author: Bischoff, J.

text:
    Ernest Schmieder, Resp’t, v. Herbert M. Kingsley et al., App’lts. Franz Wagner, Resp’t, v. Herbert M. Kingsley et al., App’lts.

      (New York Common Pleas, General Term,

      Filed December 4, 1893.)

      1. Contract.
    In the absence of fraud, accident, surprise or mistake, an agreement, even in equity, cannot be avoided merely because the party seeking to avoid it did not read the agreement before execution, and believed its contents to be different from what he subsequently discovered them to be.
    3. Same—Penalty.
    The language used in a written agreement is immaterial if the intention to provide a penalty is apparent.
    3. Same—Employment.
    A written agreement between defendants, hotel keepers, and plaintiff, a waiter entering their employ, provided that if plaintiff should abandon his employment except upon three days’ notice he should forfeit all moneys then due and owing him from defendants, by way of liquidated damages. Held, that the agreement provided for a penalty, and not for liquidated damages.
    Appeal from a judgment for plaintiff recovered in the district <30urt in the city of Hew York for the fourth judicial district.
    Action for wages.

      August P. Wagner, for resp’t; George M. Pinney, Jr., for appl’ts.
   Bischoff, J.

Defendants are the proprietors of the “ Holland House,” a hotel in the city of Hew York, and plaintiff entered their employment as a waiter under an agreement in writing which in substance provided that the employment should be by the day, and the compensation at the rate of twenty-five dollars a month; that defendants reserved the right to discharge plaintiff at any time, in which event all future compensation was to cease; but that plaintiff should not be permitted to abandon the employment except upon three days’ previous notice in writing of his intention so to do; and that if plaintiff should abandon his employment without having given the notice he should forfeit, by way of liquidated damages, all moneys then due and owing to him from defendants. Plaintiff continued in defendants’ employment for fifteen days, and thereafter instituted this action to recover the wages earned during that period. On the trial, he maintained that he was discharged, while defendants asserted that he left their employment voluntarily and without having given the required three days’ notice.

There was considerable testimony which aimed to show that plaintiff did, and did not, read the agreement before its execution by him. This testimony, however, is wholly immaterial. The court below was without jurisdiction to rescindor reform the agreement, Ferree v. Ellsworth et al., 47 St. Rep., 119, but even in equity, in the absence of fraud, accident, surprise or mistake, an agreement cannot be avoided merely because the party seeking to avoid it did not read the agreement before execution and believed its contents to be different from what he subsequently discovered it to be. See cases collated in note to Spitze v. Balt. & Ohio R. R. Co., 32 Am. St., 378, 385. The agreement therefore must constitute the measure of plaintiff’s rights unless it, or some part of it, is inoperative for other reasons.

We cannot, however, regard the provisions of the agreement, that for plaintiff’s departure from defendants’employment without having given three days’ previous notice in writing of his intention so to do he should forfeit all moneys then owing to him, as anything but a penalty. The language used is immaterial if the intention to provide a penalty is apparent. Whether or not, therefore, the sum stipulated to be paid or forfeited upon the breach of a contract is to be regarded as a penalty or damages is a question mainly of the intention of the contracting parties which must be ascertained from the contract itself in the absence of ambiguity. Kemp v Knickerbocker Ice Co., 69 N. Y., 45; Lennon v. Smith, 14 Daly, 520, 523; 16 St. Rep., 668; Sutherland on Damages, vol. 1, § 283.

In the present instance the agreement did not name a fixed sum which, within the range of reasonable probability, would represent the pecuniary estimate of the loss which defendants might sustain from plaintiff’s breach of contract. It provided that plaintiff should suffer the loss of all moneys due him from defendants at the time of his departure from their employment, without reference to the extent of the injury, immediate or remote, which defendants might suffer from plaintiff’s conduct. ' It might be, therefore, that the amount owing to plaintiff from defendants is outrageously in excess of any loss which the latter have sustained, or in all reasonable probability could sustain, and still, if the letter of the agreement was permitted to be controlling, plaintiff would be without redress. Assuredly such a provision is intended to mete out punishment rather than to afford compensation.

Having reached the conclusion that the agreement provided for a penalty and not for liquidated damages, and observing that this action was brought to recover for accrued wages, and that no counterclaim was pleaded or attempted to be established on the trial, it follows that it was immaterial that plaintiff was discharged or voluntarily left defendants’ employment. The judgment should, therefore, be affirmed, with costs. .

Giegerich, J., concurs.


source: Caselaw Access Project

author: Giegerich, J.

license: Public Domain

text:
    Barney Cohen, App’lt, v. Edward Hirsch, Resp’t.

      (New York Common Pleas, General Term,

      Filed December 4, 1893.)

    Contract—Consideration.
    In an action to recover tlie price of certain liquors sold by plaintiff to defendant, the answer alleged that the liquors were consumed at the annual ball of an association named for defendant, in a hall of which plaintiff was the proprietor, in pursuance of an agreement made between plaintiff and the defendant, who was acting in behalf of the association, that a specified rebate should be made by plaintiff to the association in case his receipts at the ball should exceed a certain sum; that the receipts exceeded the specified sum and that the goods in question were received in satisfaction of the rebate. The plaintiff insisted that the agreement was void for want of consideration, and was, at best, simply a wager; but it appeared from the evidence that defendant and his fellow members of the association, in pursuance of the agreement, made purchases to the amount ' specified. Held, that the purchases by the members of the association were a sufficient consideration to support the contract and rendered untenable the contention that the same was a wager.
    Appeal by the plaintiff from a judgment of the district court, in the city of New York for the fourth judicial district, in favor of the defendant.

      Mark J. Katz, for app’lt; Nathan S. Levy, for resp’t.
   Giegerich, J.

This action was brought to recover the agreed price of fifty quarts of champagne and a certain amount of lager beer sold and delivered by the plaintiff to the defendant The answer substantially alleges that the said goods were consumed at the annual ball of the “ Bdward Hirsch Association,” held on the 14th day of December, 1892, in a hall of which the plaintiff was then the proprietor, in pursuance of an agreement made between the plaintiff and the defendant, who was acting on behalf of the said association, that a specified rebate or allowance should be made by the plaintiff to the said association in case his receipts at said ball should exceed a certain sum ; that his receipts thereat exceeded such sum, and that the goods in question were received in pursuance of said agreement, and in satisfaction of such rebate or allowance.

The plaintiff insists that the agreement set up was void for want of consideration. It appears, however, from the testimony of the defendant and his witnesses, that the contract was made in behalf of the said association, and that the defendant and his various fellow mémbers, collectively, and in pursuance thereof, made purchases to the amount specified. This, in our opinion, furnishes indubitably a sufficient consideration to support the contract in question, and renders untenable the contention of the plaintiff that the same was a wager.

The agreement to allow a discount or rebate if the amount of the purchases should exceed a certain sum was, therefore, valid and binding upon the parties. After the purchaser has bought to the amount specified, and thus expended more than he would but for his reliance on and expectation of being benefited by the discount, both good reason and good faith require that the vendor be held to his agreement.

The plaintiff further contends that it has been clearly shown by the testimony that the condition precedent has not been performed by the defendant We think that this contention is plainly untenable. There was sufficient evidence to warrant the conclusion the justice evidently reached, that the receipts amounted to over $1,000. Although conflicting, the evidence was not, in our opinion, of such a convincing character as to clearly indicate that there was a mistake on the part of the justice, or that he had been influenced by bias, passion, prejudice or corruption, or that he had manifestly neglected to deliberate upon the whole testimony, and, therefore, we will not interfere with his determination of the facts. Lynes v. Hickey, 4 Misc. (Delehanty), 522; 54 St. Rep., 120; 24 N. Y. Supp., 731.

It cannot be said, as is claimed by the plaintiff, that the judgment is unjustifiable on every theory. On the contrary, it was strictly secundum allegata et probata. The answer alleged and the evidence showed what'was substantially an accord and satisfaction, and the judgment rendered in favor of the defendant for extra •costs only was in all respects correct.

We think that the counsel for the plaintiff is incorrect in his interpretation of the meaning of the defendant’s words at the time he ordered the goods : “I will let you have the difference.” In ■.view of the context and circumstances this canndt be construed as a promise to pay, but was rather an agreement to throw off in plaintiff’s favor the difference that would otherwise have been due to the association above named.

There being no errors of law apparent upon the record and it appearing therefrom that no injustice has been done to the plaintiff-appellant, the judgment should be 'affirmed, with costs.

Bischoff, J., concurs.


text:
    George Vorzimer et al., App’lts, v. Alexander Shapiro et al., Resp’ts.

      New York Common Pleas, General Term,

      Filed December 4, 1893.)

    District courts—Judgment on failure to answer.
    A justice of a district court of the city of New York is not authorized tó render judgment in one of the actions specified in subdivision first and second of § 3895 of the Code, nor in any other action except to recover upon or for the breach of a contract, express or implied, unless the plaintiff puts in his proof of the cause of action alleged.
    Appeal' by the plaintiffs from a judgment of the district court in the city of New York for the fifth judicial district, rendered in their favor by the justice of the tenth judicial district, acting in the absence of the justice of said first mentioned district court, “ on the ground that the same fails to adjudge the defendants liable to execution against their persons in accordance with the statute in such cases made and provided.”
    This action was commenced by the service of a copy of the summons and verified complaint upon the defendants personally. The material allegations of the complaint are: That the plaintiff agreed to sell and did deliver to the defendants certain merchandise at agreed prices, which amount in the aggregate to the sum of sixty dollars; that the goods were intended to be sold on a credit of thirty days, but that at the time of their delivery the defendants were insolvent; that a day or two after such delivery their place of business was closed and continued closed for a week, and that a few days thereafter the same was reopened under the ostensible ownership of another person, the defendants being engaged in and about the premises. That immediately after such delivery the defendants caused the goods to be removed from the premises referred to, concealed the same with intent to defraud their creditors and disposed of the same with a like intent, to the plaintiffs’ damage of sixty dollars. That the plaintiffs parted with possession and made delivery of the goods solely in reliance upon the truth of the representations of the defendants in holding themselves out as solvent, and that the defendants thus held themselves out to be solvent solely with intent to deceive and defraud the plaintiffs and induce them to deliver said goods, to the plaintiffs’ damage of sixty dollars.
    Upon the return of the summons the justice rendered judgment by default in favor of the plaintiffs as against the defendants for the sum claimed in the complaint. The judgment was rendered solely upon the verified complaint,' no proof in support of the complaint having been given by the plaintiffs.
    The plaintiffs have appealed to this court, as above stated. On the argument of the appeal plaintiffs only appeared by counsel, the defendants not appearing.

