text:
    Jeannie T. Hard, App’lt, v. Charles O. Ashlen et al., Resp’ts.

      (Supreme Court, General Term, Fifth Department,

      Filed June 21, 1895.)

    Will — Revocation—Presumption.
    Where a decedent makes a legal will, which was last seen in his possession or under his control, but at his death cannot be found upon proper search, the presumption obtains that it was destroyed by the testator ammo reweandi.

    Appeal from a judgment, entered on a verdict in favor of defendants, and from order denying a motion for a new trial.

      William A. Sutherland, for app’lt; John A. Barhite, for resp’ts.
   Ward, J.

— This action was instituted in the Monroe county court to partition certain premises owned by Eliza Ashley, of Rochester, situtated in that city. Eliza Ashley died on the 17th of April, 1893, and the plaintiff and the defendants Charles 0. Ashley and John H. Acker were her only heirs at law. The issue made by the pleadings was whether Eliza Ashley died intestate. The defendants claim under an alleged will of the deceased which deprived the plaintiff of any interest in the property. At the close of the evidence the plaintiff’s counsel moved for the direction of a verdict for the plaintiff, which the court denied, and the jury rendered a verdict for the defendants. Upon the pleadings and conceded facts at the trial the plaintiff was entitled to a verdict, unless a will was established, made by the deceased, preventing. There was no such will established upon the trial. A witness was examined on defendants’ behalf, who testified, in substance, that lie drew a will for the deceased from a memorandum given him; that he signed the will as a witness at her request; that his father was one of the witnesses; that the will was read over to the deceased, and she signed it. Other witnesses referred to the fact that a will was prepared, and that they had seen a will, and there was talk about a will in which the deceased participated, but the proof came far short of establishing an instrument that would devise real estate, executed and published as required by the statute. It is true that proof of a lost will is necessarily secondary, and the law except the best evidence that the nature of the case admits as to valid execution and contents, and in such a case as this defense may establish the will by a single credible witness Harris v. Harris, 26 N. Y. 433), yet it must be shown that the will was executed with all the formalities required by the statute and that the testator was of sound mind, and under no restraint. There was an entire absence of proof as to the contents of the assumed will; nothing whatever to show the plaintiff’s apparent title as an heir to one-third of the property, sought to be partitioned had been impaired or destoryed. The case,, therefore, of the defendants was not established, and it was error not to direct a verdict for the plaintiff. The defendants seek to excuse this omission by alleging that the proof of the execution of this will and its •contents was excluded by the court upon the plaintiff’s objection, and seem to assume that the plaintiff is estopped thereby, and deprived of the benefit of the objection of the want of such testimony here. The court sustained the objection to certain evidence offered by the defendants, which, if admitted, in connection with sufficent other evidence (which the defendants did not offer to show), might tend to establish the will; but the trial court regarded the objection as well taken, and ruled in favor of the plaintiff, and the soundness of that ruling is not before us for consideration. It would be a novel proposition, indeed, that the needed proof to establish a will or prove its contents. by paroi could be worked out by way of estoppel, founded on the sustained objection of the opposing party ; but, assuming that it had been established that the decedent had made in her lifetime a will excluding the plaintiff from All rights in the property, a further difficulty is presented which has been earnestly pressed upon our attention.

Upon the death of Mrs. Ashley, and after thorough search made no will was found. The last we learn of this assumed will is from the witness Edward Webster, who says he had drawn a will for the deceased before, ana in her last sickness she sent for him about a week before she died. She was confined to her room, .and he adds: “She called a young lady to get the will, and told her where it was, and she went and brought it in. I don’t know anything as to where it was, except from something they said, I think she told the girl it was in the bureau. Mrs. Ashley was-upstairs at that time. This bureau was in another room. I don’t know whether it was upstairs or not. The girl returned with tlm will, and I examined it.” The will was left with the deceased, or under her control. This was the last seen of the will, so far as the testimony goes. The plaintiff was the granddaughter of the deceased, and she, with one or two other relatives of the deceased, took care of her for several weeks previous to her death. The-defendant Charles 0. Ashley and his daughter and other members of the family were in attendance more or less upon the deceased during that time. Evidence was given by the defendants tending to show that the deceased had some objection to the plaintiff being there at that time, aud that the plaintiff had made expressions-of disrespect towards the deceased, and had written some letters-to the stepmother of the plaintiff, ridiculing the deceased, and the deceased had said that the plaintiff was there only for the loaves- and fishes, but she would be disappointed. The plaintiff’s stepmother was also in attendance upon the deceased, having gone there before the plaintiff; and the plaintiff had expressed in her-letters to this stepmother that she hoped that she would get well paid, or get the property of the-deceased, for taking care of her. It appeared also from the defendants’ evidence that at one time, some time prior to the death of the deceased, what was called a will was seen in a family Bible that was in one of the rooms of' the house (that was before the will was, seen by Webster as stated); and that at some time the plaintiff was seen reading this Bible, or looking through it, but it did not appear that the will was there at the time. The plaintiff was seen at one time looking through a book of poems, and the trial court charged the jury that there was evidence showing that the will had been seen in this book of poems. This statement was a misdirection by the court, there being no such evidence in the case. The plaintiff" testified that she never saw the will. The same statement wnsmade by the other witnesses who were in attendance upon the-deceased. Several witnesses testified, uncontradicted, to seeing a letter from the deceased, written in December, 1892, to the-plaintiff, in which the deceased asked the plaintiff to come and take care of her, and she could have what property she had ; that she (the deceased) was sick, and alone, and had no one to do anything for her; that her son Charles (the defendant) was a brute ; that he never came near her to do anything for her; and requested an answer. It appeared that after the death of Mrs. Ashley there was some talk of settlement between the parties, and the plaintiff proposed that her interest in the property should go to the defendant Charles for life, with reversion to herself. The witnesses on both sides, as is unfortunately the case in family controversies, exhibited bitterness towards each other, and there was some contradiction as to the facts. Several witnesses: spoke of a letter of instruction that the deceased had executed, and had, among her papers, directed to her son Charles, stating what she wanted done with her property after her death! One witness, who saw it, described it as a package of yellow sheets, and this was to be given to Charles in case the deceased did not, live; otherwise, it was to be destroyed. This was during her last illness. This letter of instructions was not found after her death. The deceased was ninely-one years of age. Her mind was clear and bright, and there was no question but what her mental condition was good. Some evidence was given touching her ability to leave the room after Webster’s visit, but it does not appear but what she could have reached her will, and had control of it, if she had desired to, after Webster’s visit. The evidence did not disclose who the young lady was that brought the will, nor did it disclose any act on the part of the plaintiff pointing to the destruction of the will. Such a destruction would be a crime,, and a party is not to be convicted of such an act upon suspicion or surmise, but only upon substantial evidence proving it.

It is elementary that the law never presumes a will in the absence of proof. If it be established that the decedent made a. will, such as the statute permits, to dispose of property, and it was last seen in the possession or under the control of the decedent, and at his death no will can be found upon proper search, the presumption obtains that the will was destroyed by the testator anima revocandi. In re Florence, 2 Bradf. Sur. 281; Idley v. Bowen, 11 Wend. 227. The law upon this subject is so welt stated in Collyer v. Collyer, 110 N. Y. at page 486; 18 St. Rep. 210, in a case much like this in its leading features, that we cannot do better than to reproduce it here:

“ There is no direct proof that Mrs. Gollyer destroyed her will, but the proof that the will was not found after her death is sufficient proof that she destroyed it anima revocandi. When a will previously executed cannot be found after the death of a testator, there is a strong presumption that it was revoked by destruction by the testator; and this presumption stands in place of positive1 proof. Citing, Betts v. Jaclcson, 6 Wend. 173 ; Knapp v. Knapp, 10 N. Y. 276; Schultz v. Schultz, 35 id. 653; Hatch v. Sigman, 1 Dem. Sur. 519. He who seeks to establish a lost or destroyed will assumes the burden of overcoming this presumption by adequate proof. It is not sufficient for him to show that persons-interested to establish intestacy had an opportunity to destroy the will. He must go further, and show by facts and circumstances-that the will was actually, fraudulently destroyed. In Loxley v. Jackson, 3 Phillim. Ecc. 126, the will was last seen in a small box in the bedroom of the deceased, but was not found after her death; and it was held that the presumption of law was that the-testatrix destroyed it anima revocandi, that the law did not presume fraud, and that the burden of proof was on the party claiming under the will. * * * In Knapp v. Knapp, supra, it was held that proof that a will executed by a deceased person was said by him a month previous to his death to be in his possession in a certain1 desk at his house; that he was then very aged and feeble ; that his housekeeper was a daughter, having an interest adverse to the will, and that the same could not be found, on proper search,, three days after his death, — is not sufficient evidence of its exist--ence at the testator’s death, or of a fraudulent destruction in his lifetime, to authorize paroi proof of its contents. The authorities -are uniform, and no further citations are needed.”

Within the rules thus laid down, from a careful examination of this evidence it is doubtful whether there was sufficient evidence to justify the jury in holding that the plaintiff, or any one else, -destroyed this will, with a fraudulent intent, or that it was lost by accident. The deceased was capricious, as sick and aged people often are. She seemed inclined first to one of her relatives, and •then to another, and it might well be, if she had made a will, or given letters of instruction, that in a moment of perplexity or -doubt as to just what she should do with her property, came to the conclusion to destroy all papers, and let the law distribute it among her heirs.

■ The judgment and order reversed, and-a new trial granted, with ■costs to abide event.

