author: O’Brien, J. Van Brunt, P. J.

text:
    George H. Dyett, App’lt, v. The Central Trust Co., Trustee, et al., Resp’ts.

      (Supreme Court, General Term, First Department,

      Filed May 13, 1892.)

    Trust deed—Power of sale.
    A trust deed, made in confirmation of marriage articles, provided that it was in trust to sell and convey with the consent of the husband and wife, and invest the proceeds in other real estate or security, and with power to change the investment from time to time with the like consent, so as to produce the best income without lessening the principal; to permit the husband to receive the rents and profits for the use of himself and wife, and if he survive, to receive the same during life; if the wife survived, then to permit her to receive them to her own use for life, and if there should be children, or the issue of children, living at her death, then to their use forever. The trustees, with leave of court, mortgaged the property in question, and invested the proceeds in a factory as a change of investment. Thereafter the mortgage was foreclosed, but the purchaser refused to complete the purchase, claiming that the mortgage was only a lien on the life estate and the children were not bound by the decree. An arrangement was then made by which the life estate was sold under the foreclosure to said purchaser, and with the wife’s consent the trustee sold and conveyed to him the fee subject to such life estate. Held, that the sale was a valid exercise of the power of sale contained in the trust deed.
    Appeal by plaintiff from judgment in favor of defendant dis'missing complaint.

      A. R. Dyett, for app’lt; William Allen Butler, for resp’ts.
   O’Brien, J.

This is an action in ejectment, commenced by the plaintiff in 1888, to recover possession of one undivided twenty-fourth part of a lot and building, No. 194 Broadway, in the city of New York. The plaintiff claims as one of the heirs at law of Jessie Ann Dyett, and seeks to invalidate the title acquired in 1849 by respondent’s predecessor in title.

These premises have been a fruitful source of litigation for seventy years, and though in various forms many of the questions here involved have been the subject of. judicial inquiry, the precise question upon which the rights of the parties are to be determined has never been directly adjudicated. Chapman v. Hammersley, 4 Wend., 175; Wells v. Chapman, 4 Sandf. Ch., 312; North American Coal Co. v. Dyett, 7 Paige, 9; Warner v. Hoffman, 4 Edw. Ch., 383; Warner v. Dyett, 2 id., 497.

Upon the facts but little or no dispute exists, there being but a portion of one of the findings of fact contained in the decision of judge below which is brought in question. But as these facts are voluminous, and admirably condensed in the briefs submitted, we have, so far as it was necessary to present the questions to be discussed upon this appeal, taken abstracts therefrom.

The leading facts established at the trial were as follows:

Jessie Ann Hunt, born December 22, 1799, intermarried with Joshua Dyett prior to September 19, 1821, and when she was about twenty years of age.
Before and at the time of her marriage she was seized in fee and possessed of the premises No. 194 Broadway, in the city of New York, described in the complaint. This property had come to her from her maternal grandfather, who had acquired it in 1769.

Marriage articles dated December 21, 1819, were entered into before the marriage between Jessie Ann Hunt and Joshua Dyett, her intended husband, and William Hammersley and Michael Dyett, as trustees, by which the premises No. 194 Broadway were conveyed to the trustées for her benefit upon certain trusts therein declared. Afterwards, on September 19, 1821, Mrs. Dyett having come of age, and for the purpose of curing defects and mistakes in the marriage articles, a deed of trust was executed between the same parties.

This deed of trust is set forth in full in the third finding of fact.

' It recites the main provisions of the marriage articles, and that “ the said Jessy Ann Dyett hath attained to the age of twenty-one years, and is desirous, by and with the consent of the said husband, of curing the defects and mistakes in the trusts Contained in the aforesaid articles, and of conveying, granting, settling and assuring the aforesaid messuage and lot of land, or the proceeds thereof, according to what was originally intended, and as such intention is hereafter expressed.”

It then proceeds to declare the trusts on which the premises are conveyed to be as follows:

First. To sell and convey the premises with the written consent of the husband and wife, and to invest the proceeds of the 'sale in other real estate, or upon security, and with power to change the investments from time to time, with the like written consent, so as to produce the best annual income, without lessening the principal of the estate.
Secondly. To permit the husband to receive the rents and profits for the use of himself and wife, and if he survived her, to receive the same to his own use during life, to enable him to educate and maintain the children of the marriage, if there should be any, and if there were no children, then to his own use forever.
Thirdly. In case of the husband’s death, leaving his wife surviving, then to permit her to receive the rents, profits and income to her own use for life, and to enable her to maintain the children of the marriage, and if no children, then to her own use forever, and if there should be children, or the issue of such children of the marriage, living at the death of the wife, then .to their use forever. A further provision was contained in the deed of settlement, that the husband should not alien or dispose of the rents or income, but should apply the same to the common use of himself and wife, and that the same should not be made liable for the payment of his debts, and in case of his making any sale or other disposition of such rents or income, or of his becoming insolvent, the rents, issues, interest and profits of the estate should be paid over by the trustees to the wife to her sole and separate use and in like manner as if she were a femme sole.

On April 6, 1822, less than eight months after the making of the deed, the trustees, Hammersley and Chapman, petitioned the court of chancery for leave to mortgage the trust premises and obtained two orders, made by Chancellor Kent, April 8th and April 22, 1822, authorizing such mortgages to be made with the written consent of Joshua Dyett and Jessy Ann, his wife, the proceeds to be held subject in every particular to the trust declared by the trust deed.

The mortgages were accordingly made, one to the North River Insurance Company, to secure $9,000 and interest, and another to James W. Steveñs, to secure $15,000 and interest. The proceeds of these mortgage loans were used by the trustees, Hammersley and Chapman, in the purchase of a factory in Dutchess county, called the Dutchess Cotton Factory, as a change of investment. 7 Paige, 9-11. Joshua Dyett was placed in charge of the factory as agent. In 1827, Dyett became insolvent.

In February, 1831, William Hammersley, then sole trustee, and Mr. and Mrs. Dyett presented a petition to the chancellor for authority on their consent to borrow $18,000 on the house and lot in question and give a mortgage therefor, and an order was made to that effect. This order recited the two previous mortgages, and the new mortgage was to be given to pay off the two old ones.

In April, 1831, Mr. and Mrs. Dyett in writing authorized Hammersley to execute the mortgage for $18,000 to the Globe Insurance Company, and thereupon the trustee and Mr. and Mrs. Dyett borrowed the $18,000 from that company and executed a mortgage therefor on the property.

In December, 1831, the mortgagee foreclosed the mortgage and obtained a decree for the sale of the premises. The bond, mortgage and decree were sold to Philip Hone, and by him assigned to the Bowery Savings Bank.

In 1848, this bank filed a bill of revivor in the supreme court in equity against the trustees and Mrs. Dyett, to which none of the children were parties. Thereunder the sheriff sold the premises at auction to Leroy M. Wiley for $39,500. He refused to complete the purchase, on the ground that he would not acquire title in fee by the sale and the deed thereunder because the mortgage was a lien only on Mrs. Dyett’s life estate, and that her children then in esse were not bound by the decree of foreclosure or any sale thereunder. At this time Mrs. Dyett was forty-nine years old and had four children; her husband had died in 1843; and except this house and lot she had no other property. “

Upon Wiley’s refusal to accept the title the mortgagee re-advertised the property for sale, and then the infant children, by their next friend, commenced a suit in equity to restrain the sale, asking that the sale should be carried into effect so as to vest the title in Wiley, the purchaser, in fee simple, and that the purchase money should be applied and invested according to the rights and interests of the several parties. This action by the infant children was never tried, nor was any decree ever made therein; but subsequent thereto an arrangement was made between Wiley and the purchaser, the mortgagee, Mrs. Dyett and the trustees, that Wiley should purchase Mrs. Dyett’s life estate under the decree of foreclosure for $23,700 (the value of the estate by the Northampton tables), and thereupon the trustees, at her request, would sell and convey to Wiley, the purchaser, the fee of the premises, subject to the rights acquired under the foreclosure sale, for $15,800 * * * being the difference between the value of the life estate and the purchase money.

To carry out this arrangement, in February, 1849, the sheriff sold the life estate of Mrs. Dyett for $23,700, and executed a deed to Wiley, the purchaser." Thereupon, Mrs. Dyett gave her consent that the trustees should sell the property. Accordingly, the trustees and Mrs. Dyett executed a conveyance to Wiley, reciting the trust deed and power of sale, the death of Joshua Dyett, the consent of Mrs. Dyett, and that the trustees and Mrs. Dyett “ have sold and agreed to convey to the party of the third part all the residue and remainder after the termination of the life estate of the said Jessie Ann Dyett, and all the estate, right, title and interest ” of the grantors to the premises in question. Thereupon, the grantors, in consideration of $15,800, conveyed in fee to the grantee the premises, “ subject to an estate for the life of Jessie Ann Dyett, recently sold under the foreclosure of a mortgage executed by her.”

At this point it is to be noticed' that in the conveyance to the purchaser, Wiley, mention is made both of the trust deed and the power of sale, and by the terms of sale there is a distinct separation of the life estate from the remainder in fee, different amounts being apportioned, as above stated, to these two separate interests.

It is insisted by appellant that the trustees had no power to convey as they did the remainder in fee of the children separated from the life estate of their mother; nor had they any power to pay out of the proceeds, the principal, a sum of money in gross to the mortgagee for the life estate of Mrs. Dyett; that in any event all that the mortgagee acquired, or could convey, and all that Wiley could acquire, was Mrs. Dyett’s right to the rents and profits of the land, and after its sale the income of the proceeds during her life. That their duty was to have kept those proceeds in solido and intact, and to have refused to pay anybody any part of them, but to pay over to the grantee of Mrs. Dyett’s life estate the income, and the income only. And that this breach of trust, with knowledge brought home to the purchaser of the circumstances, together with his knowledge of the misapplication of the moneys, affected his title and that of his grantees to an extent rendering it invalid as against the claims of plaintiff as one of the heirs at law and remaindermen under the trust deed.