      M. A. Lesser, for app’lts.
   Giegerich, J.

While we agree with plaintiffs’ counsel in his contention that the cause of action herein is clearly one to recover damages for fraud or deceit, we think that, if a request was made, the justice properly refused to insert a direction in the judgment that the defendants are liable to executions against their persons, because the judgment is wholly unsupported by evidence.

Section 2891 of the Code (which § 1347 of the consolidation act expressly makes applicable to district courts) prescribes: “ If a defendant fails to appear and answer, the plaintiff cannot recover without proving his case.” Subdivision 2 of § 1383 of the consolidation act is substantially to the same effect. The only exception to this requirement is where an action is brought to recover upon, or for the breach of a contract, express or implied, the plaintiff may serve upon the defendant, with the summons, and in like manner, a copy of a written complaint, verified in like manner as a verified pleading'in the supreme court. In that case, unless the defendant * * * files a written answer, verified in like manner, denying one or more material allegations, or, generally, each allegation of the complaint, or setting forth new matter constituting one or more defenses or counterclaims, the justice must render judgment in favor of the plaintiff for the sum claimed in the complaint, with costs, without putting the plaintiff to any proof. Code of Civ. Pro., §§ 3207, 3126; Consolidation Act (Laws 1882, chap. 410), §§ 1346, 1383, subd. 1.

It seems to follow from, these statutory requirements that the justice is not authorized to render judgment in one of the actions specified in subdivisions first and second of § 2895 of the Code (the latter includes actions for fraud or deceit), nor in any other action except to recover upon or for the breach of a contract, express or implied, unless the plaintiff puts in his proofs of the cause of action alleged.

The judgment in the case at bar having been rendered merely upon a verified complaint, without any proofs having been taken in support of the cause of action alleged, our conclusion is that such judgment was improperly entered.

The attention of counsel is directed to the justice’s return, which fails to show that the justice, upon request made to him, refused to embody in the judgment a direction of the character prescribed by § 1394 of the Consolidation Act, or that an exception was taken to such refusal. These considerations alone would be sufficient to cause a denial of the relief sought by the plaintiffs on this appeal, but in view of the error made by the justice in rendering judgment without taking proofs to establish the allegations of the complaint we think that the judgment should be reversed and the case remanded to the court below for its proper disposition thereof, but as the defendants have not appeared in this court, nor in the court below, there should be no costs to either party.

Bischoff, J., concurs.


text:
    Simon Pregenzer, Resp’t, v. Henry G. Burleigh et al., App'lts.

      (New York Common Pleas, General Term,

      Filed December 4, 1893.)

      1. Charter party—Demurrage.
    Where defendants agree to load plaintiff’s canal boat with freight on its arrival at a certain place, they are liable for all damages arising from the neglect, omission or failure of other persons upon whom they depended for such performance and whom they constituted tbeir agent, as it were, pro hoc rice.

      2. Same.
    Where such agreement specifies the kind of cargo to be furnished, and the one at last furnished was of a different kind, the profits of which were greater than on a load of the kind specified, the difference must be deducted from any damages in the nature of demurrage allowed for delay in furnishing the cargo.
    Appeal by the defendants from a judgment of the district court in the city of New York for the first judicial district, rendered upon a trial before the justice thereof without a jury.

      Hyland & Zabriskie, for app’lts; T. Clement Campbell, for resp’t.
   Giegerich, J.

This action was brought to recover damages in the nature of demurrage for the defendants’ delay in loading the plaintiff’s canal boat The terms of the agreement are disputed. The plaintiff testified that the defendants’ agent in New York ■agreed to “load him ” for the return trip “immediately, without delay, ” on his arrival either at Plattsburgh or Port Henry. The agent denied that anything was said as to time, and claims that the agreement was not to “load him," but to “give him a load." The justice decided the issue in favor of the plaintiff, and while a different conclusion might have been reached there was sufficient evidence to support the view taken by the court below. Therefore, for the purposes of this appeal, it will be considered that the •defendants’ contract (entered into in New York during the latter part of May, and before the upward trip was begun) was to load plaintiff’s boat immediately upon its arrival at Plattsburgh or Port Henry.

When the plaintiff reached Whitehall with his boat on June 5th the defendants’ agent gave him an order upon third persons at Port Henry for a load of iron ore; but this order was not honored when presented. He then communicated the fact by letter to the ■defendants at Whitehall, and on June 10th received a second order on a different firm of shippers at Plattsburgh, to which place he made his way as soon as a steam vessel could be procured to tow his boat. Finally, on July 8th, he was given a load upon this order, but the cargo was of a different material and to a different destination from that promised. On these orders were printed the words “ no claims for demurrage allowed; ” but this stipulation is ineffectual, as it constituted no part of the original agreement, nor, under the circumstances, can it be regarded as a modification of the same.

The defendants’ position that they were not responsible for the delays is untenable. Having agreed to load the plaintiff’s boat immediately, they are liable for all damages arising from.the neglect, omission or failure of other persons upon whom they depended for such performance and whom they constituted their agent as it were, pro hac vice. Van Etten v. Newton, 15 Daly, 538; 25 St. Rep., 751; 6 N. Y. Supp., 531; aff’d, 134 N. Y., 144; 45 St. Rep., 768; Wordin v. Bemis, 85 Am. Dec., 255.

Tire defendants’ counsel argue strenuously that mere detention of vessels, without proof of some fault on defendants’ part, does not entitle the plaintiff to recover, and cites many cases in support of his position. They are all, however, cases in which there was no express contract, and consequently are not relevant as authorities, as here there was a special contract, viz.: to load plaintiff’s boat immediately. Contracts in which lay days are specified are analogous to the one in hand, and in such cases liability attaches when the time fixed has expired, whether the defendants have caused the delay or not. Abbott on Shipping, 307, et seq., and cases cited; Cross v. Beard, 26 N. Y., 85.

At any rate, in the present instance, the defendants made an unconditional contract to do a certain thing at a certain time, and must answer in damages for the failure to perform their agreeznent. Stewart v. Stone, 127 N. Y., 500, 507; 40 St. Rep., 314, and cases cited.

Besides, no evidence was given of any excuse for non-perform.ance. Neither does it appear that the plaintiff was remiss in any way; on the contrary, he presénted the orders with diligence and gave prompt notice of the dishonor of the first one.

The judgment must be impeached, however, because the damages are too great in any aspect of the evidence. At most there was a delay of only thirty-one days, viz.: from June 8th, the time-of presenting the first order, to July 8th, when the load was received. One of these days must be allowed for loading. Therefore, the defendants are chargeable witli thirty days only. Now the plaintiff himself testified that three dollars per day was a fair-price for the use of a boat during the period for which he was detained. Other witnesses for the defendants testified to a lower-figure. But there is additional evidence that three dollars per day would have been about the daily profits of the plaintiff had the cargo been furnished as agreed. The justice was warranted then in the conclusion he evidently reached, that three dollars was a fair measure of damage for each day of detention; and the rule of damages followed was to this point the correct one. Ashburner v. Balchen, 7 N. Y., 262.

This, without more, would justify the judgment rendered, which was for ninety dollars. Now, this sum can be arrived at only by taking all the testimony most strongly in favor of the-plaintiff. But it is shown further, on plaintiff’s admission and on other evidence, that the net profits realized on the cargo which was furnished at last were about twenty dollars more than what would have been made on the one promised, and the time required was substantially the same in either case. No deduction was made for this excess, and in this we think error was committed. Otherwise the plaintiff would be placed in better financial condition than he would have been had no delay occurred. This is contrary to the theory of damages.

“ The sole object is to furnish compensation. In ordinary cases of contract the remuneration must be less; in cases of tort it-may be more.” Sedgwick on Damages, 37. We think that the excess of profits should be treated as though it were money earned independently during the period of delay, and, consequently, on a familiar; principle of law, should be subtracted. Shannon v. Comstock, 21 Wend., 457; Heim v. Wolf. 1 E. D. Smith, 70.

The damages awarded should, therefore, be reduced to seventy dollars, and the judgment, as thus modified, should be affirmed,,, but without costs to either party.

Bischoff, J., concurs.


text:
    Lewis Gold, Resp’t, v. Mary Serrell, App’lt.

      (New York Common Pleas, General Term,

      Filed December 4, 1893.)

    1. Brokers—Commissions—Agency.
    One who is the general agent of the owner of real property respecting-the control and sale of the same may employ another as broker to sell the property, and such person, upon effecting a sale, may recover of the former owner his commissions.

      2. Same.
    Although the price at which certain real property is sold deviated from the amount which the broker was originally instructed to secure, such broker is entitled to his commissions where it appears that he was actively instrumental in causing vendor and vendee to arrive at the price to which both eventually agreed.
    Appeal from a judgment of the general term of the city court of New York, which affirmed a judgment for plaintiff entered on the report of a referee. Action to recover commissions as broker in the sale of real property.