Lewis, J., concurs; Bradley, J., concurs in the result.


source: Caselaw Access Project

author: Ward, J.

license: Public Domain

text:
    Francis E. Comstock, App’lt, v. Benjamin Green, Resp’t.

      (Supreme Court, General Term, Fifth Department,

      Filed June 21, 1895.)

    Husband and wife — Liability.
    The evidence was held sufficient to establish a case against the husband for submission to the jury, in an action for medical services rendered to his wife after she had left him.
    Appeal from a judgment of nonsuit, and from an order denying a motion for a new trial on a case and exceptions.

      L. C. Van Fleet, for app’lt; O. A. Fuller, for resp’t.
   Ward, J.

— This action was commenced in a justice’s court in' Alleghany county by Francis E. Comstock, plaintiff, against Benjamin Green, defendant, to recover for the professional services of the plaintiff as a physician, rendered to the wife of the defendant, which were necessary for her health and comfort. The complaint was denied by the defendant, and he alleged specifically that he ;-and his wife were not living together; that she had left him without cause, and he was not liable. The plaintiff recovered a judgment in the justice’s court, from which an appeal was taken for a new trial to the county court, and upon such trial plaintiff was nonsuited, and the sole question here is whether any question was •raised by the plaintiff’s evidence that should have been submitted to the jury; and, in disposing of that question, we must take the most favorable view for the plaintiff that the evidence presents. The wife was an old lady. The plaintiff was a physicián in Allegany county, and had attended the defendant’s wife. professionally for a considerable period of time at the house of a daughter •of the defendant and the wife, and there was evidence tending to prove as follows: That she was ill, principally confined to the house and to her bed, and needed the professional attendance given her; that the daughter with whom the wife resided lived at .some distance from the defendant, and the defendant did not em-’ ploy the physician; that the defendant and his wife had lived together formerly at the defendant’t home, and in the same yard, and adjoining the defendant’s was a house where the daughter resided at first, and the mother, becoming sick at home, received the attention of the daughter and the daughter’s husband and needed such aitention. The defendant seemed to care nothing for his wife, nor did he pay her any attention; failed to furnish her with all the necessities and delicacies and with the attention which her health required; so she was compelled to go to her daughter’s house for such attention and care as she needed. The defendant did not object to this, and when a time arrived soon after that the daughter and her husband left the premises, and moved to another place, the wife was taken with them, with some articles of the furniture of the defendant’s that had been in use in his house, without any objection on the part of the husband, and with his apparent acquiesence and consent. The daughter lived for a short time at the place to which she then removed, and moved again to the place where the medical services were rendered, and where the wife finally died. The defendant gave her no attention after she left home, nor did he furnish her with any necessaries or money, but expressed himself as glad that she had gone; that she been nothing but a bill of expense to him. And it further appeared that the residence of the wife with the daughter was necessary for her health up to the time of the death of the wife, which occurred as a result of the sickness and enfeebled condition from which she was suffering when she first left the defendant’s house. The defendant said of his wife that she had not been capable of doing her own business for some time, and that he had to do it for her. There was evidence tending to show cruel treatment on the part of the defendant towards his wife while she was ill at his house, and tending, as far as words and manner could go, to distress and humiliate her in her enfeebled condition, and thus injure her health, and there was evidence to go to the jury to sustain several propositions: First, that his neglect and ill treatment of his wife while she was ill was such as to justify her in going away with her daughter, where she could be cared, for and protected; second, that she did go away, with the consent and approval of the defendant; third, that she needed the medical attendance and services of the plaintiff for which the bill was rendered. We indicate no opinion as to this evidence further than that it was sufficient to take the case to the jury.

It was error, therefore, for the county court to take the case from the jury, and the judgment of the county court should be reversed, and a new trial granted, with costs to abide the event.

All concur.


author: Bradley, J.

text:
    Guisseppe Critelli, as Administrator, etc., App’lt, v. Rogers et al., Resp’ts.

      (Supreme Court, General Term, Fifth Department,

      Filed June 21, 1895.)

    1 Pleading — Amendment.
    A proposed amendment of a complaint for death by wrongful act does not change the cause of action, by merely alleging an earlier date for, and altering the designation of the place of, the accident.

      2. Same — Condition.
    In such case, it is unreasonable to require as a condition that the defendant be allowed to plead the statute of limitations' as though the action was-commenced when the application for the amendment was made.
    Appeal from so much of an order, made on application of plaintiff to amend the complaint, as permitted defendants by amendment and supplemental answer, to allege the statute of limitations as a bar, with the force and effect as though the action was commenced on the day of plaintiff’s application to amend his-complaint.

      Charles Oishei, for app’lt; Ely & Dudley and Morris Cohn, Jr., for resp’ts.
   Bradley, J.

— This action was commenced in September, 1892. By the complaint it was alleged that the death of the plaintiff’s intestate was caused by the negligence of the defendants. They answered in October following. When the action was reached and moved on for trial at the Erie circuit, March 15, 1894, the plaintiff’s counsel moved to amend the complaint as hereinafter mentioned. The motion so made at the trial was denied, but with view to further application for such relief the plaintiff was permitted to and did withdraw a juror. Upon an order to show cause the motion was afterwards heard and granted, and by the order the defendants were, by amended and supplemental answer, permitted to set up the statute of limitations to the same effect as if the action had been commenced on the 15th day of March, 1894. This would have been well enough if the plaintiff had by the-amendment to the complaint alleged a new cause of action, or one not fairly within the allegations of the original complaint. But such-does not seem to have been the case. Both allege that the death of the plaintiff’s intestate was occasioned by the negligence of the defendants. In the original complaint it was alleged that the plaintiff’s intestate, employed by the defendants as a laborer in a. tunnel at Niagara Falls, was, on or about May 3,1892, killed by the fall upon him of a cage used by the defendants for hoisting stone from the bed of the tunnel canal. In the proposed amended complaint it is alleged that prior to and on or about June 22, 1891, the cage used by the defendants in hoisting stone from the bed of the tuunel fell upon and killed him. These are the only changes sought to be made in the pleading which require any consideration. They are in the date and in the designated place of the accident, so far as the difference is represented by the “tunnel canal” and the “tunnel” at Niagara Falls. The time alleged in actions ex delicto of the act complained of is generally an immaterial averment. And at common law, while the party was permitted to prove a single-act of injury alleged, he could prove no-more than one anterior to the day stated in his pleading, although he was not so limited subsequent to that day, and prior to the commencement-of the action. 1 Chit. Pl. 259,383, 384 ; Chat-ham v. Lewis, 3 Johns. 42 ; Relyea v. Beaver, 34 Barb. 547 ; same case, sub. nom. Dubois v. Beaver, 25 N. Y. 123. Under the present system, the evidence offered to prove more than one act of trespass anterior to the alleged time would be treated as nothing more than variance. And, although the “tunnel canal” in the work at Niagara Falls may have been distinct in designation from the “tunnel” in the work, there the difference was in the designation of the particular place in the same locality where the accident occurred, while its alleged instrumentality was substantially the .same. The cause alleged was the negligence of the defendant, and its consequence was the death of the plaintiff’s intestate. He was killed only once. And it seems clear that the result on the merits of the trial of the action upon the issues as presented by the original pleadings would have been a bar to another action against the defendant upon the charge of negligence for causing his death. There is no new cause of action alleged in the proposed amended complaint, as distinguished from that in the original one. It purports to make some correction in the allegations of fact in relation to the negligence charged in original complaint. And there seems to be no well-founded reason for imposing as a condition of the amendment that the time of the commencement -of the action be deemed postponed beyond that when it was commenced for the purposes of the defense of the statute of limitations. In view of the nature of the proposed amendment of the complaint, that provision of the order is unreasonably prejudical to the plaintiff. And that portion of the order should be reversed.


author: Werner, J.

text:
    Silas H. Cummings, Resp’t, v. American Gear and Spring Company et al., App’lts.

      (Supreme Court, General Term, Fifth Department,

      Filed June 21, 1895.)

    1. .Pleading — Complaint.
    A complaint, in an action to set aside a judgment against a defendant corporation as in fraud of creditors, which alleges that the judgment was obtained by collusion of the directors of the corporation, states a cause of action against such directors, as they may be charged with the costs of the action.
    3. Same — Misjoinder op causes op action.
    A cause of action to enforce the liability of the directors of a corporation for failure to file their annual report may be joined with causes of action to set aside a mortgage and bill of sale executed by the corporation, and a judgment obtained against it by collusion with the directors for the purpose of defrauding its creditors.
    Appeal from an interlocutory judgment, overruling demurrers to the complaint.

      Wheeler & Norton, for app’lt Edward P. Hollister ; George P. Keating, for app’lt Langford S. Keating; W. Algar Wheeler, for app’lt Algar M. Wheeler; Irving W. Cole, for resp’t.
   Werner, J.

