author: Follett, J.

text:
    Eliza C. Northrup, Resp’t, v. The American Exchange Bank, App’lt.

      (Supreme Court, General Term, Fourth Department,

      Filed April. 1887.)

    Title—Who is not bona eide holder for value as against owner OF PROPERTY.
    A person who in payment of a precedent debt receives the proceeds of bonds from one who misappropriates them, is not a holder in good faith and for value as against the true owner.
    On the 5th of July, 1866, the plaintiff owned certain county bonds, but the interest coupons attached thereto belonged to one, Dewarren Northrup. On that day, pursuant to a previous arrangement between said Northrup and one Abner M. Durfee, the latter deposited said bonds and coupons with the Hungerford National Bank, of Adams, N. Y., and received therefor a certificate signed by the cashier, which provided' in substance, for the safe keeping of the bonds and coupons at the annual charge of $1.30, and for the delivery of the same to said Durfee upon the return of the certificate.
    Subsequently Hungerford’s National Bank went out of existence and without any further arrangement, the bonds and coupons passed into the hands of one, Solon D. Hungerford, a private banker and the former president of Hungerford’s National Bank. On the 31st of January, 1884, said Hungerford, without authority from any one, sent the bonds and unpaid coupons to the defendant for collection and two days later wrote to its cashier to credit the proceeds to his account. The defendant accordingly collected the bonds amounting to $1,300, certain coupons past due amounting to $273, and the remaining coupons to become due amounting to $45,50 or $1,618.50 in all, and credited the same to Hungerford’s account. At the time that such credit was made Hungerford was indebted to the defendant in the sum of $3,066.58, in open account, upon which said proceeds were applied.
    The defendant surrendered no security and parted with no value on the strength of said bonds otherwise than by making such credit.
    After this the defendant continued to do business with Hungerford as before for several months until he died on the 12th of May, 1884, but from the date of the credit to the date of his death he deposited a greater amount than he drew out, and when he died his debt to defendant was but $332.21.
    At the time of this transaction Mr Hungerford was a man of good repute. The delendant had dealt with him while he was in business as a private banker, and for many years prior thereto, with Hungerford's National Bank, while he was its president.
    Aside from the application of said proceeds upon the overdrawn account and the fact that some of the coupons were past due, there was nothing to distinguish the affair from the ordinary course of business between Hungerford and the defendant. Durfee and Dewarren Northup assigned their rights to the. plaintiff who, after demand made, brought this action to recover from the defendant the amount it received for said bonds and coupons.

      L. B. Bunnell, for def’t; appit, John C. McCartin, for pl’ff, resp’t.
   Follett, J.

Appeal from a ^judgment entered upon the ■decision of a special term.

The position taken on this appeal that defendant received the bonds as the agent of Hungerford for the purpose of collection, and is not liable because he accounted, as agent, to Hungerford. in good faith, is not supported by the evidence. Hungerford’s letter of January 31, 1884", to defendant, which accompanied the bonds, -tated that they were sent, “for credit,” at which time' Hungerford was indebted to defendant, on account, m the sum of $682.48. When the bonds were collected by defendant and credited to Hungerford, he (Hungerford) was indebted to defendant in the sum of $3,056.58, and remained indebted at the close of business, February 16, 1884, after the bends were credited, in a considerable sum. February 21, 1884, Hungerford renewed his direction, “ pass to my credit ” the bonds. This is precisely what was done, and by the law governing the application of payments, and the avails of these bonds were applied in law, as well as in fact, to the part payment of the sum then due from Hungerford to defendant.

Under the rule of the courts in this state, the avails of these bonds having been received by defendant in payment of a precedent debt, the defendant is not a holder in good faith and for value as against the true owner.

The fact that defendant subsequently gave Hungerford credit by reason of the condition of his account, which was strengthened by the disputed item, does not strengthen the defendant’s defense in law.

The opinion delivered at special term covers the case, and the case may well be affirmed on that opinion.

The judgment is affirmed, with costs.

Boardman, J., concurs; Hardin, P. J., not voting.


source: Caselaw Access Project

license: Public Domain

text:
    William H. Delmore, App’lt, v. Richard L. Owen, Resp’t.

      (Supreme Court, General Term, Fourth Department,

      Filed April, 1887 )
    • 1. Attachment—Motion to vacate on ground op insufficiency op AFFIDAVITS ON WHICH IT WAS OBTAINED
    Upon an appeal from an order vacating an attachment upon the motion of a subsequent attaching creditor, a verified' complaint having been filed previous to the motion for the warrant, and no objection being made that this was not used on the motion, while the order appealed from recited the fact that it was so read, and this compiaint stating a cause of action; Held, that the warrant could not be vacated on the ground that a cause of action was not stated in the affidavits upon which it was granted.
    8. Same—Motion to '/acate—Party making must have lien—Code Civ. Pro., § 682.
    By Code Civil Procedure, section 682 the defendant, or a person who-has acquired a lien upon or interest in his property, after it was attached, may apply to vacate or modify the warrant Held ' that any person, except the defendant, must show that he has acquired a iieu upon or inter est in the property held under the prior attachment before he can have any standing in court to move to vacate the prior attachment.
    Appeal from an order vacating an attachment upon the motion of a subsequent attaching creditor.

      A. E. Ktlby, for pl’ff- app’lt, H. C. Coolc, for James H. Phelps, resp’t.
   Follett, J.

The attachment vacated was granted upon the affidavits of the plaintiffs, Thomas Bennett and Alzina. Owen, upon the ground that the defendant had departed from the state of New York with intent to defraud his creditors, which ground is recited in the warrant, and this fact is not questioned.