      George W. Dease, for resp’t; Isaac N. Miller, for app’lt.

      Affirming 51 St. Rep., 141.

   Bischoff, J.

This being an appeal from the city court of New York, its judgment of affirmance is conclusive upon us respecting the weight of the evidence. We are enabled, therefore, by the exceptions to the findings of fact, and to the refusals of the referee to find as requested for defendant, to review the proceedings on the trial to the extent only of inquiring whether there was any evidence to support the facts of which the judgment appealed from is predicated. Meyers v. Cohn, 4 Misc., 185; 53 St Rep., 223. The record adequately sustains the referee and his conclusions from the facts found are indisputable.

Plaintiff sued to recover commissions on the sale of real property owned by defendant. He maintained that he was employed as a broker to effect the sale by defendant’s agent in that respect. Defendant denied the employment and performance of the services. On the trial, however, plaintiff and the vendees, Pine and Boskey, testified to the effect that the property was first brought to the notice of the vendees by plaintiff, and that the latter effected the sale, and was the inducing cause thereof. The testimony of these witnesses was substantially unchallenged in that respect. A conflict, however, arose as to whether plaintiff was employed by Syms. The former testified that Syms represented himself to be authorized by defendant to sell the property, and that he undertook to procure a purchaser upon Syms’ promise to pay commissions, all of which the latter denied. Syms’ authority to employ plaintiff was likewise disputed, but, when examined as a witness in her own behalf, defendant admitted that Syms was her general agent and as such had charge and control of her property, an admission which was amplified by the conceded facts that the contract for the purchase and sale of the property which was entered into by defendant, and the vendees was executed by Syms, acting for defendant and that the contract was thereafter performed by delivery of the deed and payment of the purchase money, in which matters Syms continued to represent defendant.

In still further support of plaintiff’s contention that Syms was authorized to employ him, it appeared from the testimony of the vendees that after . the contract was made defendant admitted to each of them that she owed plaintiff for his commissions.

The futility of the argument of appellant’s counsel that the execution of the contract by Syms, its subsequent performance, and defendant’s admissions of indebtedness to plaintiff do not constitute

a ratification of Syms’ unauthorized acts, is apparent from the fact that it assumes that Syms acted without authority, whereas the matters contended to be insufficient to show ratification sustain an inference of original authority. True, one employed as broker to sell real property under special instructions from the owner cannot delegate his authority to another, nor can the sub-broker, under such circumstances, look to the first broker’s principal for compensation. Carroll v. Tucker, N. Y. Com. PL, 2 Misc., 397; •50 St. Rep., 611. But in the case at bar the evidence sustains the claim that Syms was defendant’s general agent respecting the control and sale of her real property, and it is elementary that one dealing with another as general agent is not bound by the secret instructions of the principal to his agent. As general agent of defendant respecting the sale and control of her real property, Syms had implied authority to employ others to assist him in the transaction of the business affecting it, who could -look to his principal for compensation. Upon the implied authority plaintiff, as well as all others, could relj-, in the absence, of course, of notice of particular limitation of it. Hence plaintiff’s right to the commissions promised by Syms was in no sense impaired by defendant’s instructions to the latter that she would not consent to the allowance of broker’s commissions out of the proceeds of sale which she expected to realize.

Equally untenable is appellant’s claim that the evidence did not establish performance by plaintiff of the contract of employment because it appeared that the price for which the sale was made deviated somewhat from that which he was originally instructed to secure. The negotiations for the sale continued uninterruptedly. Throughout them plaintiff was actively instrumental in ■causing vendor and vendee to arrive at the price to which both eventually agreed. Levy v. Coogan, 16 Daly, 137; 30 St. Rep., 553.

Though exceptions to rulings on the trial which appear in the record, are not urged on this appeal, we have examined them, but are unable to conclude that error is presented by any. In some instances the exceptions are based upon objections to the admission of evidence of conceded facts. Any error in that respect, therefore, is harmless. In other instances the objections were that the evidence admitted is immaterial and irrelevant. These objections do not appear to have been well grounded, and it cannot be urged for the first time on appeal that the evidence should have been excluded as incompetent. Ward v. Kilpatrick, 85 N. Y., 413 ; Mead v. Shea, 92 id., 122.

Judgment affirmed, with costs.

Daly, Oh. J., and Pryor, J., concur.


author: Follett, J.

text:
    Carlos D. Siegert el al., Resp’ts, v. Cornelius F. Abbott, Impl’d, App’lt.

      (Supreme Court, General Term, First Department,

      Filed October 13, 1893.)

    1. Tbademakk.
    The filing in the patent office of a device or name as the trademark for an article, without afterwards using the emblem or name to denote the article sold, is not sufficient to establish the right of the persons filing such certificate to such trademark, and, unless the claimant has actually used the mark or device, he cannot restrain others from using a similar name.
    8. -Same—Name of chief ingredient.
    A word or term which truly denotes the nature or chief ingredient of an article to which it is applied may be used by any manufacturer or producer of such an article, although the word or term has been previously used by others to designate a like article which they produce.
    8. Same.
    Plaintiffs did not apply the word “ Angostura ’’ to the bitters made by them until three years after it was used by defendants’ predecessors. Held, that plaintiff’s had no trademark in the name.
    4. Same—Imitation.
    The parties use bottles of somewhat similar shape and size, but with a perceptible difference between them; the names of the parties are blown in their respective bottles, and also plainly appeared on the labels, which were different in many respects. Held, that there was no such simulation with intent to deceive intending purchasers as would require a court of equity to intervene in behalf of plaintiffs.
    Appeal from judgment restraining the defendants from using the words “ Angostura Bitters ” or the word “ Angostura,” as descriptive of bitters made by them.
    The court found that in the year 1824 Dr. Johannes Gr. B. Siegert, then a resident of the city of Angostura, "Venezuela, South America, prepared a cordial or liquor, and about 1830 he engaged in that city in the business of manufacturing and selling the preparation as an article of commerce. The evidence shows that from 1830 to 1864 he continued the manufacture and sale of the article as sole proprietor, and that from the year 1864 to 1870, when he died, he was engaged in partnership with his son, Carlos D. Siegert, in the manufacture and sale of the article. After the death of Dr. Siegert, his sons, the present plaintiffs, under the firm name of Dr. J. Gr. B. Siegert & Hijos, continued the manufacture and sale of the same article. In 1846 the name of the city of Angostura was changed by statute to Cuidad Bolivar, since which time the city has been known by the last mentioned name. This article was manufactured at the city of Angostura or Cuidad Bolivar until 1876, when the Siegerts ceased to manufacture it at that place, and began to manufacture it at Port of Spain, in the island of Trinidad, where it has ever since been manufactured by them. This article has been put up and sold in bottles of two sizes, quarts and pints, on which were pasted printed wrappers or labels. Prior to 1875, the heading on their label was, “Aromatic Bitters, prepared by Dr. Siegert, at Angostura (now Cuidad Bolivar).” From 1875 to 1884 the label was in the following form, “Aromatic Bitters, or Angostura Bitters, prepared by Dr. Siegert, at Angostura (now Port of Spain, Trinidad).” In 1881 the plaintiffs filed a bill in equity in the state of Maryland to restrain C. W. Abbott & Co. from using their trade-mark or trade-name. They were defeated in this action, upon the ground that their label was false, in not disclosing the fact that Dr. Siegert was dead, and that the article was no longer manufactured at Angostura. 61 Md., 286. After the entry of this judgment the Siegerts changed the title of their label, and adopted the label now in use, which is given below. From 1872 to 1875 the firm of Gf. H. Maynard & Co. manufactured at Baltimore, Md.,'an article which they sold in the market under the name of “Angostura Aromatic Bitters.” Cornelius F. Abbott was a member of this firm. In 1876 C. W. Abbott & Co. succeeded to the business of Gr. H. Maynard & Co., and have continued the manufacture and sale at Baltimore of a preparation designated as “Angostura Aromatic Bitters.”

      Leavitt, Wood & Keith (John Brooks Leavitt, of counsel), for app’lt; Arthur Furber (Frederick R. Coudert, of counsel), for resp’ts.
   Follett, J.

To constitute a valid trade-mark, the designation or term applied to the article must be one which the claimant has the exclusive right to use. Canal Co. v. Clark, 13 Wall., 311. It is apparent on principle, and it is well settled by authority, that no one can acquire the exclusive right to use a geographical name, or a term which denotes the nature of the article to which it is applied. Caswell v. Davis, 58 N. Y., 223; Keasbey v. Brooklyn Chemical Works, 50 St. Rep., 483.

The court found that the name “ Angostura Bitters ” was given ■ by the Siegerts to their mixture because it was manufactured at the city of Angostura. It appears from the plaintiffs’ evidence that the word “ Angostura ” did not appear on their labels as descriptive of the article until 1875, three years after Gr. H. Maynard & Co., the defendants’ predecessors, began to use the term “Angostura Aromatic Bitters ” to designate an article made and sold by them. The plaintiffs’ agent in this country, who verified the complaint, was sworn on the trial, and testified that since 1878 the bitters made by the Siegerts have been advertised and sold all over the world under the name of “ Angostura Bitters.” There is some slight evidence, mostly hearsay in its character, that prior to 1875 Siegert’s Bitters were sometimes known as “ Angostura Bitters.” This evidence was given by Wuppermann, who was but fifty-one years of age at the time of the trial, and left Angostura when twelve years of age, and by Paez, who thinks he first saw the article in 1843. The Siegert memorial tablet, which the plaintiffs put in evidence, states that “ in 1824 Dr. Siegert prepared the bitters for his own use, and in 1830 a shipment was sent to Trinidad and to England, but that in 1853 their sale did not exceed twenty dozen bottles per annum.” But there is no evidence that the Siegerts applied that name to their compound when put up for sale prior .to 1875. It was shown that December 12, 1871, the Siegerts filed in the patent office a so-called “ trademark,” by which they designated their compound as “ Siegert’s Angostura Bitters,” but there is no evidence that this term was ever applied to the article as sold on the market. The filing in the patent office of a device or name as the trade-mark for an article, without afterwards using the emblem or name to denote the article sold, is not sufficient to establish the right of the persons filing such a certificate to such trade-mark, and, unless the claimant has actually used the mark or device, he cannot restrain others from using a similar name. Subsequent to 1875 'their bitters, when placed on the market, were labeled “ Angostura Bitters, Prepared by Dr. Siegert, at Angostura, (now Cuidad Bolivar.)”