This contention necessarily involves the true construction to be given to the trust deed. And as this has, in the litigations already referred to, been the subject of judicial interpretation, we agree in the conclusions reached by the learned trial judge below, that in some of the cases “ it was held that under this trust deed Mrs. Dyett had an equitable estate which could be charged with her debts in equity, and mortgages given upon the property, by permission obtained from Chancellors Kent and Walworth, were considered valid and operative as against the life interest of Mrs. Dyett, although they did not, of course, affect the estates in remainder. I think the trustees took a mere naked title, and were not charged by the trust deed with any active duty respecting the property. The interpretation which appears to have been given to this deed by almost everyone called upon to construe it is, that the trust created was a mere formal one, and being passive under the Revised Statutes, Mrs. Dyett acquired a legal estate of the same quality and duration as her equitable interest, and thus became a life tenant, for I do not think a fair interpretation of the trust deed would show that there was any duty or obligation on the part of the trustees of disposition or management, such as was contemplated by § 48 of the statute of uses and trusts, by which the estate of trustees in their existing trusts was preserved under such circumstances.”

We do not agree with appellant that this estate of Mrs. Dyett was inalienable. We think that, under the law relating to the equitable rights of married women in respect to their separate estates, and in the absence of any disability created by the trust deed, Mrs. Dyett had as full power over her equitable life estate as if she were a femme sole. This moreover, we regard as being the view expressed by the chancellor in N. A. Cole Co. v. Dyett, supra, page 15, that the separate estate of a femme covert “ is liable for the payment of all her equitable debts, to the same extent as though such debts were contracted by a femme sole.”

The mortgages, therefore, executed by her charging her estate in these lands having been valid, and the decree and sale vesting in the purchaser an estate as extensive as that possessed by Mrs. Dyett, a purchaser, had no arrangement such as was effected been entered into, would have obtained an estate in the premises entitling him to the rents and income during the life of Mrs. Dyett. It is true that these mortgages, or any of the proceedings taken thereunder, could not affect the interests of the remainder-men. The interest which Mrs. Dyett took, and which she could mortgage, is thus stated in Warner v. Hoffman, 4 Edw. Ch., 881:

“ The interest Mr. and Mrs. Dyett had in the property under the trust deed, and which devolved upon her solely upon the happening of her husband’s insolvency in 1827 and by his subsequent death, and the interest which her children took and became entitled to from the time of their respective births, were separate and distinct interests or estates in the property. In the parents an equitable estate for life, in the children a remainder in fee. Both capable of being charged with debts separately contracted on the credit or for the benefit of the one or the other, or for both, as the case might be.’’

It is true that in these cases a distinction is made between a charge upon the fee ¿f the land and a charge on the rents and profits. But such a distinction is apparent, it being evident that any claim or charge against Mr. or Mrs. Dyett could only affect the rights which they had, which, as stated, were an equitable estate for life.

The real question is thus presented, as to whether or not, under the arrangement that was made for the sale of the fee to Wiley, it was a valid execution of the power of sale vested in the trustees. The latter had undoubted power to sell for an adequate consideration, and to invest and reinvest the proceeds of such sale, pursuant to the terms of the trust. The complaint here is, however, that the appropriation of an amount sufficient to pay the mortgages made by Mrs. Dyett out of the $39,500, which was concededly the full value and consideration for the property, by being taken from the principal, to that extent injured the remaindermen, and was in contravention of the terms of the trust.

Whether such a complaint is justified is to be determined by the situation of affairs as they existed at the time the power of sale was exercised by the trustees. The property had been sold under the decree of foreclosure ; and had the purchaser completed, he would have been entitled to the rents and income of this property during the life of Mrs. Dyett. Thus the very purposes for which the trust deed was made, which was to secure an incom.e during the lives of Mr. and Mrs. Dyett, which might be used not only for their own support, but for the maintenance and education of their children, would have been destroyed, it being conceded that, other than this property, Mrs. Dyett was without possessions. The situation in which both the mother and the children would be placed was fully realized by the next friend of the infants, who by the proceedings taken by him to enjoin the second sale, sought to have carried out, by the relief that he demanded on behalf of •the infants, practically and in effect what was subsequently effected by the arrangement' entered into between Mrs. Dyett and the trustees for the sale of the entire fee, through the instrumentality of the exercise of the power of sale by the trustees.

Regarding the attitude of the infants, the proceedings taken by them through their next friend, and the resultant arrangement by which the charges against the life estate were satisfied and an amount to represent the estate in remainder delivered to the trustees, which was available for the support and education of the infants, it is not a violent assumption to conclude that the very proceeding taken by the infants was one of the causes producing the arrangement which was entered into between all the parties. It is insisted, however, because the infants were not bound by force of any decree, and because, perhaps, the power of sale was not exercised in accordance'with the letter of he just deed, that they are in a position to repudiate the transaction, and as against a purchaser who for full value and in good faith took the prop.erty, they are at liberty, forty years after, to impeach a title so acquired.

While the question here presented is not one of.good faith entirely, but a question of power, still where all the equities incline in one direction, it should only be as the result of no other legal conclusion that we should adjudge that a title thus acquired ■should be declared void. Therefore, the mere form in which the transaction is clothed, or the difference in manner in which a power is exercised, should not in a case like this prevail, if there has not been a legal violation of the terms of the trust deed which would legally result in destroying the title.

Had the trustees received the entire amount of $89,500 from Mr. Wiley, would not the mortgagee have had the right to apply to the court for the purpose of enforcing the claim which he had under the mortgage upon the life estate therein of Mrs. Dyett? and would not the effect of such an application have been to have had an appropriation of an amount equal to what was appropriated by the payment to the sheriff in discharge of the mortgage indebtedness ? While it may be admitted that the life tenant could not be compelled to take a gross sum, we have in the transaction her co operation and assent to the arrangement. The equity and justice of the rule applied in determining the respective values of the two estates is not called in question. As we understand the contention of the appellant, the act of the trustees was an illegal exercise of the power of sale, because the entire amount was not paid over to the trustees, to be held by them so that the income and interest might be paid to the mother, and, upon her death, the principal to the remaindermen. The latter clearly would not be entitled to both the principal and income: but under the decisions holding that the interest of Mrs. Dyett was equitably chargeable with the amount of the mortgage indebtedness, any interest arising from an investment of the full consideration would have been payable to the mortgagees, and applicable to the payment of the mortgage debt. The effect of this, moreover, would have been to place both the mother and the children in a position of entire dependence, having no other resource out' of which either the children or herself could have been maintained or supported.

It must be conceded that, if the power was properly exercised for the purpose of paying off a. gross sum in satisfaction of the amount due upon the mortgages, and which was a charge upon the life interest of Mrs. Djett, the title is not to be affected by what the trustees may have done with the amount given to them to represent the estate in remainder. This amount, had it been invested and allo'wed to accumulate for the benefit of the infants, would have realized a sum sufficiently large to demonstrate that the arrangement as then made was not an unjust one as regards the infants. In other words, while it may be admitted that the trustees upon the request of Mrs. Dyett could have conveyed the premises free of such lien to the purchaser, such lien would have attached at once to the proceeds of sale in the hands of the trustees, and would have entitled the Bowery Savings

Bank to receive the entire income thereof during the life of Mrs. Dyett until their debt, principal and interest, was fully paid. Or they might have elected to have the life interest of Mrs. Dyett in such proceeds of sale sold to pay their debt. Unless this debt was paid so that they might have the income, the real object of the trust deed would be defeated. In other words, it being apparent that a full and fair price was paid for the fee of the property, and that a sale at that price was indispensable to secure the very objects contemplated by the trust deed, it must be wholly immaterial and a matter of form rather than of substance as to bow the two separate interests in the property should be conveyed to a purchaser.

The suit brought by the next friend, the guardian of the infants, recognized the fact that the possession of the mortgagee would cut off all the source of income of parents and children, and that it was for the advantage of both that the entire property should be sold and the mortgage debt paid, to the end that something would remain for the support, maintenance and education of the children, which was the aim and object of the trust deed. The arrangement made, therefore, of a sale for full value was proper, and the only question which was presented was as to how the interests of the life tenant and remaindermen could be conveyed. As already said, this relates to form, and does not affect the power, the good faith, or the title of the purchaser, who has paid full value for the property.

Wiley was a purchaser in good faith and was not responsible for the application of the purchase money according to the trust. Nor was he affected by knowledge or notice of any fact impeaching the validity of the title acquired by him. If he had inquired further for knowledge, other than that involved in his objections upon the first sale and the terms of the deed conveying the property to him, he would have found that the mortgage debt to the Globe Insurance Company had been held valid as a specific lien upon the premises by the decree of the court of chancery, affirmed by the court of errors, as well as by the foreclosure decree.

We think, therefore, that the power having been exercised to effectuate and carry out the intent and purposes of the trust deed, it was a valid exercise thereof, and that a purchaser who gave full value for the property obtained a good title thereto. But if it is further insisted that Wiley was bound, from the knowledge he had as to the exact terms of the trust deed, to see that the strict letter as to the form and manner of the execution of the power was resorted to, then we think that, as between Wiley and the defendant here, his successor in title, a distinction is made. The record title shows the formal exercise of the power of sale vested in .the executors; and while such formal exercise might not confer good title upon one who had knowledge of facts outside the record affecting its validity, still, we do not think, as against subsequent purchasers in good faith, that such knowledge outside of the record possessed by the original grantee can be imputed to them so as to impair or affect their title.