— It cannot be doubted that the complaint contains in a signal statement three separate causes of action, namely: First, to set aside a mortgage and bill of sale alleged to have been executed by the American Gear & Spring Company in contemplation of insolvency, and with intent to hinder, defraud, and delay creditors ; second, to set aside a judgment alleged to have been obtained collusively; third, to enforce the liability of three of the defendants for failure, as directors of said company, to file an annual report in January, 1894. The complaint prays, also, for a sequestration of the property of the gear and spring company and division among its creditors. There are six defendants, — the American Gear & Spring Company, the Third National Bank of Buffalo, Robert Keating, Langford S. Keating, Algar M. Wheeler,. and Edward P. Hollister. The complaint alleges the recovery of a judgment by the plaintiff’s assignor against the gear and spring company, the issue of an execution thereon, and .its return unsatisfied, and therefore justifies the prayer for sequestration, and furnishes the requisite basis for calling in question the validity of the transfer of property by the gear and spring company to the Third National Bank, of the judgment recovered by the defendant Robert Keating, and the enforcement of the liability, as directors, of the defendants Langford S. Keating, Wheeler, and Hollister. The first cause of action, aside from that requiring the sequestration to be spelled out of the complaint, is that the gear and spring company, in contemplation of its insolvency, and with intent to hinder, delay, and defraud its creditors, transferred, by mortgage and bill of sale, substantially all of its property to the defendant the Third National Bank of Buffalo. The complaint alleges, also, that the transfer was made “upon the written request and authority” of the defendants Wheeler, Hollister, and Langford S. Keating. The allegation last mentioned is the only one tending in any way to connect the defendants Wheeler, Hollister and Langford S. Keating with that fraudulent transfer, and there is nothing in the complaint tending to show that the defendant Robert Keating was in any way connected therewith. From, the second cause of action it appears that the gear and spring company, being insolvent, suffered the defendant Robert Neating to obtain a judgment against the company, and it is charged that the judgment was recovered by the collusion of said company and Langford S. Keating and the Third National Bank with Robert Keating. The complaint does not charge that the judgment is fraudulent or founded upon a fictitious indebtedness, and evidently proceeds upon the theory that the gear and spring company, being insolvent, was precluded from suffering a judgment to be recovered against itby the defendant Robert Keating, even upon ahonda fide indebedness. The third cause of action is for the enforcement of the statutory liability of the defendants Langford S. Keating, Wheeler, and Hollister, as directors of the gear and spring company, for their failure-to file a report in the month of January, 1894, as required by statute ; and the prayer based thereon is that said defendants he adjudged jointly and severally personally liable for all the debts of the gear and spring company, and that they may be required to pay any deficiency of assets necessary to satisfy the claim of creditors.

It is evident from what has been stated that the cause of action against the'Third National Bank does not affect any of the other defendants except the gear and spring company, unless the defendants Wheeler, Hollister, and Langford S. Keating are proper parties defendant because they procured the transfer of the property to the bank; and this in no event affects the defendantEobert Keating. It is equally evident that the second cause of action affects only the gear and spring company and the defendant Eobert Keating, unless the allegation that the bank and Langford S. Keating colluded with the other defendants-just named to permit the judgment to be obtained makes their joinder proper. So the third cause of action affect only the-defendants Wheeler, Hollister, and Langford S. Keating. The-defendants Hollister, Wheeler, and Langford S. Keating have-separately demurred to the complaint upon the ground that causes of action are improperly joined therein. This appeal is taken from the judgment overruling the demurrers at special term. It is provided by section 484 of the Code of Civil Procedure-that various causes of action may be united as classified in that section, but with the restriction that it “ must appear upon the* face of the complaint that all the causes of action so united. * * * affect all the parties to the action. ” The limitation, which has been quoted is aimed against what was known in the chancery practice as multifariousness, and is but a restatement of one of the earliest rules of the court of chancery. Story, Eq. PI. (9th ed.) § 271. The rule is designed, not only to avoid the hardship of compelling a defendant to litigate a question in which he has no interest, but also to avoid confusion in the pleadings and in the decrees of the court. In order to determine whether the demurrers should have been sustained, the first inquiry is whether the allegations of the compla'nt to the effect that the appellants procured and were concerned in the fraudulent transfer to the bank, and colluded with Eobert Keating to permit his judgment to be obtained, state a cause of action against-them with respect to those acts. It appears from the complaint that the appellants, while not in possession of any of the assets of the gear and spring company, were instruments of the alleged-illegal acts assailed by the plaintiff, and it follows, therefore, that-they are are proper parties so far as those causes of, action are-concerned. It has long been a rule of equity practice that one who participates in a fraudulent act, even though he be concerned only as agent, may be made a defendant in a bill to obtain relief from that act for the purpose of charging him with costs. Story,. Eq. PI. (9th ed.) § 282; Brady v. McCosker, 1 N. Y. 218. The complaint in this action contains a general prayer for costs, which must be construed as applying to all the defendants, and is-sufficient, therefore, to avoid the objection that the appellants are not proper parties defendant to the first and second cause of action. . It follows, therefore, that the complaint as to these defendants is not objectionable upon the ground that it unites causes of action which do not'all affect the appellants. It is not necessary to discuss or decide here the question whether this-objection might have been more successfully taken by some of the* other defendants who did not demur.

It remains' to be determined whether the complaint is demurrable on account of the joinder of the third cause of action with the other two. It has not been questioned by the counsel for the appellants that the first and second causes of action are of such a nature that they may be united in the same complaint, and no such objection could successfully be made. The third cause of action — for the enforcement of the statutory liability of the appellants as directors of the gear and spring company — cannot properly be joined with the other two causes of action, consistently with any reasonable construction of section 484 of the Code of Civil Procedure. ' By section 1790 of the Code it is, however, provided that “where the action is brought by a creditor •of a corporation, and the stockholders, directors, trustees or other officers, or any of them, are made liable by law, in any event or contingency, for the payment of his debt, the persons so made liable may be made parties defendant by the original or by a supplemental complaint, and their liability may be declared or enforced by the judgment in the action.” This section is one of the general provisions for the dissolution of a corporation and the enforcement of the individual liability of the officers and members thereof. By reading that section in connection with section 484 we are able to find a statutory rule for the joinder of causes of action in cases of this character, which is not provided by the provisions of the later section alone. Section 1790 is not a new enactment, but is substantially the provision contained in the original revision of the statutes (2 Rev. St. p. 464, § 43), and appears to have been first enacted in the Laws of 1835 (page 450). This and similar provisions have always formed a part of the remedies provided by statute for the enforcement of the performance of corporate duties at the suit of the people, and of the ■collection of corporate debts at the suit of creditors. It is true "that the plaintiff sues for himself alone, and not in belalf of other creditors, and that there may be creditors of the corporation who could not enforce the liability of the directors for failure to file the report. But the difficulty seems tó be obviated by sections 1792 and 1793 of the Oode of Civil Procedure, providing for a distribution of the assets of the corporation ; and, as was held in Pfohl v. Simpson, 74 N. Y. 137, the decree can provide for the distribution of such sums as the directors may be required to pay among such creditors as are in a situation to avail themselves of the liability imposed by the statute. .The question whether, even in this view of the statutes referred to, the third cause of action is one which can properly be joined with the other two, is not free from doubt. In Farnsworth v. Wood, 91 N. Y. 308, it was held that a receiver of a corporation under the general manufacturing act is not vested with the right of action given by that act to creditors of the corporation against the stockholders thereof. We are inclined to think, however, that the limitations of the act referred to distinguish that case from this one in particulars which need not here be discussed. We are inclined to the view that these causes of action can, under the statutes above referred to, be properly joined. But a different question is presented by the demurrers of the defendants Hollister and Wheeler, who have demurred, not only upon the ground of misjoinder, but have also made the objection that the complaint does not state facts sufficient to constitute a cause of action against them. The first cause of action is sufficient, as has been shown; and as to that the demurrers of the defendants Hollister and Wheeler are not well taken. With respect to the second cause of action set iorth in the complaint herein, a demurrer might properly have been interposed upon the ground that complaint as to the facts therein set forth does not state a cause of action. There is no allegation that the judgment obtained by Robert Keating is in fact fraudulent, or based upon a fictitious indebtedness; and the complaint seems to proceed purely upon the theory that the' judgment is voidable because the gear and spring company and its directors permitted the judgment to be taken' collusively — that is, with the consent and connivance of the directors. It does not appear that the company had any defense to the .action, and Robert Keating was neither a stockholder nor a director therein. He was entitled, therefore, to obtain his judgment, and we do not think that the directors, by merely suffering it to be taken, gave an unlawful preference. Varnum v. Hart, 119 N. Y. 101; 28 St. Rep. 262 ; French v. Andrews, 145 N. Y. 441; 65 St. Rep. 384. But the defendant Robert Keating has not demurred, and the defendants Hollister and Wheeler have made their demurrers unsustainable by demurring to the entire complaint instead of only to the second cause of action. It is true that the plaintiff could not, by violating the rule of practice requiring different causes of action to be separately stated and numbered, deprive the defendants of the' right to demur. Wiles v. Suydam, 64 N. Y. 173. Defendants Hollister and Wheeler might properly have demurred to the second cause of action; but it is an established rule that a demurrer which is too general must be overruled. Story, Eq. PI. (9th ed.) § 443. If we are correct in the conclusion that under 'existing statutes the third cause of .action is properly joined with the. other two, the contention of counsel for the appellants — that the complaint shows that prior to January, 1894, the gear and spring company was practically dissolved, and therefore it was not necessary for the directors to file a report in January, 1894 — cannot be sustained. It is settled that, under such conditions as are alleged in" the complaint, the directors -of a corporation are not relieved from the obligation to file an annual report. Brown v. Clark, 81 Hun 267: 62 St. Rep. 764; Bruce v. Platt, 80 1ST. Y. 379.

Our conclusion, therefore, is that all the demurrers were properly overruled, and that the judgment appealed from should be affirmed, with costs, with leave to defendants to answer within twenty days after entry of this judgment, upon payment of the -costs of the demurrer and of this appeal.

Ward, J., concurs, Bradley, J., concurs in the result.


text:
    Harry Sneck, App’lt, v. Travelers’ Insurance Company of Hartford, Connecticut, Resp’t.

