts of locomotives, but they liad never known the Winans valve to be used on any other engines but those of the defendant. They described valves used upon other engines, and one of the witnesses, a machinist, after examining a diagram of the valve known as “ the Balance valve” was allowed against the defendant’s objection to give his opinion of the advantages of that valve over the Winans valve, and stated “ that the former is always under the control of the engineer and cannot get out of order. There is no danger of the Balance valve cocking.” He further stated “ I could not say how it is in this regard about the Winans valve. I never saw one like it before.”

A number of plaintiff's witnesses testified that if the Winans valve were kept in order there would be no liability of its sticking or cocking.

This evidence was not contradicted.

Witnesses testified that any valve if not kept in good condition might fail to work properly.

John Cr. Murray, a witness sworn for the plaintiff, after testifying that he had been an engineer, was asked by the plaintiff: “ Do you know of other throttle valves in use upon engines wliere this cocking and lifting can be prevented for the purpose of supplying steam? ” Defendant’s counsel objected to the question as incompetent, immaterial and improper. The court in overruling the objection stated: “ I think he has a right to show that this is Pot the best device that could be used.”

The learned court, in denying the motion for a direction of a verdict for the defendant, stated: “ I think there is some proof of the defective construction of this valve."

The undisputed evidence was that this engine was taken to the repair shops in the spring before the accident, and was put in good repair throughout. It went into service again on the 16th of Juno, two months before the accident occurred; the valve worked well after these repairs were made, and was not known to cock thereafter.

There was nothing in the case justifying the jury in finding that the valve was out of repair at the time of the accident.

The verdict cannot be accounted for, unless upon the theory that the jury was misled by the manner in which the case was submitted to them; while considering the case they must have wandered off into the field of speculation as to the merits of the Winans valve, and concluded that perhaps it was after all faulty in its construction, notwithstanding that every witness who testified about it said that if it was in good order it would work well.

We do not see any ground upon which the plaintiff was entitled to recover. If plaintiff went in between the cars and attempted to uncouple them when they were in motion it might well be doubted if he was not guilty of negligence that would prevent his recovery. But, as before stated, we do not think there is any evidence that the cars were in motion when he attempted to uncouple them, and, therefore, he was not shown to be guilty of negligence contributing to his injuries.

We put our decision upon the ground that the plaintiff failed to prove any negligence on the part of the defendant.

The defendant’s motion for a direction of a verdict should have -been granted. The judgment and order appealed from should be reversed and a new trial granted,- with costs to abide the event.

Dwight, P. J., Macomber and Haight, JJ., concur.


source: Caselaw Access Project

license: Public Domain

text:
    Archie D. Sanders et al., App’lts, v. Pottlitzer Brothers’ Fruit Co., Resp’t.

      (Supreme Court, General Term, Fifth Department,

      Filed June 23, 1893.)

    1. Contract—Minds of parties must meet on every material provision.
    To constitute a valid, binding contract, the minds of the parties must have met on every material provision, whether of primary or secondary consequence, contained in it.
    3. Same—Acceptance by mail.
    To constitute a binding acceptance by mail such as to create or complete a contract, it is necessary that such acceptance should not only be deposited in the proper office, but that it should be also properly addressed, and it is incumbent upon the party claiming the benefit of such an acceptance to establish these facts.
    Appeal from judgment in favor of defendant, entered upon report of a referee.
    Action to recover damages for breach of contract by the nonacceptance of ten car loads of apples. The answer denies the making or existence of any contract between the parties.
    The following is the opinion of the referee :
    M. H. Peck, Referee—The foundation of the plaintiffs’ cause of action is an alleged contract for the sale and delivery of a quantity of apples by the plaintiffs to the defendant in the month of November, 1891. The existence of any contract is expressly controverted by the defendant in its answer. This being an affirmative proposition alleged upon the part of the plaintiffs, the responsibility rests upon them to establish the existence of the contract I am -wholly unable, upon the evidence in this case, to determine that the' plaintiffs have complied with this requirement. The necessary elements entering into the formation of a contract of this character have been so frequently adjudicated that it is quite unnecessary to occupy any space in the citation of authorities. So far as any questions involved in this litigation are concerned the whole subject is fully discussed, with abundant citation of authorities, in note 1 of the appendix, vol. 3 of the eighth edition of Addision on Contracts.
    ■ It is not seriously contended on the part of the plaintiffs that any contract was entered into between these parties, unless it was 'Consummated by the defendant’s telegram of November 4, 1891, but it is strenuously insisted that this telegram operated as forming a complete and binding contract between the parties. I am unable to assent to this proposition. It is utterly antagonistic to the action of the parties themselves. It is entirely plain that throughout these negotiations the parties mutually contemplated and intended that their contract, when finally consummated, should be evidenced by some formal written instrument, specifying distinctly its term and provisions. The negotiations originated in an offer in writing submitted by the plaintiffs to the defendant on the 28th day of October, 1891. The prominently material specifications contained in this offer were, the quantity of apples to be delivered, the price, and the time of the delivery. All other matters were collateral to these and regarded as of secondary importance as matters of detail, and when the defendant stipulated for a change in one of these more important particulars, it made no reference to these secondary considerations. That these matters of detail were not regarded by either party as conclusively settled by this acceptance is apparent from the fact that the contract subsequently submitted by the defendant to the plaintiffs for execution contained at least three specifications in this behalf not theretofore adverted to by either party in their negotiations.
    In the defendant’s telegram of October 31, 1891, the plaint’ffs are directed, if the proposition is accepted, to “ mail contract.” When the plaintiffs finally concluded to -accept defendant’s proposition they said in their telegram, “Will accept conditions if satisfactory. Answer and will forward contract.” Precisely what is meant by the words “ if satisfactory ” is not very apparent, but it is sufficient to say that they indicate, in this connection, some subject matter for the determination of the defendant. In the telegram of November 4, 1891, which, according to the plaintiffs’ contention, completed a contract between the parties, the defendant says : “ Send contract as stated in our message.” This is the telegram which the plaintiffs contend concluded the negotiations and closed the contract, and made it effectual and binding upon the parties. But the plaintiffs evidently did not so regard it or treat it. They did not then, in accordance with their present position, respond: “ You must please remember that the con tract for the apples is now fully and legally made between us by crossing of telegrams, and our minds have met.” On the contrary, in compliance with the direction contained in the telegram, they transmitted to the defendant the contract in writing, according to their understanding. That the minds of the parties had never previously met upon the details of this contract is quite apparent" from this document, which commences with the words, “We understand,” and concludes with the words: “Answer if this is correct statement, and forward us the draft and oblige.” In still further illustration of the proposition that neither party regarded the telegram of November 4, 1891, as the completion of the contract between them, is the fact that immediately upon the receipt of the plaintiffs’ contract the defendant returned the same, together with the draft of a contract as prepared by it, under date of November 7, 1891, and the plaintiffs, after making certain alterations therein, signed the same and returned it with the draft attached to the bank specified in the defendant’s communication. This contract and draft attached reached the bank on the 14tli day of November, 1891. Contemporaneously with the mailing of the same the plaintiffs sent a letter addressed to the defendant, which was received by the defendant on the loth day of November, 1891. It is undeniably true that this letter was misdirected to Lafayette, Illinois, instead of Lafayette, Indiana, the place of business of the defendant. The direction upon the enclosure containing the contract and draft transmitted to the bank does not affirmatively appear. The interval of time between its mailing and its -receipt by the bank, taken in connection with the ordinary period of transmission by due course of mail, and the receipt of the letter by the defendant, creates a strong inference that the enclosure to the bank was misdirected in a similar manner.
    The defendant refused to accept the draft, or the contract, as modified by the plaintiffs, both upon the ground of the delay in acceptance and of the material alteration of the contract as submitted by it to the plaintiffs for execution. Under these circumstances it is quite impossible, in my judgment, to determine this issue in favor of the plaintiffs. It is entirely, clear that the minds of the parties have never met as to the specific terms and provisions of any contract between them with reference to the sale and delivery of the property in question. It is quite too late after the transactions referred to, indicating with unmistakable certainty that from the outset to the conclusion the parties mutually contemplated and intended the reduction to writing of any contract between them, which should contain distinct and explicit provisions as to the details of their agreement, for the plaintiffs now to insist that all these negotiations subsequent to the defendant’s telegram of November 4th, are merely surplusage, and that such telegram definitely settled the question of the execution of the contract, as well as its terms and provisions. See Hough v. Brovm, 19 N. Y., Ill; Op. Earl 0., 44 id., 85.
    It may be conceded that, on the assumption that the contract was fully consummated by the telegram of November 4th, the fact that the parties contemplated the reduction of it thereafter to writing would not impair or destroy the binding force of the contract thus made. But that is not this case. It is to be observed that the apples were to be shipped by the plaintiffs from points in Wyoming and Livingston counties, in this state, for transportation by rail to the defendant at Lafayette, in the state of Indiana. The whole responsibility of this shipment rested with the plaintiffs, in the absence of the defendant or any of its officers or emplo)res, all of whom were non-residents, and not expected to participate actively, or by way of supervision in such shipment. They were to be shipped and transported in midwinter, and manifestly in such manner as to be protected from injury by the elements during their transmit to the place of destination. The original offer submitted by the plaintiffs contained no provision in this behalf, except that the apples were to be shipped in refrigerator cars. That neither party understood this to. be a sufficient protection is manifest by their subsequent conduct. The three additional specifications heretofore referred to as contained in the contract submitted by the defendant all relate to this feature of the transaction. They are:
    First: That the fruit should be well protected from the frost, and well hayed.
    Second : That if, in the judgment of the plaintiffs, it was neces-
    sary or prudent that the cars should be fired through, the plaintiffs should furnish the stoves for that purpose, and the defendant pay the expense of the man to be emplojmd in looking after the fires to he-kept and maintained in the cars. And
    Third: That the plaintiffs should line the car in which the fruit was shipped.
    The plaintiffs made no objection to these provisions, but distinctly acquiesced in the same as legitimately forming a portion of the contract to he executed by and between the parties. They, however, assumed to make a material modificationof one of these provisions which necessarily would impose upon the defendant an additional charge and expense.
    " I am strongly inclined to the opinion that the provision thus-attempted to be modified created no new obligation on the part of the plaintiffs, but was necessarily involved by implication in their agreement to ship the apples, when construed in the light of the surrounding circumstances. But, be this as it may, the defendant so understood it, and therefore declined to accept the contract as thus modified.
    The minds of the parties refused to meet upon this question. To constitute a valid, binding contract, the minds of the parties-must have met upon every material provision, whether of primary or secondary consequence, contained in it. It is entirely clear that the evidence docs not establish that any such result was ever attained by these parties.
    And it is utterly impossible to treat the contract as having been finally perfected by the telegram of November 4th without entirely ignoring and repudiating their own action and obvious understanding in the premises. The natural and reasonable inference is, that if the plaintiffs then entertained the view subsequently expressed with reference to this question, they would promptly have said to the defendant": “ Our contract is fully and completely made, and nothing further is required by way of writing or otherwise in that behalf.”
    To constitute a binding acceptance by mail such as to create or complete a contract, it is necessary that such acceptance should not only be deposited in the proper office, but that it should be also properly addressed, and I suppose that it is incumbent upon the party claiming the benefit of such an acceptance to establish these facts. The evidence in this case leaves the question very much-in doubt as to whether the latter condition was complied with on the part of the plaintiffs in sending forward the contract and draft. The inference is quite strong that this enclosure, as well as the letter addressed to the defendant, was misdirected, which caused the unusual delay in its transmission. But, inasmuch as it is not contended on the part of the plaintiffs that any contract was created by these transactions, the consideration of this question is rendered unimportant and immaterial.
    The conclusion thus reached upon the principal question at issue, adverse to the claim of the plaintiffs, renders also unimportant any consideration of the point made by the defendant’s counsel that the plaintiffs have failed to prove any such performance on their part as entitles them to maintain this action, even upon the assumption that they had satisfactorily established the making of the contract alleged in the complaint.
    The question is not entirely free from difficulty, but upon the-whole case as presented by the evidence I think the defendant is right in its contention. This conclusion necessarily results in the dismissal of the plaintiffs’ complaint.
    I have not regarded it as either necessary or proper to encumber the record by setting forth in my report the various letter.; and telegrams introduced in evidence. The whole case rests upon evidence of this description. It is merely evidence, and none tireless so because in writing, bearing upon the issuable fact as to the existence of the alleged contract.
    Besides, by the course of proceeding adopted upon the present trial, these several documents are set forth fully, and at large in -the minutes of the testimony in the order, in which they" are-severally introduced, and substantially in chronological order.

