author: Haight, J.

text:
    The Holmes & Griggs Manuf’g Co. Resp’t, v. The Holmes & Wessell Metal Co. et al., App’lts.

      (Court of Appeals, Second Division,

      Filed June 2, 1891.)

    1. Manufacturing companies—Ultra vires.
    While a corporation cannot purchase or deal in stocks of other corporations unless expressly authorized by law to do so, it may take title to all kinds of property, even the stock of another company, in payment of a debt.
    2. Same.
    Plaintiff, a domestic corporation, sold its stock and plant to the defendant company, and took in part payment stock of the defendant company. Subsequently a contract was made by which plaintiff agreed to sell the stock to defendant, the same to be delivered upon the payment of certain promissory notes given in payment therefor. In an action on one of the promissory notes, Held, that the title to the stock vested in the plaintiff company and that there was a valuable consideration for the note in suit.
    Appeal from a judgment of the general term, first department, affirming a judgment entered upon the report of a referee.

      Adam C. Ellis, for app’lts; Sidney S. Harris, for resp’t.

       Affirming 33 N. Y. State Rep., 538.

   Haight, J.

This action was brought to recover the amount of a promissory note bearing date December 1, 1884, executed by the defendant, the Holmes & Wessell Metal Company, and endorsed by the defendants, Morse and Shonnard. The defenses were ultra vires, no consideration, and a non-tender of certain stock for the purchase price of which the note was given. The plaintiff is a manufacturing corporation, organized under the general act of 1848, for the purpose of manufacturing sheet and rolled brass, wire tubing and other articles composed wholly or in part of metal, in the city of Hew York. Its president was Charles B. L. Holmes and its secretary and treasurer was George C. Edwards.

On the 12th day of July, 1881, Holmes and Edwards entered into an agreement with the defendants Shonnard, Morse and one Charles Wessell, to organize a new company for the manufacture of brass, nickeline alloys and other composite metals, under the corporate name of the Holmes & Wessell Metal Company, the capital stock of such company to be $100,000, the whole amount to be issued and paid up in cash; three-fourths thereof to be subscribed and paid by Holmes and Edwards, and the remaining one-fourth by the other parties to the agreement. The agreement, in its preamble, recites that Holmes and Edwards propose to transfer the rolling-mill, belonging to the plaintiff, including all of the machinery, tools and appliances connected therewith, together with the lease of the premises occupied by the plaintiff, for the sum of $50,000. Subsequently, and at an annual meeting of the plaintiff’s stockholders, held on the 20th day of July, 1881, the president and secretary were instructed to sell to the Holmes & Wessell Metal Company the entire machinery and plant owned by the plaintiff for the sum of $50,000; and, also, authorized them to sell to the same company all the material manufactured, unmanufactured and in process of manufacture, owned by the plaintiff, and to also subscribe for 3,000 shares of the capital stock of the company, and to pay for the same out of the proceeds of the sale of the mill and materials.

It further appears that the Holmes & Wessell Metal Company was incorporated on the 15th day of July, 1881, and that Charles E. L. Holmes subscribed for 2,000 shares and George C. Edwards 1,000 shares of the capital stock. Thereafter, and on the 23d day of July, 1881, the new company, at a meeting of its stockholders, authorized the purchase from the plaintiff of its plant and machinery, and to pay therefor the sum of $50,000, and for the entire stock of materials, manufactured and unmanufactured, owned by the plaintiff, the sum of $31,333.96; and, on the 1st day of September thereafter such sale was completed by the transfer of the plaintiff company to the defendant company of its entire plant, machinery, etc., and, in payment therefor the defendant company issued to George C. Edwards, trustee, the stock subscribed for by Holmes and Edwards, amounting to $75,000, and the balance, $6,333.96, was paid in cash. After such transfer the plaintiff discontinued its business.

On the 1st day of December, 1884, the plaintiff entered into a contract with the defendants Morse, Shonnard' and one Charles Wessell, in which the plaintiff agreed to sell to the other parties thereto 1,440 shares of the stock of the defendant company, standing in the name of Edwards, as trustee, for the sum of $30,000, payable, $5,000 in cash and the balance by certain promissory notes, of which the note in suit is one. The agreement further provided that the stock should remain in the name of Edwards or some other officer of the plaintiff as trustee; that it might be voted upon by him until delivered as specifically provided in the contract.

It is doubtless true that a corporation cannot purchase or deal in stocks of other corporations unless expressly authorized by law so to do. Talmage v. Pell, 7 N. Y., 328; Berry v. Yates, 24 Barb., 200; Milbank v. The N. Y., L. E. & W. R. Co., 64 How., 20; Mechanics' Mutual Savings Bank v. Meriden Agency Co., 24 Conn., 159; The Central R. R. Co. v. The Pennsylvania R. R. Co., 31 N. J. Eq., 475; Hazlehurst v. Savannah R. R. Co., 43 Ga., 57; Valley R. R. Co. v. Lake Erie Iron Co., 18 Northeastern Rep., 486(Ohio); The People v. Chicago Gas Trust Co., 130 111., 268-284; Franklin Co. v. Lewiston Institution for Savings, 68 Me., 43; Hill v. Nisbet, 100 Ind., 341-349.

It is equally true, however, that it may do whatever may be necessary in the exercise of its corporate franchises. The selling of property and collection of debts is among the powers given ; and hence it may take title to all kinds of property, even the stock of another company, in the payment of a debt Talmage v. Pell, supra, and cases above cited.

The statute under which the plaintiff was incorporated provides that “ it shall not be lawful for such company to use any of their funds in the purchase of any stock in any other corporation.” Laws 1848, chap. 40, § 8. The funds here spoken of evidently mean the money of the company, and the statute was not intended to limit the powers of the corporation beyond that already indicated.

The plaintiff was a private manufacturing corporation. It exercises no powers of a public nature, and has attempted no combination by which the public may in any manner be prejudiced. There are, consequently, no questions affecting public policy to be considered. The purpose of the company is expressed in a preamble to the resolutions adopted authorizing the sale of its plant and stock of materials on hand to the defendant company.

It was, in short, to increase the business of the stockholders by adding to the manufacture of brass that of German silver and nickel alloys. The scheme adopted was the organization of a new -corporation, bringing in some other persons with additional capital. The stock in the new company was subscribed for by Holmes and Edwards individually, and the stock when finally issued was issued to Edwards. It is true he takes it as trustee, and holds it as such for the plaintiff, but this we do not regard as necessarily ultra vires. The plaintiff had the right, with the consent of its stockholders, to sell its plant and retire from business; and it appears from the evidence in this case that the consent of all the stockholders was given to the sale that was made.

In Kent v. Quicksilver Mining Co., 78 N. Y., 159-186, Folger, J., in delivering the opinion of the court, says that “ a corporation may do acts which affect the public to its harm, inasmuch as they are per se illegal, or are malum prohibitum. Then no assent of stockholders can validate them. It may do acts not thus illegal, though there is want of power to do them, which affect only the interest of the stockholders. They may be made good by the .assent of the stockholders, so that strangers to the stockholders, dealing in good faith with the corporation, will be protected in a reliance upon those acts.”

In the case of Treadwell v. Salisbury Mfg. Co., 7 Gray, 393-405, it was held that the directors of a manufacturing corporation may sell the whole property of the corporation to a new corporation, taking payment in shares of stock of the new company, to be distributed among the stockholders of the old company. In Howe v. Boston Carpet Co., 16 Gray, 493, it was held that one manufacturing corporation may take the shares of another in payment of a debt. Chapman, J., in delivering the opinion of the court, in commenting upon the case of Treadwell v. Salisbury Mfg. Co., supra, says that “While corporations quasi public may be restrained and directed in the management of their affairs, yet corporations established for trading and manufacturing purposes may * wind up their affairs whenever they think proper to do so, and in the manner adopted in that case. The legality of the transaction could not have depended on the intention of the corporation to wind up its affairs immediately. If it had taken the stock in payment for goods, or for the sale of a building or land, or water power, which it did not want or desired to sell, while it still carried on its business, the act must have been equally legal.”

In Hodges v. New England Screw Co., 1 R. I., 312, 347, facts are presented which, in many respects, are similar to those under consideration. Green, C. J. says: “Nor have we any doubt that the Screw Company might have rightfully taken this stock in the Iron Company in payment for their rolling mill, if it had been taken with a view to sell again, and not permanently hold it. Again, it is to be observed, the directors were not investing the funds of the Screw Company in the stock of the Iron Company. They had on hand an unsalable rolling mill, and they owed a heavy debt for it, and one great object in taking the stock in the Iron Company was to realize for the rolling mill, and in part pay thereby the debt” The State of Kansas v. The Western Irrigating Canal Co., 40 Kas., 96; Leathers v. Janney. 41 La. Ann., 1120 ; Hibernia Insurance Co. v. St. Louis & New Orleans Transportation Co., 13 Federal Rep., 516 ; Taylors. North Star Cold Mining Co., 79 Cal., 285; The Miners' Ditch Co. v. Zellerbach, 37 id., 543 ; State v. Butler, 86 Term., 614 ; Morawetz Private Corporations, § 212.

The plaintiff has sold its rolling mill, machinery, etc., to the defendant It has taken stock in the latter company in payment therefor. Inasmuch as this was done with the consent of all of the stockholders, it being the act of a private corporation, not in any manner harming the public, we see no reason for condemning its title to the stock so obtained. Palmer v. Cypress Hill Cemetery, 122 N. Y., 429-435 ; 34 N. Y. State Rep., 30.