      (Supreme Court, General Term, Fifth Department,

      Filed June 21, 1895.)

    Insurance — Accident—Construction.
    A provision, in an accident insurance policy, to indemnify the insured against “ loss by severance of one entire hand,” has reference not alone to-an injury which involves the loss or requires the amputation of the “entire hand,” in a strictly anatomical sense, but the effect, as well as the extent, of the loss by severence is to be considered in determining whether, within the terms of the contract, the “entire hand” is gone.
    Appeal from a judgment, entered qn a verdict directed by the court in favor of plaintiff.

      Howard W. Sneck, for app’lt; Satterlee, Yeoman & Taylor, for resp’t.
   Werner, J.

— This action was brought upon a policy of insurance issued by the defendant to the plaintiff, by the terms of which the latter was to receive a weekly idemnity of $10 per week, for a period not exceeding twenty-six weeks, for bodily injuries producing disabilities, and respiting from causes enumerated in the policy. It was further provided in said policy that, “ if loss by severance of one entire hand or foot” should result from such injuries alone, the insured should, within ninety days, be entitled to-receive one-third of the principal sum of $2,000, named in the policy, in lieu of such weekly indemnity, The plaintiff claims under this latter condition of the policy, and upon the first trial of this action he was permitted to recover upon the theory that he had suffered “the loss by severance of one entire hand.” Upon appeal by the defendant to the court the judgment entered at circuit was reversed, and a new trial ordered. The case was retried at the Monroe circuit held in January, 1895, and at the close of plaintiff’s case, and upon defendant’s motion, a verdict was directed in favor of the plaintiff for $110, that being the wqelcly indemnity provided for in the policy at the.-rgte of $10 per week for eleven weeks. The injury complained of was conceded)y due to-the accidental causes enumerated, ip the policy. The evidence upon the last trial as to the nature of the injury, so far as it relates to the anatomical structure of the hand, and the extent tp which imputation wag made, is substantially the, same as it was upon the former trial. There is a marked difference, however, in the evidence given to show the degree of disability, or extent of the loss of use of the hand, resulting from the injury and amputation. Upon the former trial the plaintiff gave evidence which tended to show that he had considerable use of the portion of the hand which was left; and plaintiff’s surgeon testified: “The fingers, and heads of all the metacarpal bones were cut off with a planer. * * * A little over half the hand, speaking anatomically, is gone. There are twenty-seven bones in the skeleton of the hand. Thirteen bones are gone entirely, and parts of five more, and the parts of the five are simply the heads of the metacarpal bones and the head of the middle bone of the thumb.” He further testified,. in substance, that the portion of the hand which remains is more useful than if the amputation had been at the wrist, and that it could be used for certain purposes. Upon the last trial the plaintiff testified substantially that he had no use of the injured member as a hand, and never had since the accident, although admitting that upon the former trial he had probably testified that he could use it to place under and against objects for the purpose of lifting and pushing. He now attempts to explain these admissions as follows: “But I don’t mean exactly the hand. I mean the whole arm. I don’t use the hand. I use the arm. I don’t mean the portion I exhibited to the jury. I mean that arm, not the hand.” The physician who was called by the plaintiff upon the last trial, in speaking of the condition of this hand, gave substantially the same anatomical description of its condition as was given upon the former trial. But in speaking of its use he testifies: “Nothing could be done with it; none of that for which the phalanges were used ; nothing can be grasped with it, — what remains of that hand; absolutely nothing. * * * He has no use of the hand." These summarized extracts from the testimony taken upon both trials will suffice to show that, so far as the opinion of this court upon the former appeal was based upon evidence showing the extent to to which plaintiff had lost the use .of the injured hand, it is not controlling here. That the prevailing opinion upon that appeal did not rest entirely upon the terms of construction of the contract, but was predicated to some extent upon evidence showing the use to which the injured hand could be put, is clearly evident from the .context thereof.

It seems, our duty, therefore, to consider the case upon the evidence now presented, and to apply thereto the principles which control contracts of this character. It may be conceded, for the purpose of this discussion, that, if the language of this policy is to be construed in its strictest and most literal sense, then plaintiff’s claim to compensation for “loss by severance of one entire hand” cannot be sustained, and the disposition of the case made by the trial court must be upheld. If, on the contrary, we are to give effect to the contract according to the ordinary and fair meaning of the terms employed, then we must consider the question whether the evidence was such that it became the duty of the trial court to prevent plaiptiiFs recovery upon this claim by directing a verdict for the weekly indemnity provided for in another clause of the policy. Let us, then, briefly consider the rules of interpretation which must be applied to this, contract. “Words in a policy must be taken in their ordinary sense as commonly used and understood; and, if the sense in which they are used is uncertain, as they are found in a contract prepare^ and executed by the insurer, they should be construed most favorably to the insured.” Herrman v. Insurance Co., 81 N. Y. 184. “The character and purpose of the contract must be considered, and, if there is any doubt as to the true meaning of any of its terms, it must be interpreted in the sensp in which the insured had reason to suppose it was understood." Hoffman v. Insurance Co, 32 N. Y. 413. In Darrow v. Family Fund Society, 116 id. 537; 27 St. Rep, 474, the court states the rule in the following-language: “For the purpose of upholding a contract of insurance, its provisions will be strictly construed as against the insurer. When its terms, permit' more than one construction, that will be adopted” which supports its validity. It is only when no other is permissible by the language used that a construction which works a forfeiture will be given to it.” Looking at this contract in the light of- these rules, 'we think; it is not unreasonable to hold that the understanding to indemnify the insured against “loss by severance of one entire hand” has reference not- alone to an injury whicbinvolves the loss or requires the amputation of the “entire hand” in a strictly anatomical -sense, but that the effect,- as well as the extent, of the loss'by severance is to be considered in determining whether, within the terms of the contract, the “entire hand”-is gone. To require the insured to submit to'a strictly literal interpretation of the contract prepared for him by the insurer, without regard to the. purpose of - the contract or the understanding thereof by the parties, would be to 'hold that only in case of the severance of the entire hand in a most accurately anatomical or technical sense could the insured recover'under this clause of the policy. We do' not believe that such a conclusion is required in the present, case. The term “entire hand” is to be taken in its general acceptation and ordinary meaning.-' In construing this contract the law does not require, an injury which comes within a strictly accurate and technical definition of the words employed, but one which reasonably,- fairly, and practieálly comes within thé meaning of the terms employed in their general and usual meaning and acceptation. In a.contract of insurance providing for ihdémnity for the loss' óf á limb the’ compensation to ‘‘be paid is not merely for the physical pain of its amputation, but principally.’for the deprivation of ¡its use as a member of the body. It would seem-to bean extremely narrow' and technical construction of this contract to-say that only a physical "removal of every particle of "that portion of the’hupan anatomy known as' the hand would entitle the insured .to"recover under the'clause of the policy now., under consideration.- Is-it not-more reasonable and logical to conclude that in the úse of the 'language abóvé Inferred to the “entire hand” as a part of the, human structure is considered' in connection with the use to which it is adapted, -and" the injúry which the loss of such use would entail? Is it hot also fair toassume that this was regarded by the parties as thé sénsein which the' contract was.to.be’..understood,. and was( one of ‘the considerations which influenced'.the insured to enter'into the contract ?An affirmative answer to these questions brings' into harmony thé language and the intent of the parties to the contract, élimiriatés from the case any seeming, difficulty arising' from purely'technical definitions, ana brings it fairly within the rifle of Sheanon v. Insurance Co., 77 Wis. 618, which. is in some'respects similar to-this case. The'condition of the.policy in that case was, that ‘the" company should pay if the insured should /‘suffer, the loss' óf the entire sight of both eyes, or the loss of two entire hands, or two entire feet, or'one entire hand'and one entire 'foot.” The. plaintiff suffered paralysis of the lower limbs,1 caused by being shot,in the back. The court held that the loss of the use of his feet from this accidental cause was within the provision of the policy which entitled him to recover. The difference between that case and this is that here the policy provides that the loss must be occasioned by severance,” while in that case there was no specification as to to the manner of the loss, except that it must be accidental. But we think this specification in the policy before us is intended to refer to the manner, rather than to the exact physical extent, of the injury.

The foregoing propositions necessarily involve as a logical sequence the inquiry whether the evidence upon the trial was of such a character that the court was right in holding that plaintiff had not suffered the loss “ by severance of one entire hand,” and therefore was not entitled to recover under this clause of the policy. We think the learned trial court erred in assuming this to be its duty. If our reasoning is sound, the effect, as well as the extent, of the amputation was a proper subject for consideration at the trial. The evidence — which was not the same as upon the ■ former trial —was such that under the rules here applied different views might be entertained upon the question whether the plaintiff had suffered the loss of an entire hand. To the minds of some men it would warrant the conclusion that for the practical purposes to which the use of the hand is adapted there was an entire loss of the use of it; while to others it might seem, after an inspection of the hand, and a consideration of the evidence, that neither in its anatomical construction nor in its practical use'as a hand was it entirely destroyed. Unless the evidence settled this question beyond dispute, it was the province of the jury to decide it under proper instructions from the court as to the legal principles which govern the construction and effect of such contracts. We think this course should have been pursued; and are therefore constrained to reverse the judgment appealed from, and grant a new trial, with costs to abide the event.

So ordered.

Ward, J., concurs. Bradley, J., not voting. Lewis, J., dissenting.


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    Ellen D. Carter, Resp’t, v. William Pitcher, App’lt

      (Supreme Court, General Term, Fifth Department,

      Filed June 21, 1895.)