Though, in 1846, Angostura ceased to be the legal name of the city, it has been since so called, and is carried in geographical gazetteers, in encyclopaedias, and on maps by its former name. Black’s Atlas; Johnson’s Atlas; Lippincott’s Graz. ; Globe Gaz. Whether a word which formerly designated a city or country can be used as a trade-mark need not now be decided, for the reason that the evidence in this case shows that the defendants, and not the plaintiffs, first used the word “Angostura ” to designate an article sold on the markets. Besides, one of the defendants testified—and in this he was not contradicted—that “Angostura bark is the largest ingredient in it (defendants’ mixture), and it is from that which it takes its name.” The other defendant, when speaking of the receipt from which their article was compounded, testified: “ 1 remember that Angostura bark was one of the articles mentioned in the receipt. Don’t recollect what part of the receipt it appeared in. I know it is probably the biggest thing there.”

The word “Angostura ” has long been used in medical and scientific works to designate the bark of a South American tree having well-known medical properties. The following definition of this word is given in Murray’s New English Dictionary: “Angustura, or Angostura. A town on the Orinoco, now called Cuidad Bolivar. It gives its name to a bark, valuable as febrifuge and tonic, the produce of galipea or cusparía febrífuga. 1791, A. Brande (title), 1 Experiments and Observations on the Angostura Bark.’ 1840, Pereria Mat. Med., 1204: ‘Angostura bark was first publicly noticed in the London Medical Journal for 1789.’ 1866, Masters in Treas. Bot., 517: 1 The means, chemical and otherwise, of distinguishing the true from the false Angostura barks.’ 1879, Miss Braddon, Vixen, III., 191: ‘ Propped up with sherry and Angostura bitters.’ 1879, Watts’ Die. Chem., 3rd Suppl., 87: ‘ Sections of true Angostura bark.’ 1881, Syd. Soc. Lex. ‘Angostura.’ ”

The word is defined in the Century Dictionary as follows: “Angostura or cusparía bark, the product of a rutaceous shrub, galipea cusparía, of the mountains of Venezuela; a valuable tonic in dyspepsia, dysentery, and chronic diarrhea. It was formerly prized as a febrifuge, and is now much used in making a kind of bitters. Its use in medicine was discontinued for a time, because of the introduction into the markets of a false Angostura bark, obtained from the nux vomica tree, which produced fatal effects.”

A word or term which truly denotes the nature or the chief ingredient of an article to which it is applied may be used by any manufacturer or producer of such article, though the word or term has been previously used by others to designate a like article which they produced. Caswell v. Davis, 58 N. Y., 223.; Keasbey v. Brooklyn Chemical Works, 50 St. Rep., 483.

We think the evidence in the record and the authorities make it plain that the plaintiffs have failed to establish that they have acquired a valid trade mark by the use which they have made of the word “ Angostura ” standing alone, or as combined by them with other words. Have the defendants, by the mode in which they have put up and described their fluid, deceitfully induced purchasers to believe that they were buying the article manufactured by the plaintiffs, instead of the one manufactured by the defendants; or is the defendants’ method of bottling, labeling and describing their article likely, in the future, to induce purchasers exercising reasonable prudence to purchase and use the defendants’ mixture upon the belief that it is the plaintiffs’, and so injure the plaintiffs’ business ? When a trademark acquired by one person is used, though innocently, by another, the latter becomes liable for the damages caused, and may be restrained from using the device. But when one seeks to restrain another from using a trade-name, or from putting up and selling goods in any way calculated to induce purchasers to believe that they are buying goods which were manufactured by the complainant, the right of recovery rests upon the theory that a false representation has been made. The rule is well stated in Singer Mfg. Co. v. Wilson, L. R., 2 Ch. Div., 434. When this action was begun, the litigants were selling their compounds in quart and pint bottles, made of glass, of much the same shape, though there is a perceptible difference between them. The bottles used by the plaintiffs have the name “ Dr. J. G. B. Siegert & Hijos ” blown in their shoulders and bottoms. The bottles used by the defendants have the name “ 0. W. Abbott & Co., Baltimore, Md.,” blown in their shoulders and bottoms. On the bottles used by the plaintiffs there is a label printed in English, French, German and Spanish, on which two medallions are represented. The bottles used by the defendants are wrapped in a label printed in English, French and German, but no medallions are represented. The following are copies of the description in English printed upon the bottles used by the litigants:

“ Aromatic Bitters, or Angostura Bitters, Formerly Prepared at Angostura by Doctor Siegert, and now in Port of Spain, Trinidad, by his Sons and Successors, under the old Firm Name of Dr. J. G. B.
Siegert & Hijos.
“ These Bitters do not only distinguish themselves by their flavor and aromatic odour above all others generally used, but are at the same time an excellent tonic, and an efficacious stimulant to incite the appetite. They are principally used thus: Pour half a tablespoonful in a wine glass, mix it with rum, wine, or other licor, and take it before breakfast or dinner, or at any other hour of the day, if you should feel inclined. They can likewise be used in sugar and water, or syrup, and, thus composed, they have an agreeable taste, and are more suitable for ladies and children. They are, moreover, an excellent remedy for removing indigestion, flatulency, hysterical and hypochondriac attacks, colics, colds, pains of the stomach and diarrhoea which originate from weakness and relaxation of the digestive organs. In such cases the dose is from half to one tablespoonful, according to the violence of the attack, and may be taken, mixed as above mentioned or pure, once or several times per hour or in the course of the day until the disease disappears. Besides their extreme usefulness in the cure of fever and ague, they are also an excellent preservative against the aforesaid maladies. In the former case the dose is from half to one tablespoonful, either mixed as above, and to be taken two, three, four or more times during the day while the patient is free from fever. In the latter case adapt their principal application according to the general use of bitters. When administered to children above two years old, the dose should-be from twenty to sixty drops, in proportion to the age. In fine, they can be applied with success for the improvement of new rum by using two tablespoonfuls of Bitters to each gallon of rum, and thus they remove its bad smell and acrid taste, giving it immediately an agreeable flavour similar to old rum. Besides the above-mentioned advantageous qualities of these Bitters, they are of a most important service as a remedy against the Asiatic Cholera and Cholerine, in every instance where they have been employed with a splendid success. In such cases the dose is from one to two tablespoonfuls, repeating the same every day three or four times, until a favorable result is obtained, which is very often experienced. For women and children, the doses are to be smaller in proportion to their age and constitution, and to be taken mixed with good wine, brandy, or pure. Their ordinary daily use as Bitters is generally found to be a preservative against the aforesaid Cholera and Cholerine.”
“ Angostura Aromatic Bitters, Prepared by C. W. Abbott & Co., 18 Camden Street, Baltimore, Md.
The utmost care is used in compounding these bitters, both in selecting the materials and in extracting and compounding their medicinal and valuable properties. Certain barks and roots, long known and highly prized in the materia medica, have been made to yield their most valuable properties, and these have been so combined by the art of the apothecary of ancient times as to produce the best tonic and appetizer known. These bitters have been used for many years throughout the country, and elsewhere, both as a medicine and for cock-tails and flavoring wines and liquors. For these purposes they stand pre-eminent, imparting a fine aromatic flavor, and removing the unpleasant odor usually found in new liquors. When used to impart flavor and color, use six to eight drops to a wine glass. This wonderful tonic is unequalled as a cure for liver complaint, dyspepsia, fever and ague, bilious, intermittent and remittent fevers. It is also invaluable in nervous weakness of all kinds, and will restore the wasted strength with wonderful permanence. It will be found totally different from any other bitters, and is so pronounced by the best physicians in this country. It contains no mineral or poisonous qualities, but is composed entirely of vegetable matter. Dose for the above, one part Bitters and two parts water. If taken pure, one-third wine glass three times daily. Besides being a preventive of the above named diseases, it is a sure remedy for Asiastic cholera and yellow fever, which have of late years visited some of our southern cities. In every instance they have been employed with success. Dose, one-third wine glass four or five times per day until the danger is past. Graduate dose according to age. For adults a half wine glass full will obviate the effects of debility, and restore the functions in cases of diarrhea, nausea and sea-sickness. We have the amplest and most gratifying testimonials to their efficacy and value from the best medical authority in this country, and from the proprietors of the first houses throughout the United States, where it has been long and favorably known.”