James H. Phelps subsequently obtained and levied an attachment upon the chattels seized_ by Delmore’s attachment; and upon the strength of the lien so acquired, moved to vacate Delmore’s attachment upon the ground that a cause of action was not stated in the affidavits on which the warrant was granted.

The decision at, special term was placed upon the ground, that the language cf the affidavit does not aver the existence of facts sufficient to constitute a cause of action, but is merely descriptive of a cause of action, or of facts constituting a cause of action. The language of the affidavit does not, fairly construed, justify this conclusion, and we are of the opinion that a cause of action is sufficiently averred to support the attachment.

This motion was made upon the papers on which the warrant was granted, “and upon all the papers had, used or served in said action.” A verified complaint had been previously filed and used to obtain an order for the publication of the summons against the absconding defendant. This complaint appears in the appeal book without objection that it was not used on the motion, and the order appealed from recites that it was read on the motion. Facts constituting a cause of action are alleged in this complaint, and from all of the papers on which James H. Phelps moved to vacate the plaintiff’s attachment, it clearly appears that a cause of action existed in favor of the plaintiff at the time his attachment was granted.

The papers on which Phelps’ attachment was issued are' contained in the appeal book, without objection, and they were presumably before the special term, and they do not show that Phelps was entitled “to recover a sum stated therein, over and above all counter-claims known to him.” nor do the papers contain an equivalent allegation, or any allegation in respect to counter-claims. This was a fatal defect, but the .court refused to consider it, holding that a subsequent attaching creditor was entitled to make the motion, though the papers upon which his attachment was-granted did not confer jurisdiction. This was error. ‘ The, defendant, or a person who has acquired a lien upon, or interest in his property, after it was attached, may * * * apply to vacate or modify the warrant. ” Section 682, Code Civil Procedure. A person, other than the defendant, must show that he has acquired a lien upon, or interest in the property held under the prior attachment before he has any' standing in court to move to vacate the prior attachment.; Whether he has such a lien, is a question which the prior attaching creditor may dispute, and if thé facts be decided against the moving party, his motion must fail In this case, it clearly appears that the moving creditor nad not acquired a valid lien upon the property.

The order is reversed, with ten dollars costs and printing disbursements; and the motion is denied, with ten dollars costs.

Hardin, P. J., and Boardman, J., concur.


author: Hardin, P. J. Follett, J.

text:
    J. Thomas Jones, App’lt, v. George A. Reynolds, Resp’t.

      (Supreme Court, General Term, Fourth Department,

      Filed April, 1887.)

    1. Invention—Unpatented is property—Assignable.
    An invention before letters are issued may be sold, assigned and transferred, inasmuch as it is regarded by law as property

      &. Same—Sale of—Statute op frauds
    At the time of the alleged sale of an invention, no writing was made between the parties, no payment was made at that time, or at any other, -upon the alleged contract of sale, and no delivery of the thing sold was made, except as follows: At that time the model, or illustration, of the invention had received some work and labor thereon by the plaintiff; and two halves of a certain iron last were furnished to the plaintiff, and he -claimed to have devised and constructed the device in question and attached it thereto After this they were returned and left with the defendant, with the additions made thereto. No letters patent were issued upon the -supposed invention to the plaintiff, but some time thereafter were issued to •defendant, who applied therefor Held, that the defendant acquired no title to the invention if he were not the inventor, and that the alleged sale was void under the statute of frauds. Follett, J , dissenting.
    8. Same—Defense to action for price of invention.
    Where a valueless invention is the subject of sale, in an action for the contract price thereof, it may be shown, by way of defense, that the supposed invention had no value or usefulness, because impracticable. Follett, J.. dissenting.
    4. Same—Evidence—May show that plaintiff was not inventor.
    It was competent for the defendant to show upon the trial that he was the originator of the idea claimed by the plaintiff to -have been his invention
    Appeal from a judgment of nonsuit granted in the Oneida circuit.
    Plaintiff alleges that he is the original and first discoverer and inventor of a certain valuable improvement or device in metal lasts, designed to be used in the manufacturing of hoots and shoes, and was the sole owner of said device or invention That said invention was complete and perfected at the time of the sale, and that on the 15th of January, 11884, this plaintiff, in consideration of the sum of $500, to be paid him by defendant therefor, and which said sum of $500 defendant then and there promised and agreed to pay to plaintiff therefor, duly sold, assigned and set over unto said defendant the said invention or device, -and all his Tight, title and interest therein, and the right to use the same in the manufacture of boots and shoes. That the defendant then and there took possession and control thereof, and accepted and appropriated and used the same, and ■without the knowledge or consent of plaintiff, upon his own application and upon the specifications sworn to by himself, procured a patent of the United States to be issued upon said invention to defendant in his own name as patentee.

      Defendant denies all the allegations of the complaint.

      William Townsend, for app’lt; Edwin H. Misley, for resp’t.
   Hardin, P. J.

Appellant’s position that mechanical invention is property prior to being patented, and that it belongs exclusively to the author or inventor seems to be sound.

In Gayler v. Wilder (10 How. [U. S.], 477) it was held that an assignment “which purported to convey to the assignee all the inchoate right which the assignor then possessed, as well as the legal title which he was about to obtain. was sufficient to transfer the right to the assignee, although a patent afterwards was issued to the assignor.”