    1. Evidence — Pabol.
    Title to land cannot be proved by paroi.
    2. Same — Pbesumption.
    The sale of trees growing upon land does not raise a presumption of possession of. the land in the vendor.
    3. Tbespass — Possession.
    The owner of premises, actually occupied, does not have .constructive possession, which will enable him to maintain trespass;
    4. Same — Damages.
    The measure .of damages for. .cutting trees is the difference in the value of the land before and after the' trees were cut.

      5. Appeal — KbvebSAl.
    A justice’s judgment, lidwever just it may be, it not sustained by the competent, after disregarding the incompetent, evidence, will be reversed.
    Appeal from a judgment of the county court, affirming a judgment of a justice of the in favor of

      E. C. Almy, for app’lt; Charles D. Newton, for resp’t.
   Werner, J.

— The trespass complained of was that the defendant entered upon the premises of the plaintiff in the town of Grove, Allegany county, and wrongfully cut down and carried away teii apple trees which were the property of the plaintiff. The defendant’s answer was a general denial. This put in issue, not only the alleged trespass, but the ownership of the premises upon which it took place.

The evidence discloses that on or about the 2d day df January, 1894, the plaintiff and the defendant entered into a contract under which the defendant was to cut down certain apple trees upon the premises in question, and pay the plaintiff seventy-five cents a ■cord for the wood. The trees with referehde to which this contract was made were situate in a pasture, to which plaintiff claims title, and about forty rods distant from the trees which it is claimed the defendant wrongfully cut down and carried away.

Thé appellant relies upon certain exceptions taken at the trial, which .we will proceed to consider. The plaintiff wTas asked the question, “ Do you own the farm ?” This question was properly objected to. It appeared Upon the trial that the plaintiff was not in acttial possession of the farm in question, and that she resided in the town of Nunda, in Livingston county. It v/as evidently considered necessary for her to prove title in order to raise the presumption of possession which such j)roof creates. While it was therefore competent for the plaintiff to attempt to prtive her title, it was essential that this should be done in the píopér way. Parol evidence was not competent to make this proof (Miller v. Railroad Co., 71 N. Y. 385), and it was error for the' court to permit the plaintiff to testify orally as to her ownership of the premises in question.

In answer to respondent’s proposition that the right to maintain an action of trespass depends not upon title, but upon possession of the premises, and that proof of title is in some cases presumptive proof of possession, we are confronted with another difficulty which stands in the way óf an affirmance of this judgment. The case it barren of evidence tending to show who was in actual possession of the premises. It clearly appeared that the plaintiff did not reside there. It also appears, by inference at least, that the premises were not vacant; and therefore the plaintiff is not entitled to maintain the action, under the rule laid down in Randall v. Sanders, 37 N. Y. 578, that an owner of premises not actually occupied has constructive possession, which enables him to maintain trespass. The question was.áskéd the plaintiff, “ Who lives upon your premises ?” To this question the defendant objected, and the justice, with the same misapprehension as to the rules of evidence in such cases which led him to receive the oral testimany of the plaintiff as to the title of the premises, excluded the •evidence offered to show who was in possession. It was incumbent upou the plaintiff to show that she was is actual or construcive possession, and consequently had the right to maintain this action. Wood v. Lafayette, 68 N. Y. 181. The latter ruling of the justice made it impossible for her to produce the evidence from which it might appear that she had such possession. This proof was essential, in the absence of a title from which possession could be presumed.

It is also urged that the sale of a portion of these trees by the plaintiff to the defendant is sufficient to raise the presumption of possession of the premises in the plaintiff; but the difficulty is that all the evidence negatives any such presumption. For aught that appears, the plaintiff may have been as much of a trespasser as the ■defendant. If such were the case the defendant would certainly not be precluded from urging that as a.reason why the plaintiff should not maintain this action. It was incumbent upon plaintiff •to show the facts upon which the right to maintain the action rested, and this she failed to do.

It is further claimed for the defendant that fatal errors were -committed in the rulings relating to the admission of evidence upon the question of damages. We think that the proper measure of damages was applied. Sedg. Darn. (8th ed.) § 933. That is the difference between the value of the premises before the injury .and their value thereafter. But the trial court seems to have utterly disregarded defendant’s objection that none of the witnesses who were called upon the question of damages were shown to be competent or qualified. Mot one of the witnessss who were called to testify upon the question of damages was shown to have any knowledge upon the subject. We have simply their naked statements as to their idea of the extent of the damage.

It is, of course, well settled that a judgment rendered in the justice court will not be reversed for the admission of improper, irrelevant, immaterial, or cumulative testimony, when there is •abundant competent evidence to sustain it, and the court can see that no injury has been occasioned to the party complaining (Milliner v. Lucas, 3 Hun, 496); but it is also equally well settled that: ‘"Rules of evidence are rules of law. They are of imperative obligation, and are not to be put aside in the discretion of the court, from solicitude for the supposed interests of justice. The only justice known to the courts is such justice as is ascertained and certified by legal evidence; and the rules may not be disregarded but at the risk of a reversal of the judgment that proceeds in disregard of them.” Mt. Morris Electric Light Co. v. United States Horse & Cattle Show Soc. 60 St. Rep. 642. However just, therefore, this judgment may in fact be, it is not sustaned by competent evidence. On the contrary, when we exclude the incompetent evidence in the case, there is nothing whatever to support the judgment of the court below.

The judgment of the court below must be reversed with costs.

All concur.


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    Thomas Larkin, App’lt, v. Village of Brockport, Resp’t.

      (Supreme Court, General Term, Fifth Department,

      Filed June 21, 1895.)

    Canal bridge — Tender—Compensation.
    Where there was an express or implied contract between the tender of a. canal bridge, appointed under the act of 1887, and the village, which was to pay him his compensation, as to the rate of wages to be received by the former, it was not affected by the subsequent passage of chap. 380 of 1889.
    Motion for a new trial on exceptions, ordered to be heard at. genera] term in the first instance.

      George P. Pecker, for app’lt; John M. Drake, for resp’t.
   Werner, J.

— In 1887 the legislature of this state passed an act (chapter 118) making an appropriation for, and directing the construction of, a lift bridge over the .Erie canal in the village of Brookport. By the term of the act, the operation of said bridge-was “to be under the direction of the superintendent of public-works, but the expense thereof to be paid by the village of Brockportand the authorities of the said village were authorized to-levy taxes for that purpose. The bridge was constructed, and in the spring of 1888 the plaintiff was appointed bridge tender by the assistant superintendent of public works. Soon after such appointment, the salary of bridge tender was fixed by the board of trustees of said village at $45 per month, or $1.50 per day, at which rate plaintiff was paid monthly during the entire season, for twelve hours’ work each day. Before the opening of the canal season of 1889, the plaintiff sought and obtained appointment to- • the same position for the season of that year. The canal opened on or about May 1st, and plaintiff was appointed about ten days- or two weeks prior to that time. There was no talk between the assistant superintendent of public works and the plaintiff as to the rate of wages or who should pay them. Plaintiff knew that there was; then pending in the legislature an act which subsequently, and on June 6th, became chapter 887, Laws of 1889, and which provided that “from and after the passage of this act wages of day laborers, employed by the state, or any officer thereof, shall not be less than $2.00 per day and for all of such employed otherwise than day laborers, at a rate of not less than twenty-five cents per hour.”' About two week after plaintiff began work, the board of village-trustees again fixed the wages at $45 per month. Plaintiff received no formal or official notification of this action, but obtained, knowledge of it from outside sources. He thereafter signed and. verified his monthly bills, signed receipts and indorsed orders for-his wages, all of which papers were prepared for his signature by Mr. Drake, the clerk of the village board. Immediately after said chapter 880 became a law, plaintiff had talks with the president and two trustees of the village, in which he stated that he w’anted his extra pay. On various occasions thereafter, when signing the-necessary papers to obtain his monthly wages, he called said Drake’s attention to his claim for additional compensation under the law above referred to.

At the close of plaintiff’s case, the defendant moved for a non-suit, upon the grounds which appear upon the record, and the-motion was granted. It is evident that the learned trial justice took the view that said chapter 380 did not apply to this.case, because the plaintiff was working under an implied contract for the same wages he had received the previous year, as fixed by the village trustees two weeks after his appointment, in 1889. If plaintiff’s case is governed by the provisions of the act in question,, he was entitled to just double the amount of pay he actually received. The plaintiff was unquestionably an employe of the state, and in the absence of a pre-existing contract, express or implied, to work for a different rate of wages, was entitled to the-compensation fixed by said chapter 880. Clark v. State, 142 N. Y. 105 ; 58 St Rep. 444. But, if there was an express or implied contract between plaintiff and defendant as to the rate of wages to be received by the former, it was not affected by the subsequent passage of the act in question. Clark v. State, supra.