But, assuming the transaction to have been ultra vires, the defenses interposed would still be unavailable. The plaintiff has the stock, and has paid for it. It cannot be recovered back by the defendant, for the transaction is completed and closed. Whilst the contract remained executory, if it was unauthorized, a stockholder or person interested might have interfered by injunction, and prevented the transfer of the property of the plaintiff to the defendant. But the contract having become executed, the title of the stock now vests in the plaintiff, and it has the power to sell and dispose of the same. Sisiare v. Best, 88 N. Y., 527-533 ; Milbank v. N.Y., L. E. & W. R. R. Co., supra.

The contract under which the note in suit was given was made in December, 1884, nearly four years after the plaintiff became the owner of the stock. No claim is made that that contract is for any reason illegal or void. Numerous cases are found in which the courts have refused to execute contracts that were ultra vires, but this action is not based upon such a contract. The courts will not permit the plea of ultra vires, but this action is not based upon such a contract. The courts will not permit the plea of ultra vires to prevail whether interposed for or against a corporation, where it would not advance justice but would accomplish a legal wrong. The Rider Life Raft Co. v. Boach, 97 N. Y., 378— 381; Whitney Arms Co. v. Barlow, 63 id., 62.

To hold that the plaintiff could not dispose of the stock would deprive it of the consideration received for the transfer of its rolling mill and material, thus accomplishing a wrong and not advancing justice.

Our conclusions are that it had title to the stock and that consequently there was a valuable consideration for the note in suit.

The question raised in reference to the hon-tender of the stock was properly disposed of by the general term.

The judgment should be affirmed, with costs.

All concur.


source: Caselaw Access Project

license: Public Domain

text:
    Joseph Atkinson et al., Resp’ts, v. Titus Truesdell, App’lt.

      (Court of Appeals, Second Division,

      Filed June 2, 1891.)

    1. Evidence—Written contract varied by parol.
    The meaning of phrases, etc.; used in contracts, having purely a local or technical meaning, unintelligible to persons unacquainted with the business, may be given and explained by parol evidence if the explanation is consistent with the terms of the contract.

      2. Same.
    It is admissible to show that the phrase “ to be taken by January 1st, 1883, on dock in New York ” in an order for a large quantity of glass bottles, meant, in that- .business, as the purchaser should from time to time specifically order, etc.
    Appeal from a judgment of the general term of the superior •court of the city of New York, affirming a judgment entered upon a verdict.

      James M. Hunt, for app’lt; Samuel W. Weiss, for resp’ts.
   Haight, J.

Plaintiffs were copartners doing business under the name of The Hawley Glass Company, Limited, at Hawley, Pennsylvania. William F. Dorffinger was their chairman and selling agent. On the 20th of July, 1882, whilst acting for and on their behalf, he contracted with the defendant to manufacture, sell and deliver to him a large quantity of glass pickle bottles at prices specifically named, “ to be made after September 1st and to be taken by January 1, 1883 ; terms, sixty days net on dock in New York.” The defendant, from time to time, ordered bottles under the contract, to be shipped to him, up to the 16th day of November, 1882, after which he ceased to make further orders on the plaintiffs. Thereafter, Mr. Foster, a clerk in the employment of the plaintiff Dorffinger, asked the defendant when he wanted the .glass, who answered that he was not in need of any just then, but that he would want some later. The plaintiffs on the 1st of September commenced the manufacture of the bottles, and continued the same until some time in December, when they completed all called for by the contract. On the 3d day of January they forwarded to the defendant a bill for all of the bottles not previously -ordered and delivered to him, amounting to the sum of $2,036.06. This bill was not paid, and subsequently, and in the early part of March, 1883, he refused to take the goods. Upon the trial the plaintiffs showed from the testimony of persons engaged in and familiar with the glass business, that the words to be taken by January 1, 1883,” as used in the contract, meant, in that business, as the purchaser should, from time to time, specifically order; that if they were not all ordered within the time specified, it was customary to forward a bill for the balance, and, if the same was paid by the purchaser, to then hold the goods in store, subject to his •order for a reasonable time thereafter. This evidence was taken under the exception of the defendant

The question thus presented has been the subject of frequent consideration by the courts, and the rule may be regarded as well settled that the meaning of characters, marks, letters, figures, words or phrases used in contracts having purely a local or technical meaning, unintelligible to persons unacquainted with the business, may be given and explained by parol evidence if the explanation is consistent with the terms of the contract Sq, also, parol evidence may be given as to the uniform, continuous and well settled usage and custom pertaining to the matters embraced in the contract, unless such usage and custom contravene a rule of law or alter or contradict the expressed or implied terms of a contract, free from ambiguity. Dana v. Fiedler, 12 N. Y., 40; Walls v. Bailey, 49 id., 464; Collender v. Dinsmore, 55 id., 200; Silberman v. Clark, 96 id., 522; Newhall v. Appleton, 102 id., 133; 1 N. Y. State Rep., 174; S. C., 114 N. Y., 140; 22 N. Y. State Rep., 670; Hopper v. Sage, 112 N. Y., 530-535 ; 21 N. Y. State Rep., 491; Smith v. Clews, 114 N. Y., 190; 23 N. Y. State Rep, 166.

By referring to the contract it will be observed that the goods are to be taken by January 1, 1883, on dock in New York. The particular dock is not specified. , The goods m question, being glass, require care in shipping and delivering in order that they may not be damaged by breaking. The bottles were bulky and required much space for storage. Storage in New York being expensive, we are told that it was the custom to order the goods from the manufacturer only as they were wanted for use m the business of the purchaser. Hence the custom, to be taken when •called for. There is nothing m the evidence received that can be said to contravene a rule of law or to contradict the expressed or implied terms of the contract. Under the explanation given as to the usage of the trade, to specifically order the goods from time to time as required by the purchaser, the phrase of the contract “to be taken by January 1, 1883, on dock in New York" is rendered intelligible and harmonious with the other provisions thereof. The question presented may be upon the border, but we are inclined to the opinion that the facts bring it within the rule recognizing the evidence as competent. This evidence was not controverted upon the trial. But, as we have shown, the defendant from time to time, up to the 16th day of November, made orders upon the plaintiffs for the goods required by him, thus practically interpreting the contract the same as is contended for by the plaintiffs.

Under the construction given to the contract, proof of delivery or tender by the plaintiffs was not required. -

It is now contended that the recovery should only have been for the difference between the market value of the goods and the contract price, but we do not understand this question to be raised by any exceptions in the case. The action appears to have been tried upon tne theory that all of the goods called for by the contract had been manufactured and were held in store subject to the order of the defendant. The contract price of the goods was agreed upon, together with the interest that had accrued thereon. The court in submitting the case to the jury, instructed them that if they found for the plaintiffs, their verdict should be for $2,651.86, which was the amount agreed upon, and to this charge no exception was taken.

We have examined the other exceptions taken in the case, but find none that renders a new trial necessary.

The judgment should be affirmed, with costs.

All concur, except Brown, J,, not sitting.

       Affirming 25 N. Y. State Rep., 821.


author: Vann, J.

text:
    Mary F. Stouter, Resp’t, v. The Manhattan Railroad Co , App’lt.

      (Court of Appeals, Second Division,

      Filed June 2, 1891.)

    1. Negligence—Evidence.
    In an action to recover for personal injuries sustained by plaintiff while-a passenger on defendant's railroad, by reason of a collision, plaintiff introduced a diagram of the place where the accident happened, and defendant's engineer testified as to its correctness, with one exception, that there “ is a portion of a chock block here at present,” and the trial judge caused the representation of the chock block to be stricken off before it was given to the jury. Held, no error.
    2. Same—Objection.
    General objections to testimony will be disregarded on appeal unless it clearly appears that the objection, if properly made, could not have been obviated.
    3. Evidence—Medical expert.
    A physician, after testifying to his personal observation of a bruise in. the breast of plaintiff, caused by the accident, and to a subsequent inflammation and abscess, occurring after childbirth, in the same place, can be allowed to state that in his opinion, as an expert, the latter were caused by the former.
    Appeal from a judgment of the general term of the supreme court, in the second judicial department, affirming a judgment entered on a verdict and also affirming an order denying a motion for a new trial.
    Action for personal injuries caused, as alleged, by the negligence of the defendant
    On December 31, 1887, the plaintiff was a passenger upon a train operated by the defendant, going north on the main branch of its elevated railroad in Third avenue. At Thirty-fourth street a side track running to the ferry at the foot of that street is connected with the main line by means of a curve. As the car in which plaintiff was seated passed over the frog at the junction of the two lines at Thirty-fourth street, it was run into by an engine on the side track and she was injured by the collision.
    Further facts appear in the opinion.

      Samuel Blythe Rogers, for app’lt; Martin J. Keogh, for resp’t.

       Affirming 25 N. Y. State Rep., 683.

   Vann, J.

The defendant claims that the trial court erred in allowing evidence to be given by the plaintiff that, after she was injured, a stop-block was placed upon the side track as a precaution against further accidents.

A careful inspection of the record, however, fails to show any evidence of that kind. The nearest approach to it was when the-engineer who operated the engine that collided with the train was on the stand as a witness for the plaintiff. On being asked if a. diagram shown him correctly represented the scene of the accident, he replied that it did, with one exception. When asked tosíate the exception he answered: “ There is a portion of a chock-block here at present,”' obviously referring by “ here ” to the map, which was the only subject of inquiry. The defendant’s counsel moved that the answer be stricken out, without stating any ground, and took an exception to the denial of his motion. The next question that was answered by the witness was put by the trial justice, who asked: “ What is the difference between its state on the 31st of December and (the) state of it as represented on that diagram ? ” The witness answered, under objection and exception : “That represents a chock-block as being there.”