      E. M. Bartlett, for app’lts; George W. Daggett, for resp’t.
   Judgment appealed from affirmed on the opinion of the referee,

Dwight, P. J., Macomber, Lewis and Haight, JJ., concur.


text:
    Fred A. Smith, Resp’t, v. The New York Stock & Produce Clearing House Company, Limited, Impl’d, App’lt.

      (Supreme Court, General Term, Fifth Department,

      Filed June 23, 1893.)

    1. Stocks—Agency.
    Defendant company was organized to buy and sell stocks on margin; it leased wires running to different cities, and employed men, whom it called correspondents, at each of such cities to take the wire, agreed to deposit a large sum of money to secure the customers of one of its correspondents in the profits they should make on their orders, received the margins deposited by the customers, and allowed the correspondent a rebate of one half of the commissions as his pay for getting the orders. Held, that, the correspondent was the agent of the company to get the orders.
    3- Same—Wager contracts.
    Defendant’s manager testified that if they received orders during a day to buy 5,000 shares of stock on margin and orders to sell 4,500 shares on margin, they charged the customers that bought the market price on the book, and credited the customers that sold the market price on the book, and bought 500 shares usually on margin to even up, although they ■ sometimes waited a number of days for the market to go down before they bought to equalize. Held, that the transactions as carried out by defendant were simply wager contracts, and money deposited with them, on margin by customers could be recovered.

      Appeal from judgment in favor of plaintiff, entered on decision of the court on a trial without a jury.
    Action to recover from defendant money paid for margins on orders to buy stocks.
    The following is the opinion of the court below :
    Rumsey, J. In the year 1890 the defendant, George 0. Ryan, -was the manager of an establishment in the city of Auburn at which the plaintiff and others were accustomed to leave orders for dealing in stocks upon a margin. During the months of October and November of that year the plaintiff ordered certain purchases of stock to be made, which were represented by Ryan to have been bought for the account of plaintiff. At the time -of making the orders the plaintiff paid Ryan one per cent, on the par value of the stock as security. As the stock declined more security was called for, and plaintiff, as often as the calls were made, which was frequently, paid additional margins of one per cent, until the transaction was stated to have been closed, usually by the sale of the stpclc upon the failure of the plaintiff to put up the required margins. The net result to. plaintiff was .a large loss, which he now sues to recover.
    Ilis claim is that Ryan was the agent1 of the defendant corporation ; that they received the margins and agreed to buy and carry the stocks; and that, although they reported the purchases of stock, they never in fact bought any and never had any stocks which they were carrying for plaintiff, or which they could have delivered to him.
    The defendant corporation denies that Ryan was its agent, but alleges that it bought stocks on Ryan’s order and for him only, with no knowledge whether he acted for himself or for others. It claims also that it bought stocks to fill the orders from Ryan and at all times had stocks on hand to deliver in fulfilment of the orders if demanded.
    It will be observed from this statement that the serious questions are those of fact.
    First, then, was Ryan the agent of the corporation in doing this business? The evidence shows that the corporation was organized to deal in stocks and that for several months it did a large business, buying and selling stocks on margins upon orders received from persons in the smaller cities. It did business with them all in the same general way in which it did with Ryan, there being some slight difference of course in details. The office ■of the corporation was in New York; that of Ryan in Auburn, and his office was connected with that of the corporation by telegraph wire from one to the other. The corporation had private wires leased from the telegraph company, and from these wires it was put in direct connection with its several “ correspondents,” as it called them, of whom Ryan was- one. So far as it appears, the company did all its buying and selling with persons in the country through these correspondents.
    The evidence shows that the arrangement between Ryan and the company, whatever it was, was made by one Underwood, who was a traveling agent of the company for soliciting business and making wire arrangements.
    All agree that plaintiff was present when the arrangement with Ryan was made. The plaintiff says that Underwood asked Ryan to act as agent for the defendant company, that he made .statements as to the mode of doing business and as to some other concern, which are not material here. Ryan says that Underwood asked him to take the wire of the company, and agreed to put up $1,000 in some Auburn bank to protect his (Ryan’s) ■customers in case they should make a profit. Ryan does not use the word “agent” in that connection. Underwood does not say what was the talk between him and Ryan. He was sworn as a witness for the company, but the questions put to him by defendant's counsel were skillfully framed to prevent his telling what the arrangement was. He denied using certain modes of expression which Smith says he used. He says he never asked any one to ■■act as agent and that he had no authority to appoint Ryan their agent, and that is all. He carefully avoided telling what his .authority was or what instructions he had. But it is quite clear from his cross examination that the talk was substantially as Ryan says it was, and it is very probable that if Underwood had been allowed to tell the whole story that he would have practically corroborated Smith’s, except perhaps in regard to the use of the word “ agent.” But as it is, no weight can be given to testimony so carefully filtered through leading questions.
    But whether the word agent was used or not is not very important. The real question is, what was Ryan to do for the company as its correspondent; what was the nature of the arrangement between them ?
    It is quite clear that Ryan was expected to send orders to the company for the purchase and sale of stocks by them, and these orders were to be sent in his name. But while they were to be sent in his name, it is very evident that they were understood by all parties not to be his individual orders, but those of his customers, and the company put up a deposit of $1,000 to guarantee the profits of the customers—not of Ryan. It is clear, too, from all the correspondence that the “ trades,” as they were called, were recognized to be those of the customers. For making and attending to these orders the customers paid Ryan one-fourth of one per cent commission. This was paid by Ryan to the company, and he received one-half of it back. The half was his pay for what.he •did. It is true, Platt says, that Ryan paid them one-half commissions he got for the use of the wire, but it is evident from the entry on the account of Ryan that instead of being charged one-half commissions, he had a rebate of one-half of them—showing that the commissions were the company’s and -they allowed Ryan to pay •over one-half instead of all to them. Ryan swears that the money deposited by the customers as margins he at once deposited to the credit of the company. This is not denied, and it is in proof that a large part of the money so deposited was drawn bv the company and that the remainder, having been attached by Ryan, the attachment w.as released only upon condition that it should remain in the bank for the protection of the customers, which condition was: acceded to by the company. See Ryan’s telegram of Nov. 13, 0. 96,401, and answer of defendant on face of it.