There is no express contract. Was there an implied contract t The circumstances of the case, as disclosed by the present record,, seem to require an affirmative answer to this question, unless the-decision of this court upon the former appeal, reported in 81 Hun, 364, and 63 St. Rep. 140, is a determination that there was a question of fact for the jury. Upon the first trial the cause of action now under consideration was sent to the jury without instructions upon the law relating to implied contracts. Defendant’s requests for a proper charge upon that subject were denied. Upon the assumption that there was no express contract, and that the facts warranted the submission of the case to the jury, this court held that defendant was entitled to have the jury instructed upon, the law of implied contracts. But -the question whether, upon the facts and circumstances disclosed by the record, the trial court would have been justified in holding, as matter of law, that there was an implied contract, was not before the court. We are, therefore, called upon to consider the case upon the record as now presented. From this it appears that plaintiff knew what, the wages had been the. year before. After the village; board had fixed the wages at $45 per month, he accepted, without, protest or objection, that sum-for his first month’s pay. He says-that he expected to get more in case the pending bill in question-should become a law. He admits that he said .nothing about it. to any of the village officials. The action of the village board in fixing his wages as above stated was taken about two weeks after he entered upon his duties. While the record does not disclose just when plaintiff received knowledge of this fact, it may fairly be inferred that, in a village like Brockport, a resident particularly affected by any action of the trustees would be advised thereof through the usual channels of publication and general discussion. Moreover, plaintiff’s own statement is a practical admission that he had knowledge of the action of the board immediately after it was taken. He made no protest or suggestion until áfter the 6th day of June, when said chapter 380 became law, Then, instead of making ah immediate formal demahd upon the board for increased pay, in accordance with the terms of the statute, he contented himself by conversing in a casual way with individual trustees. It also appears that he talked with Drake,"the village clerk, about the passage óf this law, and claimed to be entitled to increased pay, but never made any formal demand. Upon Drake’s statement that he had no authority to pay more, and that it was for the trustees to say what should be done, plaintiff Continued to accept his wages from month to month, precisely as he had done in 1888. The presentation of plaintiff’s claim to the state board of claims, after the’ close of the season of 1889, while not in any sense controlling of his actual rights, reflects a strong light upon his apparent understanding of the situa-tion prior to the decision of the state board. Notwithstanding his ¡statement that he always thought the village would have to pay, "this circumstance, in connection with others, indicates that plaint-tiff had no serious thought of attempting to collect extra pay from the village until after his attempt to collect from the state. His own testimony indicates that his efforts to'obtain this incre'ase were not those of a man standing upon his supposed legal rights, but rather evinced' a desire to get the increased pay if he could -make the authorities believe that he was entitled to it. When plaintiff was presented with the vouchers for his first month’s pay, he had notice that the' village authorities' understood that he was to work under the same arrangement which existed in 1888. Plaintiff's acceptance of the money without ptotest expressed his acquiescence in that understanding, and in the action of the board taken in May, 1889. In this transaction we find the circum.-stanceS upon which the law rests an implied contract. The fights -of the partids became fixed then and there. The mental reservations of the plaintiff as to the possible effect of the proposed state law are not in any sense an element of this implied contract. Riley v. Mayor, 96 N. Y. 331. The acts of the parties, and riot the sécret operations of their minds, are the elements of which .implied contracts are composed.

We agree with counsel for the plaintiff that the cases in which .•an implied contraót has been based upon uninterrupted ánd continuous. service beyond the period of the original contract are not •nontrolling here. There was herd no such continuance. But the knowledge which both parties had of the previous contract, con.¡sidered in connection with the action of the village board in May, 1889, and plaintiff’s acquiescence therein, furnishes ample ground for holding that, at the time of the passage of said chapter 380, there was an existing implied contract between the parties, which was not affected by the passage of said act. If said act had be•come a law before the fixing of plaintiff’s wages by the village trustees, and before knowledge thereof by him, or his acceptance ■of the sum fixed, we would have a case from which a contract to work for $45 per month might be implied; but such circumstances would clearly present a question of fact for the jury, because of conflicting inferences which might be drawn from the ■¡existing conditions. Here there are no conflicting inferences. Up to the moment when chapter 380 became a- law, plaintiff's acts were utterly at variance with the alleged operations of his mind. His rights are to be determined by bis acts and the apparent understanding of the parties prior to.the passage of said law. His subsequent conduct can have no more effect upon the implied contract than could an attempted repudiation of a written contract plain in its terms. As to their binding effect, both classes of contracts rests upon the same principles. The case of McCarthy v. Mayor, 96 N. Y. 1, is not like this in its facts, but the language of the court in discussing the principle of implied contracts is particularly applicable to this case:

“An agreement for extra pay may be implied from circumstances; but such an implication arises only when the services are rendered under circumstances authorizing an expectation of compensation, or the inference that they would not otherwise have been rendered.”

What circumstances was there in this case to authorize the expectation of increased compensation, except the pendency of a proposed statute which, so far as plaintiff knew, might never ripen into a law? It is not pretended that the pendency of this law was a circumstance upon which plaintiff definitely based his rights. If he desired to reserve to himself the prospective benefits of this law, he should have communicated the fact to defendant’s agents or officers. This question is not met by the suggestion that the defendant is the mere debtor, and not the employer of the plaintiff. While it is true that the state was the employer, the defendant was, by the very terms of the statute which required it to pay the plaintiff, necessarily made a party to the contract of employment. Plaintiff had not only legal, but actual,- notice of this fact; and he ■cannot now be heard to say that there was no privity of contract between him and defendant. Thestatute required the superintendent of public works to" employ the necessary working force on this bridge, but it also directed the defendant to pay for the same; and, while it is unnecessary to decide what plaintiff’s rights would have been had the state superintendent assumed to fix plaintiff’s compensation, we are convinced that- the statute, by implication at least, authorized the making of a contract between the plaintiff and defendant.

Was there any inference that plaintiff would not render the service if he did not get his pay? We think not. On the contrary, every inference which may properly be indulged in from the testimony indicates that the plaintiff was ready to begin and continue his work, whether he obtained increase pay or not. The Clark Case, supra, differs from the one before us in the important circumstance that no rate of compensation was ever fixed by the state or agreed upon between the parties, except as it was fixed by the statute passed subsequent to Olarlc’s employment. So far as appears, he had never been employed by the state before, and simply received and receipted for the same -wages which he and others were getting and had previously received for similar work. Nothing had occurred prior to the passage of said chapter 380 from which a contract could be implied but the acceptance by Clark without objection of his monthly wages. : This, in the absence of a finding- or a request to find a contract from the facts disclosed, was sufficient authority to treat-the- case- as one of employment,, without-, any contract, as to compensation; and therefore, notwithstanding Clark’s acceptance of less than was provided by the statute, he was-held entitled to its provisions. Here the acceptance by Larkin, after the passage of said chapter 380, of the wages fixed by the village board, is an incident which is no more controlling than was the same act-in the Clark Case„ It is what Larkin did prior to the passage of'the-act which gave the trial court the right to .say, as. matter of law, that he was bound by an implied contract which was in force when chapter 380 became a law. This is not in conflict with Kehn. v. State, 93 N. Y. 291; Riley v. Mayor, 96 id. 331.

In the former of these cases the attempt -of the superintendent of the capítol to reduce .the. plaintiff’s pay;was in plain contravention of the statute which was in force at the time of his' employment, in the case-of Riley v. Mayor, supra,-.itwas held that, by the act providing' for the organization and-control of the New York fire department, the-'fire commissioners .were authorized to transfer employes of the department from one: class of duties to another; and, m case .of - such transfer, to a class of duties less profitable to the department, the employe - was - entitled only to the compensation adapted, to the duty required. It Was also held, however, that in such - a case the employe’s acceptance,- without objection, of the salary attached to the inferior position, .was a waiver of the' right to claim the salary of. .the superior one;-. ■

- Plaintiff’s counsel contends that-the'wage act in question superseded any contract .which.may have'existed prior to its enactment, We do not. concur in thiswiew;. The! defendant, .as a.municipality, of-course derived .its'powersffrom'the legislature; but one of these-powers was created by chapter 118, Laws 1887, requiring it to pay the operating expenses ,>of - this bridge, and authorizing it to levy taxes for that purpose Assuming that the'legislature had authority to abrogate any existing contract by subsequent enactment,— a- power -which we-do- nbt. concede (Const. U. S. art,. 1, § 10), — it would bemn unWarranted'.stretch of the rules of judicial.construction to.ho!ditha,t stick a.result .is to.be obtained by mere implica-, tian when the absence in the statute of language disclosing such an'intént clearly indicates'that-it did not 'exist, ' "

,- -The ruling ¡of. the court :at folio 36 was' not erroneous, but, even if-so, it-was prejudicial1 to plaintiff. Plaintiff’s conversations with individual trustees lof’ the defendankwould not work a rescission of any existing contract; but,- even if we assume that evidence of these conversations. was competent for that purpose, it appears at folio 23; that-, {plaintiff -has already testified in substance to these same -conversations, and:-plaintiff was therefore not prejudiced by the ruling.

■ Bláihtiff,’s/ motion .for a. new trial is therefore, denied, and the judgmefit-of . the {trial court-affirmed, with costs.

All concur;,-.'


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    Jonathan L. Gould, App’lt, v. Florence E. Patterson, as Administratrix, etc., Resp’t.

      (Supreme Court, General Term, Fifth department,

      Filed June 21, 1895.)

    Appeal — Justice’s couiit; — Title to seal estate.
    Where the defendant does not take steps, in an action involving title to real estate in justice’s court, to procure a discontinuance of the action, a failure of the justice to dismiss, though title is brought in question and disputed, does not render his judgment void, for want of jurisdiction, hut merely erroneous, and the county court, ón appeal, can try the case, including the question of title.
    Appeal from a judgment of the county court, dismissing the «complaint.

      Charles D. Newton, for app’lt; E. C. Olney, and S. M. Norton, for resp’t
   Bradley, J.

— The action was originally commenced against the defendant’s intestate; and recovery had'against him, by the plaintiff, in justice’s court. On appeal, and demand for a new trial in the county-' court, a trial was had, which resulted in dismissal of the complaint, and on appeal to this court the judgment of the county court was reversed, and' a new trial granted. 63 Hun, 575 ; 45 St. Rep. 85.