The object of this testimony was simply to prepare the way for the introduction of the map, and the substance of it was that there was a chock-block represented on the map that was not on the track at the time of the accident, but there was no evidence that a chock-block was placed on the track after the accident Before the map was put in evidence the representation of the stop-block was struck off by direction of the trial judge, who in giving the direction said: “ If it is intended to show that any change has been made there now, that is inadmissible, and not being susceptible of direct testimony, the court does not think it fair that it should get in indirectly as marked on the diagram, so that will be stricken off.”

While the course pursued at the trial may have suggested to the jury that a block was placed on the track after the accident, there was no evidence before them upon the subject, and it cannot be presumed, under the circumstances, that they were influenced by that which was merely suggested, but not proved. Questions excluded upon objection frequently suggest something that the jury have no right to consider, but this, in the absence of persistence amounting to abuse, is not a ground for reversal, because they are presumed not to have considered it. If a party fears that they may be influenced by anything outside of the case, he should ask that they be instructed to disregard it. Gall v. Gall, 114 N. Y., 109, 122; 22 N. Y. State Rep., 746; Holmes v. Moffat, 120 N. Y, 159; 30 N. Y. State Rep., 779.

After the plaintiff had rested the same witness was called by the defendant and gave evidence in its behalf as to his efforts to stop the engine by applying the brakes and opening the throttle. On his cross-examination, after proof had been made without objection, that there was no chock-block on the side track when the accident happened, he was asked “ if a stop-block had been there would your train have collided with the Third avenue train in your opinion ?” A general objection was interposed and overruled, when the witness answered, “ I don’t think it would.”

This ruling is challenged by the defendant upon the ground that no proof was previously made that the side track had been found by experience to be unsafe, or that chock-blocks were in practical use for railway junctions. This question, however, is not before us, because it cannot be raised by a general objection. If the ground now relied upon had been made the basis of an objection, non constat that which is insisted upon as wanting would have been supplied, as it was possible to supply it by evidence. “It is the well settled law,” as this court has held, “ that objections to testimony without assigning any around therefor will be disregarded, unless it clearly appears that the objection, if properly made, * * * could not have been obviated.” Levin v Russell, 42 N. Y., 251, 255. “ This principle should always be applied when the defect is not so radical as to be incapable of being remedied.” Cary v. While, 59 N. Y., 336, 340; Bergmann v. Jones, 94 id., 61, 58.

A previous question, different in form but similar in substance, put to the same witness, was objected to as immaterial, irrelevant and incompetent, but it was not answered. The counsel for the defendant now insists that the general objection to the question that was answered should be regarded as including the more specific objection to the question that was not answered, because the former immediately followed the latter. Even on this basis, however, as the evidence offered was not in its essential nature incompetent the objection was too general. It did not call the attention of the court to the point that further proof was insisted upon as necessary before the question could be properly answered. As we have recently held, when a party " calls upon the court to make a ruling in his favor, he must specify with reasonable clearness the point that he desires considered and decided, in order to predicate error upon an exception to the ruling against him.’’ Sterrett v. The Third National Bank of Buffalo, 122 N. Y., 659, 662; 34 N. Y. State Rep., 241.

A physician called by the plaintiff testified that he saw her on the day she was injured and found that her sixth rib was broken near its junction with the cartilage and just below the left breast; there was a bruise over the seat of the fracture that extended a little above it; that she was confined to her bed for about six weeks, and that about three months after he first saw her she gave birth to a child. He was then asked this question: “You can tell any' trouble that you, as a physician, can connect with the injury ; any trouble that occurred after the birth of the child that you, as a physician, believe was a result of the original injury ?” Objection was made by the defendant to this question, as too remote, irrelevant and incompetent, but the witness was permitted to answer as follows: “ Alter the birth of the child she had an inflammation of the breast, of the left breast, which résulted in an abscess in the breast, the formation of pus matter, which caused her a great deal of pain and suffiering for several weeks; the breast broke once and was lanced twice; the formation of the abscess was in the very region where the bruise was that I saw immediately after the accident, right in the neighborhood of the fractured rib; I attributed the cause of the abscess and the inflammation to that bruise; she suffiered from that for several weeks; she finally recovered from it and I have not seen her since.”

No objection was made to the form of the question, and if the answer contains nothing objectionable, the ruling may be sustained even if the question was improper. The witness confined himself to facts within his knowledge for the greater part of his answer, but in connecting the inflammation and abscess with the bruise, he expressed an opinion upon a point which the defendant insists was not properly the subject of expert evidence.

The question presented, therefore, is whether the physician, after testifying to his personal observation of the bruise and the fracture and the subsequent inflammation and abscess in the same place, could state that in his opinion as an expert, the latter were caused by the former ?

The opinion of a medical expert, based upon facts within his own knowledge and observation as to the nature of the affection from which a party is suffering and whether it was produced by violence or disease, has long been held competent by this court. Matteson v. N. Y. C. R. R. Co., 35 N. Y., 487, 491. The cause or effect of a physical injury can frequently be proved in no other way than by the opinions of those specially qualified by experience and study, based upon facts in evidence and either known to the witness or assumed to be true. Filer v. N. Y. C. R. R. Co., 49 N. Y., 42, 46; Lawson’s Expert Evidence, 107.

The cases are numerous which hold that it is competent to show by the opinions of medical experts that an injury received was the cause of the condition of the person injured, and among them some recently decided by this court. McClain v. Brooklyn City R. R. Co., 116 N. Y., 459, 468; 27 N. Y. State Rep., 549; Turner v. City of Newburgh, 109 N. Y., 301, 308; 15 N. Y. State Rep., 93; Ehrgott v. The Mayor, etc., 96 N.Y., 264.

The criticism that the question did not limit the opinion to the facts proved does not apply to the answer, which first states the fact and then the opinion based thereon.

We find no error in the record that requires a reversal, and the judgment should, therefore, be affirmed.

Judgment affirmed, with costs.

All concur.


author: Brown, J.

text:
    Prosper Monnet et al., Resp’ts, v. Henry Merz, as Survivor, App’lt.

      (Court of Appeals, Second Division,

      Filed June 2, 1891.)

    1. Principal and agent—Accounting.
    Plaintiffs consigned aniline colors from Switzerland to defendants in New York, the latter to pay freight and duties and advance fifty per cent of the invoice price. Plaintiffs claimed an indebtedness July 1, 1883, of $18,958. At that time defendants had in hand 1,590 pounds, then worth $4,995. Held, that plaintiffs were entitled to the last named amount, less the duties and other charges paid. That as the defendants refused to return the goods upon demand, they could not take advantage of the fact that the price of the goods after ards declined.
    2. Same.
    Defendants had no right to make the payment of the advancements on the goods and amount paid for freight and duties a condition of the delivery, as they were indebted in a balance to plaintiffs at the time.
    3. Same—Suit by United States custom authorities for penalties.
    Defendants as a defense pleaded that they had been sued by the United States custom authorities to recover certain alleged penalties incurred by plaintiffs in shipping said goods at an undervaluation, and. had been compelled to pay counsel fees in that suit, and a large sum to compromise it. Held, that as a defense the mere pleading of the United States suit was not available, and that the government could have no claim against the defendant, which, if paid and satisfied, could be made the basis of a recovery or counterclaim against the plaintiffs.
    4. Same.
    As the plaintiffs had not authorized the compromise with the government, they were not liable for the sum paid by defendant.
    Appeal from a judgment of the general term of the superior court of the city of New York, which affirmed a judgment in favor of the plaintiffs, 'entered upon the report of a referee.

      William Man, for app’lt; William H. Arnoux, for resp’ts.

       Modifying and affirming 25 N. Y. State Rep., 809.

   Brown, J.

The plaintiffs were manufacturers of aniline colors or dyes at La Blaine, Switzerland, and the defendants were their consignees and agents at the city of New York for the sale of such dyes.

By the agreement between the parties the defendants were to pay freight and import duties upon the goods, advance to the plaintiffs fifty per cent of the invoice price, and render account of sales semi-monthly, deducting and receiving a commission of eight and one-half per cent on the sales for their services. This agreement was terminated in June, 1883.

The complaint alleges an indebtedness from the defendants upon an account from January 1, 1880, to July 1, 1883, of $18,958.40, and a demand and refusal of payment

That there was a large indebtedness to the plaintiff appeared from an account rendered by the defendants. Some items of account were in dispute on the trial, but are not before us on this appeal.

On the 26th of June, 1883, the defendants had in hand of the consigned goods 1,590 pounds, of the market value of that date of $4,995.05. The referee charged the defendants with this amount, giving them credit for the duties and other charges that had been paid. This is now claimed by the defendants as erroneous.

After the date above mentioned the value of the goods declined. A part were sold by defendants for $1,739 55, and the value of the remainder at the time of the trial was shown to be $947.36, and it .is the defendants' claim that these two last mentioned sums should be substituted for the value of the goods in June, 1883.

We are of the opinion that the referee’s ruling was correct.

While the referee has not found specifically that a demand was made for the goods by the plaintiffs, such fact appears in the evidence, and that the defendants refused to deliver them to the plaintiffs’ agent, unless they were paid a sum upwards of $6,000, which represented the advancements on the goods and the amount paid for freight and duties.