We have, of course, in mind the line of decisions holding that an invalid exercise of a power of sale, or the exercise of a power of sale given for one purpose when used to effect another, will not convey good title. Here, however, so far as the present defendant is concerned, it cannot be held upon the facts appearing that defendant is chargeable with any knowledge except such as may be derived from the trust deed itself and the records showing the manner of its exercise, no claim being made of other actual knowledge brought home. In other words, the full consideration having been paid, subsequent purchasers are in no way affected by the disposition that may be made of the proceeds realized upon a sale by trustees.

Our conclusion, therefore, is that the deed of February, 1849, by the trustees and Mrs. Dyett to Wiley was a valid exercise of the power of sale, for the reasons that the trustees having power to sell the entire fee of the property at the option of Mrs. Dyett, and having sold the same for its full value, the apportionment of the interests of the life tenant and of the remaindermen, and the acquiescence in the sale of these interests separately for the purpose of discharging a lien upon one, were, upon the facts appearing, a proper exercise of their power for the purpose of carrying out the terms of the trust deed. Had the sale been made and the proceeds paid into court, the trustees, we think, would have been justified in paying the amount of the mortgage, which they could have been compelled to do in a suit brought for that purpose. Having, therefore, reached the conclusion that the arrangement was not in contravention of the terms of the trust deed, and that too much stress should not be placed upon the form or manner of the execution of the power in trust; and the amount originally paid for the interest of the remaindermen being adequate and fair, resulting in no injustice to them, they should not now be permitted to successfully assail the validity of a title which has been acquired by purchasers in good faith for full value.

We think, therefore, that the judgment should be affirmed, with costs.

Van Brunt, P. J.

I concur in the result of the foregoing opinion. Upon the face of the record there appears to have been a valid exercise of the power contained in the original deed of trust, and even if Wiley did have notice which affected the title in his hands, the notice to him could not affect the title of purchasers in good faith whose only information as to the title came from the record.

Andrews, J.—I concur in the result.


source: Caselaw Access Project

author: O’Brien, J.

license: Public Domain

text:
    Emil Bruswitz, Resp’t, v. The Netherlands American Steam Navigation Co., App’lt.

      (Supreme Court, General Term, First Department,

      Filed May 13, 1892.)

    1 Trial—Misconduct of jury.
    Where parties allow the trial to proceed without objection .to the misconduct of jurymen -which, upon motion, would have been good ground for the discharge of the jury, they cannot thereafter take advantage of such misconduct.
    3. Carriers—Steamships—Negligence—Insufficiency of light.
    The complaint alleged that plaintiff, apassenger on defendant’s steamer, while going from his cabin to the dining saloon, on his way to the-'deck, said saloon being dimly lighted, tripped and fell with great force on the sockets fixed in the floor and used to support or secure the tables therein, and received severe injuries. Plaintiff testified that there was one little light in the saloon, and that as he was coming out of his cabin, with cigars in one hand, and as he was about to close the door, the ship lurched and he slipped ahd fell on, the sockets, the tables having been removed. Held, that the primary cause of the accident was the action of the sea: that the accident would have occurred whether the saloon was brilliantly lighted or in darkness, and that the court erred in refusing a request to withdraw the question as to insufficient lighting from the jury.
    8. Same.
    For causes such as here complained of the carrier is not to be held to the strict rule which, in some cases, hinds common carriers of passengers to the exercise of the utmost degree of care, making them responsible for injuries arising from the slightest negligence; but they are only liable for loss or injury resulting from their failure to exercise reasonable care, prudence and diligence.
    Appeal from a judgment and order denying a motion for a new trial, made upon the minutes of the court, and from an order denying a new trial on the ground of alleged misconduct of jurors.

      J. A. Shoudy, for app’lt; William P. Butt, for resp’t.
   O’Brien, J.

The action was brought to recover damages for an injury alleged to have been sustained by the plaintiff while a passenger on the defendant’s steamer Leerdam, on a voyage from Amsterdam to New York.

The first ground relied upon by appellant for a reversal relates to the conduct of two jurors during the trial, such conduct having been made the basis of a motion for a new trial, which was denied. We agree with the appellant, that the course pursued by these jurymen in endeavoring practically to take the conduct of the case away from the court and counsel, and into their own hands, was both extraordinary and reprehensible, and had it been availed of during the course of the trial and before the verdict, as the basis of a motion to discharge the jury, we would have regarded an exception taken to a refusal to so discharge the jury as good, and one entitling the aggrieved party to a new trial. It will not do, however, for counsel, notwithstanding such improper conduct of jurymen, to go on with the trial without objection and speculate upon the result of the verdict, and when it is against them seek to set it aside. Where no objection is made and no exception taken, the counsel practically acquiesce in the manner in which the trial is being conducted, and they cannot take advantage of the misconduct of jurors which occurs in their presence, and of which they have full knowledge. This conclusion renders it unnecessary for us to determine whether or not, after verdict, a motion suchas this should have been made at special term or at trial term.

The other grounds relied upon for a reversal relate to the sufficiency of the proof, or the failure of the judge to withdraw the consideration of certain questions from the jury, and exceptions taken to certain requests made by the plaintiff and charged by the court. In determining these questions a brief summary of the complaint and of so much of the testimony as is requisite to-present the questions is necessary.

The complaint alleges that plaintiff while going from his cabin to the dining saloon of the steamer, on his way to the upper deck thereof, the said dining saloon being then dimly, imperfectly, insufficiently and negligently lit or .illuminated, tripped and fell with great force and violence on the sockets fixed in or attached to the floor of said dining saloon, and used to support or secure the tables therein, dislocating his shoulder, and receiving other serious-bodily injuries.

In thus assigning the charges upon which the negligence of the-defendant is predicated, it will be seen that the failure to properly light the dining saloon is given such prominence that, in one construction to be given to the complaint, it might be regarded as the sole ground upon which the negligence of the defendant is placed.'

Taking, however, a construction of the complaint for the purpose of sustaining the judgment most favorable to the plaintiff, and assuming that, in addition to the failure to properly light the saloon, the claim is made that the proximate cause of the accident was due also to the negligent manner in which the sockets fixed in or attached to the floors of the saloon were left after the tables were removed, we have, nevertheless, to consider the question raised by the defendant’s exception to the court’s refusal to withdraw from the consideration of the jury the question as to the insufficient lighting of the saloon.

In so construing the complaint the fact should not be overlooked that- in terms it is not claimed that the injury resulted from falling over the sockets, which it is said were allowed to remain in the saloon, and rising some inches above the floor; the statement being “ that by reason of the imperfect lighting the plaintiff thereby fell with great force and violence on the-sockets.”

The only evidence presented by the plaintiff to sustain the allegation that the saloon was dimly, imperfectly and insufficiently lighted and illuminated was that of the plaintiff himself, who said: “ There was, I think, one little light in the saloon at this time.” Such testimony cannot be regarded as establishing the fact that the saloon was not sufficiently lighted, nor is it evidence to establish that it was at all dark in the saloon. So far as it is made to appear, one light may have been entirely sufficient. Apart, however, from this we think the proof makes it entirely clear that the absence of light did not in any manner contribute to the plaintiff’s-injuries.

The plaintiff’s testimony was: I opened the door to go out (my state-room), and when I got out to close the door I had cigars in one hand; the moment I let go I slipped ; the vessel lurched and I slipped; I said before while coming out of the- cabin I had the cigars in one hand and the door-knob in the other,. and while putting the cigars in my pocket the ship lurched, and I slipped and my toe stubbed up against this socket.”

Again he says : “ I opened the door with one hand to get out of the cabin of the steamer, and when I got out I tried to close it with the other, and I slipped and fell; 1 slipped and fell in the act of closing the door, the moment I let go of the door.”

It will thus be seen that, according to plaintiff’s account, the accident was caused by the action of the sea, the tossing of the vessel, by plaintiff’s letting go his hold on the knob of the cabin door, and according to one account given by him, of stubbing his toe and falling over the socket, and according to another version, “ on the socket ” in the saloon. The primary cause, therefore, was .the action of the sea, which produced a rolling of the vessel and precipitated the plaintiff with such force that he was thrown in the direction of the sockets, which would have been the result whether the saloon was brilliantly lighted or enshrouded in darkness, Regarding solely the evidence offered by plaintiff, and without considering the defendant’s testimony on the subject at all, it would not justify a finding that there was any want of sufficient light in the saloon, and even if there had been a lack of light, that could neither have caused nor prevented the accident. The -defendant, therefore, had a right to have this question withdrawn from the jury as an issue, and it was error for the court to refuse to charge, as defendant requested, that there is no evidence in the case that will justify the jury in finding that the plaintiff was injured by reason of the cabin being insufficiently lighted. We think the trial judge also erred in the instructions given to the jury at the plaintiff’s request. These were as follows:

(1) “ That if the accident happened from a defect in the ship, ■or in the accommodation of its second cabin dining saloon, which might have been discovered or remedied upon the most careful and thorough examination of said ship and floor, such accident must be ascribed to negligence for which the owner is liable in ■case of injuries to a passenger happening by reason of said accident.”
(2) “ That passenger carriers bind themselves to carry those whom they take into their conveyance safely so far as human care and foresight will go ; that is, to the utmost care and diligence of every cautious person.”
(3) “ A carrier of passengers is bound to use the utmost care in the providing of safe and sufficient and suitable vehicles or vessels and other necessary or appropriate instruments and means -of transportation, as well as in the management of the same, and in making such reasonable arrangements as a prudent man would make to guard against all dangers from whatever source arising which may naturally and according to the usual course of things be expected to occur.”
(4) “ The rule as to care and diligence binds common carriers of passengers to the exercise of the utmost human care and foresight, and makes them responsible for injuries and losses arising from even the slightest negligence.” .