It will be observed that in the title of the label used by the defendants are the words: “Angostura Aromatic Bitters, Prepared by G. W. Abbott & Go., 18 Gamden Street, Baltimore, Md." These words are printed from clear type of good size. The title of the plaintiffs’ label contains the following words : “Aromatic Bitters, or Angostura Bitters, Formerly Prepared at Angostura by Doctor Siegert, and now in Port of Spain, Trinidad, by his Sons and Successors, under the old Firm Mame of Dr. J. G. B. Siegert & Hijos.” These words are also clearly printed from type of good size. It is difficult to see how a purchaser, exercising reasonable prudence, could be led to believe that he was purchasing the article manufactured by the plaintiffs instead of the article manufactured by the defendants. It will be observed that the merits and uses of these mixtures are differently described in the labels. In the defendants’ description it is said: “ These bitters have been used for many years throughout this country and elsewhere both as a medicine and for cocktails and flavoring wines and liquors. For these purposes they stand pre-eminent, imparting a fine aromatic flavor and removing the unpleasant odor usually found in - new liquors.” The plaintiffs, in their description, do not recommend the articles as specially useful in the manufacture of cocktails, but assert that the article “ can be applied with success for the improvement of new rum, * * * and thus they remove its bad smell and acrid taste, giving' it immediately an agreeable flavoring similar to old rum.” The plaintiffs also assert that their bitters are “ an excellent remedy for removing indigestion, flatulency, hysterical and hypochondriac attacks, colics, colds, pains of the stomach and diarrhoea which originate from weakness and relaxation of the digestive organs,” while the defendants say that “this [their] wonderful tonic is unequalled as a cure for liver complaint, dyspepsia, fever and ague, bilious, intermittent and remittent fevers. It is invaluable in nervous weaknesses of all kinds, and will restore the wasted strength with wonderful permanence.” The plaintiffs assert that their bitters “are of a most important service as a remedy against Asiatic cholera and cholerine in every instance where they have been employed with a splendid success.” The defendants state that their article “ is a sure remedy for Asiatic cholera and yellow fever. * * * In every instance they have been employed with success." Here we find another marked difference in the descriptions of the merits of the two articles, the defendants’ mixture being a cure for yellow fever and the plaintiffs’ not. A person apprehending or suffering from an attack of Asiatic cholera might purchase and use either or both kinds of bitters, and probably with the same result; while one having or apprehending yellow fever would, we assume, surely buy and use defendants’ mixture. The diseases which these two kinds of wonderful bitters prevent and cure are not identical, as will be observed by any reader of ordinary intelligence, and we must presume that they are purchased for the uses for which they are so highly recommended by their manufacturers. The plaintiffs, in describing how their articles should be used, say: “ They are principally used thus: Pour half a tablespoonful in a wine glass, mix it with rum, wine or other liquor, and take it before breakfast or dinner, or at any other hour of the day if you should feel inclined.” It is also asserted that when used with sugar, water or syrup, their bitters “ are more suitable for ladies and children.” The defendants do not state that their article is suitable for the use of women and children. The defendants also state that “ certain barks and roots long known and highly prized in the materia medica have been made to yield their most valuable properties, and these have been so combined by the art of the apothecary of ancient times as to produce the best tonic and appetizer known." Ho such claim is put forth in behalf of the plaintiffs’ mixture. We think it is apparent that a cursory examination of the bottles and of the claims of the merits of their contents set forth by the litigants on their wrappers show that the bitters are made by different firms, at places widely separated, and that the ■evidence is insufficient to sustain a finding that the defendants have simulated the plaintiffs’ goods with the intent to deceive intending purchasers, and that there is no such probability of such purchasers being deceived by the way in which the defendants have prepared and placed their article on the market as to require the intervention of this court in behalf of the plaintiffs. Neither of the litigants gave any evidence tending to show that the bitters prepared by them respectively possessed any medicinal qualities, or had served any useful purpose except as an article for sale. The plaintiffs did not show that Angostura bark, or any extract of it, entered into the composition of their bitters, nor did they specify a single ingredient used in their manufacture.

The rights of these plaintiffs were considered in Siegert v. Find-later, L. R., 7 Ch. Div., 801. It is there held that Siegert’s mixture was first introduced in England in 1863, since which their popular name has been “Angostura Bitters; ” but that the Siegerts did not adopt and apply that name to their mixture until after that name had been used by Maynard in 1874 as descriptive of a kind of bitters made by him. It was held that the Siegerts failed to establish a valid trade-mark; but it was also held that the mode in which the defendant put up and described his mixture was calculated to and was intended by the defendant as a deception. In that case the defendant was restrained “ from using the words ‘Angostura Bitters,’ or the word ‘Angostura,’ on any hitters or other fluids contained in bottles not made by the plaintiffs, so as to induce the belief that such bitters or fluids are made by the plaintiffs; and, further, from selling or offering for sale any bitters or other fluids in the bottles, in the wrappers, and 'in the general form in which the defendants were selling the bitters called by them ‘Angostura Bitters ’ at the commencement of this action, or in any other wrappers or form contrived or designed to represent and induce the belief that the bitters or fluids sold by the defendants, and not made by the plaintiffs, are the goods of the plaintiffs.In the case at bar the judgment goes much further, and restrains the defendants from using the words “Angostura Bitters,” or the word “Angostura,” or any imitation of such word, on any bitters or cordials made by or for the defendants. It is clearly shown, we think, that the plaintiffs have no trade-mark in these words, nor any right to their exclusive use, and the only possible relief that the plaintiffs could be entitled to under the most favorable view of their own evidence would be a judgment restraining the defendants from using those words in such a way as to lead purchasers to believe that they were buying the plaintiffs’ bitters, when, in fact, they were buying the defendants’.

If these bitters have no medicinal properties, and are only useful for flavoring wines and liquors, they should be so .advertised and sold, and not advertised and sold as having medicinal merits, unless they possess such merits; otherwise courts of equity will not look with favor on the application of the manufacturers for protection against rivals engaged in the same pursuit. In Towle v. Spear, 7 Pa. Law J., 176, Cox Trade-Mark Cas., 2d ed., 90, an injunction to restrain the use of labels and bottles similar to those used by the 'plaintiff was refused on the ground that the plaintiff had misrepresented, by his labels, the qualities and properties of his medicine. Brown. Trade-Marks, § 351. See, also, Leather Cloth Co. v. American Leather Cloth Co., 4 De Jex, J. & S., 137, affirmed 11 H. L. Cas., 523; Connell v. Reed, 128 Mass., 477; Manhattan Medicine Co. v. Wood, 108 U. S., 218; 2 Sup. Ct. Rep., 436 ; Fetridge v. Wells, 4 Abb. Pr., 144; Dale v. Smithson, 12 id., 237; .Bigelow Law of Fraud, 560. We do not think courts of equity should be swift or vigilant to protect the manufacturer of a compound advertised and sold as a valuable medicine, which is not shown to contain a single medical ingredient, or to possess a single merit claimed for it, as against another manufacturer, producing and selling a like compound.

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

O’Brien and Barber, JJ., concur.


author: Parker, J.

text:
    William A. Hardt et al., Resp’ts, v. Moses S. Levy, Impl’d, App’lt.

      (Supreme Court, General Term, First Department,

      Filed October 13, 1893.)

    1. Partnership—Limited—Renewal.
    In the absence of a provision in the articles of copartnership for a continuance in that event, a limited partnership cannot be continued after the death of one of the partners.
    2. Same.
    A certificate of renewal of a limited partnership which recites the admission of a new general partner is ineffectual to create a renewal.
    3. Same—New partnership.
    Such a certificate is also ineffectual to create a new limited partnership which states, not that the contribution of the special partner is made in cash for the purposes of the partnership about to be formed, but that such sum had been contributed by a person now deceased to a former partnership, and that no part of such contribution had been withdrawn by or paid or transferred to such decedent or his estate.
    4. Same—Estoppel.
    An attempt to create a limited partnership by the filing and publication of a certificate void on its face, does not estop the parties from asserting that their partnership is a general and not a special one, as a defense to an action in equity brought by a general creditor, in behalf of himself and all other creditors, for the appointment of a receiver and a ratable distribution of the firm assets.
    Appeal from a judgment of the special term of the supreme court, entered in the office of the clerk of the county of Mew York, March 30, 1893.

      Benjamin N. Cardozo, for app’lt: Blumenstiel & Hirsch, for resp’ts.
   Parker, J.

The plaintiffs, as general creditors of a firm of which the defendants are members, instead of proceeding in actions at law to secure their respective claims, instituted this action in behalf of themselves and all other creditors of the firm, having for its object the appointment of a receiver, and ultimately a ratable distribution of the assets of the partnership. Such a suit cannot be maintained against the members of a general partnership, but it was long ago held in Innes v. Lansing, 7 Paige, 583, that it might be against the persons forming a limited partnership after insolvency. That case has been so far followed that the rule it declares must be deemed established. The opinion also asserts that a creditor may, if he so elects, proceed at law to enforce collection of his debt. Subsequently it was so decided in Van Alstyne v. Cook, 25 N. Y., 489. These plaintiffs chose to proceed in equity, as they may if the partnership be limited, and may not if it be general. Which of the two it was presents the principal legal question involved. The facts are undisputed and are briefly as follows : A limited partnership, under the firm name of Levy Bros. & Co., was duly formed in 1884, with Julius and Augustus H. Levy as general partners and Adolph Levy as special partner. In a little over a year the special partner died, but the business was continued on for the full term, when an- instrument was executed, purporting to be a certificate of renewal, bearing the date of the last day of the term, but verified and recorded several days later. When su'ch term had expired by limitation, a new instrument, purporting to be a certificate of renewal, stating the names of the original partners, and also naming Moses S. Levy as a new general partner, was filed and recorded It was in form following:

“ Levy Bros. & Co. Notice of renewal of limited partnership. This is to certify that the limited partnership formed by the undersigned Julius Levy and Augustus H. Levy with Adolph Levy on the 11th day of April, 1884, pursuant to the provisions of the statutes of -the state of New York, under the firm name of Levy Bros. & Co., and which, by its terms, expired on the 31st day of December, 1887, and which was renewed and continued in pursuance of said statutes on the 31st day of December, 1887, has this day been renewed and continued in pursuance of said statutes by the said Julius Levy, Augustus H. Levy and the undersigned Moses S. Levy, and the said Augustus H. Levy, as executor of the estate of Adolph Levy; and the terms of said renewal and continued partnership are as follows: First. The name or firm under which said renewal or continued partnership is to be conducted is Levy Bros. & Co. Second. The general nature of the business to be transacted by said renewed and continued partnership is the manufacturing and selling of clothing at wholesale; that said business is to be' conducted in the city of New York. Third. The names of all the general and special partners are as follows: Julius Levy, Augustus H. Levy, and Moses S. Levy are the general partners, and Augustus H. Levy, as executor of the estate of Adolph Levy, deceased, is the special partner. That all of the said general partners and the special partner reside in the city of New York, county and state of New York. Fowrth. The amount of capital which the said Adolph Levy, hereinabove named as the special partner, heretofore contributed to the common stock, and which has been actually and in good faith paid in cash, is the sum of $100,000. Such contribution and payment were made at the commencement of the limited partnership by the said special partner. No part of said sum of $100,000 has been withdrawn by or paid or transferred to , the said Adolph Levy, the said special partner, nor has any part thereof been withdrawn by or paid or transferred to his estate, but the whole amount thereof remains in said limited partnership wholly unimpaired, and the whole amount thereof, namely $100,-000, is contributed by the said Augustus H. Levy, as executor of the estate of said Adolph Levy, deceased, as said special partner, to the common stock of such renewed and continued-limited partnership. Fifth. The partnership hereby renewed and continued is to commence on the 1st day of January, 1891, and is to terminate on the 31st day of December, 1893. In witness whereof the parties above named have hereunto severally subscribed their names this 31st day of December, 1890.’'