The defendants had no right to make such payment a condition of the delivery, as their own account showed a large indebtedness at that time to the plaintiffs for sales, and as they had in their answer asked for an accounting, they were properly charged with the value of the goods on hand at the termination of the agency. And we may presume a finding in accordance with the evidence in the case, that they refused to deliver the goods upon plaintiffs' demand.

The main defense pleaded by the defendants, and the one mainly relied on on this appeal, was the pendency, undetermined, of an action brought by the United States against the defendants to recover as a penalty the value of a part of the goods consigned to them by the plaintiffs, and which value was in excess of the amount claimed in this action.

This penalty was claimed upon the ground that the goods were "undervalued in the invoices which defendants had used in entering said goods at the custom house.

It appeared in this action that such invoices were prepared and made up by the plaintiffs and with them defendants had nothing to do, and if they were false undervaluations of the goods, for the purpose of evading the revenue laws, such acts were the plaintiffs’ and not the defendants’. /

The defendants alleged in their answer and claimed upon the trial that this action could not be maintained while the government suit was pending, but the referee overruled this claim, to which an exception was taken.

Upon the assumption that defendants would have been entitled to be reimbursed for any sum which they would have been compelled to pay in the government suit as a penalty for false and fraudulent valuations put upon the goods by the plaintiffs such facts might have justified the court in staying the trial of this •action until the determination of the government suit.

The defendants could thus have been enabled to ascertain the amount of their liability and possibly asserted it as a counterclaim to the cause of action alleged in the complaint. Whether such, an application was made or not we are not informed. But as a defense the mere pendency of the government suit was not available. It had no connection with the cause of action set up in the complaint and could not be pleaded either in bar or in abatement.

But passing this question it is clear that there was no liability to the government upon the part of the defendants.

The government suit was based upon sections 2839 and 2864 of the Revised Statutes.

These sections were construed by the supreme court of the United States in U. S. v. Auffmordt, 122 U. S., 197, and it was there held that § 2839 applied only to purchased goods and that there could be no recovery under it for the forfeiture of the value of imported merchandise, the property of the foreign manufacturer, against the person to whom it was consigned for sale on commission, the forfeiture being claimed on the ground that the merchandise was entered at invoice prices lower than the market value at the place of exportation, and that § 2864, so far as it provides for a forfeiture of the value of merchandise, was repealed by § 12 of the act of June 22, 1874.

The complaint in the government suit against defendants sought to recover the value of the goods, and there was no attempt made to forfeit the goods themselves.

Under the decision cited, therefore, there was no liability. But the whole current of authority in the United States courts is to the effect that in suits for penalties and for forfeitures against a consignee an actual intent on his part to defraud must be shownU S. v. Ninety Demijohns of Rum, 8 Fed. Rep., 485; Forty Sacks of Wool, 14 id., 643 ; The Purissima Concepcion, 24 id., 358.

In this case it appears from findings made at defendants’ request that no such intent existed and that defendants had no knowledge of the cost of manufacture of the goods and were ignorant of any undervaluation in said invoices in entering the goods at the custom house.

It is very clear, therefore, we think, that if the government, could establish any liability against the defendants it would be for their own wrongful acts and upon grounds that would not. sustain a claim on their part against plaintiffs, either for reimbursement or contribution.

While it is true, as claimed by the learned counsel for the defendants, that in deciding this question we should not look into the merits of the controversy between them and the government or attempt to decide or forecast what would be the result of that suit, we may examine the legal principles that are applicable to and must govern the determination of that and all kindred case& and determine whether a recovery upon such principles would support a claim for reimbursement by defendants against the plaintiffs.

Applying, therefore, the rules of law that have been settled by the highest court having jurisdiction over cases of violation of the revenue laws, we must reach the conclusion that the general government had no claim against the defendants which, if paid "and satisfied, could be made the basis of a recovery or counterclaim against the plaintiffs. The referee’s conclusion that the government suit was not a defense, nor an obstacle during its pendency to the prosecution of this action, was, therefore, correct.

A further counterclaim was pleaded and asserted by defendants growing out of the settlement and compromise of another and prior government suit for undervaluation of other goods consigned to them by plaintiffs.

■ Such suit appears to have been settled by the payment to the government of the sum of $10,002.19, and defendants paid to the' counsel employed to defend the same the sum of $2,250.

The grounds of that suit were precisely similar to those alleged in the suit already discussed, and what has heretofore been said disposes of the defendants’ claim for reimbursement from plaintiffs, of the sum paid to the government so far as the plaintiffs’ liability therefor rested upon the sole fact of the recovery against the defendants based upon the facts set out in the government complaint.

There was, however, an attempt at the trial to prove authority to the defendants from the plaintiffs to settle with the government and an implied promise to repay defendants, growing out of the delegation of such authority.

The referee found that prior to the settlement of the' suit any authority given to the defendants by the plaintiffs to compromise with the government was revoked, and such finding has ample support in the evidence. The referee found, however, that the defendants were specially authorized to employ counsel in such suit on plaintiffs’ behalf, and that the sum paid to such counsel Was a reasonable and proper sum for their services.

The referee further found as a conclusion of law that the sum of $12,252.19 paid to settle the government suit and for counsel fees therein should be divided between the parties, and in this-conclusion the plaintiffs acquiesced, but the defendants excepted and appealed.

As already stated, the plaintiffs, not having authorized the compromise with the government, were not liable for the sum paid by the defendants.

By what principle the learned referee reached the conclusion • that they were liable for one-half we need not inquire, as plaintiffs have accepted that decision and no question as to its correctness is before us. But as to the sum paid for counsel fee we think that the defendants were entitled to be reimbursed. Counsel were employed in plaintiffs’ behalf by their specific authority, and they had doubtless sufficient interest in the charge made to be represented at the trial and to keep informed as to the progress of the suit

The respondent urges that the referee was wrong in charging them with one-half of the sum paid to the government and that as the defendants have really had a more favorable decision than they were entitled to, the judgment should not be further modified in their favor.

E the plaintiffs had appealed we could doubtless offset one error against the other, if there was an error in the referee’s decision. But we cannot take cognizance of an error to which no-exception was taken, and from which no appeal was made, and we must assume that there was evidence to sustain the referee’s, decision.

We are necessarily confined in our examination of the case to the questions raised by the defendants’ exceptions.

The defendants are entitled, therefore, to the allowance of the whole amount paid to counsel.

No other exception in the case requires consideration.

The judgment should be modified by deducting from the amount of the recovery as stated in the referee’s report the sum of $1,125 with interest from March 9, 1883, and as modified affirmed, without costs. .

All concur.


author: Daly, Ch. J.

text:
    Olin D. Gray, App’lt, v. The Alabama National Bank, Resp’t.

      (New York Common Pleas, General Term.,

      Filed April 20, 1891.)

    1. Contract—Work to be performed to the satisfaction of employer.
    Where a contract provides that the work shall he done to the satisfaction of the employer, and the work 'to be done involves a matter of taste and personal preference, a recovery cannot be had without showing that the employer was satisfied.
    2. Same.
    Plaintiff’s assignor entered into a contract with defendant to print steel plate drafts, the contract providing that the president of defendant was to have “a satisfactory design” for the plate. Designs were submitted which were rejected as defective, the president pointing out the defects The third design was also rejected, the president referring to a return to errors formerly corrected, and stating that enough time had been wasted on the matter; after which the work was given toother parties. Held. that as the president was not shown to be satisfied no recovery could be had; that the fact that he permitted plaintiff's assignor to go on after the rejection of the third proof, and make alterations, does not entitle plaintiff to recover as for a performance or a prevention of performance; nor does the fact that he suggested alterations constitute an estoppel under the circumstances.
    Appeal from judgment of the general term of the city court of New York, affirming judgment in favor of defendant

      Wm. B. Ellison, for app’lt; T. Frank Brownell, for resp’t.

       Affirming 30 N. Y. State Rep., 824.

   Daly, Ch. J.

About June 8, 1887, the defendant, The Alabama National Bank, having its office in Birmingham, Ala., by its president, gave to the plaintiffs assignor, The August Gast Bank Note & Lithographic Company, doing business in St. Louis, Mo., an order to make 50,000 steel plate drafts, to be delivered and paid for in two lots of 25,000 each; the first delivery by November 15, 1887. This order was given upon the solicitation of a traveling salesman of the Lithographic Company, and was in writing, and contained a provision that it was given upon the understanding that the president of the bank was to have “a satisfactory design ” for the plate from which the drafts were to be engraved.

The first design was submitted to the president on July 5,1887, and he requested a new design, which was submitted on July 16th. The second design was returned on July 19th to the Bank Note Company with a letter, in which the president stated that he liked it better than the first, but still it did not strike him as being a handsome check, and he specified five features in it which he said he did not like. The company, on - July 25th, replied in a letter, in which they assumed that the work was done to his liking with the exception of some minor matters of detail, and stated that they would follow his instructions, and show him a complete proof before printing. No answer was made to this letter. On September 8th the company sent a third proof of the design, and, on the 12th, the president wrote them as follows:

“ Yours enclosing check received. In this sample you return to errors corrected in other, e. <?., scroll work around name. I do not wish to appear captious about the thing, but really none of the samples you send me suit me. It is possibly my fault, but all the same unless I can get something that does please me I don’t want to make any change. It looks to me as if we had wasted about as much time on this as it is worth.”