As said in Palmer v. The Pennsylvania Co., Ill N. Y., 492; 19 St. Rep., 493: “ We think the trial court was not justified in applying to this case the rule pertaining to the construction and maintenance of tracks and running machinery by a railroad corporation, which holds them to the use of the utmost possible care in discovering and remedying defects therein. That rule is applicable to such appliances of a railroad as would be likely to occasion great danger and loss of life to the traveling public, if defects existed therein, on account of the velocity with which cars were moved, and the destruction and irresistible force which accompanies such motion.”

In Kelly v. Manhattan R. R. Co., 112 N. Y., 450; 21 St. Rep., 507, the distinction between the different degrees of care to be-observed by common carriers is again pointed out, and except in respect to cases determining the liability of carriers for injuries sustained by passengers, from causes enumerated in Palmer v. The Pennsylvania Co., supra, it is said that the rule in such cases-is that the carrier is bound simply to exercise ordinary care in view of the dangers to be apprehended.” These decisions show that the courts have applied to common carriers very rigid and exacting rules, calling for the highest degree of care and diligence in matters pertaining to the construction of machinery and mechanical appliances necessary for the transportation of passengers, which rule is so applied, as stated in Kelly v. Manhattan R. R. Co., supra" for the reason that a neglect of duty in such a case is likely to result in great bodily harm, and sometimes death,, to those who are compelled to use that means of conveyance.”

It is also to be noticed that the reason for this rule in respect to machinery and mechanical appliances is, that passengers are-compelled to rely solely upon the carrier, and have no opportunity to exercise their own judgment and discretion, but in respect to those matters in which such judgment and discretion can be exercised, and in respect to cases where injuries result from other causes, the rule is thus stated in Palmer v. The Penn. R. R. Co., supra,Railroad corporations are not the insurers of the lives or safety of passengers upon their cars, and in order to render them so it is essential to show that they have neglected the performance of some duty which, in the exercise of reasonable care, prudence and diligence, they owe to such passengers.”

If we take the facts presented here by the plaintiff it will be seen that the question presented was not whether there was any defect in the machinery or mechanical appliances necessary for the transportation of passengers, but whether the defendants were guilty of negligence in removing the tables when not in use by passengers, so as to give the passengers more space, and in leaving the sockets above the floor in the manner testified to by plaintiff. While the defendant’s testimony denied that the sockets projected above the floor, we will assume the plaintiff’s version to be true that they did so project, but it must be evident, even if we regard the presence of the sockets as the proximate cause of the injury, it was not a defect or a risk to be run by a passenger which was concealed, but open to common observation, and, as stated by the plaintiff, noticed by him when he first went aboard the vessel. "We do not think that for injuries resulting from the causes assigned by plaintiff the defendant can be held to the strict rule which in some instances binds common carriers of passengers to the exercise of the utmost degree of care and foresight, making them responsible for injuries and loss arising from the ■slightest negligence, but rather that the rule to be applied from the facts here presented is, that the defendants were responsible for any loss or injury resulting from their failure to exercise reasonable care, prudence and diligence. We are of opinion, therefore, that the judgment and order appealed from should be reversed and a new trial granted, with costs to appellant to abide the event.

Van Brunt, P. J., concurs.


author: Per Curiam.

text:
    William A. Harding, Adm’r, App’lt, v. Walter H. Field, Resp’t.

      (Supreme Court, General Term, First Department,

      Filed May 13, 1892.)

    1. Discovery—Agency.
    Where a counterclaim is interposed based on the same transactions out of which the moneys claimed by plaintiff arose, in which transactions it is claimed that plaintiff’s intestate acted as defendant’s agent, the defendant is entitled to a discovery of all the books and accounts in the plaintiff’s possession relating to the agency.
    2. Same.
    In such case a discovery of the original letters sent to intestate by defendant, and copies of letters sent by intestate to defendant, the originals of which have been lost, may be ordered.
    Appeal from an order of the special term granting a motion for a discovery.

      Thaddeus D. Kenneson, for app’lt; Howard R. Bayne, for resp’t.
   Per Curiam.

The counterclaim set up in the answer is based upon an allegation that the plaintiff's intestate was the agent of the defendant in the transactions therein specified, and out of which the money in dispute is claimed to have been realized.

Assuming that these relations existed, it is well settled that the ■agent should make full disclosure to his principal of all the facts within his knowledge, and allow an inspection of all books and papers relating to the agency, and upon a failure to do so, the court would require him to make such a discovery. “ The right of a principal to a discovery of the books and vouchers of his ■agent seems to rest on different and stronger grounds than the right of a party to an inspection of the books of an adversary. Manley v. Bonnel, 11 Abb. N. C., 123.

Copies of letters or accounts, sent by an agent to his principal, which are in the hands of the agent, are within the provisions of ■§ 803 of the Code, which authorizes a court to compel a party to an action to produce and discover a book, document or other paper in his possession, or under his control, relating to the merits of the action, and whether the document or other paper is an original and of itself evidence, or a copy and so competent as secondary evidence, is not material. It is, in either case, a document or other paper which is in his possession, and when the original is proved to have been lost is competent evidence and relates to the merits of the action. We think, under the circumstances detailed in the papers upon which this motion was made, that the court was justified in compelling a discovery of the papers specified, the original letters sent by the plaintiff’s intestate to the defendant having been lost or destroyed; and copies of those letters in the hands of the plaintiff, as the administrator of the agent, are necessary to be offered as secondary evidence, the originals of which have been lost. and the fact that the defendant is unable to remember the exact date or the exact contents of letters, only shows that the production of the copies in the hands of the administrator is necessary to enable the'defendant to prove his defense or counterclaim ; and the same may be said as to the accounts which have been rendered by the agent to his principal.

The letters sent by the defendant to Stone, being the original letters, are the best and only evidence of the contents, and the checks and stubs thereof, a discovery of which is ordered, will be material evidence upon the trial of the issue to show the actual transactions involved.

Under all the circumstances, we think tlie court below was justified in ordering the discovery, and the order appealed from should be affirmed, with costs.

"Van Brunt, P. J., O’Brien and Ingraham, JJ., concur.


author: Van Brunt, P. J. O’Brien, J.

text:
    Joseph Slevin, Resp’t, v. Margaret C. Wallace, Individually and as Ex’rx, App’lt.

      (Supreme Court, General Term, First Department,

      Filed May 13, 1892.)

    1. Statute of frauds—Acquirement of interest in land.
    Plaintiff claimed an interest in certain lands under a paroi agreement made with W., defendant’s testator. Said land had been purchased in W.’s name in 1870; extensive repairs were made; different parcels bought and grouped in one improvement and so held and managed until W.’s death in 1883. Held, that this was not a joint adventure, nor a temporary speculation, but ra’her an investment, and that the payment of money by plaintiff would not give him an interest in the property unless there was some note or memorandum expressing the consideration and signed by the party sought to be charged.
    2. Same—Evidence.
    Evidence of 'conversations between plaintiff and W.’s bookkeeper, though made at the time of payment of the money, is inadmissible, except so far as such conversations are shown to have been communicated to W.
    Appeal from judgment entered on report of referee.

      S. P. Nash, for app’lt; S. W. Fullerton, for resp’t
   Van Brunt, P. J.

This action was brought for an accounting respecting the profits made on the purchase, renting and sale of certain "real estate in the city of New York, the title to which real estate was taken by Francis B. Wallace (of whom the- defendant Margaret 0. Wallace is the executrix), in his individual name and for the recovery of one-fourth part of such profits.

To maintain the action, the plaintiff relied upon a paroi contract alleged to have been made on or shortly prior to March 17, 1870, by virtue of which he claimed he was entitled to one-fourth of the net profits on the purchase, renting and sale of the entire parcel of real estate.

The defendant denied that there was any arrangement between the plaintiff and said Wallace that he should have an interest in the property, and also that there was any note or memorandum in writing of any such arrangement as was required by the statute, so that even if made it was void.

The referee found that there was such an agreement as claimed by the plaintiff, but that there was no memorandum in writing in respect thereto and reported in favor of the plaintiff; and from the judgment thereupon entered this appeal is taken,

The evidence offered upon the part of the plaintiff for the purpose of establishing the cause of action alleged in the complaint consisted chiefly of the testimony given by a bookkeeper of said Wallace in relation to certain conversations had between himself and the plaintiff which was repeated to Wallace, and conversations with Wallace, the testimony of the plaintiff, and the evidence of certain witnesses in respect to admissions made by Wallace during his lifetime in respect to the interest of the plaintiff in the property in question.

From the evidence thus adduced, having come to the conclusion that an arrangement did exist between the plaintiff and Wallace by which the plaintiff was to have an interest in the property in question, and that such arrangement did not come within the statute of frauds because it was a partnership adventure, and not an agreement for the sale of an interest in lands, the referee reported in favor of the plaintiff.

It is claimed upon the part of the appellant that there was no sufficient evidence to justify the findings of the referee of any agreement or arrangement between the plaintiff and Wallace, and that even if such an arrangement were made it was not an arrangement for a joint adventure, but for the acquisition of an interest in lands; and, also, that the referee erred in the receipt of certain testimony during the progress of the trial.