This writing was executed, acknowledged, verified, filed and recorded as provided by the statute. The learned trial court reached the conclusion that the certificate did not operate to renew and continue the,prior special partnership, because it declared that a new general partner had been admitted to the firm, which brought it within that provision of the statute which declares: “ Every alteration which shall be made in the names of the general partners * * * and the death of any partner, whether general or special, shall be deemed a dissolution of the partnership. * * * And every such partnership which shall be carried on after such alteration shall have been made, or such death shall have occurred, shall be deemed a general partnership in respect to all business transacted after such alteration or death. * * *

It was further determined, however, that, while the certificate purported to renew and continue an existing limited partnership, it contained facts sufficient to constitute a new limited partnership, and such was its legal effect, and for that reason judgment was rendered in favor of the plaintiffs for the relief prayed for in the complaint.

The primary object of the act authorizing limited partnerships, which first found a place among the statutes of this state in 1822, was to encourage those having capital to enter into partnership with those having skill and practical business experience by restricting the responsibility of the former to the sum actually contributed to the firm. The secondary object was the protection of those dealing with the partnership, and that was attempted, to be reasonably secured by requiring the special partner to pay in cash the sum contributed by him; authorizing the general partners only to transact the business of the partnership; prohibiting the special partner from binding the partnership, or his employment as agent, attorney or otherwise to transact any business on account of it; proclaiming that only the names of the general partners shall be inserted in the firm name; providing for the bringing of suits either by or against the general partners, as if there were no special partners; preventing the special partner withdrawing any portion of the sum contributed by him during the continuance of the partnership, or any of its effects except actual profits made upon the original capital; declaring void as against creditors of the partnership every sale, assignment or transfer of any of the property or effects of the firm, or of the property or effects of the general or special partner, after the firm or himself has become insolvent, or in contemplation of such insolvency, with an intention of giving a preference either to a creditor of the firm or to a creditor of the general or special partner; debarring the special partner from claiming as a creditor until the claims of all other creditors shall be satisfied, except for claims contracted pursuant to § 17; requiring the making of a public record containing the name of the firm, general nature of the business done, names of all the general and special partners, distinguishing which are general and which are special, amount of capital contributed by the special partner, and the term of the partnership. Thus enabling all who might desire to ascertain the principal features of the partnership. To guard against deceit it was provided that, if any false statement be made in the certificate or affidavit, all the persons interested in the partnership shall be liable for all the engagements thereof as general partners. It was further provided that if any partnership be renewed or continued otherwise than the act provides, or if there be an alteration in the names of the general partners, in the nature of the business, in the capital contributed by any special partner, or the death of any partner, and the business be thereafter carried on, as to such business it shall be deemed a general partnership. In case of a violation of the provisions of §§ 20 and 21, which relate to the disposition of partnership property after insolvency or in contemplation thereof, the special partner participating therein or consenting thereto is made liable as a general partner. Thus it appears that a compliance with the provisions of the statute was attempted to be secured either by imposing upon all the partners, both general and special, a liability for the partnership engagements, or declaring the partnership a general partnership. The statute nowhere suggests that in the event of insolvency the assets of the partnership shall be marshaled, and ratably distributed among the creditors of the firm. It does not provide for, nor in terms countenance, such a suit.

Chancellor Walworth, in Innes v. Lansing, supra, founded upon §§ 20 and 21, prohibiting the giving of preferences, the conclusion that the legislature could not have intended that a creditor of an insolvent limited partnership should be compelled to proceed to judgment at law, the necessary effect of which might be to give him a preference' over other creditors, and accordingly held that equity would take jurisdiction in such case. While his determination that such a suit would lie has ever since been followed, it was expressly held in Van Alstyne v. Cook, supra, that the statute referred to preferences voluntarily given by the partners, and does not apply to j udgments recovered against the members of a limited partnership, who may be sued before or after insolvency as other natural persons, and the judgments obtained enforced out of the partnership assets, although the effect may be to deprive other creditors from securing any portion of their claims. It is apparent, therefore, that there is nothing in the statute, nor in the construction so far given to it, which aims to prevent a diligent creditor from obtaining that advantage which the law universally sanctions, or which is intended to assure those dealing with a limited partnership of a ratable proportion of the avails of its assets in the event of insolvency. A strained construction of certain of the provisions of the statute should not, therefore, be made for the purpose of affording a remedy which it nowhere contemplates. That which the parties did should be examined in the light of the exactions of the act, and if found to have been a substantial compliance with its requirements, either for the purpose of continuing the partnership first formed or creating a new limited partnership, the plaintiffs’ position is well grounded ; otherwise not, unless their further contention be well taken, which is that, whether a valid limited partnership exists or not, the defendants cannot be heard to deny its existence.

It will tend to avoid confusion if the question of estoppel be discussed independently of those relating to the validity or invalidity of the alleged limited partnership. We have, then, for further consideration three questions: (1) Was the original limited partnership legally continued ? (2) If not, did the certificate last made operate to create a new limited partnership ? (3) If the partnership be general, are defendants estopped from, asserting that such is the fact ?

The trial court was of the opinion that the original limited partnership was not legally renewed and continued, because the certificate expressly recited the admission to the firm of another general partner. The happening of another event necessarily effected the same result, and we will first advert to it. No proposition can be plainer than that there cannot be a revival and continuance of that which does not exist. Unless there was a valid limited partnership at the time of the making of the certificate intended to effectuate a renewal in December, 1887, there was nothing for it to operate upon. A renewal may continue, but cannot give life. Adolph Levy, the special partner, died more than a year and a half before that time. In all cases of general partnership the death of a member marks a dissolution of the firm. Kennedy v. Porter, 109 N. Y., 526-549; 16 St. Rep., 613. Chief Judge Buger, in delivering the opinion of the court, said in part, touching agreements in partnership articles providing for a continuing of the partnership in the event of the death of one of the members: “We do not believe that any provisions made beforehand in reference to the death of a partner, or any agreements or arrangements made subsequently to his death, can prevent this dissolution. * * * As the partner who has died cannot by possibility continue a member of the firm, so any firm of which he is not a member, whether it contains his executor or his children, cannot be the same firm as that of which he was a member. * * * All these agreements and arrangements, and all that can be made for a similar purpose, are in fact only bargains for the creation of a new partnership when the old ceases to exist.”

Section 12, of the limited partnership act, provides that the death of a partner, “ whether general or special, shall be deemed a dissolution of the partnership,” unless otherwise provided in the articles of partnership, when it may be continued under certain conditions. As there doés not appear to have been any such stipulation in the articles of partnership, the exception is not applicable. The same section further declares that “ every such partnership which shall be carried oh * * * after such death shall have occurred shall be deemed a general partnership in respect to all business transacted thereafter.” It thus appears that by operation of the very statute under which the partnership was created it became dissolved upon the death of the special partner; the rights and privileges, the duties and liabilities, of the partner ceased as to all future transactions to be governed by the provisions of the act. As no provision was made in the articles of partnership to continue it in the event of death in the manner authorized by the statute, there was no method by which the old partnership could have been revived. It will be observed that the observations which we have quoted from Kennedy's case are applicable to this situation. Necessarily the partnership existing after the filing of the second certificate was general, and for the reasons already assigned the making of the third certificate did not operate to renew a limited partnership, for there was none in existence. The ground on which the trial court rested its determination that the last certificate did nokeffectuate a renewal of the limited partnership, assuming there was one in existence, is well supported, for the statute provides that any alteration in the names of the general partners shall work a dissolution of the partnership, and it shall" henceforth be general. ¡Necessarily it should be so, for the admission of new general partners changes the partnership. It is no longer the same partnership as before, and the rules* regulating an original partnership should govern its formation.