      We have then these facts: A company is organized to buy and sell stocks on margins. It leases wires running to different cities; employs men at each of these cities to take the wire; agrees to deposit a large sum of money to secure the customers of one of these men in the profits they shall make on their prders ; receives the margins deposited by the customers; and allows the correspondent a rebate of one-half of the commission as his pay for getting the orders. If these facts do not show beyond question that the correspondent was the agent of the company to take the- orders, no legal inference can be drawn from them.
    Two facts are presented as proving the contrary. The first is: the blank contract for doing business. But it is not claimed that contract was ever executed or that Ryan ever saw it or acceded to its terms. The second is that the bought notes given to the plaintiff were signed by Ryan. But in the case of contracts of this kind,, it is always competent to show that the contract though signed by the agent was really the contract of some one else who is sought to be charged as principal. Coleman v. First Nat'l B’k of Elmira, 53 N. Y., 388; Dykers v. Townsend, 24 id., 57. I conclude that Ryan was the agent of the company, and that the fact that he signed, the contract has been explained and the liability of the contract fastened upon the company. The contract' was to buy the' stock in the open market; to carry it so long as the customer shall pay the margins, or until notice is given ; and when required to deliver it to the purchaser upon payment of the remainder unpaid of the purchase price. If the broker buys the stock he need not keep in his safe for delivery to the customer the identical certificate which he bought to fill that order, but he must keep in his possession or under his control ready for delivery the same amount of other shares of the same stocks. Taussig v. Hurt, 58 N. Y.,. 425; Caswell v. Putnam, 120 id., 153 ; 30 St. Rep., 878.
    He must, however, buy the stock and have it on hand to deliver, and the contract is not performed unless the stock is in his, possession. He does not perform his contract with the principal by merely making a bargain with some other person to buy stock of him, which the broker can get by paying for, but which he does not obtain. See cases above cited.
    Now, was that done ? Platt says that they0 always had on hand enough of any stock bought for plaintiff to fill his order. But Platt was a very much interested party, and I am sorry to say that I was not impressed with the truth of his testimony. He was swearing to win the suit. His cross examination does not, bear him out, but shows that the buying of stock to fill plaintiff’s orders was just like the selling stock to him.
    It appears from his testimony that one Eby sold to the company-twenty shares of Chicago Gras stock. Platt says of that transaction that Ryan bought and Eby sold one balanced the other. He didn’t know whether there was a delivery of script from Eby. They had the “ gas ” coming from Eby. They had a contract "with Bby that Bby had to deliver. This is probably the exact fact. The evidence was that when orders to buy were given the report of the purchase was sent at once if the order of the buyer was to buy at the market price, and if the order fixed the price, just as soon as that price was touched. That was the invariable rule. Platt says, in spite of the report, they did not then buy, but they waited until they could get the stock cheaper, “ until the next day.” He says, too, that it was his custom to buy stocks when they were low and sell them to customers at the market price when ordered ; which it may be said is a fraud upon a customer. Taussig v. Hart, 58 N. Y., 425. It appears that this company had from thirty to fifty agents. The customers of each were baying and selling stocks on margins, and the orders all carne to the company. All these were contracts to deliver stocks to the buyers—either the company or the customers, with no scrip delivered and only margins paid. Platt said that if during the day he had orders to buy five thousand shares and orders to sell forty-five hundred, he charged the customers who bought the market price and credited the customers who sold the market price, ■and bought five hundred shares to even it up. He said, too, that when he had to buy to equalize his contracts he generally waited till the market went down and he could buy cheaper than his orders. He said on his redirect examination that from time to time he had a statement to show exactly how much more stock he had to deliver than he had a right to receive on his outstanding contracts, and then he provided for the difference. This difference, as appears, was bought usually on margins, and the stock was not held by the company but by the brokers who bought it. It appears from this that so far from buying the stock ordered by plaintiff and holding that or like stock for him, the company had only to keep its contract to deliver to him—provided an agreement with some one in Boston or Syracuse or Little Balls to sell stock to it, or a like contract with some broker in New York, and it had no real delivery of shares. This is not such a performance as the law requires. In fact it appears clearly that the only thing •done by this company was to take the money of the plaintiff ; falsely represent that it had bought the stock; and ask for more margin. It is a satisfaction to know that out of their own mouths "the facts come which require the court to hold that this money must be refunded.
    Judgment is ordered for plaintiff.

      Payne & O'Brien, for resp’t; W. W. Niles, for app’lt.
   Judgment affirmed, on the opinion of Bumsey, J., at circuit.

Dwight, P. J., Macomber, Lewis and Haight, JJ., concur.


author: E. A. Nash, Referee.

text:
    The Commercial Bank of Rochester, Resp’t, v. H. Israel Weinberg et al., Impl’d, App’lts.

      (Supreme Court, General Term, Fifth Department,

      Filed June 23, 1893.)

    1. Mortgage—Construction—Condition against future indebtedness
    COVERS LIABILITY AS INDORSER.
    A mortgage conditioned to pay ‘ ‘ all indebtedness of every name and nature now incurred or to be hereafter incurred, or which is now due or may hereafter become due from ” the mortgagor to the mortgagee, not exceeding a certain sum, and any renewals thereof, covers the mortgagor’s liability as indorser upon notes held by the mortgagee.
    2. Same—Continuing security.
    Such mortgage is a continuing security and not a security simply for the payment of the first indebtedness to the amount specified which is-incurred.
    Appeal from judgment in favor of plaintiff, entered upon the-report of a referee.
    Action for foreclosure of a real estate mortgage, given by defendant, H. Israel Weinberg and liis wife.
   The following is the opinion of the referee:

E. A. Nash, Referee.

The bond and mortgage of H. Israel Weinberg are conditioned to pay “ all indebtedness of every name and nature now incurred or to be hereafter incurred, or which is-now due or may hereafter become due from said Weinberg to said Commercial Bank, not exceeding, however, the sum of $25,-000 and any renewals thereof.” The language here used is broad enough to cover every individual liability of Weinberg, and I think it must be so held unless a limitation of the liability of Weinberg is to be implied from the use of the word “ indebtedness.” It is urged by counsel for defendants that the indebtedness intended to be secured was H. Israel Weinberg’s indebtedness,, as distinguished from his liability as indorser for others, upon which he could only be charged by protest and notice, and his liability as joint maker and surety for another. The contention sought, to be upheld by authority is, that the language of the bond is to-be given its ordinary sense, and that so construed the intention expressed is to secure the debts of Weinberg, or only his own indebtedness incurred by him, and not the indebtedness of others. The context of the condition of the bond docs not limit the indebtedness in any way, but apt words are used giving to it the largest and most extended meaning. The indebtedness mentioned is all indebtedness of every name and nature incurred or afterwards to be incurred, or due or to become due from Weinberg to the plaintiff, and any renewals thereof. His indorsement, was a contract to pay the plaintiff the amount of the note when it.' became due, upon notice of presentment and non-payment, and cannot be regarded in any other light than the individual indebtedness then incurred by the said Weinberg. If not an indebtedness which he had then incurred, it certainly was indebtedness-which he had incurred after he had been charged as indorser, and therefore of the class of indebtedness mentioned as “ hereafter to-be incurred,” or which might “ hereafter become due from said Weinberg ” to the plaintiff. By the contract of indorsement or of surety Weinberg obligated himself to pay the whole of the debt, and thereby made it his indebtedness. The word itself may be held to include liabilities of every sort, present, and to accrue; liabilities contracted by indorsement, whether due or to grow due, and every debt of every character however arising. 10' Am. & Eng. Ency. of Law, '399, and notes.