On the 17th September the company replied, admitting the error mentioned and stating they would make a new proof. No acknowledgment of this letter was made by the defendant, but defendant, shortly after the letter of the 12th, entered into contract with other parties for the engraving of the drafts. On September 21st a corrected design was sent to the defendant, which was not acknowledged. A further proof was sent on October 11th. In the latter part of October the salesman called upon the president, who said he had not received the last proofs. New proofs were transmitted to him on November 14th. The salesman testifies to statements of the president as to finally being satisfied with the second proof, with the exception of the scroll work around the title. This was remedied in the last proof submitted. The president, however, denies that he had the interview with the salesman at which this is said to have taken place, and that he at any time expressed satisfaction with the design submitted.

The rights and obligations of the parties are clearly defined by law. In Duplex Safety Boiler Company v. Garden et al., 101 N. Y, 387; 1 N. Y. State Rep., 51, it was held that where the contract is for work that is to be done or services to be rendered to the satisfaction of the employer, compensation does not depend upon the sole arbitrary decision of the latter, but upon whether the contract has been performed according to its terms, for “ that „ which the law will say a contracting party ought in reason to be satisfied with that the law will say he is satisfied with.” But another rule has prevailed where the object of a contract was to gratify taste, serve personal convenience or satisfy individual preference. In either of these cases the person for whom the article is made or the work done may properly determine for himself, if the other party so agrees, whether it shall be accepted. One who makes a suit of clothes, Brown v. Foster, 113 Mass., 136, or undertakes to fill a particular place as agent, Tyler v. Ames, 6 Lans., 280, mould a bust, Zaleski v. Clark, 44 Conn., 218, or paint a portrait, Gibson v. Cranage, 39 Mich., 49; Hoffman v. Gallaher, 6 Daly, 42, may not unreasonably be expected to be bound by the opinion of his employer honestly entertained.”

In Hoffman v. Gallaher, cited with approval above, where a portrait was to be painted which was to be submitted to the judgment of the sitter’s friends to decide if it was a good likeness or not, it was held that such decision was a condition precedent to payment.

In Moore v. Goodwin, 43 Hun, 534, 7 N. Y. State Rep., 154; where the contract was to make a crayon portrait which was to be satisfactory to the person ordering it, it was held that neither the other party nor the jury could decide that he ought to be satisfied with it. The court said: “ We understand that when a person contracts to perform work to the satisfaction of the other party to the contract, and the subject involved is a matter of taste, like the painting of a portrait, the rule is that the person for whom the work is to be done is the sole judge, and if he refuses to accept the work on the ground that it is not satisfactory, his decision cannot be questioned, one of the terms of the contract being that the work shall be satisfactory to him; if it is not so, the contract is not performed and lie is not liable. He did not agree to accept what might be satisfactory to others unless it was satisfactory to him, and the contract does not give to the opposite party, or to a jury, nor to any other person, the right to decide whether he is or ought to be satisfied.”

The contract now under consideration is one for work involving a matter of taste and personal preference in the design to be engraved for the drafts for the bank, and the contractor agreed to furnish a design which should be satisfactory to the president. Under the authorities, no recovery can be had unless it be shown that the president was satisfied with the design. The appellant does not quarrel with the rule, but claims that the president did not honestly entertain the opinion that the design was unsatisfactory, because he allowed the plaintiff to go on and make alterations (as I understand the charge), with the preconceived intention not to approve the design, because he had given the order to other parties; and also contends that the plaintiff should recover because the president had expressed his satisfaction with the proof presented, and had required certain alterations to be made, on complying with which instructions he was bound to accept,, and the defendants became liable to pay.

I think that the rights of the parties were fixed by the transaction as to the third proof submitted on September 8th. That proof was rejected in the letter of September 12th, set out in full above. The rejection held out no encouragement to the Bank Hote Company to continue its efforts. Ho further suggestions for alterations were made. It was a definite rejection of the proof, and if the company chose to go on after that and make further efforts it was at its own risk. The defendant, after such rejections, gave the order to other parties, and it cannot be said that he, in bad faith, permitted plaintiff’s assignor thereafter to go on with the work. It is claimed that the defendant, in a conversation with the salesman, expressed himself as satisfied with one of the proofs, except in one particular, the taking off the scroll, and that having-directed this to be done and thus substituted his judgment for that of the engraver, he cannot be held to say that he was not satisfied, or that the company has failed to perform the contract on its part.

As to the facts the president of the defendant denies that he had any conversation or interview with the salesman after the order was first given, and denies that at any time satisfaction was expressed with any design. The letters of the parties are the best evidence. They show the improbability of the testimony of the salesman, because all the three proofs submitted up to September 8th were rejected for defects clearly pointed out.

Eeferring to them, it no way appears that the president at any time stated that upon the making of any particular alteration the design would be satisfactory. His last letter points out errors occurring before, then corrected and now recurring, and the letter of the company admits this error.

As to the claim that the defendant substituted its judgment for that of the company: It is enough to say that the plaintiff cannot complain that the defendant tried to aid it by suggestions towards furnishing a satisfactory design. The good will of the defendant in so doing cannot be turned as a weapon against it. There was no estoppel. The contractor was not induced to change his position. He could refuse to make the alterations suggested. If the contractor makes them he knows that the result is still subject to-approval. That this was the understanding in the case before us is plain, for the company submitted a fourth design, without cavil.

The fact that the defendant permitted the plaintiff to go on, after rejecting the third proof, and make alterations does not entitle plaintiff to recover as for a performance or a prevention of performance. The defendant did not promise to be satisfied with any alterations made after that time, and there is no evidence that the plaintiff has expressed any satisfaction with any proof submitted after the third one rejected on the 12th of September.

The judgment should be affirmed, with costs.

Bischoff and Pryor, JJ., concur.


text:
    Catharine Markey, Resp’t, v. Patrick Markey, Impl’d, App’lt.

      (New York Common Pleas, General Term,

      Filed April 20, 1891.)

    1. Trust—What will not constitute a declaration of.
    While plaintiff was living with defendant, although it is denied that they were married, she requested the secretary of the savings bank where her moneys were deposited to put defendant’s name on her book. He asked if she wanted it in trust or for either to draw, and explained that if it was in trust she would have control of it as long ai she lived and at her death it would go to defendant. On her replying that that was what she wanted, he wrote the words ‘ ‘ in trust for Patrick Markey ” after her name. Meld,, that there was no intention on plaintiff’s part to create a trust, but only to make a species of testamentary disposition of the fund, and hence no trust was created by this transaction; and that as defendant understood that no transfer of the fund to him was intended, the delivery of the pass book to him did not constitute an assignment of the deposit to him.
    2. Stay—Equity.
    The court has power in an equity action to make provision for the time when the judgment is to be carried into effect, and may stay its execution for a specified period to enable a defendant to establish in legal proceedings a claim alleged to be due him from the plaintiff for moneys received from him.
    Cross appeals from judgment in favor of plaintiff, entered upon a trial by the court without a jury.

      Robert A. B. Dayton, for resp’t; John A. Straley, for app’lt.
   Daly, Ch. J.

The plaintiff, whose name was Catharine Con-Ion, had been a domestic servant up to July, 1883, and from her savings had deposited with the Franklin Savings Bank various sums of money. At the last named date she went to live with Patrick Markey, and she testified that she was married to him at that time. The trial judge appears to have thought that the defendant Markey’s denial of the marriage counterbalanced the plaintiff’s assertion, for he found at defendant’s request that the plaintiff is not named Catharine Markey and that such name is assumed by her without right or authority, and that her true and proper name is Catharine Conlon. During her residence with Markey, however, they were known as man and wife and she was called by his name with his knowledge.

Assuming, therefore, as defendant Markey would have us believe, that the cohabitation between himself and the plaintiff was not sanctioned by marriage, this illicit connection continued for four years up to September, 1887, when they went out for a walk, and after a quarrel parted. These relations between the parties have some bearing on the question in dispute in this case, which relates to the money in bank deposited by the plaintiff, and to an alleged transfer of it by her to him, or in trust for him, on March 17th, 1886, while they were living together.

On that date the plaintiff went to the bank, and .after making deposits amounting to *$120, requested the secretary whom she saw “to put Patrick Markey’s name upon the book.” What she meant by this is not shown, nor whether she intended to give Patrick Markey any interest in her money, except that the idea which she conveyed to the secretary was, as he swears, that she wanted to give Markey an equal share with herself. Whether this was so or not, her views assumed a distinct shape from the subsequent suggestions of the secretary. He asked her “if she wanted it in trust, or either to draw,” and he proceeded to explain to her what he understood to be the difference between putting it in trust and having it in joint account, either party to draw.. He told her that if she put it in trust she would have control of it as long as she lived, and in the event of her death it would go to Markey. She then stated that that was what she wanted, and the secretary wrote in the words “ in trust for Patrick Markey ” after her name, on her pass-book.

It is claimed by the defendants that the plaintiff by this act declared and established a trust in favor of Patrick Markey as beneficiary of the whole sum which she had at that time on deposit at the bank, and which, with interest at the time of the trial of this action, amounted to $1,128.51. This action. is brought by the plaintiff to have it adjudged that Patrick Markey has no interest in the money and that she is the owner thereof, and that the bank pay the same to her, and that defendant Markey deliver up to her her bank pass-book which remained with him when she left him in September, 1887, and which he refuses to deliver up on her demand, claiming that the plaintiff sold, assigned and transferred to him all of said account, and delivered the book as the voucher and evidence thereof. It appears from Markey’s request to find that his claim of a sale and transfer to him is based upon the transaction at the bank detailed above. He claims that she then and there transferred her account from herself individually to herself as trustee for him, and that she thereby intended to create and consummate a trust in his favor.