We are thus brought to the question whether the certificate of renewal can be considered as the original formation of a limited firm. That the parties to it intended to renew an existing partnership is apparent from it. Had the partnership which was by it sought to be continued been in fact a limited partnership, the object aimed at would have been accomplished, had there been no change in the partners. And it might be urged that the courts cannot create for the parties a different contract than they made for themselves; but we shall not discuss that subject, as we prefer to dispose of the question on the ground that, assuming the courts have the power to spell out of the facts recited in the certificate an attempt to form an original limited partnership, when manifestly nothing of the kind was intended by any of the parties, still such effect cannot be given this certificate, because it is not in substantial compliance with the statute. A careful analysis of the facts recited was made by the learned trial judge, and a comparison of the result attained, with the statutory requirements, was made for the purpose of showing how nearly it conforms to the commands of the statute. With the exception of the clause respecting the contribution of special capital, this was necessarily so, because “ the evidence of the renewal or continuance must be furnished in the same manner as that of its-formation. The same formality must be observed.” Fifth Ave. Bank v. Colgate, 120 N. Y., 381; 31 St. Rep., 431. But with respect to the capital contributed by the special partners, the statements must necessarily differ. When attempting to create an original limited partnership, the statute requires that the special partner pay in in cash the amount of his contribution. This requirement cannot be satisfied by the turning over of merchandise or other property of the value of the special partner’s contribution. Van Ingen v. Whitman, 62 N. Y., 513, 519 ; Met. Nat. Bk. v. Sirret, 97 id., 320-328. Nor can it be done in any of the many ways which the ingenuity of man has suggested, other than a simple compliance with its terms by the payment of cash. Further, the affidavit annexed to the certificate must show that it has actually been done. So those dealing with the partnership may know that at the time of the creation of the partnership there was in cash available for the purpose of the partnership the amount stated in the certificate. But when a limited partnership is renewed new capital need not be contributed. It may be that the capital contributed has become seriously impaired, but that does not deprive the parties of the right of renewal, the privilege of prolonging the life of the partnership. And for the purposes of renewal the statute is satisfied by statements in the certificate and affidavit to the effect that when the limited partnership about to be renewed was originally formed, the special partner contributed the amount specified in the certificate, and has not since withdrawn any portion of it. It need not be stated that the capital remains unimpaired, and if it be done, it will be treated as surplusage. Bank v. Colgate, supra.

Now, the certificate and affidavit before us state not that a contribution had been made in cash of $100,000 for the purposes of the partnership about to be created, but, in effect, that more than six years ago a limited partnership was formed, at which time-that sum was contributed by one Adolph Levy, now dead, no part of which had been withdrawn by or paid or transferred to him or his estate; a statement, in so far as the capital of the special partner is concerned, sufficient to effect a renewal of an existing limited partnership, but not to create one. It is said that, for all that appears in the certificate before the court, the contribution was in cash, for it is stated in one portion of it that the said $100,-000 is contributed by the said Augustus H. Levy, as executor of the estate of the said Adolph Levy, deceased. It is apparent from that which precedes as well as that which follows the assertion of contribution by the executor that the $100,000 thus alluded towns the sum paid in by the special partner in 1884, and not thereafter withdrawn. Indeed, the certificate, considered as an entirety, presents no basis for the assertion that the executor at that time paid in the sum mentioned, or intended to have it understood that he had. But if it was possible to isolate the expression referred to from other assertions in the certificate touching the contribution of capital, and by whom contributed, still it would fall short of the requirements of the statute. It commands something more than a statement in the certificate of the amount of the special partner’s contribution. An affidavit must be filed declaring that such contribution has been actually and in good faith paid in cash. The affidavit not only fails to show that the executor, as-special partner, paid such sum in cash, but it distinctly asserts to-the contrary.

It declares “ that the sum specified in the certificate of the formation of the said limited partnership to have been contributed by said special partner in said partnership to the common stock, to wit, the sum of $100,000, by the said Adolph Levy, (which the cerifícate shows was paid in over six years before), has been actually and in good faith paid in cash ; that no part of said sum of $100,000 has been withdrawn, but the whole thereof, to wit, $100,000, remains invested in said limited partnership, wholly unimpaired, and has been contributed by said special partner as capital to the common stock of said renewed and continued limited partnership.” It thus appears on the face of the papers that there-was no payment in cash, but instead that which was contributed was ‘invested in said limited partnership,’(as the partnership is described in the affidavit), but which was a general partnership, as we have already shown, While it is possible to change an existing general partnership into a limited one,' the property of the-general partnership cannot, nor can can any part of it, be turned over in lieu of cash to make up the amount to be contributed by the special partners. Payment in cash into the partnership will alone satisfy the demand of the statute. Metropolitan Nat’l Bank v. Sirret, 97 N. Y., 320; Van Ingen v. Whitman, 62 id., 513.

If the views so far expressed be correct, it follows that the partnership of the defendant is general, and not limited, and there remains for consideration the question of estoppel. It is urged that the defendants, having failed to create a limited partnership, as they intended to do, and supposed they' had done, they not only became general partners, and liable as such for the debts of the firm, which is the penalty imposed by statute for a failure to comply with its provisions, but, in addition, they can be lawfully proceeded against as a limited partnership by such creditors as may prefer that remedy. In other words, in so far as the general creditors are concerned, these defendants may be proceeded against by a portion of them as general partners and by another portion as if a limited partnership had been constituted. The penalty of a general partnership was imposed upon those attempting but failing to renew a statutory partnership for the benefit of the creditors of such firm. Mo other penalty was added or suggested, and it would be strange, indeed, if an effort to comply with the statute, and that alone, should visit the members of the firm with the responsibilities of a general partnership, and at the same time deny to them the right to say to a creditor, whose only knowledge, if he have any, of the attempt to form a limited partnership, was derived from the record: “The statute declares for your benefit that I am a general partner.”

The case of Durant v. Abendroth, 97 N. Y., 132, does not apply. Judge Rapallo did say in that case, and correctly, “that if the firm had undertaken to make an assignment with preferences, such assignment could not have been sustained, on the ground of the violation of the statute. That violation could betaken advantage of only by creditors, and the consequences were simply to give them recourse against the special partner personally, as if he had been a general partner. But the action did not arise under §§ 11 or 12, which declare that the effect of certain acts shall be to render that which was a limited partnership general. It arose under § 8 which provides that “ no such partnership shall be deemed to have been formed until a certificate shall have been made, acknowledged, filed and recorded, nor until an affidavit shall have been filed as above directed; and if any false statement shall be made in such certificate or affidavit, all the persons interested in such partnership shall be liable for all the engagements thereof as general partners.” It will be observed that the section quoted does not provide that the effect of a false statement shall be to make the partnership general, but it attempts to secure the creditors by providing that in such case all the partners, whether general or special, shall be liable for all the engagements of the firm. And the construction given to that section by the case cited was, in substance, that when a certificate and affidavit regular inform aré filed, but the statements made therein are false in fact, the limited partnership continues to exist, but with a penal liability imposed upon the special member oE the firm. It is apparent, therefore, that Durant's case does not support the contention that when a limited partnership, by force of the statute, becomes a general partnership, as provided in § 12, the creditor may still, if he so wills, treat the limited partnership as in force as to him, and have a remedy accordingly. Unembarrassed, then, as this case is by any previous binding adjudication, the question of estoppel can be quickly disposed of. There is not in the record a word of testimony suggesting that the defendants, except by the filing and publication of a certificate, void upon its face, ever held themselves out as constituting a limited partnership. It does not contain a hint that these plaintiffs, or any other creditor, knew or supposed, prior to becoming such, that the partnership of defendants was statutory. There is no testimony to the effect that any creditor ever gave credit to the firm as being a limited partnership, or in any way acted upon the faith of any representation that it was such. The facts upon which to rest an estoppel must be proved; they will not be presumed. Here there is proven but one of the several facts essential to its support, and that consists of the record, by which the defendants undertook to create a limited partnership. It will not be presumed that the creditors had knowledge of the existence of the record, but, if it should be, it would not avail them because it is void on its face, and, having knowledge of its contents, they would be charged with knowledge of its invalidity. The judgment should be reversed, with costs to the appellant to abide the event.

VAn Brunt, P. J., and Follett, J., concur.


author: O’Brien, J.

text:
    Dora Wheeler, App’lt, v. The Oceanic Steam Navigation Co., Resp’t.

      (Supreme Court, General Term, First Department,

      Filed October 13,1893.)

    1. Carriers—Limitation of liability—Contract.
    Where a party receives a steamer passage ticket, containing conditions and stipulations relating to the journey, the day before the vessel sails, Held, that the acceptance and use of such ticket constitutes an assent to its terms, although the party may not have read them, as he had ample opportunity to do so before starting.

      2. Same- Failure to object.
    The fact that the passenger’s baggage was already on board the vessel is no excuse for a failure to object, if he had any fault to find with the terms of the contract, as the company would have been obliged, in case such objection was made, either to return the baggage or to waive its right to the benefit of the contract terms.
    3. Same.
    The contract in question provided that the company carried passengers’ luggage and goods, for which a bill of lading is not signed, subject to the express stipulation that it is not to be liable for the loss of, or injury to, any articles or property of the description mentioned in the schedule hereto, contained in any parcel or package, when the value of such articles, or property, shall exceed the sum of £10, unless the value thereof was declared at the time of delivery. The schedule included “ pictures.” Plaintiff, with her trunks, delivered a box of portraits enclosed in a whitewood box marked “ studio,” for which no bill of lading was asked and no value thereof was given. Held, that the contract extended and included the box of portraits, and the defendant's liability for a loss thereof was limited to the amount fixed by the contract.
    Appeal by plaintiff from judgment entered on verdict directed by the court in her favor for the sum of $66.

      Boudinot Keith, for app’lt; Wheeler, Cortis & Godkin (Everett P. Wheeler, of counsel), for resp’t.
   O’Brien, J.