The case here differs from Bank v. Turbox, 38 Hun, 57, where it was held that a mortgage given to secure any and all indebtedness of the mortgagor could not be construed as indicating an intention to secure the payment of the debt of a firm, afterwards incurred, of which the mortgagor had become a member. The reasons for such construction as staled in Bank v. Thompson, 121 N. Y., 280; 30 St. Rep., 985, clearly are not applicable here. Neither is the case of Lashbrooks v. Hatheway, 52 Mich., 124, which is strongly pressed as in point applicable to this case. That case turned upon the effect to be given to a printed clause in the blank used in giving a security for the payment of a particularly specified debt.

The condition of the bond and mortgage here must, I think, be regarded as a continuing security, and not as a security for the payment of the first $25,000 of indebtedness incurred. The language is, all and every indebtedness incurred or thereafter to be incurred not exceeding $25,000 and renewals thereof. Agawam Bank v. Strever, 18 N. Y., 502; Merchants' Bk. v. Hall, 83 N. Y., 338. The notes discounted at the lawful rate of interest, to which exchange was added, and deducted from the amount of the note,, are within the inhibition of the statute against usury as the notes were not made payable at another place than that at which the same were discounted. The amount recoverable by a bank in such cases is the amount actually loaned, without interest. Hintermister v. First National Bank, 64 N. Y., 212, 215. H. Israel "Weinberg having given his mortgage to secure the debt, can avail himself of the defense of usury. The security itself is tainted with the usury.

J. & Q. Van Voorhis and Cogswell, Bentley & Cogswell, for app’lts; Walter S. Hubbell, for resp’t.

Judgment appealed from affirmed, with costs, on the opinion of the referee.

Dwight, P. J., Macombeb, Lewis and Haight, JJ., concur.


text:
    Adolph Scheftel, Resp’t, v. Jesse W. Hatch, App’lt.

      (Supreme Court, General Term, Fifth Department,

      Filed June 23, 1893.)

      1. False representations—Evidence.
    In an action for false representations made to plaintiffs salesman regarding the solvency of a firm composed of the wives of defendant and his son. and of which he was the manager, testimony of the salesman that plaintiff had for a long time been selling goods to said firm, and just before the witness left home on the trip in which the sale in question was made plaintiff told him not to sell to that concern, that they formerly paid promptly but of late were getting slower, and he didn’t think it safe to sell, while not admissible as evidence of the facts stated, is competent to show a reason why the statement was asked for and made.
    2. Same.
    The witness produced his order book, in which appeared a memorandum of the statement alleged to have been made, and the witness testified that he made the entry at the time of the sale. The court charged that if the jury found that the entry was made at that time it would be strong evidence in corroboration of the witness’ testimony that the statement was made to him. Held, no error.

      3. Verdict—Second trial.
    Where the case has been twice tried and the juries have each found for the plaintiff, the second verdict will not ordinarily he disturbed unless the circumstances are extraordinary or the verdict is clearly outrageous.
    Appeal from judgment in favor of plaintiff, entered upon verdict, and from order denying motion.for a new trial.
    The following is the opinion of the court below:
    Rumsey, J. The action was brought to recover damages for false representations made by the defendant to the salesman of the plaintiff regarding the solvency of the Hatch Flexible Shoe Company, a firm of which the wife of the defendant and the wife of bis son were partners and of which the . defendant was manager and a very large creditor.
    One exception only is relied upon. The salesman, Sanders, to whom the false representation in question was said'to have been made, testified that his house had been for a long time in the habit of selling goods to the Hatch Flexible Shoe Company, but that just before he left home on the trip at which the sale was made, he was instructed by his employer that he had better not sell to that concern, that they formerly paid their bills promptly but of late they were getting slower and slower and he didn't think it safe to sell. To this evidence an objection was made, and the defendant excepted to its admission. There is no doubt that as evidence of the facts stated in it the instruction was not admissible. But I thought at the trial, and still think, that it was ■competent to show a reason why the statement was asked for. ■Ordinarily, as every one knows, when one man has been dealing with another for a long time, he is satisfied to continue his dealing relying on the course of business, without bothering himself to get any statement of his debtor’s financial condition. If Sanders had said that after selling the Hatch Flexible Shoe Company goods for so long a time without question he had suddenly asked for this statement, that fact itself might have thrown doubt upon his testimony. It was material then for him to give the Teason why he asked at this time for a statement. The fact that he was warned that the firm might not now be solvent and that his ■employer so told him was a sufficient reason for his asking Mr. Hatch for their financial condition, and therefore I think it was competént.
    It clearly would have been competent for Sanders to say, if such had been the fact, that he was sent by plaintiff to get the statement, and so it was, I think, for him to give the reason why he asked for it I am inclined to think, too, that the question whether the information he received at Powers’ hotel was of such a nature that he was induced by it to ask for a statement was properly answered, and that it was an error to strike out the answer..
    Suppose it had been shown that Sanders had been told that the Hatch Shoe Company had that day made a general assignment ? Would not that fact have been competent to explain his reason for asking for the statement? Suppose it had appeared that the plaintiff had never done business with the Hatch Oompany ? Can anyone doubt that that fact might be shown to explain why the statement was asked for? Within the same reasoning, and for the same reason, the testimony in question was, I still think, properly admitted. See Greenl. Ev., 100, note 2; 101.
    What was said to the jury about the entry in the book of Sanders being used to corroborate his testimony was strictly correct.
    When Sanders made the sale he certainly believed that the Shoe Company was solvent and able to pay, and he had not then any reason to believe that there would be any litigation over the matter. If the entry in the book, “ Statement by J. W. Hatch, 40 M, and sold him bill,’’ was then put in the book, there is hardly any escape from the conclusion that it was a true statement of what Hatch then said, because no motive can be suggested why at that time Mr. Sanders should put a false entry on that subject in his book. Therefore, the defendant sought to throw doubt on Sanders’ statement that be made the entry when he made the order.
    It is quite true, as stated by counsel, and by the court in its charge, that the entry standing alone was no evidence. It derived its importance, if it had any, from the fact that it was made when Sanders said it was, ante litem motam.

    The evidence of a witness may be corroborated in a good many ways. The usual sense of the word is strengthen, and in a legal sense, especially as used in the Criminal Code, evidence is said to be corroborated when it is fortified by other evidence of consistent facts, or of facts which increase the probability of the truth of the testimony in question. But in another, but still a proper sense, a witness may be said, and often is said, to be corroborated by his manner; his character; the circumstances surrounding the transaction he detailsby any such circumstances, in short, as serve to strengthen his testimony; to render it more probable ; to impress a jury with a belief in its truth. State v. Guild, 10 N. J. L., 163. If the jury believed that the entry in question was made as Sanders said it was, it must have gone far to add probability to the testimony he gave, and certainly the defendant was not harmed by the statement of that proposition to them. It is quite clear, I think, that there was no error on the trial to the prejudice of the defendant.
    It is urged that the verdict is against the weight of the evidence. I am told, and I suppose it to be conceded, that there was substantially the same evidence upon the former trial.
    The jury then, as now, gave a verdict for the plaintiff, which was set aside by Judge Adams as against the weight of the evidence. After a pretty careful reading of the evidence upon the last trial, before me, I am inclined to think that the verdict is not one which I would have rendered upon the evidence. But the action is for a tort. There is so much evidence that in everytrial it should go to the jury. It has been passed upon by two juries, each of which has found for the plaintiff. The rule is thoroughly settled that under such circumstances the second verdict ill not ordinarily be disturbed.