To create a trust it is necessary that there should be an intention on the part of the donor to part with all interest in the subject of the trust, and to vest the title in another by some act sufficient to pass the title. The question of intent controls. In Weber v. Weber, 58 How., 256, where a depositor in a savings bank opened several accounts in his name in trust for his children, but did so only in order to receive the highest rate of interest and without any intention of parting with the ownership of the money, or of making a gift or transfer of it to his children, it was held by the supreme court (Van Vorst, J.) that no trust was established. The court said that the question whether a voluntar y trust is created or not is a question of fact in the case, and the court in determining the fact will give effect to the purposes or objects which the settlor had in view in making the disposition. Quoting Lord Cranworth (in Jones v. Lock, L. R., 1 Oh. App., 25), “ The case turns upon the short question whether the father intended to make a declaration that he held the property in trust for the childit was held that the intent of the- depositor at the time, gathered from his words and acts together with the circumstances, must needs be considered to determine the true character of the transaction.

The facts in that case closely resemble those before us; the depositor acting upon information from the bank clerk that the money would remain his no matter in whose name it was deposited. He said he wished to control it as long as he lived, but had no objection to letting his children have it after his death. It was held that if a literal construction of the transaction as presented by the bank books established an irrevocable trust, the same is the result of a mistake on the part of the depositor to which, in equity, he should not be held.

We followed this ruling in another action growing out of the same transaction, Weber v. Weber, 9 Daly, 211, holding that there being no intention to part with the ownership of the money, nor to make a gift or transfer of it, no trust was made or created. Both of these cases were decided after Martin v. Funk, 75 N. Y., 184, and upon the authority of that case with respect to the controlling question of the intent of the donor. In that case the intent was inferred from the act. There was no evidence of any other intent. It was said that the fact that the depositor may have believed that the deposits might be withdrawn during her life and the money converted to her own use would not change the legal effect of her act; but the act and intent to do the act had been established. It was not so in the case of Weber, where a contrary intent was conclusively proved.

In the later case of Willis v. Smyth, 91 N. Y, 801, the question of intent to create a trust is the controlling consideration, and such intent is gathered from the language employed and all the circumstances of the case. And so in Maibe v. Bailey, 95 N. Y,, 206, the case of Martin v. Funk was interpreted as deciding that a deposit in form in trust for another constituted a trust, and, unexplained, operated to transfer the beneficial interest in the deposit to the beneficiary named; and it was said by the court, per Andrews, J., “If it was now necessary to decide that point I should incline to the opinion that the character of such a transaction as creating a trust is not conclusively established by the mere fact of the deposit so as to preclude evidence of contemporaneous facts and circumstances constituting res gestee to show that the real motive of the depositor was not to create a trust, but to accomplish some independent and different purpose inconsistent with an intention to divest himself of the beneficial ownership of the fund.”

In the case before us it needs no argument to demonstrate that, there was no intention whatever on the part of Catharine Conlon to create a trust Her original intention when she went to the bank was clearly not to make a trust, because “ putting Markey’s, name on the book,” which was all that she requested, would not have that effect; and we are left in no doubt as to what purpose she ultimately formed and intended to carry out, and supposed that she had accomplished. The proof of this does not lie in her own assertion of intention, but in the evidence of it given by the secretary of the bank, who was examined as a witness for defendants, ánd whose version of the transaction I have given in substance, above. He suggested a trust and undertook to explain what it would accomplish, and she understanding from this explanation that she was to retain control of her money during her life, and that after her death it would go to Markey, stated that that was what she wanted done. She, therefore, intended to create no trust. The act of the secretary of the bank in writing the words “ in trust for Patrick Markey ” in her book, after her name, created no trust.

She wished to make one provision, and he mistakenly supposing' that he was aiding her to accomplish it, proceeded without authority to make a totally different provision. What she meant to do was to retain her money until her death, and then she desired it should go to Markey. There was no trust created for any purpose during her life, and there was to be no trust after her death, for then Markey was to have the whole fund. ' There was no transfer to Markey, for all the disposition made for him was apparently of a testamentary nature which could not be effectuated in that way and which, if made, could always be revoked.

That she did intend a species of testamentary disposition of the funds in Markey’s favor is proved by the testimony of Markey as to what occurred between her and him on the evening of the day of the transaction at the bank. “ She told me that evening that whatever money she had in the bank she would leave it to me. She had one sister, and the sister gave her an awful going over and she said she would not leave her a cent if she were dying in a minute. She said she would leave it to me.” This evidence shows conclusively what the plaintiff understood had been effected by the transaction at the bank, that she had made a disposition of her money to take effect at her death, and not during her lifetime. It also shows that Markey clearly understood he was to have no interest in the money during her life, and that there was no transfer of the fund at that time to him, and that the delivery of the book to him was not intended as an evidence of such transfer.

There being clearly no assignment of the deposit to Markey, there is no necessity for considering his claim of consideration for the alleged transfer. He claims that the $120 deposited. by her on March 17,1886, was his money. She explains it to have been her money, the repayment of a loan to a third party to make which she drew out $300 in January, 1883. He claims that when they parted in September, 1887, she took with her a large sum entrusted to her for safe keeping by him. She denies the receipt -and retention of any money belonging to him. But the question of consideration is of no moment when there is no evidence of transfer. So far from desiring to turn over her deposit to Markey, she would not even give him an equal right with herself to draw it or any part of it.

Says the secretary of the bank: “ When I explained to her the difference between putting it in trust and having it in joint account either party could draw, then she wanted it in trust. I told her she would have control of it as long as she lived, and in "the event of her death it would go to Markey. That was what she wanted.” Ho more positive evidence of a determination that Markey was to get none of it while she lived could scarcely be found in human testimony.

There remains to be considered but the appeal of the plaintiff from so much of the judgment as in effect stays the execution of the judgment in her favor for a specified period in order to afford the defendant an opportunity of establishing in legal proceedings his claim against her for moneys which he alleges she had from him. The court has power in an equity action to make provision for the time when the judgment is to be carried into effect. Such provisions are familiar in the numerous actions for injunction against the elevated railroads. Where certain circumstances of the case are thought to require it and there is no abuse of discretion in making the provision, the judgment in that respect will not be disturbed.

Judgment affirmed, without costs or disbursements of appeal to either party.

Allen and Pryor, JJ., concur.


text:
    Patrick Cassidy et al., Resp’ts, v. Charles F. Fontham, App’lt.

      (New York Common Pleas, General Term,

      Filed April 20, 1891.)

    1. Contract—Evidence.
    Where a contract simply provides that the contractor shall furnish all materials and labor for plumbing and gas fitting, evidence of experts engaged in that trade or business as to whether the furnishing and setting up of ranges was included in it is admissible.
    2. Same.
    In an action on such contract evidence that it was distinctly agreed that the contractor was not to _ furnish the ranges is admissible; it does not tend to vary, but to explain the ambiguous or indefinite portion of the contract.
    3. Same—Extra work.
    Evidence that certain alterations directed by defendant made necessary certain additional work and materials, and that an express order for each item of such additional work was given, is sufficient to sustain a finding in favor of a claim for extra work, although the contractor testified that without these extras the house would not be well plumbed.

      4. Mechanic’s lien—Proof of price and value of work.
    In an action to foreclose a mechanic’s lien, proof of the contract and the price named in it and the value of the extra work is sufficient proof of the price and value of the work within the meaning of the statute.
    Appeal from judgment sustaining and foreclosing a mechanic’s lien, filed by one Charles Missall against two houses and lots on Ninety-fifth street, in the city of New York, and assigned to the plaintiffs.

      Thomas Stevenson (Edmond R. Terry, of counsel), for app’lt; Thomas C. Ennever, for resp’ts.
   Daly, Ch. J.

This is an appeal by the defendant Fontham from a judgment in favor of the plaintiffs in an action to foreclose a "mechanics’ lien for $983, the claim being for $585, balance of contract, and $398 for extra work. The referee allowed the whole balance on the contract and $333 for the extra work. The contract was as follows:

“New York, May 28, 1889.
“Agreement made between Charles Fontham, owner, and Charles Missall, plumber. The secondpart hereby agrees to furnish all materials and labor for plumbing and gas fitting in two houses Nos. W. Fifty-ninth street, except sewer in cellar, tank on roof, wash tubs, gas fixtures, for the sum, of twenty-seven hundred dollars. Payments:
When gas fitting is done............................. $250
All rough work in.................................. 500
Rough work is passed by inspector..................... 250
Fixtures and lead pipe in position...................... 500
During the progress of work.......................... 500
Finished and passed by the board of health.............. 700
“ Charles Missall, “Charles F. Fontham,”

Missall filed a lien, and afterwards assigned the claim in lien to the plaintiffs.

The chief dispute in this action was whether the plumber, under his contract to furnish “all materials and labor for plumbing,” was bound to furnish twenty ranges required in the said houses, and which were of the value of $400. He was not required to do so unless ranges were material for plumbing, or the setting of ranges was labor for plumbing. Whether they were or not depended upon the testimony of persons engaged in the plumbing trade or in the business of plumbing; no other person could say from reading the contract whether the furnishing or setting up of ranges were included in it. The referee, therefore, properly allowed evidence of experts upon this point, and there was practically no disagreement among them, for they all testified, in effect, that ranges were not plumbing materials.