There is no question that the principle is well established by the adjudications in this state that where two or more parties enter into an agreement for the purchase of real* estate as a joint adventure and thereby a partner-ship is formed in that adventure, although the title is taken in the name of one, the others may, notwithstanding the statute, enforce their rights in respect thereto.

But it seems to me from a reading of the testimony in this case that there is no evidence that this real estate was bought for the purpose of trading therein or of speculating thereon. It was rather bought for the purpose of investment, undoubtedly in the hope that the property invested in would enhance in value. But there is no evidence justifying the finding that the property was bought for speculative purposes or for the purpose of trade, and therefore the principle to which attention has been called has no application.

The plaintiff, according to the testimony, was to have an interest in the property. Nothing was said about an interest in the profits arising from the joint adventure. And if he was to have such-an interest in the property the payment of the money did not give him such an interest, under the statute, unless there was some note or memorandum expressing the consideration and signed by the party sought to be charged.

The case at bar differs from all those which have been cited, in that no copartnership relations existed between the plaintiff and Wallace, which relation did exist between the parties in many of the other cases.

Neither, as already observed, is there anything tending to show that the interest which the plaintiff was to have looked to an interest in the profits rather than an interest in the real estate itself. This view is emphasized by the language of the plaintiff to Mr. Wallace at the time of the alleged payment of the monej’’, where it is testified that he stated: “ I have made that payment on account of the purchase of that property.”

That the purchase was not intended to be a temporary investment is shown by the evidence as to the manner in which the property was treated both by the plaintiff and Wallace for a large number of years. Extensive repairs were made, and different parcels bought and grouped together in one improvement, managed together and held in this way until the death of Wallace occurring about the month of June,' 1883; certainly a long period to await a realization upon a speculative investment.

There seems also to have been error in the admission of the testimony of the plaintiff in respect to a conversation had by him with Smith, the bookkeeper of Mr. Wallace, at the time of handing him the check, which it is admitted was received and credited to the plaintiff in the books of Mr. Wallace’s firm.

The plaintiff was allowed to go on and testify to that which he had stated to Smith in respect to his agreement with Wallace relating to the property in question. There is no evidence that a very material portion of such conversation was ever communicated to Wallace by Smith. If it is claimed that Smith testified that he stated to Wallace what had transpired between the plaintiff and himself, it is to be observed that that evidence related to what he testified had occurred between the plaintiff and himself, in which testimony a material part of the conversation as testified to by the plaintiff does not appear.

It is undoubtedly claimed that the conversation was admissible in connection with the payment of the money as part of the res gestee; and the learned counsel for the appellant seems to some extent to recognize the admissibility of such evidence if it did actually take place at the time of the payment of the money. But he claims that there is no evidence that it did take place at that time, which seems to be the fact, as the witness was unable to testify with any degree of certainty whether it took place before or after, or at the timé. It is manifest that unless such conversation did take place at the time of the payment and was therefore part of the res gestae it could not under any circumstances be admissible. But I fail to see, even if it did take place at the time of the payment of the money to the bookkeeper of Wallace, how it is admissible unless it was communicated to Wallace. I fail to comprehend how, by the mere fact of a man stating to my employee that he pays money in pursuance of an agreement made by me that he shall thereby acquire an interest in my property (such conversation never having been communicated to me), any such interest is established. How, therefore, can such testimony be competent ?

This is precisely the position occupied by the plaintiff in respect to a material portion of this alleged conversation. One of the important features • of the plaintiff’s case, and which it is claimed tends to support, in a very remarkable degree, the claim of the plaintiff, is the statement that the plaintiff made to Smith at the time of the payment of the money, that he was to take charge of the property, rent it, collect, etc., which was never communicated to Wallace; and because the plaintiff did take charge of the property, rent it, collect, etc., after the purchase, it is urged that the truth of his claim is strongly supported.

It seems clear to me that evidence of this kind is incompetent. Otherwise a principal may have a burden fixed upon his property in favor of a third party because of a conversation by such third party with an employee at the time of the receipt of certain moneys, of which the principal has not the slightest conception or knowledge ; and it only requires death to shut his mouth and the charge is complete. Such cannot be the rule of evidence. Agreements cannot be established in such a way, and the conversations between the plaintiff and the employee of Wallace were inadmissible, except so far as they were communicated to Wallace ; and such communication must be established by proof, and cannot rest upon conjecture.

Error, therefore, was committed in permitting such evidence to be given; the question which led to the giving of such evidence having been duly objected to, and exception taken to the overruling of such objection.

It does not seem necessary to consider the question of the weight of evidence which was urged to so great an extent by the learned counsel for the appellant on the argument, because, for the reasons already pointed out, it would seem that there should be a reversal.

The judgment should be reversed and new trial ordered, with costs to appellant to abide event.

Andrews, J., concurs.

O’Brien, J.

Had the contract alleged been proven by competent evidence, though made by paroi, it could be enforced. An important part of the contract was that relating to plaintiffs taking charge of the property. I agree, therefore, with the conclusion reached by Mr. Justice "Van Brunt, and concurin his reasons as to the error committed in the reception of evidence given by plaintiff as to what he told the bookkeeper of Wallace in the absence of proof showing either that it was a conversation when the money was paid or was subsequently communicated to Wallace.

I therefore concur with the presiding justice in the result.


author: O'Brien, J. Van Brunt, P. J. Andrews, J.

text:
    The Universal Fashion Co., App’lt, v. John Skinner, Resp’t.

      (Supreme Court, General Term, First Department,

      Filed May 13, 1892.)

    Contract—False representations.
    A party cannot avoid the effect of false representations made by his agent to induce the other party to enter into a contract by incorporating in the contract a provision that its provisions comprise the entire contract between the parties; that no terms or conditions different therefrom or supplemental thereto shall be binding on either party, and that all statements or representations not therein expressed in writing should be absolutely inoperative to affect the right of either.
    (O’Brien, J., dissents.)
    Appeal by plaintiff from judgment overruling plaintiff’s demurrer to answer and dismissing complaint.

      Raphael J. Moses, for app’lt; Van Alstyne & Hevenor, for resp’t.
   O'Brien, J.

(dissenting.)—The plaintiff sued upon a written contract to recover the price agreed for certain paper patterns for making dresses. Such contract contained a clause as follows : The above stipulations comprise the entire contract between the parties, which has been read over by the purchaser before signing, .and it is expressly agreed that no terms or conditions different therefrom, or supplemental thereto, shall be binding upon either party, and that all statements and representations not hereinbefore expressed in writing shall be absolutely inoperative to affect the right of either party hereto.” The answer admits the contract, and alleges fraud on the part of plaintiff in procuring its execution. The answer demurred to reads as follows: .

That at and previous to the signing of the contract the said plaintiff, by its agent in that behalf, at the said city of Albany, with the intent and for the purpose of inducing the defendant to purchase from the plaintiff the paper patterns in the second-count of said complaints and in said contract referred to, and to sign .said contract, did knowingly, falsely and fraudulently represent to this defendant that the paper patterns of said plaintiff, and all paper patterns which should be sold or furnished to the defendant by the plaintiff under said contract, were and should be good, merchantable and saleable articles of merchandise; that the patterns of said plaintiff had not been introduced in the Albany market; that the said patterns would be good, saleable articles in ■said city of Albany; that the plaintiff had no agency and never had any agency for the sale of its patterns in the city of Albany, .and was desirous of establishing such an agency in said city, and that the defendant would and should be the only agent of plaintiff in said city for the sale of its patterns, if he would purchase said patterns and accept such agency; whereas, in truth and in fact, the paper patterns of the plaintiff, and especially those which the plaintiff afterwards furnished to the defendant, and referred to in the second and third counts of said complaint, were not good, merchantable and saleable articles in said city of Albany; but, on the contrary, the patterns of said plaintiff, so furnished by them to said defendant, were, at the time of being so purchased and delivered to him, poor, unmerchantable and unsaleable articles of merchandise; and whereas, in truth and in fact, the patterns of said plaintiff had been introduced by them in the market of said city of Albany for several years before the making of said contract, and, as the defendant upon information and belief avers, proved to be and were unsaleable articles of merchandise therein ; and whereas, in truth and in fact, the said plaintiff, at the time of the making the said contract with this defendant, then had, and for several years previous thereto had had, divers agents-in the said city of Albany for the sale of their patterns, all which agents, as the defendant upon information and belief avers, found the patterns of said plaintiff to be poor and unsaleable articles of merchandise; all of which facts the said plaintiff well knew at the time it, for the purposes aforesaid, made such false and fraudulent representations to this defendant.

And this defendant further says, that, believing the truth of, and relying upon, the said false and fraudulent representations so-made to him by the plaintiff, and believing that the paper patterns-so to be furnished by the plaintiff to him were to be, and would be, good, merchantable and saleable articles, and good saleablearticles in said city of Albany, and that said plaintiff had not introduced its patterns in the market of said city; and that the-plaintiff had no agency for the sale of its patterns in said city; and that he would be the only agent for plaintiff in said city, for the sale of its patterns, if he should purchase such patterns and accept such agency, he did sign the aforesaid paper.

There are two questions presented upon this appeal. The first is : Whether the paroi representations alleged in the answer arecompe^ent to vary the written contract; the second, if competent generally, whether, under the special- circumstances of this case, where a stipulation is incorporated into a written contract “ that, no terms or conditions different therefrom or supplemental thereto, shall be binding upon either party, and that all statements and representations not hereinbefore expressed in writing shall be absolutely inoperative to affect the right of either party hereto,” the-alleged paroi false representations of an agent are competent to-destroy the contract made by the principal.