In making that determination, there was an extensive discussion of the question whether “an invention is regarded as property which may be set apart for a person’s own exclusive use.” In the course of his argument in the affirmative, Mr. Webster said: “What is the reason that an invention, which is recognized as property, shall not be transferable like other property, there being nothing in the statute to prohibit it ?”

Mr. Chief Justice Taney said, in speaking of the assignment under consideration, that took effect “upon the imperfect and inchoate interest which he (the assignor) actually possessed.” The contrary opinion was maintained by three dissenting judges. The case, nevertheless, remains an authority to the appellant’s proposition, that an invention before patent is issued may be sold, assigned and transferred, inasmuch as it is regarded as property. Palmer v. De Witt, 47 N. Y., 532; Potter v. McPherson, 21 Hun, 559; Tabor v. Hoffman, 41 id., 5; Hammer v. Barnes, 26 How. Pr. Rep.. 174.

It appears by the undisputed evidence in the case, that at the time of the alleged sale, no writing was made between the parties. No payment was made at that time or at any other upon the alleged contract of sale, and no delivery of the thing sold was made at the time of the sale or at any other time thereafter, although at the time of the alleged sale the model or illustration of the invention had received some work and labor thereon by the plaintiff. Two halves ■of the iron last were furnished to the plaintiff, and he ■claims to have “devised and constructed the device in question, and arranged a socket surrounding the post in the bottom of the last, and the catch and spring for extending the two halves and holding them in position.”

After the labor bestowed upon them by the plaintiff, and the additions made thereto, they were returned to and left vzith the defendant. No letters patent were ever issued upon the supposed invention to the plaintiff. Some time thereafter, ■ the defendant applied for and obtained letters patent for “a combination of the catch and spring, with jointed séctions and a post let into the bottom section by a dovétail slot,”' and received letters patent in accordance with section 4884 of the United States Revised Statutes, page 945. Upon the trial, there was a dispute between the parties as to whether or no the plaintiff was the inventor, of the defendant himself the inventor of the idea which was used in the adjustment of the catch and spring. If the plaintiff was the inventor, it would seem that the letters patent issued to the defendant would give him no legal title to the invention. See section 4886, United States Revised Statutes.

Plaintiff, in his testimony, seeks to maintain that there was an agreement on the part of the defendant to pay him $500 for the invention if he took it and used it. He testifies that the defendant said, on the occasion of the alleged verbal arrangement between them, viz. : “ If I take it, and make any use of it I will give you five hundred dollars for it,” and that at the interview he called in Mr. Owens, and said to him that plaintiff “has got an invention, and he wants $500 for it. If I take it and use it at all, I am to give him so much for it. I told him any time when he got ready for the thing to be patented, the patent would be issued and assigned to him.” (No patent was ever issued to the plaintiff. No written assignment of the invention was ever tendered to the defendant by the plaintiff )

The defendant denies that any agreement such as averred and sworn to by the plaintiff was made, but states the conversation to have been as follows, viz.: “I don’t know whether I can use this thing or not. If I am going to use it on all our lasts, I would willingly give you $500. If we use it on half, I will give you $250; if we don’t use it on any, I don’t want to give a cent for it.” Plaintiff replied, then, when I said that “that is satisfactory to me.” Then, says I: “Mr. Jones, let us have a writing to that effect, setting forth all these things, so we can have no misunderstanding. ” Plaintiff replied: 1 ‘ What do I want better than your word,” and refused to have a writing executed. The defendant’s version of the conversation was corroborated by the witness, William Owens.

The plaintiff insisted at the trial that the defendant had, by including the device in the combination for which he had obtained a patent, made “use” of the plaintiff’s invention, insisting that the procuring of the patent was such use as answered the requirement of the contract as stated by the plaintiff.

We think the plaintiff’s position cannot be sustained. As before observed, the defendant acquired no title to the invention of the plaintiff from the letters patent obtained by him, if it be assumed that the plaintiff was the inventor, and not the defendant. The defendant made the application for the letters patent obtained by him with the knowledge and with the assent of the plaintiff; and in order to obtain them he was obliged to take the position, as the plaintiff well knew, that he was the inventor of the combination referred to in his specifications for letters patent.

Second. We think the strength of the evidence fairly supports a construction of the contract between the parties, which leaves the use to be made of the invention at his practical option in and about the business of the defendant. At that time the defendant had been for some nineteen years the proprietor of a large manufacturing establishment, employing 500 hands, in the city of Utica, in the .manufacture or boots and shoes, as was well known to the plaintiff, and it was in reference to his business that the treaty was had, and we think the weight of the evidence was so strong that a verdict ought not to be permitted to stand which should find that the use referred to in the conversation between the parties was other than in the business in which the defendant was engaged.

It, therefore, follows that the defendant has never made ■ any use of the invention of the plaintiff in accordance with the conversation had by the parties in respect to the same. It appears in the evidence that the defendant never made any use of the plaintiff’s invention in and about his business. That it was totally impracticable and valueless, and that it never advantaged him according to the testimony.

It has long been settled that where a valueless invention is the subject of sale, by way of defense it may be shown that the supposed invention had no value or usefulness. Saxton v. Dodge, 57 Barb., 115.

We think it was competent for the defendant to show upon this trial that he was the originator of the idea claimed by the plaintiff to have been his invention. Dickinson v. Hall, 14 Pick., 217.

It was held to be competent in defense of a promise to pay by the purchaser of a patent right that the invention was neither a new nor a useful invention. See also Head v. Stevens (19 Wend., 411).