The defendant claimed, however, that they were included in the contract of Missall because they were inserted in the specifications for plumbing and drainage approved by the board of health and shown to Missall by defendant before he made his contract. ' No reference to the specifications appears in the contract, and Missall «wore that if was distinctly agreed that he was not to furnish the ranges. This testimony was objected to by the defendant on the ground that it tended to vary the plaintiffs’ written contract The objection was not well taken. The contract, by its terms, was left indefinite, uncertain or ambiguous on this point, and was explained and not varied by the testimony.

The rule that excludes oral testimony to contradict or vary the terms of a written instrument is directed against evidence that would add other words to it, or substitute other words in its stead, but does not apply where there is any uncertainty as to the object or extent of the engagement of the parties, or where the meaning of the terms employed is technical, in which case the testimony of experts is admissible to explain it. Greenleaf on Evidence, §§275-280. Yerbal testimony must be resorted to, to ascertain the nature of the subject to which the instrument refers. Id., 286. In the term “ subject ” in this connection is included everything to which the instrument relates. Ph. & Am. on Ev., 732, note. 'Thus where certain premises were leased, including a yard described by metes and bounds, and the question was whether a cellar under the yard was or was not included in the lease, verbal evidence was held admissible to show that at the time of the lease the cellar was in the occupancy of another tenant, and therefore it could not have been intended that it should pass by the lease. So where a house or a mill or a factory is conveyed eo nomine and the question is as to what was part and parcel thereof and so passed by the deed, parol evidence on this point is admitted. Conversations between the parties at the time of making a contract are competent evidence as a part of the res geske to show the sense which they attached to a particular term used in the contract, but verbal agreements preceding the contract would be inadmissible. Dent v. K A. S. Co. 49 N. Y., 390.

The defendant contradicted Missall on this point, and said he told him he would have to furnish the ranges, but the referee found that Fontham told Missall, or agreed during the negotiations for the contract, that he would not be required to furnish the ranges, and there does not appear to be any reason for disturbing his finding.

As to the extra work, it appears that after the contract was made the defendant made certain alterations in the location of the bath tubs and wash basins in the said houses, so that it became necessary to put in an additional line of water pipe and an additional line of vent pipe in each house, which Missall furnished, and the net value of the work was $160. Missall also put in and fitted up, at defendant’s request, an extra wash tray in each apartment, twenty in all, at a cost of a hundred dollars; also, the large sinks and sink-backs at a cost of thirty-two dollars. Changes of plan and specifications with respect to the tank and pump made by the defendant required a change of connections, which he requested Missall to make, and which the latter did make, at a cost of forty dollars. This made up the sum of $333 allowed for extra work by the referee.

An express order for each item of this extra work was proved by Missali’s own oath. The defendant claims that the findings are unsupported by evidence, or that the testimony is unjustly distorted. This does hot appear to be the case. The proof is clear and straightforward. It is urged, however, that Missall testified that these things were necessary to the completion of his contract, but this is rather a distortion of what he did swear to. What he stated on cross-examination was, that without these different extras the houses would not have been well plumbed, a different thing, and doubtless the reason why the extras were ordered by defendant.

The defendant claims that there was error in plaintiffs being allowed to give evidence as to .changes from the specifications made by defendant, on the ground that when this evidence was first elicited the specifications had not been put in evidence. This was not the ground of the objection made at the trial; if it had been, it could, easily have been obviated. The position then taken was, apparently, that no reference could be had to any other paper* than the-contract.. Such an objection was not good, because the specifications were material to show what the contract called f or and what was-extra or additional work.

It is claimed that there was error in denying the motion to dismiss the complaint, because the plaintiffs had not shown when they rested that the work had been passed by the board of health. No such ground of motion appears in the case, and no point of that kind was taken at the trial"; probably for the reason that no one questioned the fact, the defendant himself testifying “Iknow that the board of health do not permit people to occupy a house until the house has been inspected and passed, and my house has been occupied by tenants, and I did not let anybody in there in any part unless the plumbing had been passed.”

The plaintiffs before resting had proved the performance of their whole contract, together with the modifications and additions authorized by the defendant, which formed the basis of the claim for extra work. They had, therefore, proved themselves entitled to the whole contract price, and to specific extra sums in amount far greater than the referee ultimately allowed them. There was no harm, therefore, in denying the motion to dismiss the complaint.

Exception is taken to the plaintiffs being allowed, on the examination of the defendant, to ask him what was said about the ranges at the date of the signing of the contract, and also to the plaintiff being allowed to give his testimony in contradiction. The point involved in these exceptions has been already disposed of. The inquiry was proper to ascertain the intention of the parties and explain their contract There is no force in the objection that having first examined the defendant upon this subject the plaintiff is bound by his answers.

The point is made that no proof was given of the price or value of the work and labor for which the plaintiffs claim, as required by the mechanics’ lien act. The plaintiffs had proved the price or value of their work when they proved the contract and the price named in it and the value of the extra work. The claim that the plaintiffs by the terms of their contract were to do all the plumbing work in these houses for the contract price because their contract was to furnish all materials and labor for plumbing, and therefore, they cannot recover for any extra work or expenses caused by defendant’s changes in the plans or specifications, is wholly untenable.

The exceptions to the admission of testimony by competent witnesses as to whether ranges were plumbing material or not has been already disposed of. A witness was asked whether there was a custom of the plumbing trade when specifications included ranges for the plumber to furnish and put up the ranges. He was allowed to answer, and stated that the custom was that the parties were generally governed by the specifications, but in making the contract it should be stated that the ranges are to be furnished, and if not so stated, in the witness’ opinion, the plumber was not obliged to furnish them. The evidence of custom was not proper, but the testimony of the witness amounted to more than his personal opinion on the subject, and would undoubtedly have been stricken out on motion, but the testimony was allowed to stand, and in answer to the next question the witness testified that ranges were never plumbers’ materials. This latter testimony was material, and was evidently all that was considered by the referee. Ho finding of custom was made, and the testimony of custom had evidently no effect upon his decision, which was placed solely on the grounds: First, that ranges were not plumbing materials; and, second, that the defendant excepted the ranges from the items enumerated in the specifications.

Ho other exceptions require comment. The exceptions to the findings are untenable. There is ample evidence to support them, and the conclusions of law follow logically. The refusals to find do not require consideration, as they are refusals to find facts and conclusions wholly at variance with other findings of the referee which the evidence justified.

There is an item of extra work which the referee allowed at the sum of twelve dollars, namely, sink-backs, which it is claimed is unsupported by the evidence. As there is no statement that the case contains all the evidence, we cannot consider that objection.

The judgment should be affirmed, with costs.

Bischoff and Pryor, JJ., concur.


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    Catherine Wynn, Resp’t, v. The Central Park, North & East River R. R. Co., App’lt.

      (New York Common Pleas, General Term,

      Filed April 20, 1891.)

    1. Negligence—Motion to strike out evidence.
    In an action for injuries to a married woman sustained in a collision between street cars, a motion to strike out evidence of a miscarriage occurring subsequent thereto, on the ground that it was special damage not pleaded, comes too late after plaintiff has testified fully in relation thereto without objection and has been cross-examined about it and her physician has answered questions concerning it, and it is not error to deny such motion.

      2. Same—Evidence.
    A witness for plaintiff testified that she sat next to plaintiff and was knocked off the seat by the collision and somebody fell on her. Held, that it was not error to exclude a question on cross-examination whether she was not bruised on the side next to plaintiff, in the absence of proof that the plaintiff was the person who fell on her.
    3. Same.
    Plaintiff’s evidence showed that she sustained a rupture of the umbilicus. Held, that it was not error to refuse to permit an expert called by defendant to be asked whether hernia of the umbilicus is as serious as hernia of the scrotum, the evidence having been confined all through the case to umbilical rupture and no other.
    4. Same—Damages.
    Plaintiff was forty years old and had five or six children and was the wife of a man who keeps a liquor store. She sustained a rupture of the umbilicus, said to be permanent, and suffered & miscarriage. Held, that a verdict of $5,000 was not excessive.
    5. Same—Street railroads.
    There is no difference in the duty owing by the carrier of passengers by horse railroads and by steam. Passenger carriers bind themselves to carry safely those whom they take into their coaches, as far as human care and foresight will go, that is, to the utmost care and diligence of very cautious persons.
    6. Same.
    The accident was caused by the breaking of a link in the brake chain. Defendant’s inspector testified that he inspected it that morning, but his evidence as to the manner of inspection was contradictory. Held, that it was for the jury to say what inspection he did make and whether it was a sufficient compliance with the requirement of vigilance which the law imposes on the company.
    T Same—Charge.
    It is not error to refuse to charge in such a case that it the appliances were the best that could be provided and were the same as those used on •other horse cars and that an accident of this kind never happened before, negligence could not be imputed to defendant by reason of the accident; as it excluded the duty of inspection.
    Appeal from judgment in favor of plaintiff, entered upon a verdict, and from order denying motion for a new trial on the judge’s minutes.

      Vanderpoel, Cuming & Goodwin (Henry Thompson, of counsel), for app’lt; Charles H. Woodbury, for resp’t.
   Daly, Ch. J.

This is an appeal from a judgment entered upon a verdict for $5,000 in favor of plaintiff, who claims to have been injured by the negligence of the defendant company while a passenger in one of its horse cars on Fifty-ninth street going east. The chain by which the brake was applied to the wheels of the car broke near Seventh avenue, and the car ran by its own weight on the down grade to Fifth avenue, where it came in collision with another car of the same line which was standing at that point. The force of the collision was very great, as the car on which plaintiff sat was crowded with passengers, some of them standing up. One of the horses was killed, the glass of the car was broken, the front dashboard was smashed, passengers were thrown down, and the plaintiff was so injured as to be insensible and to be unable to be moved for several days, was confined to her bed, sustained a rupture of the umbilicus and had a miscarriage.