This action was brought to recover the full value of a case of portraits executed in pastel by plaintiff, and by her delivered at Liverpool to the defendant for transportation to New York, and not accounted for by it. About a week prior to August 26, 1886, the plaintiff’s mother engaged a stateroom for the party, which included, besides the persons, mentioned, another young lady, on the defendant’s steamship Germanic, which was to sail from Liverpool for New York qn the date named. Having previously caused to be shipped by freight from London her three trunks and the box of portraits, the plaintiff herself arrived at Liverpool on August 24th, and inquired at the company’s offices as to whether it had received the articles, describing them, to which she received a negative answer. On the next day, being the one prior to the sailing of the vessel, the plaintiff’s mother having arrived, she and the plaintiff together proceeded to the offices of the company, and upon making a similar inquiry for the packages were informed that they had been received, and that the company had placed them upon the steamer. On this occasion the mother testifies that she informed the agent of the contents of the box; and thereupon she paid the passage money and received a ticket, which embodied a contract, by the terms of which it was held in the court below the plaintiff was bound. By the terms of such ticket it was sought to limit the liability of the company for goods, including baggage, to an amount not exceeding ten pounds.

The two questions which we regard as crucial in determining the rights of the parties are: (1) Did the receipt of the ticket with the terms and conditions printed thereon constitute a contract between the parties? and (2) were the portraits contained in the box included within such contract ? In Zimmer v. N. Y. C. & H. R. R. R. Co., 137 N. Y., 460 ; 51 St. Rep., 269, it was said, page 463, 137 N. Y.:

“ Cases where parties proposing to have articles or property transferred by a common carrier deliberately enter into some necessary contract relating to the transportation differ materially from those cases of travelers who commit their trunks or articles of baggage to an agent of some express or transfer company, and receive at the moment some paper which, as it has been said, amounts simply to a voucher enabling.them to follow and identify their property. The difference is very obvious in the circumstances whicli, in the one case, admit of no negotiation or discussion, while in the other the shipment of the property is a matter of arrangement, with full opportunity for deliberate action.”

That, and cases therein referred to, are authority for the view that one who receives a ticket with a contract written thereon would, under the former circumstances, be held to have entered into and assented' to the terms of the contract, though he failed or neglected to read the same, while under the latter, where opportunity for negotiation or discussion was not present, one who received a ticket or receipt for baggage which contained a contract would not be bound by the terms thereof, unless the same were brought home to the person sought to be bound. The question now presented is: Under which of these two classes is the present case to be assigned ? While a person undertaking a voyage •across the ocean may not in every instance proceed with the same deliberation as one who desires to ship goods, it is still true that he proceeds, with respect to making arrangements for such a journey, with much more deliberation than usually attends the •committing of himself or property to a common carrier upon the beginning or ending of a journey by land. As said in Steers v. Liverpool, etc. Steamship Co., 57 N. Y., 5: “Looking to the course of business, the court may take notice that an engagement for a voyage across the ocean is a matter of more deliberation and attention than buying a railroad ticket or taking an express company’s receipt for the baggage or for freight. There is, therefore, no room in such a case for the suggestion that the party is surprised into a contract, when he supposes himself only to be taking a token indicative of his right.”

Although the circumstance as to whether the transaction is one merely of affreightment, or the purchase of a ticket upon a railroad, or the delivery of one’s baggage to an express company, or the procuring of passage across the ocean, has a bearing and will shed light upon the question of whether a contract was or was not entered into, it will in each case have to be determined upon the surrounding facts and circumstances. Instances could be cited where the usual presumption that might arise in favor of or against the making of a contract limiting the liability of a •common carrier would be entirely rebutted or destroyed by the other attending circumstances. So, here, the question is whether, by reason of the acceptance and use of the passage ticket, the plaintiff is to be held to have assented to its terms. The statement contained in the case of Fonseca v. Cunard Steamship Co., 153 Mass., 555, we think is equally good law in this state. As therein said : “ It has often been decided that one who accepts a contract and proceeds to avail himself of its provisions is bound by the stipulations and conditions expressed in it, whether he reads them or not. This rule is as applicable to contracts for the carriage of persons or property as to contracts of any other kind.”

Here, as in that case, the precise question is: “ Whether the contract ticket was of such a kind that the passenger taking it should have understood that it was a contract containing stipulations which should determine the rights of the parties in reference to his carriage. If so, he would be expected to read it, and, if he failed to do so, he is bound by its stipulations. It covered with print and writing the greater part of two large.quarto pages¡ and bore the signature of the defendant company, affixed by its agent, with a blank space for the signature of the passenger. The fact that it was not signed by the plaintiff is immaterial. It contained elaborate provisions in regard to the rights of the passenger on the voyage. * * * ]STo one who could read could glance at it without’seeing that it undertook expressly to prescribe the particulars which should govern the conduct of the parties until the passenger reached the port of destination. In that particular it was entirely unlike the pasteboard tickets which are commonly sold to passengers on railroads. In reference to this question the same rules of law apply to a contract to carry a passenger as to a contract for the transportation of goods. There is no reason why a consignor who is bound by the provisions of a bill of lading, which he accepts without reading, should not be equally bound by the terms of a contract in similar form to receive and transport him as a passenger.

It is conceded that the plaintiff’s mother, if not the plaintiff herself, had been accustomed to cross the ocean, and in respect to this special voyage that they had arranged for and secured their passage at least a week ahead, and that the contract ticket was received by them a day before the vessel sailed. This contract ticket is quite a large and formidable looking paper, and in large display type states that it is “ Cabin Passenger’s Contract Ticket,” so that one receiving and looking at it could not fail to observe that it contained conditions and stipulations relating to her journey across the ocean. The failure of the plaintiff or her mother, who acted in conjunction with her, in not reading it, where, as here, the opportunity was present, would seemingly be immaterial. A reasonable time was afforded prior to the sailing of the vessel, and if any fault was to be found with the passenger contract, the plaintiff or her mother should have made it known before leaving Liverpool. It is suggested that it would then have been of no avail to protest, as the property was on board the ship, and it would have been impracticable to return it to the plaintiff before sailing. This fact, however, we do not think is an excuse for the plaintiff’s silence or acquiescence, if she had fault to find with the terms of the contract. In other words, had she demurred or objected, the obligation would have been upon defendant to return her property, or, failing to return it, not to have had the benefit of the terms of the contract ticket. The failure, then, to object, under the circumstances as they are made to appear in this case, must, we think, be held to be an assent by plaintiff to the terms and conditions of the contract ticket.

This being so, the remaining question is whether it limited the liability of the defendant with respect to the portraits which were contained in the box, and which were lost. Upon this trial, as upon the former, it was made to appear that, in addition to the- ordinary baggage contained in trunks, plaintiff delivered for transportation, as stated, a package of valuable portraits. In the words of Judge Finch upon the former appeal in this case, 125 N. Y., 155 ; 34 St. Rep., 866:

“ These were contained in a box of whitewood with iron hinges and corner clasps, and closed by a lock. The package itself, besides the address, was marked 1 Studio,’ and its appearance unmistakably indicated something other than and different from the ordinary baggage of a traveler. There was no attempt to deceive the defendant as to its true character, or by artifice or misrepresentation to make it appear to be personal baggage, or shield it, as such, from proper freight charges. It was not entered upon the bill of lading with notice of its character and value, or in any manner whatever, but was put in the hold of the vessel for transportation to New York.”

By the contract ticket it was provided: “ That the company-carries passengers’ luggage and goods, for which a bill of lading is not signed, subject to the express stipulation that it is not to be liable for the loss of, or injury to, any article or articles, or property, of the descriptions mentioned in the schedule hereto, contained in any parcel or package, when the value of such article or articles, or property, shall exceed the sum of ¿£10, unless at the time of the delivery thereof to the company the value thereof shall have been declared by the person or persons sending or delivering the same. * "* * ”

It will thus be seen by the terms of the contract that the limited liability of the company is not confined simply to baggage, but is sought to be extended to “any article or articles, or property, of the descriptions mentioned in the schedule,” which schedule enumerates, among other things, “ pictures.” The appellant’s contention is that this language would only refer to articles mentioned in the schedule which were packed with baggage, and the knowledge of which was kept from the company, and would not include portraits or pictures packed in a case, as here, and which it is claimed must necessarily have been received as freight, and for which, as such, defendant would be liable. We do not think this position is tenable. This property was delivered at the same time as the trunks, and is by a particular description referred to in the contract ticket; and where, as here, no bill of lading was taken out or asked for, and the value thereof was not stated, but the company was left to infer from the manner in which it was received that it was to be carried in the same way as any other property which á passenger might seek to bring with him, we think it would be extending the liability of the defendant beyond the terms of the express contract entered into between the parties to assume that it was a separate and independent contract under which the defendant unconditionally received the package as freight, and for which, as such, it would be liable. In other words, whether the property was what might, strictly speaking, be called “baggage,” or “freight,” and whether received as one or the other by the defendant, cannot be a controlling circumstance in a case where there is a contract which by its terms covered such property. In Stoneman v. Erie Railway Co., 52 N. Y., 433, Judge Peckham, writing the opinion, says:

“1 think it is safe to say that if the carrier knew or had notice of the character of the goods taken as baggage, and still undertook to transport them, he is liable for their loss, although they are not traveler’s baggage.”

We think it to be equally a sound proposition that it was entirely competent for the defendant to carry the package containing the portraits, though, from the way in which they were boxed, it had knowledge that such package was not, strictly speaking, baggage, and to contract -with the person owning such property as to the terms, conditions or limitations under "which it would transport the same. We think the evidence shows that there was no intention of separating this property from the baggage, or, on the part of the plaintiff, of placing any other or different responsibility upon the defendant from that assumed by it in carrying the trunks. But, on the -contrary, the evidence is susceptible of but one conclusion, viz,, that the trunks and the package containing the portraits, as well as their own' transportation or passage, were intended by the parties to be, and were, the subject of a single contract. It will thus be seen that we have reached the conclusions, with respect to both questions, that there was a contract entered into between the parties, which, by its terms; extended to and included the portraits, and under which the liability of the defendant was limited; and upon such conclusion it follows that the case was correctly disposed of by the judge at circuit, and that the judgment should be affirmed, with costs to the respondent.

Follett and Parker, JJ., concur.