Third. We are also of the opinion that the alleged contract was void by the statute of frauds. It was for the sale of property in a stipulated amount exceeding fifty dollars, and was not in writing. The thing contemplated by the contract was the invention. There was no such delivery and acceptance as satisfies the requirements of the statute of frauds. Neither was there any part payment for the thing sold.

Plaintiff’s learned counsel calls our attention to Marsh v. Rouse (44 N. Y., 643), wherein it is decided that “ to constitute a sufficient delivery under an oral agreement for the sale of personal property to take the contract out of the statute of frauds, the property must be placed within the control and under the exclusive dominion of the buyer. ”

There was no such delivery of the invention as excluded the plaintiff from applying to the patent office for letters-patent. Therefore, if he had applied and obtained letters-patent, and an assignment had been made and recorded of any rights derived by him under the letters-patent, the assignee would have acquired title by a record of such assignment, which would have defeated any parol arrangement had between the defendant and the plaintiff. Section 4898, United States Revised Statutes.

We think receiving the model from the plaintiff and attaching a catch-spring thereto, and returning the property to the defendant, was not such, a delivery as is required to take the case out of the statute of frauds.

If the sale was made by the plaintiff to the defendant, it was of the invention, the inventor’s device, which was the principal thing or property sold. The improved model was a mere incident used or usable to illustrate the idea, the invention or the device. If the plaintiff had any proprietory interest in such idea, the invention or device as he claims to have sold to the defendant, or as his counsel calls it, “of an unpatented invention,” that was the subject matter of the alleged sale.

The foregoing views lead us to the conclusion that the learned trial judge committed no error in ordering a judgmedt of nonsuit at the circuit.

Judgment affirmed with costs.

Boardman, J., concurs in result; Follett, J., dissents with an opinion.

Follett, J.

(dissenting.)—In January, 1884, the plaintiff invented and applied to a shoe last a mechanical devise which the plaintiff and defendant believed tobe an improvement, the right to which the defendant purchased m January, 1884, by an oral contract. The terms of this contract are in dispute. The plaintiff testified on the trial that defendant agreed to pay him $500 for the invention if he made any use of it. Defendant testified he agreed to pay $500 for the invention if he used it on all of his lasts, $250 if he used it on half of his lasts and nothing if not used on any of his lasts. May 19, 1885, defendant received letters patent for this invention upon an application in which he swore that he was the inventor of the device.

The foregoing facts are undisputed. An unpatented invention, not abandoned, is the individual property of the inventor, and is assignable. Gayler v. Wilder, 10 How., 477; Hendrie v. Sayles, 98 U. S., 546; Palmer v. De Witt, 47 N. Y., 532.

It is urged that a recovery cannot be had on this oral contract of sale because the defendant did not “accept and receive ” the thing sold, or, ‘ ‘ at the time pay some part of the purchase money ” as required by the third section of the second title of the statute of frauds. No part of the purchase money was paid at the time of the sale, and the question arises whether the defendant accepted and received the thing sold so as to take the contract out of the statute referred to.

The plaintiff’s invention was materialized and delivered by him to the defendant who accepted it and subsequently obtained a patent upon it, claiming it to be his own invention. Since the sale the defendant has exercised complete dominion over the invention to the exclusion of the plaintiff and all others. He cannot now be heard to say, his acceptance and receipt, were imperfect because it is within the plaintiff’s power, by suit, to annul the letters patent for the false statement in defendant’s application upon which the letters were issued.

If an author of an uncopyrighted work should sell it and deliver a manuscript copy to a publisher who should publish it without copyrighting, or should' copyright and not publish it, I think the purchaser could not successfully defend an action brought to recover the purchase price, upon the ground that his acceptance and receipt were insufficient to take the case out of the statute cited. In the case at bar the thing sold did not admit of a more perfect delivery by the plaintiff, or of a more complete acceptance and receipt by the defendant, and I think sufficient was done to take the ' case out of the statute. Marsh v. Rouse, 44 N. Y., 643; Reed St. Fr., § 261, 1 Benjamin sales (Corbin’s ed), 167, 195. Section 4898 of the Revised Statutes of the United States, requiring assignments of patents, or interest in patents, to be in writing, is not applicable to this case. This was not the sale of a patent, or of an interest in a patent, but of an invention, which was as much the plaintiff’s property as is the production of an author, and the inventor may sell his invention without reference to the patent laws, or the author his work without reference to the copyright laws.

When the invention has been patented, or the production copyrighted, sales of interests under the patent or under the copyright must be made in accordance with the statutes relating to those subjects. Burr v. De La Virgne, 102 N. Y., 415, is decisive of this question.

Should the jury find the contract to be as testified to by the plaintiff, it cannot (as the evidence now stands) be affirmed as a question of law, that it was the intention of the parties that defendant should not j)ay anything for this invention unless he used it upon his lasts and in his business.

It has been held in actions brought to recover the price agreed to be paid for patents that the invalidity of the patents may be proved as a defense.

The defense that a patent is worthless because invalid is -quite different from the defense that a patent is worthless because impracticable.

Whether the cases holding that the invalidity of a patent may be proved in defense of an action for the purchase price rests upon the doctrine of implied warranty of title, •or upon some other grounds (2 Benjamin Sales [Corbin ed.], 834, 835), and need not be considered, for the question is not in this case.

This case does not arise over the sale of a patent, or of an interest in a patent. Plaintiff did not profess to sell a patent, or an interest in a patent, but an invention. If the patent is invalid it is because the defendant obtained it in violation of section 4895 of the Revised Statutes of the United States, and swore in his application that he, and not the plaintiff, was the original inventor. He cannot take .advantage of his own wrong.