      That rule has a good ground of reason to stand upon and is-supported by much authority. Talcot v. Commercial Ins. Co., 2 Johns., 467; Fowler v. Ætna F. I. Co., 7 Wend., 270; Nichols v. Tuttle, 12 N. Y. Supp., 394; 35 St, Rep., 851. It is quite true that the rule is not inflexible, but it is one that should, I think, commend itself to the court in every case which must necessarily go to the jury unless the circumstances are extraordinary, or the verdict is clearly outrageous. This case is, I think, within the' rule.
    A new trial must be denied.

      Roy C. Webster (Edward Harris, of counsel), for app’lt; David Hays, for resp’t.
   Judgment and order appealed from affirmed on the opinion of Rumsey, J., at circuit.

Dwight, P. J., Macomber, Lewis and Haight, JJ., concur.


author: Vance, S.

text:
    In the Matter of the Probate of the Will of Owen Smith, Deceased.

      (Surrogate’s Court, St. Lawrence County,

      Filed July 20, 1893.)

    1. Will—Knowledge oe contents.
    Where the deceased was a man of prudence and care, and all the requirements of the statute as to the execution of wills was complied with, it is not to he presumed that he signed or affixed his mark and made a declaration as to what the instrument was without knowledge of its contents, and tiie court cannot require, on account of his lack of education, that it must be made to appear that the instrument was read to him.
    3. Same—Delusions. . - '
    To constitute a delusion, there must he a belief in the existence as a fact of something which does not exist; and such-belief must toe without basis for its support, springing up without cause in the imagination of the person entertaining it, and become so firmly implanted in the mind as to-withstand such evidence and argument as would convince reasonable persons of its falsity.
    3. Same.
    When decedent’s son was seven years old, decedent came home intoxicated and told his wife he had been told that said son was not his child, and repeated the story at different times for thirty years, but only when intoxicated. Some years before his death he told the priest the same-tiling, and in his will disinherited said son. Held, that decedent was not the subject of a delusion which would invalidate the will.
    Probate of will.
   Vance, S.

The probate of the instruments offered as the last will and testament, and a codicil thereto, of Owen Smith, deceased, is opposed on two grounds :

First. That said instruments were not the last will and testament of deceased because of want of proof of knowledge of the contents at the time of the execution thereof.

Second. Because of the mental condition of the deceased, it being claimed that he acted under a delusion as to the paternity of his son which rendered him incompetent to make a will affecting the interests of such son.

The evidence clearly shows that Owen Smith could neither read nor write, and it does not distinctly appear that either instrument was read to him.

It clearly appears that the deceased exercised more than ordinary care concerning the safe keeping of his will, that he was a careful, prudent, calculating man in all his business transactions, and that at the time of the execution of each instrument he de- ' dared the one to be his last will and testament and the other a, codicil thereto.

It is not to be presumed that a man of prudence and care affixed bis mark to an instrument and made a declaration as to what that instrument was without knowledge of its contents. If any presumption is to be indulged it is that he knew the contents of the paper. All the requirements of the statute as to the execution of the instruments were fully complied with, and this court cannot add another, that because of his lack of education it must be made to appear that the instrument was read to him.

The chief reliance, however, of the contestant is upon his claim that at the time of the execution of the will and codicil his father was subject to a delusion as to legitimacy of contestant.

The proof shows that Owen Smith and Louisa, his wife, were married at Canton, N. Y., in 1850. That at the time they were in the employ of Minturn Harrison, in' whose employ they remained for about a year after marriage. They then commenced housekeeping upon a lot of fifty acres which he held under contract, the purchase price of which was only partially paid. About eighteen months after marriage there was born to them a son, Henry Smith, the contestant, their only child. The couple continued to reside on the lot before mentioned until July 27, 1892, when Owen died. ' Their possessions had gradually increasea until it had become a farm of 125 acres, under good cultivation and well stocked. In addition to this there was owned at the time of his death four or five hundred dollars in money or note. -

He was an industrious, careful, prudent man, his only fault aside from the alleged delusion being the indulgence at times to excess in the use of intoxicants.

At some time, it does hot appear clearly when, before fifteen or eighteen years ago, there were stories afloat in the neighborhood concerning the Smith family, the nature of which the evidence'does not fully disclose, which had come to the ears of Owen.

When Henry was about 7 or 8 years of age Owen came home from Canton intoxicated, and while in that condition informed his wife that he liad been told that Henry was not his child. This was repeated several times each year for almost thirty years, the language used being sometimes a positive assertion that Henry was not his child and that his wife had been untrue to him and had connection with other than himself.

He never did so except when intoxicated, and never in the presence of others. Six or seven years before his death he called upon the priest of his church asking advice as to hpw he should treat his wife in his will, and stated that Henry was not his son, and he did not intend to leave him. any of his property. It does not appear that he ever mentioned his belief as to the illegitimacy ■of Henry to any person except his wife and his priest.

By the will the contestant is disinherited, which he insists was the result of an insane delusion on the part of the deceased. In order to determine this question it is necessary to determine exactly what a delusion which incapacitates is. Bouvier defines a ■delusion as “ a diseased state of the mind in which pezsons believe things to exist which exist only, or in the degree they are conceived of only, in their own imaginations, with a persuasion so fixed and firm that- neither evidence nor argument can convince, them to the contrary.” Sir John Hichol, in the celebrated case of Dew v. Clark, 3 Ad., 79, says, “Whenever a patient once conceives something extravagant to exist, which has still no existence whatever but in his own heated imagination, and whenever at the same time, having once so conceived, he is incapable of being, or at least being poi’manently reasoned out of that conception, such a patient . is said to be under a delusion.” Judge Redfield, in bis treatise on wills, says-: “ A belief based upon evidence however slight is not delusion, which, rests on no evidence, but upon mere surmise.”

All the authorities to which I have had access agree that to constitute a delusion there must be a belief in the existence as a fact of somethizzg which does not exist; that such belief must be without basis for its support, springing up without cause in the imagination of the person entertaining it, and become so firmly implanted in the mind as to withstand such evidence and argument as would convince reasonable persons of its falsity.

Was Owen Smith the subject of such a delusion ? It is beyond question that he believed that the contestant was not his child, and that such belief was without foundation in fact. But was this belief the creature of his imagination? I cannot but believe from the evidence that “ the stories'” which, wez-e in circulation had much to do with this belief. The gossip of the neighborhood had lodged in his mind a poison, the venom of which, in his sober hours, he was able to restrain, but which, when reason was driven out by rum, exhibited itself in the charge of unchastity of his wife. It must be remembered that on” the first occasion in which she says he mentioned the matter to her he said he had heard ■ that Henz-y was not his child. The continued repetition of this charge for years in drunkenness produced such an effect upon his mind that he came at last to believe it, and at length he reveals his convictions to his priest.

Thus the element of a delusion, a belief existing without cause, other than the imagination of the deluded, is wanting.

The other element of a delusion, that it must be belief maintained in opposition to evidence and argument that would con-, vince the ordinary mind of its falsity is also wanting. So far as the evidence in this case goes, it does not appear that the wife whose chastity was impugned, nor the good pz'iest to whom he went for advice, made any attempt by argument or evidence to convince him of his ez-ror.

It must be apparent that if Owen Smith heard the report that contestant was not his child and that report was true, he labored-under no delusion in regard to the matter ; if the report was not true, it was still evidence upon which he could act, however unjust and mistaken his action might be, without rendering what he did the result of insanity. If no such report was heard by him and he never believed his wife to have been untrue to him, then he can be accused of depravity, not of insanity.

Upon all the evidence, I cannot escape the conclusion that at the time of the execution of the instruments offered for probate Owen Smith was not the subject of a delusion in regard to the paternity of the contestant, and the instruments must, therefore, be admitted to probate.


author: Per Curiam.

text:
    Edward Jeans et al., App’lts, v. Samuel Bolton et al., Resp’ts.

      (New York Superior Court, General Term,

      Filed July 3, 1893.)