This appeal is from the judgment resulting on the second trial in the county court. The ground for the dismissal of the complaint, as shown by.-the decision of the court, was that it appeared on the trial, by the plaintiff’s showing, that the title to real property was in question, which 'title'was disputed by the defendant, anil that, the same'so appeared and was disputed on the trial in the justice’s court:1' The cause of action alleged in the complaint is that the defendant wrongfully entered upon certain described land owned by, and -in the possession of, the plaintiff, and maliciously cut down and appropriated to his own use some trees growing thereon.' The defendant, by his answer, denied the allegations of the complaint, and alleged title'and possession in hiniself to the land where the trees stood;,and from which they were taken,. -Upon thetrial in the'county court, the. plaintiff gave evidence of title to the locus in quo, and- that' question was lití- ; gated.' ' This could have been legitimately done there if the action had been originally' comifienced in' the county court. On the review by this court of''the first trial "in the county court, it was held that the' fact that' the action was originally commenced in-the justices court did not deny-to-the'-county court the right to ■determine it upon the merits, 'although "title'to the real estate was brought in question by the plaintiff’s showing, and was disputed by the defendant; and it was there said by Mr. Justice MacomBER that “ the learned county judge assumed, as we think, erroneously, that- he was hearing the same case that had been tried before the justice of "the peace. ■ The fallacy of the learned counsel for-the defendant, -in making his applicntion for a nonsuit, lay in the..assumption, which as above seen has no existence in the statute, that' the .county court was obliged - to dismiss the case, if title to real estate appeared upon the trial there, just as though it was acting in the place of the court of the justice of the-(peace.’, Reference was also made to the fact that it did not appear in' the record before this court, on such review, that title to real property was in question and disputed on the trial in the justice’s court; but the effect on the trial in-the county court of such facts, if they had appeared was not announced. On the second trial in the county court, the evidence taken in the justice’s court was introduced with a view to the inquiry whether title to land was there brought in question and disputed. The defendant had the opportunity, before the justice, of procuring a discontinuance of the action there in the maimer provided by the statute. Code Civ. Pro. §§ 2951, 2952, 2954. By reason of his failure to do so the justice had jurisdiction of the action, was required to proceed with the trial of it, and the defendant was precluded from drawing the title in question. Id. § 2955. Yet, if it appeared upon the trjal, from tjie plaintiff’s showing, that title to real property was in question and disputed by the defendant, the justice should have dismissed the complaint. Id. § 2956. It is difficult in such case to see any support for the proposition that the trial and de-, termination of the action by the county court are dependent upon or controlled by the evidence and the questions raised upon it in the justice’s court, simply because they were raised there. Although a justice of the peace cannot take cognizance of an action where the title to real property comes in question, as prescribed by the statute (Id. § 2863), the question whether such title is brought in question .on the plaintiff’s showing, and disputed by the defendant, is for the justice to decide, and his refusal to dismiss the complaint when it does so appear does not render his judgment for the plaintiff void for want of jurisdiction, but voidable pply, for eiyor. Id. § 2956 ; Koon v. Mazuzan, 6 Hill, 44; Bowyer v. Schafield, 1 Abb. Dec. 183, *41 N. Y. 633; White v. Place, 40 Hun, 481; Milbanks v. Coonley, 17 St. Rep. 533. A different question arises when the justice’s judgment from which appeal for a new trial is taken is void. Then there is no judgr ment to support such an appeal, or a new trial founded upon it. Gillingham v. Jenkins, 40 Hun, 594. As in the present case the appeal was available for the purposes of a new trial in the county court, the only question here is whether or not there was any, and what, limitation of the power of the county court upon the trial, other than that arising from the issues as presented by the pleadings. They put in issue the title as well as the possession of the locus in quo. If there is any other it arises from the fact that the action w,as commenced in justice’s court.

In O'Donnell v. Brown, 3 Lans. 474, which was decided in 1871, it was held that the liability to have the action dismissed by reason of a.disputed question .of title followed the ease from the justice’s court to the appeal for a new trial in the county court. This was before the adoption of the Code of Civil Procedure. In White v. Place, 40 Hun, 483, -that proposition is by Mr. Justice Bockes treated as one of doubt. And, on the first review of the present case, it was held that the trial in the county court was not subject to the restriction, in that respect, of the provisions of the statute; applicable to the trial in the justice’s court, but that the county court had the power to fully try the issues on the merits, notwithstanding it involved the determination of a disputed question o£ title to real property. Gould v. Patterson, 63 Hun, 575; 45 St, Rep. 85. That is controlling authority here, and unless this case,, for some substantial reason, be distinguished from the case on the; former review, the same result then given must follow. The.court then did not determine that, in case the title to real property was brought in question and disputed on the trial in the justice’s-court, the county court could on that ground dismiss the complaint if the like question arose on the trial in that court. No such question was before the court on that review, nor does it necessarily appear what disposition would have been made of that proposition if it had been there for consideration. The relation which the action in its procedure, when taken by the appeal into the county court for a new trial, has in that respect to it, as it appeared in the justice court, is such as is given by the statute and! the issues to be tried. The manner in which they are tried in the-court below, and the questions there raised, are not matters for consideration on the trial in the county court. Crannell v. Comstock, 12 Hun, 293. Prior to the amendment in 1865 of section. 366 of the Code of Procedure, it was held that the issues in the-justice’s court could not be changed by amendment in the county court on appeal to it for a new trial. Savage v. Cock, 17 Abb. Pr. 403. But the jurisdiction and powers of the county court have-been somewhat enlarged by section 348, 3071, Code Civ. Proc. By the latter section it is provided that, upon such an appeal to the-county court for a new trial, all proceedings therein “are the same as if the action had been commenced in the appellate court, except, as otherwise specially prescribed” in the chapter referred to. This-relates to procedure and includes the power of the court to allow amendments to the pleadings, and thus to permit the trial of issues; which were not in the court below. Simpson v. R., W. & O. Railroad Co., 48 Hun, 113 ; 15 St. Rep. 539. For the reasons herein-before given, we have not deemed it necessary to refer to the evidence given on the trial before the justice.

The action was properly continued against the personal representative of the original defendant. 2 Rev. St. p. 114, § 5 ; CodeCiv. Proc. § 757. The judgment should be reversed and a new trial granted in the county court, costs to abide the event

All concur.


author: Lewis, J.

text:
    Joseph F. Grant et al., App’lts, v. John B. Smith, Resp’t.

      (Supreme Court, General Term, Fifth Department,

      Filed June 21, 1895.)

    1. Mortgage — Chattel—Possession.
    The assignee of a chattel mortgage, given to secure an indorsement,, which provides that, on the recovery of a judgment against the mortgagor, the mortgagee may declare the whole debt due, has the right to enforce the mortgage by taking possession of the property, though the note secured had not become payable.

      3. Same.
    Where such mortgage contained a provision that the mortgagee, after paying the indebtedness, should have the right to take possession of the mortgaged property,, he, haying paid the bank for the note, has, within the. meaning of the mortgage, paid the indebtedness and is entitled to the possession of the property.
    Appeal from an Order, dissolving a preliminary injunction.

      W. H. Nourse, for app’lts; F. L. Eaton, for resp’t.
   Lewis, J.

— The plaintiff .Joseph F. Grant made his promissory note for the sum of $107.75, payable to the order of the plaintiffs, • .-and at their request John T. Baxter became a second indorser upon said note; and, to secure Baxter against loss, damage, or liability which he might .sustain or incur as such indorser, the plaintiffs gave him a chattel mortgage upon their stock of goods in their store in the city of Olean. The mortgage provided that it was given as collateral and continuing security to Baxter, asindorser- upon the plaintiff’s note mentioned, or any renewal or .renewals thereof, and against any loss, cost, damage, or other, liability which he might sustain as such indorser. It further provided that if at any time during the existence of the mortgage any suit should be commenced, judgment recovered, or execution issued against the mortgagors, or if they should sell, assign, secrete, or remove away any portion ¡of the property so mortgaged, or. ..attempt to do so, then-the whole of the indebtedness, although not then dne by its terms, should become immediately due and payable, and the liability of Baxter as indorser should thereupon become- fixed, and .after paying such indebtedness the said Baxter should have the right to the immediate possession of the mortgaged property. And it further provided that if the mortgagee should at any time deem himself in danger of having to'pay said indebtedness or a.ny part thereof, by delaying until the same should become due and payable, he was authorized, after paying said indebtedness,- to take immediate possession of the mortgaged property, either before or after the maturity of the'indebtedness, and sell .to the same at public or private sale, and retain the proceeds thereof to the amount of the indebtedness, together with costs, etc. It further provided that the mortgagee, his heirs, executors, administrators, or assigns, might purchase at such sale, etc.

,-.-Thp note, after the same was indorsed by Baxter, was discounted' by the Exchange National Bank of Olean,, and said bank, before-the note fell due, transferred the same to the defendant; -and'Baxter, the mortgagee, assigned the said mortgage to the defendant, .as security for the payment of the note. The defendant thereby became theowner of the note and the mortgage .before the maturity -of the note. While the note and mortgage were held and owned by the defendant, a judgment was recovered against the plaintiffs for some four or five hundred dollars, and by virtue of an execution issued'thereon the goods mortgaged as aforesaid were levied upon. The plaintiffs, after giving the mortgage to Baxter, executed and delivered to another party a chattel mortgage upon their stock •of goods' covered by the Baxter mortgage, conditioned to pay the -sum of $300. The defendant, deeming himself in danger of losing his security by delaying the enforcement of his mortgage until the note matured, threatened to take possession of the property by virtue of his mortgage, and the plaintiffs thereupon commenced this action to restrain the defendant from interfering with the mortgaged property, and obtained a temporary injunction restraining the defendant from so doing, and upon defendant’s motion the order appealed from was made. There was nothing in the mortgage which affirmatively provided that the mortgagors should have the right to retain the possession of the mortgaged property, until the maturity of the note.