The judgment should be reversed, á new trial granted, with costs to abide the event.


text:
    Frederick A. Adams, Resp’t, v. Uriah Loomis and Ephriam Loomis, App’lt.

      (Supreme Court, General Term, Fourth Department,

      Filed April, 1887.)

    1. Conversion—Measure of damages
    In an action for the conversion of articles having a market value the measure of damages is the market value of the articles at or near the place of conversion.
    3. Same—Between tenants in common.
    In actions between tenants in common, the tenant whose property has been converted is entitled to recover to the extent of his interest therein and no more.
    Appeal from a judgment of the county court of the county of Chenango, entered on a verdict and from an order denying a motion for a new trial made on the minutes.

      Solomon Bundy, for resp’t; John W. Church, for app’lt.
   Follett, J.

This action was brought to recover damages for the conversion of hay, oats and corn owned by the parties as tenants in common under a farm contract, each being entitled to one-half of said products at the end of the term. Before the expiration of the term the defendants, who owned the farm, carried away the products above mentioned under circumstances not necessary to be here stated. The action was tried after the termination of the contract.

In an action for the conversion of articles having a market value, the measure of damages is the market value of the articles at or near the place of conversion. Under this contract each party was presumptively the owner of an undivided half interest in the articles, and the plaintiff was not entitled to recover for more than one-half of their value; and in actions between tenants in common, the tenant whose property has been converted is entitled to recover to the extent of his interest therein and no more. The court was asked to charge that the plaintiff could not recover for more than one-half of the oats, which was refused. This was error. Under the evidence, the plaintiff was certainly not entitled to recover on account of the oats more than half of their value. The court charged that if the plaintiff was entitled to recover “ then the plaintiff’s damages would be whatever it would have been worth to him providing the property had remained upon the place and he had fed out this hay and grain to the stock of cows and horses upon the premises.” This was excepted to, and was error. The proposition is repeated at folio 219, which was excepted to, and was error.

For these errors the judgment and order must be reversed and a new trial granted, with costs to abide the event

Hardin, P. J., and Boardman, J., concur.


author: Hardin, P. J.

text:
    Charles W. Mather, App’lt, v. The Eureka Mower Company, Resp’t.

      Supreme Court, General Term, Fourth Department,

      Filed April, 1887.)

    1- Corporation—Treasurer—Services rendered—Action for—Compensation—It MUST APPEAR THAT THE SERVICES "WERE RENDERED IN EXPECTATION OF COMPENSATION.
    In an action brought by this plaintiff to recover for services rendered as the treasurer of the defendant: Held, that before a party can be made liable for compensation for services, it must not only appear that the services have been rendered, but that they were rendered in the expectation of receiving wages.
    g„ Same—Evidence sufficient to sustain finding that services were RENDERED GRATUITOUSLY.
    The plaintiff was a stockholder and director in the defendant company, as was also his partner, in the hanking business, anil, by means of the-plaintiff’s appointment as treasurer, the defendant’s account was secured for the bank. Salaries for other offices were fixed by the by-laws of the company, but none for that of the office of treasurer: Held, that there was evidence sufficient to warrant a finding that the services were undertaken gratuitously.
    3, Notice to produce—Failure to obey—Witnesses allowed to refer to books.
    The plaintiff gave notice to the defendant to produce certain of its books. This order was not complied with; but subsequently the referee allowed witnesses to refer to books which had been used by the plaintiff anil his clerk, to ascertain the extent of the plaintiff’s services. Meld, that the discretion of the referee was not abused.
    Appeal from a judgment upon the report of M. A. Knapp, Esq., referee, entered in Oneida county.
    Action to recover for services as treasurer of defendant. Plaintiff and his banking partner were stockholders in defendant, and the partner and plaintiff’s father, as well as himself, were stockholders at the time of the organization of defendant.

      John W. Boyle, for app’lt; CooJcinham & Sherman, for resp’t.
   Hardin, P. J.

Plaintiff has recovered seventy-five dollars, “the value of the clerical services and bookkeeping performed” by the bookkeeper of plaintiff’s firm. He acted as treasurer for defendant from April, 1884, until May, 1885, making no claim while so acting for compensation as treasurer. He was a stockholder of defendant and he was a member of the banking firm of Mather & Co. His uncle, Joshua Mather, the other member of the banking firm, was a promoter of the organization of defendant and a stockholder therein, as was, also, plaintiff’s father.

The calls for payments upon the stock were made payable and paid at said banking firm’s office, and that firm secured through the appointment of plaintiff as treasurer the account of defendant, which was wholly kept in plaintiff’s firm during his treasurership.

Ho resolution of the board of directors fixed any salary to the treasurership. Ho by-law fixed any salary for plaintiff as treasurer. By-laws were adopted which did fix salaries of other officers and the superintendent of defendant, and plaintiff knew of them and continued to act as treasurer without having any salary paid to him or fixed by the board or the by-laws.

The manner in which the business of the corporation which passed through the hands of the plaintiff, was fully developed in the evidence.

The referee has found thereupon, having had power to draw all the conclusions and inferences warranted by it, that “the personal services of the plaintiff were intended to be gratuitous, and were performed by him without expectation on his part, and without agreement or understanding on the part of the defendant that he should receive any compensation therefor.”

We think there is evidence tending to support such conclusion.

In Smith v. The Long Island Railroad Co. (102 N. Y., 192, 1 N. Y. State Rep., 403), Andrews, J., said of a case involving the question here presented, viz.: “The burden Was upon the defendant to establish his defense.”