    Contract—Weight of evidence.
    In an action for work, labor and services the issue was as to whether the contract for the work was with defendant or with one S., under whom, plaintiffs had been sub-contractors in the main portion of the work about certain buildings of the defendants. Plaintiffs were emp-oyed by S., who testified that he was requested to do so by defendant Bolton. This was denied by Bolton, who testified that his contract was with S. only. Held, that plaintiffs failed to maintain the issue by a preponderance of evidence; that the evidence established that they were sub-contractors of ¡3.
    Appeal from judgment dismissing complaint, entered upon the report of a referee.
    Action to recover for work, labor and services.
    The following is the report of the referee:
    Theodore F. Miller, Referee. This action is brought to recover for goods alleged to have been sold to and work alleged to have been performed for the defendants at the premises southwest corner Sixth avenue and Twenty-second street in the city of Flew York by the plaintiffs, who are builders.
    The evidence before me discloses the fact that one Elisha Sniffin, an architect, contracted with the defendant Samuel Bolton to supply certain materials and perform certain work in and about the premises referred to at an agreed price ; that the said Sniffin furnished the material and performed the work pursuant to said contract, and employed or contracted with the plaintiffs to do part of the same; and that plaintiffs were paid therefor by Sniffin’s personal checks. Upon the completion of the contracts above referred to, it appears there was certain extra work required to be done, and Sniffin claims that Bolton requested him to employ carpenters to do this extra work. It appears that the plaintiffs entered upon the performance of this extra work at the request of Sniffin. The defendant Samuel Bolton emphatically denies the statements of Sniffin, and testifies that his contract was with Sniffin solely, and that he never knew or heard of the plaintiffs until their bill was presented, and that he paid this bill, or some part of it, at Sniffin’s request.

      From the evidence I am not led to place any confidence in Mr. Sniffin’s statement. From the testimony of Mr. Taylor it appears that in the fall of 1890 he told the plaintiffs not to press their claim, as Bolton was short; and the bill was not submitted until December, 1890; Sniffin had been careful, however, to collect his money in full in October, as appears by his receipt of October 8, 1890. (Plaintiff's Exhibit A.) He was evidently anxious to get his money and after receiving it to leave the defendants to a law suit at° the hands of his sub-contractors, the plaintiffs.
    In view of this consideration and the fact that the testimony of Sniffin has not been corroborated, and is flatly contradicted by Bolton, it cannot be said that the plaintiffs have maintained the issue by a preponderance of evidence; and this the plaintiffs must do, especially in view of the relations formerly existing between them and Sniffin, and the defendants and Sniffin. I think the evidence clearly establishes that the plaintiffs were sub-contractors of Sniffin.
    Having reached this conclusion I have thought it unnecessary to pass upon the questions as to the reasonable value of the work done and materials furnished, and as to the liability of the defendant, Mary Bolton, which latter question was raised by the dsfendant’s counsel.
    The complaint should be dismissed, with costs.

      John Henry Hull, for app’lts; William B. Ellison, for resp’ts.
   Per Curiam.

The judgment should be affirmed, with costs, upon the opinion of the referee.

Freedman and Gildersleeve, JJ., concur.


author: Freedman, J.

text:
    The Oceanic Steam Navigation Co. v. Compania Trans-atlantica Espanola, App’lt.

      (New York Superior Court, General Term,

      Filed July 3, 1893.)

    Appeal—Res ad judicata.
    Where the court of appeals reverses a judgment dismissing the complaint, and orders new a trial, it must he deemed to have decided that the evidence was sufficient to require the judgment of the jury; and if the evidence on the second trial is the same and the questions are properly submitted, a verdict for plaintiff will not be disturbed.
    Appeal from a judgment, entered upon the verdict of a jury, and from an order denying defendant’s motion for a new trial.
    This action was brought to recover the amount of a judgment rendered against plaintiff for personal, injuries to John Cleary, which were caused by the negligence of defendant, and for the expenses of defending that suit.
    On the first trial the complaint was dismissed. The court of appeals reversed the judgment and ordered a new trial.
    In the year 1886 the Oceanic Steam Navigation Company, ■commonly known as the White Star Steamship Company, was the grantee from the city of New York of the right to use Pier 44, N. R., and collect wharfage thereon. It agreed, as part of the consideration of the lease, to erect and maintain a shed on the pier.
    December 17,1886, the defendant, which will hereafter be called the Spanish Ctimpany, obtained from the White Star Company the right to the “entire use” of this pier, from the 20th day of December, 1886, until the opening of navigation on the Hudson river in the following year. This agreement is contained in letters between the White Star Company’s agent in New York, R J. Cortis, and the Spanish Company’s then agents in said city, Messrs. Munoz & Espriella, which are set forth in full in defendant’s answer, and are admitted. The Spanish Company went into the possession of the pier under the said agreement, and continued in possession from the close of navigation in 1886, down to the middle of February, 1887. During their occupancy of the pier, and between the 14th and 19th of January, the Spanish Company authorized the Mobile Steamship Company to use the pier, but this use was not exclusive nor did it differ in any way from the use by different vessels of a public pier.
    There was a shed on this pier, with doors in the side. On the 17th day of January, 1887, one John Cleary, while in the discharge of his duties as koister, was struck by one of these doors, which had been left unfastened and leaning against the side of the shed, and his right leg was broken. April 9, Cleary brought an action against the White Star Company in the circuit court of the United States for the southern district of New York to recover damages for said injury. The action was tried before Judge Wheeler and a jury, June 7, 1888. Cleary recovered a judgment against the White Star Company, for $2,084.05 damages and costs, which judgment it was compelled to pay, and did pay to Cleary. It moved for a new trial of this action and the motion was denied. The opinion of Judges Lacombe and Wheeler, denying this motion, will be found in 40 Fed. Rep., 908. The White Star Company having been compelled to pay this judgment, brought the present action against the Spanish Company, seeking to be indemnified for the loss it had suffered, by being compelled to pay John Cleary damages for injuries which had been received by him while the Spanish Company, and* not the White Star Company, was in possession of the pier, and which it is alleged were caused by the negligence of the Spanish Company.

      Stearns & Curtis ( Cephas Brainerd, of counsel), for app’lt; Everett P. Wheeler, for resp’t.
   Freedman, J.

If I were not concluded by the decision made in this case by the court of appeals, second division, as reported in 134 N. Y., 461; 47 St. Rep., 742. I would still be of the opinion expressed by me in 58 N. Y. Supr. Ct., 425; 84 St. Rep., 153, that the evidence is insufficient to establish negligence in the defendant now before the court.

But upon this branch of the case the court of appeals said;. “ The fact, which was quite clearly shown, that the door and fastening were in good repair when the defendant assigned to the Spanish-American Company the right to collect wharfage and cranage at the pier, did not relieve the defendant from its duty to keep the wharf in safe condition. 40 Fed. Rep., 908.”

This was all that was said as to the ground upon which the defendant’s liability is to be based. Taking then the rule as thus-laid down, the defendant clearly was not negligent in the performance of its duty, unless the wharf or pier subsequently became unsafe and the defendant had either actual or constructive notice thereof. In my judgment the evidence is insufficient to fasten any such notice upon the defendant, and consequently, if I were at liberty to do so, I would hold that, it" is insufficient to-establish negligence on the part of the defendant now sought to-be charged.

But the evidence is the same now as it was before, and the court of appeals having reversed the judgment in favor of the defendant and ordered a new trial, must be deemed to have decided that after all the evidence was sufficient to require the judgment of the jury upon it. The trial judge evidently so construed the decision, and the issues having thereupon been submitted to the jury in obedience to it and determined by the jury in favor of the plaintiff, I fail to perceive how the defendant can have any relief against the result in this court. If the case was one for the jury, it was properly submitted, and in such case the record presents no exception which calls for reversal.

The judgment and order must be affirmed, with costs.

Mo Adam, J., concurs.


author: Gildbrsleeve, J.

text:
    Thomas Butler, Resp’t, v. The Manhattan Railway Co., App’lt.

      (New York Superior Court, General Term,

      Filed July 3, 1893.)

    1. Negligence—Evidence.
    In an action against a railroad for loss of services of plaintiff’s wife caused by her being injured by the alleged negligence of the 'train guard in closing the car gate so that it struck her, evidence of remarks made by the guard at the time, tending to characterize the act done and explain its quality, is admissible.
    2. Same—Privileged communications—Waiver.
    Plaintiff’s wife, on cross-examination, testified that she recognized certain physicians as ones who had treated her at the hospital, and on redirect, that they gave her some medicine for nervousness, and she did not know what statement she made after that; that one of them came to take statements, but she did not recollect what she said. Held, that this did not constitute a waiver of her privilege as a patient, so as to permit the physicians to testify to statements made by her to them.
    §. Same—Damages.
    In such action the court charged that plaintiff had a right to recover “for damages arising from the injury and resulting in depriving the plaintiff of prospective offspring.” Plaintiff’s wife was pregnant at the time of the injury, which resulted in a miscarriage. Held, that the instruction was proper.