It was made to appear pretty clearly, upon the hearing of the motion, that the mortgaged property was being disposed of and dissipated by the mortgagors, and that delaying the enforcement of the mortgage till the note matured would probably have resulted in the loss to the defendant of his security. It appeared from the .affidavit of the mortgagors, read upon the hearing of the motion, that they had paid the larger part of the judgment recovered •against them, and that they were financially responsible, and were able to pay the balance of the judgment, and the note in question when it matured, but they had violated the provison of the mortgage as to permitting the recovery of a judgment, and had, by their subsequent mortgage, transferred their interest in the property •covered by defendant’s mortgage, and had thereby imperiled the •defendant’s security.

Our attention is called by the appellant’s counsel to the provision in the mortgage that the mortgagee was at liberty to take possession of the property after he should have paid the indebtedness. It is his contention that this clause prohibited defendant from interfering with the property until he had paid the note. The mortgage, as we ,have seen, provided that if a judgment was recovered against the mortgagors, or they should sell or assign any portion of the mortgaged property, the indebtedness, although not then due by the terms of the note, should become due and payable, ■and the liability of the indorser should thereby become fixed. Under such circumstances, the mortgagee was entitled to possession of the property. The defendant having paid the bank for the note, and become its owner, and the mortgage having been assigned to him, he must, we think, be held to have, within the meaning of the mortgage, paid the indebtedness, as provided by the mortgage; and he, having good reason to believe that his security was being imperiled, had the right to enforce the mortgage by taking possession of the property. The mortgage was not only to indemnify the mortgagee from loss or damage by reason of his indorsement, but it was also security for the payment of the note.

We fail to find any evidence tending to sustain the claim that the note was usurious. Baxter appears to have been simply an accommodation indorser, and the sums of money which the plaintiffs were shown to have paid him he received as compensation for his indorsement. Baxter was not shown to have had title to the note at any time. It had its inception in the hands of the bank.

The order appealed from should be affirmed, with $10 costs and. disbursements. All concur.


text:
    Matthew Halliman, App’lt, v. James Murphy et al., Resp’ts.

      (Supreme Court, General Term, Fifth Department,

      Filed June 21, 1895.)

    Ejectment — Possession under unrecorded deed — Notice.
    A finding, in an action of ejectment, that the plaintiff took title with notice of a prior unrecorded deed to another person will not be disturbed on appeal, where it appears that,'when he received liis deed, the grantee under the prior deed was, and remained, in possession up to the time of the action.
    Motion for a new trial on exception, ordered to be heard at, general term in the first instance.

      E. D. Northrup, for pl’ff; G. M. Rider, for def’ts.
   Ward, J.

— This was an action of ejectment, to recover a small strip of land, tried at the Cattaraugus circuit in September, 1894. Both parties claimed under a common source of title. The deed to the defendants was executed and delivered first, but not recorded until after the original deed to the plaintiff’s grantor, John Murphy, was recorded. Both deeds covered the premises in controversy. The original grantees' were brothers, and took premises adjoining, under their several deeds. The defendants-were in possession of the disputed premises when John Murphy obtained his title, and he doubtless had constructive, if not actual,, notice of the defendants’ rights. Later on, John Murphy wanted to get the title in his wife, Margaret, to the premises he owned, and he and his wife deeded by quitclaim deed to the defendant JarnesMurphy the premises, following the description of John Murphy’s deed, and James Murphy quitclaimed the premises, by the same-description, back to Margaret. There was no consideration for either deed, except the purpose of transferring the title of John Murphy to his wife, Margaret. The deeds bear date the same? day and are recorded the same day and hour. Through a sheriff’s sale against Margaret, and through various mesne conveyances, the plaintiff obtained his title to the premises. The defendant James had occupied the premises covered by his deed, and including the premises in dispute, more than twenty years before the commencement of this action, and there was strong evidence showing that he had acquired title to the premises by adverse possession. At the close of the trial the defendants asked for a direction by the court of a verdict in their favor. The plaintiff, in effect, asked for a direction of a verdict in his favor, except as to-the damages, and he desired that question submitted to the jury. The trial court directed a verdict l'or the defendants.

The plaintiff claims that, as the original deed to John Murphy was first recorded, he has superior title, under the recording act; and he also takes the position that, because of the deed of the defendant James Murphy to Margaret, James has parted with his title to the premises in dispute. The -learned trial court passed upon all of the questions of fact in the case, in the place of the jury, under the requests, except the question of damages; and the court, finding those facts and the law with the defendants, eliminated the question of damages from the case altogether, and there was nothing, therefore, to go to the jury. The court may well have found that John Murphy had actual or constructive notice of the defendants’ rights to the premises in dispute, or that the defendants’ title to them was perfect by adverse possession. If it found the last question in favor of the defendants, the deed to Margaret would be unimportant. As between the original parties, the deed to Margaret did not convey any more to her than the defendant James obtained by reason of the deed from John and Margaret to him. James was an intermediary, simply, for the accommodation and benefit of John and his wife, and John would have been estopped from claiming the premises in dispute from James, under that deed; and those claiming under John and Margaret are equally estopped, as the constant, notorious, and open possession of James of the. disputed premises was notice to all of his rights. At least, so the trial court may have found. Indeed, by a provision in the plaintiff’s deed, the occupation of the defendants of the premises in dispute is recognized. The motion for a new trial should be denied, with $10 costs and the disbursements, and judgment ordered for the defendants upon the verdict. All concur.


text:
    W. O. Hickok Manufacturing Company, Resp’ts, v. Edward W. Blackhall, App’lt.

      (Supreme Court, General Term, Fifth Department,

      Filed June 21, 1895.)

    1. Sale — Manufactured articles.
    Where, upon, an issue as to the reason why certain machines, which were to be constructed by plaintiff for defendant after patterns furnished by defendant, failed to work as expected, evidence that the work done and the materials used in their construction were perfect, is sufficient to justify the jury in finding that the difficulty resulted from defective patterns.
    2. Appeal — Harmless error.
    A refusal to charge as requested is not prejudicial where the court gives a charge favorable to the requesting party.
    Appeal from a judgment in favor of plaintiff, and from an order denying a motion for a new trial, made on the minutes.

      Leroy Parker, for app’lt; Seward A. Simons, for resp’t.
   Ward, J.

— This was an action to recover the amount of a promissory note of $1,500, executed by the appellant to the respondent. The defense was an alleged counterclaim for damages, on account of six defective machines for manufacturing envelopes, which the plaintiff had manufactured and sold the defendant for $600 each, and the note was given as a result of this sale.

The defendants had patented certain improvements upon a machine for manufacturing envelopes then in use, and the machines in question were to be built upon patterns furnished by the defendant, based upon such patents, and were to be perfect in material and construction. The defendant, relying upon this contract, had contracted to deliver five such machines to a concern called the “Burdick Envelope Company,” for $1,200 each, and defendant guarantied to this company that the machines would do perfect work, and turn out 50,000 envelopes a day. The five machines were made and delivered to the Burdick Company, but would not work well, and were failures. The Burdick Company sued the defendant for damages as a consequence, and put him to expense, and he settled the matter at a loss.

The invention was new, and needed to be tested, and the defendant advised the plaintiff to employ one Scott, an expert, to work on the machines, and the parties to this action shared the expense of his compensation. There was conflicting evidence as to the reason why the machines did not- work as expected. The defendant claimed it was on account of the poor work done, and the materials used, in the construction of the machines by the plaintiff. The plaintiff claimed it was because the patterns and patents wer.e defective, and the machines constructed upon them would not do service. This question was submitted to the jury, and they found with the plaintiff, disregarding the counterclaim, and giving the plaintiff a verdict for the amount of its note.

Defendant alleges error: First, that there .was no proof given of the defective patterns or patent, and none would be presumed, and that the defects in the machine must therefore have been in material, or construction, or both. This is untenable, for the reason that there was evidence given of perfect material and construction, upon which the jury could find that such defect was not due to material or construction, and consequently may have been from defective patterns or plans upon which the machines were built. This was one method of proving that the patterns were defective. Second, that the court erred in expressing an opinion against the abstract proposition submitted by the defendant in his requests to charge, — that the defendant might keep the machines and sue for damages or a breach of the plaintiff's warranty as to the material and construction, — although the court did charge as requested. No harm could possibly come from this, as the court had laid down the rule of damages most liberal to the defendant, as to the machines that had been furnished to the Burdick Company, viz.: That if the defendant recovered at all he was entitled to the diference between the contract price with the plaintiff ($600) and the selling price to the Burdick Company ($1,200), and also the expenses which the defendant had been put to in putting the machines in the condition necessary to make them fulfill the plaintiff’s contract. To this rule of damages the defendant’s counsel took no exception upon the trial. Ledyard v. Jones, 7 N. Y. 550. Third, that it was error for the court to leave to the jury the question, on the evidence, whether Scott represented both parties in the construction of the machines, or only the plaintiff, it appearing that Scott was engaged in the construction of the machines. This contention is not well founded, as there was evidence from which the jury might find either way, and it was the duty of the court to submit the question to the jury. The court charged fully and fairly upon all the questions submitted, and we can find no error in the charge. The other errors claimed are unimportant. The judgment and order should be affirmed.

All concur.