It is claimed that the trial court erred in allowing evidence of the miscarriage, that being special damage and not pleaded; but it appears that this injury was fully proved by the plaintiff without objection, and she had been cross-examined about it, and it was only after her physician had answered some questions concerning "it, one put by defendant’s counse' that the formal objection was taken, and a motion was made to rule out the testimony and to take away from the jury all consideration of the other testimony on the same subject. The motion was too late, and it was not error to deny it. In re Morgan, 104 N. Y., 74; 5 N. Y. State Rep., 541; Pontius v. The People, 82 N. Y., 339. The defendant did not claim to be surprised and had all the advantage of the testimony of the plaintiff’s family physician as to the fact of a previous miscarriage, which the plaintiff had denied. In fact, it appeared from the first question on her cross-examination that defendant was apprised of the claim of miscarriage and was prepared for it.

On the question of damages, it is also claimed there was error in the exclusion of testimony on the cross-examination of the witness Bridget McEwen. Mrs. McEwen was a passenger in the car, sitting next to the plaintiff, and was knocked off the seat by the collision, and somebody fell on her. She could not say who. She was asked whether she was not bruised on the side next to the plaintiff, and exception is taken to the refusal to allow that question. The appellant claims that it is the natural inference that the injuries the two women received were but skin contusions caused by striking one against the other, and that" that evidence was pertinent as to the nature and extent of the plaintiff’s injuries. The evidence did not justify any such inference. Mrs. Mc-Ewen's injuries were received from some person falling upon her, but after she was knocked off the seat, and there is no proof that the plaintiff was that person.

Error is also alleged in the refusal of the court to permit the defendant’s witness, Dr. Grinnell, to be asked whether hernia of the umbilicus is as serious as hernia of the scrotum. The evidence as to hernia had been confined all through the case to umbilical rupture, and no other. The excuse offered by the defendant for asking this question is, that the plaintiff’s physician, Dr. Thomas, “ craftily and purposely blends and confuses these radically different disorders in his testimony," where he says “in all business affairs where a person has hernia it is a disability ; jurors are frequently excused from the suffering from one; no fireman, no policeman are received in the service, military. It is a disability, and so recognized.” The question put to Dr. Grinnell, defendant claims, would secure the jury from the error of supposing that any kind of hernia produces disability. It appears, however, that this evidence was not given until after the questions put to Dr. Grinnell had been excluded, so that they could not at that stage of the case have been intended to secure the jury from any confusion arising out of Dr. Thomas’ craftiness. Besides, there is . no reason to suppose from Dr. Thomas’ testimony that he was then speaking of rupture of the scrotum.

Finally, on the question of damages, the verdict is claimed to be grossly excessive “ considering the plaintiff’s age and condition of life, the nature of the shock, the slight speed of the car, the plaintiff’s sitting position at the moment of the impact.” The plaintiff is about forty years of age and has had five or six children. She is the wife of a man who keeps a liquor store at Eighty-fourth street and Park avenue. Her injury is said to be permanent. Dr. Thomas says that the rupture has enlarged in spite of all efforts to prevent it; that it is likely to continue as long as she lives. She has worn a truss ever since the hernia appeared. This permanent injury, with the miscarriage and the immediate effects of the accident, justify substantial damages, and if the jury say that $5,000 was not too much, we cannot say that they erred.

The principal question in the case is as to the alleged negligence of the defendant. The appellant claims that the mere fact that the brake became unmanageable is not enough to convict the defendant of negligence; that it was shown to be in good order up to the time it gave way, and had been daily inspected; also, that there was nothing in the management of the car by the driver which would sustain a finding of negligence, and that it was error to submit the question of negligence in the appliances used to operate the brake, and in the management of the car by the driver, to the jury.

There is no difference in the duty owing by the carriers of passengers by horse railroads and by steam. Passenger carriers bind themselves to carry safely those whom they take into their coaches, as far as human care and foresight will go, that is, to the utmost care and diligence of very cautious persons. Maverick v. Eighth Ave. R. R. Co., 36 N. Y., 378, citing Bowen v. The N. Y. C. R. R. Co., 18 id., 408, and Deyo v. The N. Y. C. R. R. Co., 34 id., 9.

" The carrier is bound to provide a safe and secure carriage for the transportation of passengers, and nothing can exempt him from this responsibility but the existence of some latent defect which no reasonable degree of human skill and foresight could guard against, and this obligation belongs to every species of appliance belonging to the carrier and used by him in the business in which he is engaged, and consequently whenever it appears that the accident occurred through some defect in the vehicle, or other apparatus used by the carrier, a strong presumption of negligence arises, founded upon the improbability of the existence of any defect which extreme vigilance, aided by science and skill, could not have detected. Where an injury is received from a derangement of anything employed by the carrier, the presumption necessarily arises that there exists somewhere an imperfection in the machinery employed, or negligence in its operation. It is for the defendant, then, to show the facts relieving him from responsibility in the particular case; it is not for the plaintiff to ascertain the particular defect” Curtis v. R. & R. R. Co., 18 N. Y, 534.

“ Where a situation is shown which could not have been produced except by the operation of abnormal causes, the onus then rests upon the defendant to prove that the injury was caused without his fault” Seybolt v. The N. Y., L. E. & W. R. R. Co., 95 N. Y., 562. The question for the jury is whether the presumption of negligence has been sufficiently negatived by the evidence introduced by the defendant. The burden of explaining the cause of the accident rests upon the defendant Id.

“ Where the presumption of negligence has been established against a carrier of passengers in an action for damages resulting from an accident, it can only be rebutted by proving that the accident resulted from circumstances against which human prudence and foresight could not guard, that it could not be averted by such precautions as would be dictated by the utmost care and prudence of a very cautious person before the accident, and without knowledge that it was about to occur.” Bowen v, N. Y. C. R. R. Co., 18 N. Y., 408.

In this case the brake failed to work because one of the links of the chain operating it broke on the trip on which the accident occurred. The inspector of the running gear of the defendant’s road testified that he had examined the chain that morning and found it all right to the eye and touch, but in detailing the matter of his inspection he told a different story at different times. Upon this trial he said that he got underneath the car and looked at every link. Upon a former trial he testified that he did not examine every link, and only tried the brake in the ordinary manner to see if it worked, not to see if everything was perfect or to ascertain the strength of the chain, but only to see if it worked. It was for the jury to say what inspection he did make, and whether what he did was a sufficient compliance with the requirement of vigilance which the law imposes upon the company. The broken link was not produced to show that it had a latent defect. No cause was shown for the breaking of the link, and the burden was on the defendant to prove that the defect in the chain, if any existed, could not be discovered by the use of the care and skill which the law required to be exercised.

There is an exception by the defendant to the submission to the jury of the question whether the device for applying the brake was that best adapted for the purpose, it being claimed that there was no evidence in the case that any other device was known or used. It appears, however, that after the court had submitted that question to the jury, the defendant requested certain specific instructions to be given to them on the point, which were given. Having asked for the submission of certain propositions upon that branch of the case to the jury, and its request having been granted, its subsequent exception to the submission of the question is not available. The court charged at its request, “ where an appliance, machine or structure not obviously dangerous has been in daily use and has uniformly proved adequate, safe and convenient, its use may be continued without the imputation of culpable imprudence or carelessnessalso, “ that experience in in horse railroad proved the safety of the device for applying brakes and the efficiency of the method of constructing and operating them, the defendant was justified in relying upon the safety of the device.”

These instructions gave the defendant all it contended for. It requested the court to charge, in addition, that “ if the jury believe that the brake appliances used on this car were the best the road could provide for the purpose, that they were the same appliances used on other horse car roads, and that an accident of this kind had never happened before, they cannot impute negligence to the defendant by reason of the use of this appliance," but before the court could pass upon this request the defendant’s counsel changed the latter part of it, and asked it to be charged in these words: They cannot impute negligence to the defendant by reason of this accident,” which the court refused to charge because it excluded the duty of inspection. This was proper, and the exception to such refusal is not good.

As to the submission of the question of the alleged negligence of the driver of the car, the evidence of the defendant’s inspector was that a proper application of the brake would not break the chain; also, that if the brake was properly applied and the chain gave way it was defective. It was for the jury to say whether the brake was properly handled by the driver. It appears that he was going down the grade from Seventh to Sixth avenue when a beer wagon crossed in front of him on the track, compelling him to put on the brake; that the wagon then got out of his way and he let the brake go, but the wagon pulled in before him again and he was compelled again to apply the brake; that the wagon again got out of his way but immediately pulled in before him a third time, and for a third time he had to apply the brake; it was then that the chain broke. He swears he is not conscious of using any extraordinary force. The jury might have regarded the natural effect upon him of this perverse and irritating conduct of the driver of the beer wagon, in estimating both the amount of vigor he displayed in applying the brake and the probability of his recollecting clearly now much force he employed.

The case as left by the defendant showed that if the brake were properly applied the chain would hold; that if it did not hold when properly applied it was defective; but it was not shown what caused the chain to break or that the breaking could not have been prevented. The presumption of negligence arose from the nature of the accident. That presumption remained in the case, and it was for the jury to consider the testimony given by the defendant and to say whether the presumption of negligence was rebutted. There was ground for their finding that it was not, and we ought not to disturb the verdict

The judgment and order -appealed from should be affirmed, with costs.

Bischoff and Pryor, JJ., concur.