      Appeal from judgment entered on verdict of a jury, and from order denying defendant’s motion for a new trial.

      Lamb & Osborne (Gilbert D. Lamb, of counsel), for resp’t; Davies & Rapallo (Joseph H. Adams, of counsel), for app’lt.
   Gildbrsleeve, J.

The plaintiff’s wife sustained personal injuries through the alleged negligence of the defendant. This action is brought by the husband for loss of services.. While Mrs. Butler, the plaintiff’s wife, was boarding one of defendant’s trains, she was struck on the side by the gate which the train guard was closing. The evidence fully justified the jury in finding a verdict for the plaintiff. The defendant does not deny that Mrs. Butler was struck by the gate, but the violence of the blow and its alleged effects are earnestly contested. The questions of fact thus raised were properly submitted to the jury, who found for the plaintiff, and assessed the damages at the sum of $2,250. The jury were warranted in giving credit to the testimony offered by the plaintiff, and evidently did credit it. Therefore, the damages awarded cannot be said to be excessive.

Under well settled rules of law, it is manifest that the appeal must fail, unless at least one of the assignments of error in the admission or exclusion of evidence by the learned trial judge, or in his instructions to the jury, calls for a reversal.

The first alleged error to which the learned counsel for the appellant invites our attention arose upon the plaintiff’s wife being allowed to state what' the brakeman said, at the moment of the accident, as follows: “ Q. What did the brakeman say upon your exclamation at the moment of the blow? Defendant’s counsel objected to the question as incompetent, improper and hearsay,, and immaterial. The court admitted the question, and counsel for defendant duly excepted.” By the court: “After you said 6 Oh! ’ what did'the brakeman say ? Same objection, ruling and exception were made. A. He said, I can go to hell.”

The character and quality of the acts of the brakeman, at the time the gate struck Mrs. Butler, were at issue. It was upon his acts, at this time, that the plaintiff rested the alleged negligence of the defendant. , Mrs. Butler’s exclamation “Oh!” was an outcry of pain, and the brakeman’s remark ‘‘ Go to Hell ” an immediate-response thereto. It was uttered at the instant Mrs. Butler received the blow, and tended to characterize the act done and explain its quality. ■ It was contemporary with the main fact under consideration, and material and competent as a part of the res gestee, Greenleaf on Evid., vol. 1, § 108. The act of the brakeman in closing the gate and the declaration in question constituted substantially one transaction. The testimony is clearly within the rule as to res gestee declarations laid down by Eolger, J., in Tilsonv. Terwilliger, 56 N. Y., 273. “ To be a part of the res gestee, they must be made at the time of the act done which they are supposed to characterize; they must be" calculated to unfold. the nature and quality of the acts which they are intended to explain ; they must so harmonize with those facts as to form. '-one transaction. There must be a transaction of which they are ■considered apart; they must be concomitant with the principal act, and so connected witli it as to be regarded as the result and consequence of co-existing motives.”

The case of Sherman v. R. R. Co., 106 N. Y., 542; 11 St. Rep., 318, cited by the learned counsel for the appellant, is not in conflict with this rule. In speaking of the testimony objected to in that case, the court states, Peckham, J., writing the opinion, “It was no part of the res gestee, but was calling simply for a narrative of the cause of a past occurrence.”

A careful examination of the'other authorities cited in. appellant’s brief, in our opinion, fails to sustain the appellant’s contention on this point

Under the appellant’s second point, it is urged that “the learned trial judge erred in excluding the testimony of Dr. Bird and Dr. Burrage as to what the plaintiff’s wife told them of her physical history when they treated her at the Women’s Hospital, inasmuch as, by testifying to these facts herself, she waived her privilege of excluding the physicians’ testimony.”

The testimony sought called for communications between patient and physician, and was properly excluded under §§ 834 and 836 of the Code of Civil Procedure, unless the provisions were waived-by the witness. It is claimed that she opened the ■door to the admission of this testimony by undertaking to tell what had transpired between her and .the physicians. 1 This was what took place: under cross-examination the fact was elicited from the witness that she recognized Dr. Bird and Dr. Burrage as physicians who had treated her at the Women’s Hospital. By this cross-examination the defendant did not obtain from the witness a waiver of her privilege, nor open the door to the line of inquiry desired by the defendant. Upon inquiry of plaintiff’s ■counsel, on the direct examination, as to statements made at the Women's Hospital, the witness said: “They gave-me two doses ■of medicine for my nervousness, and I do not know what statement I made after that. He came (this Dr. Burrage) to take statements, and I don’t recollect what I said.” From this it cannot be said that the witness opened the door of. the consultation room to the jury and undertook to give them a statement of what had occurred between herself and the physician.

For these reasons, and for the reasons set forth by the general term of this court in the opinion of Judge McAdam, in the case of Clara J. Butler against the defendant, 52 St. Rep. 498, to recover damages for personal injuries arising from the same acts of negligence as those upon which this action is based, where a similar question was presented and decided, we are of opinion that the testimony under consideration was properly excluded.

Under appellant’s third point, it is claimed that the learned trial judge erred in instructing the jury that they could award the, plaintiff damages for. the inability of his wife to bear children. The evidence establishes the fact of Mrs. Butler’s pregnancy at the time she received the injury, and a miscarriage resulting, therefrom. On the question of damages the learned trial judge said to the jury that the plaintiff has a right to recover * for damages arising from the injury and resulting in depriving the plaintiff of prospective offspring.’’ This instruction was proper, and the evidence warranted an award for damages based upon the loss of prospective offspring. Mo claim was made for damages on account of the inability to bear children except as to the child of which Mrs. Butler was pregnant at the time of the injury.

A careful examination of all the rulings of the learned court ■below, bearing upon this point, satisfies us that no error was committed on this branch of the case prejudicial to the defendant. 'The charge, taken as a whole, correctly presents the issues to the jury, laid before them the proper rule as to damages, and fully protected the rights of the defendant.

We find no error in the admission or exclusion of evidence that •calls for a reversal.

The judgment and order appealed from must be affirmed, with, •costs.

Freedman, J., concurs.


author: Putnam, J.

text:
    Kate Hall, Adm’rx, Resp't, v. Franklin Thompson, App’lt.

      (Supreme Court, General Term, Third Department,

      Filed July 8, 1893.)

    Mortgage—Payment.
    In an action to foreclose a mortgage, the answer alleged that the mortgage was given to secure the payment ol' $100 to plaintiff’s intestate, and the balance to his brother. The brother testified to that effect on the trial, and that he had received his portion, and that decedent had admitted to him that he had been paid the $100. Pour other witnesses testified to statements, of the deceased to the same effect. Held, that a finding in favor of plaintiff for the full amount of the mortgage was contrary to the evidence.
    Appeal from judgment of foreclosure and sale, entered upon report of a referee.

      Dehour S. Potter, for app’lt; Charles P. Coyle, for resp’t.
   Putnam, J.

This action was brought to foreclose a mortgage «executed by defendant to plaintiff’s intestate, Lyman Hall, on or about March 15, 1876, for $380. The defendant asserted in his answer that the bond and mortgage set out in the complaint were given to secure the payment of $100 to said deceased and the sum of $230 to his brother, John Hall, and further alleged payment in full of said sums to said deceased and John Hall.

The issues were referred, and the referee found in favor of the plaintiff for the full amount of the mortgage and interest.

We are of the opinion that the conclusions reached by the referee are not sustained by the testimony given upon the trial, .and that the judgment should be reversed on the evidence.

Defendant’s witness, John Hall, the brother of deceased, who appears to be a banker and a reputable witness, testified that he drew the mortgage in suit and the accompanying bond ; said papers were given to secure a debt of $100 to deceased and the sura ,of $230 to the witness; that deceased afterwards admitted to him the payment of the said $100, and that the witness has. been fully paid the amount of the mortgage debt coming to him." Four other witnesses testified to statements by, or conversations with, deceased corroborating the testimony of said John Hall.