That case differs in some of its features from this one.

Plaintiff there was “neither stockholder nor director, and stood in no relation to the company which entitled it to his gratuitous service, or which made it his interest to serve the company without compensation.”

Here plaintiff was a stockholder, and his partner in the bank was a stockholder and director. In that case there had “been a salary to the prior incumbent.” Here there was no prior incumbent.

In that case there was “no apparent reason why a gratuitous service should be rendered or expected.” Here plaintiff’s banking firm secured the account of defendant, and. had knowledge of its financial affairs through the relation, which the plaintiff took towards defendant.

While it may be said the evidence is not strong and conclusive that the services were to be gratuitous, we think the question of fact which the referee found for defendant on that branch of the case was supported by evidence favorable to the defendant, and that we ought not to overturn his conclusions upon the whole case.

It was for the referee to say whether the implication of the promise was overcome by the evidence.

In Maltby v. Harwood (12 Barb., 473), it was said: “A. party is not to be made to promise against his will. Before he can be made liable for services, it must not only appear that the services have been rendered, but also that they "were rendered in expectation of receiving wages.”

The question is one of fact. Canover v. Cooper, 3 Barb., 115.

In Pendleton v. The Empire Stone Dressing Co. (19 N. Y., 13), in speaking of a similar question, Denio, J., said: “We think, upon the whole, the question was one of fact, suitable to be submitted to a jury.”

Plaintiff gave notice to defendant to produce certain books of defendant. They were not produced in obedience to the notice, but the referee subsequently allowed witnesses to refer to the books, which confessedly were the ones used by the plaintiff and his clerk, in ascertaining the extent of plaintiff’s entries and services.

The question to Norris (folio 279) referred “ to books lying on the table,” and to plaintiff’s evidence.

It does not appear that “the books” were received in evidence. They are not returned as exhibits. The discretion of the referee was not abused.

In Tyng v. The U. S. S. and T. B. Co. (1 Hun, 165; S. C., affirmed, 60 N. Y., 644), cited by the appellant, it was held to be no error to “exclude from the case upon his offer to introduce them,” after refusal to produce them.

We think the rule laid down in that case was not violated to the material prejudice of the plaintiff.

Question and answer, allowed at folio 165, were proper to develop the feelings of the witness, and his answer did not hurt him.

Question at folio 168 was proper as bearing upon the value of the clerk’s services, and the good faith of plaintiff in regard to that question.

In folio 347, Curtiss was asked if he ever said plaintiff should be compensated, and answered: “I never did.”

The evidence was to contradict plaintiff, and the question was allowable, and the referee did not improperly exercise his discretion in that regard.

It was proper for defendant to show no employment with an express promise to pay a compensation, as well as to prove that the services of plaintiff under all the circumstances, were gratuitous. Hooker v. Eagle Bank of Rochester, 30 N. Y., 86; Smith v. Long Island Railroad Co., supra.

The referee found the clerical services performed for plaintiff by his clerk, who was also serving the banking firm, were worth seventy-five dollars, and allowed plaintiff to recover therefor. The value of such clerical services, and the good faith of plaintiff in regard to the payment, were questions of fact we need not review, as they were determined upon conflicting evidence, and, as we think, rationally by the learned referee.

Judgment affirmed, with costs, against appellant.

Boardman and Follett, JJ., concur.


author: Per Curiam. Follett, J.

text:
    The Southport Plank Road Co., App’lt, v. Thomas Russell, Resp’t.

      (Supreme Court, General Term, Fourth Department,

      Filed April, 1887.)

    1. Plank Road—Statute—Interpretation op language—Amendment —Laws 1847, chap. 210, § 35—Impliedly repealed by Laws 1853, chap. 245, § 1.
    Laws 1853, chapter 245, section 1, provides that “ instead of the toil authorized to be demanded and received on plank roads by section 35 of chapter 210 of the Laws of 1847, the following rates of loll may hereafter be demanded and received.” Held, that the terms “instead of,” meant in the place or room of; that it was plainly intended that section 1 should supersede Laws 1847, chapter 210, section 35, and that it was repealed by implication.
    2. Same—Laws 1847, chap 210, must be head as though expressly AMENDED BY LAWS 1853, CHAP 245, § 1.

      Held, that Laws 1847, chapter 210, must be read as though expressly amended by this act; and that all subsequent acts amendatory of or supplementary to Laws 1847, chapter 210, must be regarded as referring to it so amended.
    3. Same—Laws 1876, chap. 435, relate to the same subject-matter.

      Held, that these acts and Laws 1876, chapter 435, relate to the same subject-matter and must be read as though forming but a single act, and that it was applicable to a plank road.

      Reynolds & Collin, for pl’ff; Taylor & Bacon, for resp’t.
   Per Curiam.

The judgment of the counter court of Che-mung county, reversing the judgment of the justice’s court, should be affirmed with costs, upon the opinion of Judge Dexter.

Follett, J.