As to the first, as to when contemporaneous oral agreements are-admissible, two late cases, one in the United States supreme court, Seitz v. The Brewers' Refrigerating Machine Co., reported in the Law Journal, December 14, 1891, and the other Eighmie v. Taylor, 98 N. Y., 288, are in point. In the latter case the rule is thus-stated:

“ The writings which 'are protected from the effect of contemporaneous oral stipulations are those containing the terms of a contract between the parties, and designed to be the repository and evidence of their final intentions. If upon our inspection, and study of the writing, read, it may be, in the light of surrounding circumstances in order to its proper understanding and interpretation, it appears to contain the engagements of the parties, and to define the object and measure the extent of such engagement, it constitutes the contract between them, and is presumed to contain the whole of that contract”

Under this rule, where the parties themselves stipulate that the writing contains the entire contract, it is difficult to see upon what theory contemporaneous oral agreements or representations are admissible to vary a written contract. Apart, however, from the view which we take of the rule thus stated, which would be favorable to appellant’s contention, we think, upon the second ground, that the demurrer should have been sustained.

It is not claimed that the representations charged to be false, and which the defendant alleges were the inducing cause to the contract, were made by the principal, but it is expressly alleged that they were made by an agent. There is no suggestion that defendant was not able to read and write, and in all respects able to understand his rights, nor is it claimed that he was in any way induced to sign this particular form of contract by fraud or concealment of its terms. By the fourth clause of the contract, the limitations on the authority of the agent to bind the principal by any representations are distinctly stated; and in view of this fact we do not think it can be held that the statements of the agent can bind the company, where a person who has dealt with such .agent has actual notice that such agent had merely special powers and had no power o.r authority whatever to make verbal contracts out of the written contract which he signed. It is not improper for the parties to stipulate, for the purpose of avoiding any doubt .as to its terms, that their entire contract is expressed in writing, because in this they would be merely following the statute of frauds and the rules of prudence dictated by the courts and the experience of mankind.

We are not referred to any authority which has gone to the extent of holding that a principal may not limit the authority of the agent. And where one deals with such agent with full knowledge of the extent of his power and authority, he cannot avail himself of any defense based upon any act exceeding such authority. We are of opinion, therefore, that the defendant, in the face of the express stipulation that any representations except those contained in the contract should not be binding upon the parties, cannot, for the purpose of defeating a recovery upon such written ■contract, avail himself of representations made by the agent. Such representations being the only defense interposed to the complaint, and not being available to defendant, the plaintiff properly demurred thereto and the demurrer should have been sustained. „ We are of opinion that the judgment should be reversed, with costs to appellant to abide event, and with leave to the defendant to answer over.

Van Brunt, P. J.

I cannot concur in this opinion. False and fraudulent representations by which a party is induced to ■enter into a contract always avoid the same.

The provisions of the fourth section of the contract add nothing to its force, as the law implies the same. Whether upon the trial the proof will sustain the averments is one question, but the demurrer admits that the defendant was induced to enter into the contract by false and fraudulent representations. The fact of representations being made by an agent and not by the principal does not alter the question, as there is no proof that the agent was-not authorized to make the representations, and besides, if a party is induced to enter into a contract by false representations upon the part of an agent, the principal cannot claim the contract freed from the representations.

The judgment should be affirmed, with costs.

Andrews, J.

If the construction of § 4 of the contract, contended for by plaintiff’s counsel, is correct, that section is an agreement that the plaintiff shall not be liable for the fraud of its owni agent. Such an agreement cannot be enforced, and I concur with the presiding justice that the judgment should be affirmed, with costs.


author: Barrett, J.

text:
    Henry Hentz et al., Resp’ts, v. Elizabeth F. Miner, App’lt.

      (Supreme Court, General Term, First Department,

      Filed May 13, 1892.)

    1. Pleading—Complaint.
    A complaint which alleges that defendant is indebted to plaintiffs in a. certain sum upon an account for money laid out and expended and commissions in the purchase and sale of goods by them .as defendant’s agents and at her request, as appears by accounts annexed, is not demurrable.
    8. Contract—Evidence.
    Defendant signed an instrument stating that the balance of her hur hand’s account with plaintiffs and all property of his in their hands havim been transferred to her account, she agreed that they should hold and retain the same as security for any indebtedness then existing or which might become due to them on any transactions between them and her husband or herself, and which contained a full power of attorney authorizing them to receive from her husband all orders in his own or her name for the purchase and sale of merchandise for future delivery, or otherwise, and to pay all profits to him. In an action to recover for a balance on transactions made upon the husband’s orders, Held, that the instrument was admissible against her, as were also admissions of the husband as to-the correctness of the account presented by plaintiffs.
    3. Same—Sales for future delivery.
    Contracts for the purchase and sale of merchandise for future delivery are not illegal unless the undertaking between the parties is that the contracts are to be settled by the mere payment of differences. If a broker is-employed to make legitimate contracts, and he does so with the honest intention of carrying them out by the delivery or receipt of the goods, he is not chargeable with an undisclosed secret intention on his client’s part to-the contrary, of which he has no suspicion.
    Appeal from a judgment in favor of the plaintiffs, rendered upon a verdict had at circuit. Also from an order denying the-defendant’s motion for a new trial.

      Samuel Ashton, for app’lt; T. Henry Dewey, for resp’ts.
   Barrett, J.

The complaint in this action sets forth that, on the 4th day of June, 1888, the defendant was indebted to the-plaintiffs in the sum of $2,304.54, upon an account for money laid out and expended and commissions in the purchase and sale of wheat and coffee by them as the agents of defendant, and at' her request, as more fully appears by certain accounts which are annexed and made part thereof. It also sets forth that the said sum became due and payable on the 4th day of June, 1888, and that no part of it has been paid.

These averments were sufficient to make out a good cause of action, and the complaint was not, under the authorities, demurrable. Allen v. Patterson, 3 Seld., 476; Cudlipp v. Whipple, 1 Abb., 106; Witherhead v. Allen, 4 Abb. Ct. App. Dec., 628; Moffet v. Sackett, 18 N. Y., 522. The motion to dismiss the complaint at the opening of the trial was, therefore, properly denied.

It appeared that prior to the 21st day of May, 1888, the defendant’s husband, Joseph L. Miner, had transacted business with the plaintiffs in his own name. At the date named, the defendant executed an instrument which recited that the plaintiffs had that day transferred upon their books to her account, at her request, and upon her husband’s order, his ledger balance of account and all property of his in their hands; also, that he desired to open a. new account with the plaintiffs, and to transact further business with them. Following this recital was an agreement on Mrs. Miner’s part, in consideration of the facts so recited and of one dollar, that the plaintiffs should hold and retain all balances, moneys and property in their hands, and such as might thereafter come into their hands, as security for the payment of any indebtedness then existing, or which might thereafter become due to them, by reason of any existing transactions, or any further business between them and her husband or herself.

An extremely full power of attorney followed, authorizing the plaintiffs to receive from Mr. Miner any and all orders in his own or in her name for the purchase or sale of merchandise for future delivery or otherwise; and to pay over to him as her agent all profits due or which might become due to her in any and all business transactions undertaken in her name. The elaborate objections taken to the admission of this instrument were frivolous. The whole case rested upon transactions entered into upon the authority thus expressly conferred. Under it Mr. Miner gave orders for the purchase and sale in his wife’s name of the merchandise specified in the accounts. These orders were duly executed, and written notices, furnishing the customary details and specifying Mrs. Miner as ■ the principal, were duly given. These transactions ran on until the 4th of June, 1888, when the account was closed because of failure to keep up a proper margin. Mr. Miner agreed to keep the transactions, to use a technical phrase employed by brokers upon the produce exchange, “ margined to the market.” In other words, to keep sufficient money or property in the plaintiffs’ hands to secure them against loss. In this, respect Mr. Miner failed. The margins fell behind about the 1st of June, and the plaintiffs repeatedly requested him to make such margins good. He promised to do so, but failed, and finally, on the 4th of June, the plaintiffs, being unable to wait any longer, closed the account. This was done in the ordinary way by making contracts at the Produce Exchange so timed as to meet contracts previously made for purchases or sales of merchandise re-' ■ceivable or deliverable at future dates. There was no question, therefore, of conversion. Nor were the plaintiffs carrying merchandise or other property for the defendant

They simply made contracts for the purchase or sale of merchandise receivable or deliverable at a future day, and the required margin was to secure them against fluctuations in the market pending the maturity of these contracts. The defendant’s account was closed by the making of other contracts at market rates to mature at the dates of the maturity of the original contracts. The result of the closing of the defendant’s account in the manner indicated was a balance against her of the sum claimed in the complaint, and we see no reason why the balance was not, upon the facts presented, properly recoverable.

The accounts, showing the final transactions and the balance in question, were delivered to Mr. Miner upon the day when matters were thus closed up, and the very next day he acknowledged the correctness of these accounts and promised that the balance should be paid. It is contended that these admissions of Mr. Miner were not admissible against the defendant. We think, however, that the statement of the account was within the scope of his authority. If the closing of the account had resulted in a balance in the defendant’s favor, he was expressly authorized to receive that balance. Under the broad terms of the agreement, to which reference has been made, he was authorized to transact the entire business in which the defendant was thus put forward. She left everything connected therewith to him. The notices of purchase and sale were regularly sent to him; also, all of the accounts connected with the various transactions. The final account was properly sent to him, and his retention thereof, without objection, for a reasonable time would have made it an account stated. Whether the account was stated in this manner, or directly by admission of its correctness, is immaterial in principle. He had the power to state it whether the result was favorable or unfavorable. In other words, the defendant gave him power to act for her throughout as though the transactions were his own.

But were this otherwise, it would not affect the result, as the plaintiffs proved each item in the account by independent evidence and there was no proof to the contrary.