Such evidence, tending to show the payment of the mortgage, was strengthened by the lapse of time since the execution of the instrument. It "was executed March 15, 1876, and the action was commenced in 1891. According to the theory of the plaintiff, which was adopted by the referee, the mortgage ran a period of fifteen years without any payment of either principal or interest.. Although the action was not barred by the statute of limitations,, yet it is well settled that the lapse of time may be properly considered in connection with other evidence on a question of payment. Macaulay, as survivor, v. Palmer, 125 N. Y., 744; 36 St. Rep., 175.

The evidence above mentioned, showing payment of the said bond and mortgage, seems entirely uncontradicted. The fact that the mortgage contained a clause stating that it was given for the purchase money of said property does not contradict the testimony given by John Hall or the other witnesses, in the absence of proof that John Hall did not own or was not interested in the real estate conveyed to defendant and on which he executed the mortgage, or in the purchase price thereof.

We conclude that the judgment should be reversed on the evidence and a new trial granted, costs to abide the event.

Mayham, P. J., and Herrick, J., concur.


author: Herrick J.

text:
    Isaac Kilmer, App’lt, v. Peter Messling, Impl’d, Resp’t.

      (Supreme Court, General Term, Third Department,

      Filed July 8, 1893.)

    Justice’s court—Judgment should not be reversed because of trivial, ERRORS WHERE SUBSTANTIAL JUSTICE IS DONE.
    Where substantial justice has been done between the parties, a justice’s judgment should not be disturbed because of a trivial error in computing, the amount.
    Appeal from judgment of the Rensselaer county court, reversing a judgment of a justice’s court in favor of plaintiff for thirty-one dollars damages.
    Action to recover of defendants the sum of forty dollars for-work, labor and services performed by plaintiff!
    The facts sufficiently appear in the opinion of the county judge,, as follows:
    Griffith, J. Without considering the multiplicity of objections raised upon the trial of this action before the justice, I am inclined to the belief that the judgment is unsupported by the evidence. In the testimony of Isaac Kilmer I find that, among other things, he "swears that the price for the plaintiff’s labor was agreed upon at two dollars per day and board. The plaintiff was. unable to tell from memory how many days he had worked," or how much the defendants were indebted to him therefor, but upon looking at his book he found the defendants owed him $27.53.

      That is all the evidence given as to the indebtedness or the ■amount claimed to be due the plaintiff from the defendants. The justice rendered a judgment in favor of the plaintiff and against the defendant, Messling, for $31.00 damages and $9.15 costs. There is some further testimony that the plaintiff sold the defendants four pounds of butter at eighteen cents per pound. If the justice had found for the plaintiff on this point, and added the price of the butter to the labor account, it then only amounted to $28.25. I am unable to discover from the return where the .justice found the additional sum of $2.75, which went to make up the amount of thirty-one dollars, and for which he gave the plaintiff judgment.
    The amount of the damages could only have been determined by conjecture, and is not based upon any calculation warranted by the testimony. Upon the argument, the respondent’s attorney urged that the justice might have included interest. If he did, there is no evidence to show from what time it was computed or upon what principle the computation was made. An unliquidated account for work, labor and services does not bear interest. Rensselaer Glass Factory v. Reid, 5 Cowen, 588; Doyle v. St. James Church, 7 Wend., 178.
    If the conversation sworn to by the plaintiff and the witness, Burrows, as having taken place between Kilmer and Messling, at which the book was shown and the account agreed upon, was accepted by the justice as evidence of a settlement or liquidation between the parties, then interest ■ might be charged from that date, June, 1890. But even in this view the amount of the judgment, thirty-one dollars, could not be reached. Such- a judgment cannot stand, and is without sufficient evidence to support it. Dander v. Lasher, 5 Bans., 335.
    The judgment of the justice must be reversed, with costs.

      Nelson Webster, for app’lt; Frederick A. Chew, for resp’t.
   Herrick J.

From an examination of the testimony in this case I am satisfied that there is sufficient evidence to justify the justice in holding the defendant Messling liable to the plaintiff.

The plaintiff was entitled to interest upon his claim ; it may be, however, that the justice has made an error in the computation of the amount. The error, however, is so small in amount, that I do not think that substantial justice would be done by reversing the judgment of the justice fer that reason. The Code, § 3063, says : “ The appellate court must render judgment according to the justice of the case, without regard to technical errors or defects which do not affect the merits.”

I do not think that parties should be encouraged to appeal where the error in amount is trivial, and incur the expense of the appeal themselves, or subject their adversaries to such expense.

When substantial justice has been done between the parties, the judgment should not be. disturbed.

The judgment of the county court should be reversed and that of the justice affirmed, with costs.

Maye AM, P. J., concurs; Putnam, J., not acting.


author: Herrick, J.

text:
    Addison Loucks et al., Adm’rs, Resp’ts, v. Lewis L. Johnson et al., Impl’d, App’lts.

      (Supreme Court, General Term, Third Department,

      Filed July 8, 1893.)

    1. Gifts—Causa mortis —Delivery.
    Plaintiffs’ intestate, being ill and in expectation of death, personally delivered to one of tlie defendants her savings bank book, and told him that after paying her doctor’s bill and funeral expenses, the balance was to be equally divided between him and the other defendants, and shortly after died of the illness of which she was suffering, without having revoked the gift. Held, that tlie-delivery of the bank book was such a surrender and parting with dominion over the deposit as to constitute a valid gift causa mortis, and vest the possession and title in defendant.
    2. Same.
    Such gift is not invalidated by the fact that the property was to be divided with others.
    Appeal from judgment in favor of plaintiff.

      Seymour Van Santvoord, lor app’lts; B. C. Strait (H. W. McClellan, of counsel), for resp’ts.
   Herrick, J.

The plaintiffs, as administrators of Christina an to recover a sum of money on deposit in said bank to the credit, of their intestate.

The defendants were substituted as defendants by an order of ‘ interpleader, and in their answer claimed ownership of the money in the savings bank by reason of a gift causa mortis thereof from said Christina Loucks; judgment was rendered in favor of the: plaintiffs, and from that judgment the defendants appeal to this, court.

We are relieved from the solution of many questions arising out of alleged gifts causa mortis by reason of the findings of fact in this case by the trial court, and which findings seem to be sustained by the evidence.

The trial court found that on about the 17th day of July, 1861,. Christina Loucks deposited a sum of money in the Albany Savings Bank, which, on the 1st day of July, 1891, with its-accumulated interest, amounted to the sum of $988.38.

That on the 15th day of April, 1891, the said Christina Loucks being ill, and in expectation of death, personally delivered and handed over to the defendant, John J. Johnson, the bank book issued to her by the Albany Savings Bank, which bank book showed a then existing balance to her credit; that at the time of delivering said bank book to the defendant Johnson she said to-him that, after the payment of her doctor’s bill and funeral expenses, the balance of the money was to be equally divided between his sister and brother (who are the other defendants in this case) and himself.

The defendant Johnson then and there accepted the gift, and has since retained possession of said bank book.

That Christina Loucks died on or about April 16th, 1891, of the ailment or peril in view of which said gift was made by her, without having revoked said gift.

The court further found that in making such delivery of the bank book it was the intention of Christina Loucks to create a valid gift causa mortis of the moneys on deposit in said bank, and that such gift was not made with the intention of defrauding any of her creditors.

To constitute a valid gift causa mortis, the property must be actually delivered; the donor must surrender the possession and dominion thereof to the donee. Ridden v. Thrall, 125 N. Y., 572— 79 ; 35 St. Rep., 913.

The delivery of the savings bank book was such a surrender, and parting with dominion, and vested the possession of and title to the money on deposit in the bank in the donee. Id.. 572.

In Young v. Young, 80 N. Y., 428, and Curry v. Powers, 70 id., 212, the alleged gifts causa mortis were held invalid because the court found there was no parting with the possession of, or title to, the property by the donor.

In this case, as we have seen, there was an actual delivery to the donee, and an acceptance by him of the bank book, so that within the case of Ridden v. Thrall the donor parted with the possession and title to the money on deposit in the savings bank, and. the donee took such possession and title.

The plaintiffs, however, contend that the direction by the donor to divide the property, after the payment of funeral expenses, between himself, his brother and sister, renders the gift invalid; no authority, however, is cited to maintain that contention.

It has been held that a gift causa mortis may be made to one in trust for a third person, Clough v. Clough, 117 Mass., 83; Sheedy v. Roach, 124 id., 472; and also that a gift providing for a division of the property between specified persons after the payment of bills and expenses is a 'valid gift causa mortis. Pierce v. Boston Savings Bank, 129 Mass., 425-440.

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

Mayham, P. J., and Putnam, J., concur.