Section 1 of chapter 245 of the Laws of

1853, provides:

“Seo. 1. Instead of the toll authorized to be demanded and received on plank-roads by section 35 of chapter 210 of the Laws of 1847, the following rates of toll may hereafter be demanded and received. ” The term ‘! instead of, ” means in the place or room of; and the plain intent of the legislature was to supersede section 35 by section 1; and the result was, that section 35 was repealed by implication. The intent could not have been more patent had that section read, that section 35 is hereby amended so as to read as follows. This being the clear intent, the earlier act (chap. 210, Laws 1847), must be read as though expressly amended by the latter act (chap. 245, Laws 1853), and all subsequent acts amendatory of, or supplementary to, chapter 210, Laws 1847, must be regarded as referring to the act as amended by chapter 245, Laws 1853. In no other way can effect be given to the various acts regulating tolls. These acts, and chapter 435, Laws 1876, relate to the same subject matter, and are to be read as though forming but a single act. Perkins v. Perkins, 7 Lans., 19; S. C., 62 Barb., 531; Smith v. The People, 47 N. Y., 330, 339; Sedg. on Stat. and Const. Law (2d ed.,) 209; Potter’s Dwarris, 189, 191; Alexander v. Mayor, etc., 5 Cranch, 1. I have no doubt that chapter 435, Laws 1876, is applicable to this plank-road.

I think the highway upon which the defendant resided united with the plank-road near the toll-gate through which the defendant passed.

The judgment should be affirmed, with costs.


text:
    Charles Cleveland, App’lt, v. The New Jersey Steamboat Company, Resp’t.

      (Supreme Court, General Term, Fourth Department,

      Filed April, 1887.)

    1. Negligence—When a question for the jury.
    In an action to recover damages for injuries resulting from plaintiff’s being pushed overboard from one of defendant’s steamboats, there was evidence tending to show that the gangway gate had not been placed within its sockets at the time of the accident; that a person could not, without difficulty, lift the gate out of its place: that it could not be removed by the pressure of the crowd if it had once been put in its proper place, and that the gate was taken from the water unbroken. Held, that this evidence made it a question for the jury to decide whether it had been placed in position or not.
    2. Same— Starting boat without gangway gate in position.
    If the defendant’s steamboat started without the “gangway gate” being set, the defendant omitted to provide in time against one of the dangers to be guarded against by the use of such a gate, and was guilty of negligence where an accident happened by reason of such omission.
    3. Same—Contributory negligence.
    The plaintiff, who had just gone on board defendant’s steamboat, had taken his place inside the bulwarks, yet outside of the partition between the gangway and the main part of the boat. He "was pushed overboard by the rush made on the shout that there was some one overboard. There was nothing to show that his position was a dangerous one for him to occupy at the time the boat was starting. Held, he was not guilty of contributory negligence as a matter of law.
    4. Same—Duty op common carriers.
    To discharge its obligation as common carrier it was the duty of defendant, and it was bound to use the utmost care, which is consistent with the nature and extent of the business it is engaged in, the providing of safe and suitable means of transportation, as well as in the management of the same, and in 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.
    Appeal from a judgment entered upon an order granting a non-suit at the Oneida circuit, April, 1883.
    Action to recover for damages alleged to have been sustained by the negligence of the defendant. At the close of the plaintiff’s evidence motion for a non-suit upon several grounds stated was denied. At the close of the whole evidence given in the case motion for a non-suit upon several grounds stated was granted and an exception taken by the plaintiff.
    The cause, was first tried before Arthur M. Beardsley, Esq., as referee, who reported in favor of the plaintiff and assessed his damage at $1,000. An appeal was taken to the general term from his decision, and the judgment entered thereon was affirmed. 5 Hun, 525.
    An appeal was taken from that judgment of affirmance to the court of appeals, and the judgment of affirmance and the judgment on the report of the referee were reversed and a new trial ordered. The opinion delivered in the court of appeals on the first occasion appears in 68 N. Y., at page 523. The second trial was had in 1878, and the trial court refused to non-suit, and among other questions submitted to the jury “the question whether the gate had been put in its place prior to the accident.” An exception was taken to that- part of the charge which raised the question “whether there was any evidence to show that the gate had not been put in its place at the time of the accident.”
    After a recovery at the circuit and an affirmance by the general term, an appeal was taken to the court of appeals, where the judgments were reversed and a new trial ordered. See 89 N. Y., 627.
    Towards the close of the opinion delivered on that occasion, Tracy, J., says: “We are also of the opinion that the court erred in submitting to the jury the question whether the gate had been put in its place at the time of the accident. ” Under the evidence it is not a question in dispute, and it was error to submit it to the jury for them to determine.

      E. H. Risley, for app’lt; W. P Prentiss, for resp’t.
   Hardin, P. J.

September 8, 1873, the defendant’s boat, the “ St. John,” about six o’clock in the evening, lay at its pier in the city of New York, ready to receive passengers as a common carrier upon the North river, from New York to Albany. Just before six o’clock, the starting time of the boat, the plaintiff in company with some friends, some of whom were to accompany him on the trip to Al-. bany, and some who came to the wharf to see him off, reached the pier and the plaintiff passed over the gang plank to the steamer and stood a few feet from the gangway. While there standing in company with other passengers, numbering nearly a hundred, preparations were made and orders given for the boat to start. It has been decided and must be held that plaintiff was “there in the relation and character of a passenger, and it must also be held as it has already been decided in this case that the defendant owed “to him the duty of a carrier of passengers although ” his fare had not then been paid. 68 N. Y., 306.

“The defendant owed to him the duty of a carrier of passengers to a person in its charge as such. That duty is to use the strictest diligence to protect the life and person. By this rule the defendant is liable for any injury which might reasonably be anticipated to occur in view of all the circumstances and of the nature of the carriage and the number and character of the persons upon the boat.” Id., 309.

When the decision reported in the 5th of Hun, was made and the review thereof had in the court of appeals, reported in the (68 N. Y., supra), the fact had been affirmatively found that the gate closing the gangway entrance to the boat had been placed in position.