The real question in the case was whether the speculations in question were illegal as being in the nature of gaming or wagering transactions. This question was fairly submitted to the jury .and they found that the contracts were not intended to be settled by mere payment of differences, but were legitimate transactions entered into with the intention of delivering or accepting the goods at the appointed time.- We do not agree with the defendant that her secret, individual intention must govern, notwithstanding the •plaintiffs’ legitimate intention. Nor do we think that any such doctrine was intended to be laid down in Bigelow v. Benedict, 70 N. Y., 205. The transactions were not illegal unless the understanding between the parties was that the contracts were to be settled by the mere payment of differences. If the employment was to make legitimate contracts, and such contracts were made with the honest intention on the plaintiffs’ part of carrying them out by the delivery or the receipt of the goods, they cannot be charged with what was in the defendant’s mind, undisclosed to them and of which they had no suspicion.

The requests to charge were repetitions and involved, and they were properly disregarded. The charge as delivered presented the question clearly and in language readily comprehensi-. ble by the jury. It was unnecessary to add anything to the instructions thus given, and no error was committed in declining to put these instructions in other and more prolix forms. No error to the prejudice of the defendant was committed in any of the rulings with respect to the admission or rejection of evidence. Nor upon the facts do we see any reason for disturbing the verdict.

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

Van Brunt, P. J., and O’Brien, J., concur.


author: Andrews, J.

text:
    Christian A. Schmidt, Resp’t, v. The Garfield National Bank, App’lt.

      (Supreme Court, General Term, First Department,

      Filed May 13, 1892.)

    1. Conversion—Pleading.
    A complaint which alleges that plaintiff was the owner of certain checks and drafts, and that defendant, a bank, without the authority of plaintiff, obtained possession thereof and wrongfully disposed of and converted the same to its own use, states facts sufficient to constitute a cause of action.
    2. Same—Demand .
    An allegation of a demand is unnecessary where the complaint alleges that defendant has wrongfully disposed of and converted the goods to its own use.
    3. Banks — Unauthorized payment — Restricted power op endorsement.
    Authority to an employee to endorse checks and drafts for deposit by the use of a stamp and the signature of the employer with his own initials, for deposit does not authorize him to endorse with the employer’s name without using the stamp and deposit to his own account.
    4. Same.
    In such case a bank cashing or receiving such checks and drafts on deposit for the employee does so at his peril, and cannot escape liability on the ground that the principal was negligent.
    5. Trial—Credibility op plaintiff.
    Where there is no view of the evidence which would justify a verdict for defendant, it is not error to submit the question of plaintiff’s credibility to the jury.
    Motion for a new trial on exceptions taken at circuit, directed to be heard at the general term in the first instance.
    S. Hanford, for resp’t; John J. Adams, for app’lt.
   Andrews, J.

The complaint in this action alleged in substance that the plaintiff was the owner and entitled to the possession of 171 bank checks and drafts, described in a schedule annexed to the complaint, of the aggregate value of $10,221.39 ; that the defendant, without the authority of the plaintiff, obtained possession of said checks and drafts and wrongfully disposed of and converted the same to its own use; and demanded judgment against the defendant for the sum of $10,221.39, with interest on the several amounts of the said checks and drafts from the days of the dates thereof, respectively. The answer was a general denial. Upon the trial several witnesses were called on behalf of the plaintiff, and one witness was called on behalf of the defendant. At the close of testimony, on motion of plaintiff’s counsel, the court directed a verdict for the plaintiff for the full amount claimed, and that the exceptions taken during the trial, and the defendant’s exception to the direction of the court for a verdict in plaintiff’s favor, should be heard in the first instance at the general term.

At the commencement of the trial at circuit, defendant’s counsel moved to dismiss the complaint on the ground that it did not state facts sufficient to constitute a cause of action. This motion was denied and defendant’s counsel excepted. It is now claimed that this exception, as well as exceptions to the rulings of the court admitting evidence to prove the forgery of the plaintiff’s endorsements of said checks and drafts, were well taken.

We are unable to agree with the learned counsel for the defendant, and are of the opinion that the complaint was sufficient .and that such evidence was properly admitted. The complaint alleged that the defendant, without the authority of the plaintiff, obtained possession of the checks and drafts; and if this statement as to the manner in which the defendant obtained the checks and drafts was regarded by defendant’s counsel as indefinite and uncertain, because it did not sufficiently apprise the defendant as to what was meant by the expression “ without the authority of the plaintiff,” he should have moved to make the complaint more definite and certain. The complaint certainly states a good cause of action, and evidence that the plaintiff’s name was forged, or was endorsed upon the checks and drafts without his authority, was certainly admissible.

It is also objected that a demand should have been alleged in ■the complaint. But such allegation was unnecessary, inasmuch as it was alleged that the defendant, having obtained possession of the checks and drafts without the authority of the plaintiff, had wrongfully disposed of and converted them to its own use. Saratoga Gas & Electric Light Co. v. Hazard, 55 Hun, 251; 27 St. Rep., 588; Pease v. Smith, 61 N. Y., 481; La Fayette Co. Bank v. Metcalf, Moore & Co., 40 Mo. App., 502.

It is also claimed on behalf of the defendant that the ruling of the court below in directing a verdict for the plaintiff was'erroneous upon the following grounds:

First. That the checks, in respect of which this suit is brought, were endorsed by authority of the plaintiff.
Second. Lingard, the plaintiff’s employee, was the authorized recipient of the checks and proceeds thereof.
Third. The plaintiff’s conduct estops him from denying either of the first two propositions.
Fourth. The credibility of the plaintiff as a witness in his own behalf should have been left to the j ury.

The following facts are undisputed: The plaintiff carried on business in the city of New York for a long period as a manufacturer of upholstery and drapery trimming. He travelled upon his own business, and was absent from the city in 1889 from June 8th until July 8th, and in 1890 from April 26th until June 3d. When he was at home he took personal charge of the affairs of the office, receiving all letters, including those containing •checks. His letters were brought upstairs to his office, from the letter-box down stairs, by one of the clerks. He opened the letters, took out the checks, entered them in a check-book, and ■stamped them For deposit in the Chemical National Bank to the credit of -,” and placed his signature under this stamping; he then caused the checks to be deposited in the Chemical National Bank. During the plaintiff’s absence on the occasions above mentioned and others, checks were received at the plaintiff’s place of business drawn to his order. The checks and drafts in suit were received during the periods above mentioned, in the years 1889 and 1890, while the plaintiff was absent from the city, or from his office; and all such checks and drafts were endorsed as follows:

“ C. A. Schmidt,
“Geo. Lingard.”

Such endorsements were made by one George Lingard, who was ■a bookkeeper employed by the plaintiff, and who deposited all of said checks in the defendant bank. The defendant bank thereupon collected all such checks and placed the proceeds to the credit of said Lingard, who subsequently drew out the same and appropriated them to his own use.

The contention of the defendant’s counsel, as we understand it, is, that the above recited facts which are not in dispute, taken in •connection with certain testimony given upon the trial, show that Lingard had authority to endorse the checks and drafts in suit, and, consequently, that Lingard’s culpability did not lie in the fact that he endorsed the checks and drafts, but that he misappropriated the proceeds thereof; that his endorsement was not a forgery, and, therefore, that the defendant was not liable to the plaintiff, because Lingard, having endorsed the checks and drafts, subsequently misappropriated the proceeds.

We have examined the record with care, but we .do not think that the testimony in the case supports such claim of defendant’s counsel. There is some testimony in the case which tends to prove that Lingard did have authority to use the stamp above mentioned, and to write the plaintiff’s name below the stámping upon the checks and drafts, for the purpose of depositing the same in the Ohemical National Bank to the credit of the plaintiff. ‘The plaintiff swore that when he was absent one McLane had charge of his business, and had authority to endorse checks and* drafts for deposit When first interrogated by defendant’s counsel he said that when he went away he did not leave anybody authority to endorse checks; but his subsequent testimony showed that he intended by this to state that he did not, upon each occasion when he went away, leave express authority to endorse checks. He was asked these questions:

“ Q. And did you suppose, as a business man, that your bookkeeper would hold those checks from the time you left the city until your return without endorsing them? A. No, sir.
' “Q. What did you suppose? A. I supposed Mr. McLane would attend to my business as he had done in the twenty years there; perhaps in the twenty years.
“ Q. What did you suppose would have been done with the checks? A. Deposited in the Chemical National Bank to the credit of my account”

The plaintiff also testified that Lingard did not have authority from him to endorse his name upon checks and drafts. It appeared, however, that during the plaintiff’s absence from the city Lingard had endorsed the plaintiff’s name upon some 207 checks, which were deposited in the Chemical Bank, and that the plaintiff never raised any question as to the right of Lingard to make such endorsements. It also appeared that, in point of fact, McLane did not endorse any checks for deposit during the plaintiff’s absence, but that Lingard did the endorsing. It also appeared that on July 31, 1890, plaintiff had an interview with the president of the defendant, and that on August 1, 1890, he made a written memorandum of the conversation between- himself and Cheney. This memorandum was put in evidence upon the trial; it contained, among other things, the following:

“Whoever prepared the deposits, either Mr. McLane or Mr. Lingard, signed for deposit in the Chemical National Bank. They had to use my regular deposit stamp, For deposit with the Chemical National Bank to the credit of,’ and the one preparing the deposit should have written under the deposit stamp my name in his usual hand-writing, writing under it his special initials. No special authority had been given to either of them for it.”

As above stated, this testimony, and some other testimony given upon the trial, did tend to prove that Lingard had authority to use the stamp, and to sign the plaintiff’s name under the stamping upon the checks and drafts, adding his own initials thereto, and thereupon to cause the checks and drafts bearing such restricted endorsement to be deposited in the Chemical National Bank, to the, credit of the plaintiff. But such authority gave Lingard no right to endorse the plaintiff’s name, except in connection with a restricted endorsement, made by stamping the checks and drafts with the stamp provided for that purpose by the plaintiff; nor did it confer the slightest right upon Lingard to deposit the checks, when endorsed, to the credit of his own account in the Garfield National Bank. Assuming that he had authority to use the stamp, and sign the plaintiff’s name in connection with the use thereof, and then cause the checks and drafts -to be deposited to the plaintiff’s account in the Chemical Bank, his action in endorsing the checks with the plaintiff’s name without using the stamp, and depositing sucli checks and drafts to his own account in the Garfield National Bank, was absolutely without any authority or justification whatever. There was, therefore, not only no testimony which would justify the court in holding that Lingard had authority to endorse the checks and drafts in the manner in which he did, but there was no conflict in the testimony which required, or would have justified, the court in submitting the question to the jury, as to whether Lingard had authority to endorse the checks in the manner in which he did.

The second ground upon which defendant’s counsel claims that the court erred in directing a verdict for the plaintiff is, that Lingard, the plaintiff’s employee, was the authorized recipient of the checks and the proceeds thereof. We are not quite certain that we understand the argument of defendant’s counsel under this head, but we suppose that the'gist of it is contained in the following paragraph:

‘‘ But we contend that the evidence establishes that the plaintiff reposed absolute confidence in Lingard ; that in view of all the circumstances, the defendant was well warranted in cashing checks endorsed by the latter in the name of his employer, for was he not the authorized recipient during his employer’s absence of all remittances ?”

There is not a scintilla of evidence in the case which tends to prove that Lingard was the authorized recipient of the proceeds of checks received during the plaintiff’s absence. As above stated, there is some evidence tending to show that he did have authority to use the stamp above mentioned, and place a restricted endorsement upon the checks, and then deposit them to the plaintiff’s account in the Chemical Bank ; but there is no evidence that he had any authority whatever to present the checks at the Chemical Bank, or any other bank, for payment, or to receive the proceeds of such checks in cash; and if some officer of the defendant bank had taken the trouble to go, or to send to plaintiff’s place of business, and make inquiry of McLane, who had been left in charge of plaintiff’s affairs, he would undoubtedly have ascertained that Lingard had no such authority. It does not appear by the evidence that any such inquiry was made ; but if inquiry had been made, and the defendant’s officers had been informed that Lingard did have authority, or at any rate exercised the authority, to open letters addressed to plaintiff, and to place a restricted endorsement upon the checks for the purpose of having the same deposited in the Chemical National Bank, we are at loss to understand how the knowledge of these facts would have justified the defendant bank in cashing the checks deposited with it by Lingard.

The third ground upon which it is claimed that the ruling of the court directing a verdict for the plaintiff was erroneous is, that the plaintiff’s conduct estops him from recovering in this action, because: First, the alleged restriction upon the authority conferred upon Lingard to endorse the checks was not within defendant’s knowledge and did not appear upon the checks themselves ; second, the plaintiff is estopped by his negligence. •

Defendant's counsel states that the principle upon which the-first proposition involved in this point is based is stated by Seldén, J., in New York & New Haven R. R. Co. v. Schuyler, 34 N. Y.,, 68, as follows: “Where the authority of an agent depends upon some fact outside the terms of his power, and which from its nature rests particularly within his knowledge, the principal is bound by the representation of the agent, although false, as to the existence of such fact”

Defendant’s counsel also states that the same principle is stated in another form in Griswold v. Haven, 25 N. Y., 598, as follows “ The principal is responsible for a false representation by his-agent not authorized by or known to the principal, if such representation is made in connection with an act which the principal has-authorized.” Counsel then applies this principle to the case at bar in the following manner:

“ Lingard had authority to endorse the plaintiff’s checks. The-defendant was warranted in resting there without taking pains to-ascertain whether or not the authority was in any manner restricted ; the act of endorsing being authorized, the plaintiff was bound by his agent’s unauthorized act in collecting the check so-authoritatively endorsed.”

The fallacy of this argument is that it is based upon an assumption which is not warranted by the evidence given upon the trial, viz.: that Lingard had authority to endorse the plaintiff’s-checks. As already shown, there is no evidence whatever that Lingard had a general authority to endorse checks. If -he had any authority at all, it was merely by the use of the stamp to endorse the checks for deposit in the Chemical Bank, and them write the plaintiff’s name under such endorsement. The authority of Lingard to collect the proceeds of the checks did not depend upon any fact outside the terms of his power, because he had no-general power to endorse; and the plaintiff was no more bound by Lingard’s representation that he had authority to collect the proceeds than he was by Lingard’s representation that he had authority to endorse generally; nor was Lingard’s representation to the effect that he had authority to collect the proceeds of the-checks made in connection with an act which the plaintiff had authorized, because the plaintiff had never authorized him to endorse the checks in the manner in which he did,.

The checks and drafts were all drawn payable to the order of the plaintiff; and when deposited by Lingard "in the defendant, bank they were endorsed with the name of the plaintiff, and of Lingard, in Lingard’s hand writing. The officers of the'bank, therefore, knew that the plaintiff’s name had not been endorsed upon the checks and draffs by the plaintiff, but by Lingard. In receiving the checks and paying the proceeds thereof to Lingard the officers of the bank acted at their peril; they knew that Lingard had endorsed the checks with the plaintiff’s name, and unless they were satisfied to take the risk of paying the proceeds to Lingard,. they were bound to make inquiry as to the extent of his authority. The fact that the plaintiff was absent from the city, as suggested by defendant’s counsel, can make no difference. As above suggested, McLane was left in charge of plaintiff’s affairs, and if the officers' of the defendant bank had made inquiry of him, they would have discovered at once that Lingard had no authority to endorse the checks in the manner he did and collect the proceeds for his own use, through the defendant bank. Moreover, as the plaintiff himself had made no representation whatever to the bank as to Lingard’s authority, even if such information could not have been obtained from McLane, the bank could not with safety have received the checks on deposit, and paid the proceeds to Lingard, until it had ascertained from the plaintiff, or some one authorized to speak for him, what Lingard’s authority was in the premises.

With regard to the second proposition, that the plaintiff is estopped by his negligence, we are of opinion that learned counsel for the defendant misapprehends the law upon this subject. His argument appears to be that, if the plaintiff had exercised a proper supervision over the acts of Lingard, the latter would not have'been able to perpetrate the frauds which he did, and that, therefore, the plaintiff was “ the author of his own misfortune,” and should be estopped to deny the authority of Lingard to do the acts which caused the misfortune.

The best answer to this proposition is to be found in the opinion of Bari, J., delivered in the case of the People v. Bank of North America, 75 N. Y., 561, and is as follows :

“ The referee found that the acts of Phelps in endorsing and diverting from their proper use the drafts in suit were such that the exercise of ordinary care on the part of the treasurer would have discovered and prevented them; and upon this finding the defendant seeks to base an estoppel against the plaintiffs. It certainly is not a general rule of law that a person can be deprived of his property by an unauthorized transfer thereof, simply because he has not exercised ordinary care to prevent such transfer. I may carelessly intrust a dishonest person with my personal property, and thus put it in his power to sell it; and yet it has never been held that, in such case, my carelessness will deprive me of the right to reclaim my property, the person thus intrusted having neither the real nor apparent power to sell it. I may place my unindorsed bills in the hands of an agent, and thus place it in his power to forge an indorsement; and yet the indorsement would not bind me. The principle that when one of two persons, equally innocent, must suffer a loss by the act of a third person, he shall bear the loss who placed it in the power of such third person to perpetrate the act, does not apply to such cases. Where it is said in the books that one is estopped by his negligence as to the acts of another, who has assumed to act for him, or to deal in his property, the negligence meant is that of permitting such other person to clothe himself, or to be clothed, with apparent authority to act, and then the person who has been induced to rely and act. upon the appearances can invoke the estoppel; and such was the case of the N. Y. & N. H. R. R. Co. v. Schuyler, 34 N. Y., 30, in which the doctrine of estoppel by negligence is more fully discussed than in any other case. Here there was no negligence of Raines in clothing Phelps with apparent authority to indorse, or in causing or permitting any appearances which caused the defendant to rely upon the indorsements. The negligence alleged is simply that Raines did not use ordinary care to discover and prevent the frauds of Phelps; and there is no authority for holding that such negligence can work an estoppel. If it could, merchants, banks, and other business men, having numerous clerks, would frequently hold their property by a precarious tenure.”

The last ground upon which it is claimed that the ruling of the court in directing a verdict for the plaintiff is erroneous is, that the credibility of the plaintiff as a witness in his own behalf should have been left to the jury.

There was no occasion to submit the question of the credibility of the plaintiff to the jury, because, as has already been shown, there was no view of the evidence given by the plaintiff, or by the other witnesses in the- case, under which the jury could possibly have found that Lingard had authority to endorse the checks in the manner in which he did, and to deposit the same to his own account with the defendant bank. The most that can be said about the testimony is, that a jury might possibly have found that Lingard did have authority to use the stamp and write the plaintiff’s name under the stamping upon the checks and drafts for the purpose of depositing the same in the Chemical National Bank ; but if the views hereinbefore expressed are correct, such a finding by the jury would not have justified a verdict for the defendant Various exceptions were taken during the trial 'to the admission and exclusion of evidence, but none of them appears to us to have been well taken.

The from should be affirmed, with costs.

Van Brunt, P. J., and O’Brien, J., concur.