See findings of the referee, quoted (5 Hun, 525), viz.: “ The gate was put properly in its place before the plaintiff fell overboard, and the mate was about to put the top rail on, and had turned to take it in his hands for that purpose when the plaintiff was pushed overboard with the other passengers.” See, also (68 N. Y., 310), Folger, J., says: “The gate across the gangway was put in its place in due time. It did not break under the pressure, so it did not. thus occasion or aid the accident. * * * It is established that after the gate was properly in place and before the accident the forward end of it was lifted from the staple and it was left hanging by the aft end so that the accident did not occur from the gate not having been put in place, or from its not being fit and sufficient for the purpose, but from the unauthorized displacing of it by some volunteer or wrong-doer not an employee of the defendant, and from the rush upon plaintiff of the other passengers in unthinking and needless eagerness to see the man overboard. There is no proof that if the gate had been left in place it would not have resisted and sufficiently checked that rush.” Near the close of the opinion from which we have just quoted it is said, viz.: “ That the defendant is not charger-able with negligence for not putting in place the rail and stanchions before the starting of the boat.”

During the trial which was brought in review at the last, hearing in the court of appeals (89 N. Y., 621), the defendant gave evidence tending to show that the gate had been placed in position, “from one to three minutes before the accident,” and it was said by Tracy, J., in his opinion upon that occasion, viz.: “ The evidence given by the plaintiff is, not in conflict with the testimony of these witnesses.”' (Referring to the evidence tending to show the gate had been put in position). He, also, says: “ There is no evidence that the person who lifted the gate from its place was an employee of the boat. All the evidence tends to show that he was not, and the fact that no servant of the defendant went into the river would seem to be conclusive upon this point.”

As we understand the opinion from which we have just quoted it assumes that the gate Was in place and that it was removed by an unauthorized person, and that there was not evidence sufficient to warrant a submission of the question to the jury of “whether the gate had been put in its place at the time of the accident.” The judge finally adds.: “ Under the evidence this was not a question in dispute,. and it was error to submit it to the jury for them to determine.”

We are called upon by the evidence found in the appeal book now before us to determine whether or no there was sufficient evidence given upon the trial now before us for review to warrant submitting to the jury the question of fact as to whether the gate had been placed in position at the time the accident occurred. It is strongly contended by the plaintiff that there was sufficient evidence of the fact, that the gate was not in position at the time the accident occurred. Oil the contrary it is contended by the defendant that “no contradiction of the positive'evidence that the gate was hung in its place from one to three minutes before the accident, and was partly lifted out by an unknown man, who passed out of the forward end while the mate’s back was turned, appears in the plaintiff’s evidence, or in any of the testimony.”

It is also contended by the defendant’s counsel that, “Even assuming the contrary, there was not enough in the evidence to submit to the jury, nothing to reasonably justify a conclusion of negligence contrary to the rule laid down distinctly in the cases cited above.”

He also calls our attention to the rule laid down for interpreting positive and negative evidence, and cites Culhane v. The New York Central (60 N. Y., 137), and Milton v. H. R. S. Co. (37 N. Y., 210).

Upon these contradictory positions taken by the parties, it becomes necessary to look into the evidence given upon the trial before us for review. In the plaintiff’s testimony we find, he says:

“The boat was going; the mate had the gate; Mr. Mull was the mate; at the time this man came through; Mr. Mull was standing partly in front of the gangway opening at the part this gate sets on; he had the gate; I supposed he was in the act of putting it in- he had the gate in his hand, partly in front of the gangway opening; as tins man came through he partly turned; he had hold of the gate some way with both hands this man passed right by through there along the boat, outside of this guard, and stepped right along on that and jumped; I was pushed overboard right then-, there was no gate in; I didn't see the gate after that; it was knocked" out of the way—at least, it was not there when I got to it.’
The witness, Jacob Schwab, testified: “ The gangplank was hauled up about the lime or right after the order‘all aboard;’ I supposed the hawsers were hauled in; the gangplank was hauled out on to the pier, and the boat started; the first thing I saw after that was six or eight of them going overboard into the water right through the gangway opening, I don’t think the-gate had been closed up to that time; no, that is my recollection of it; there was a man had hold of the gate; he had it in his hand, and in the act of putting it in; the man was in the act of putting the gate in, about as the crowd came and pushed along, and Cleveland and the other gentlemen—I don’t know who they were—went overboard into the water, the boat started on; the boat was then in motion; I should judge it had gone thirty-five or forty feet, about twelve to fifteen feet from the pier; I was looking right at the transaction which occurred then. * * * I saw the lady on the pier running and lialloaing, and I turned around to look at her, as I turned back to look at the boat; I saw the party coming over into the water- I could not tell you where the gate was at that time; there was no gate there then; the boat kept right on its course, it did not halt ” At folio 157, be says “ When the boat, started, as I recollect now, the man had the gate in his hand in the act of putting it in; that was all that I remember of now which had been done prior to the accident; the man witli the gate in his hand stood in front of the gangway opening, as near as I can remember, coming this way with it—towards it; 1 think he was coming towards the front of it, towards the front of the inclosure with the gate, from inside of the boat; he was very close to the opening, not over two feet; I think may be not that; I could not say positively; prior to the time the passengers went through, there was nothing done towards the closing of the gangway than what I have stated.”
In the course of his cross-examination, at folio 160, he says “ My recolleclection is, that I then saw the man with the gate,.as six or eight went overboard, whatever they were; I merely glanced back at the woman, and immediately glanced back at the boat again, the boat had started before I turned to look at the lady; when I glanced back I think the man had the gate in his hand; yes, sir, just abo.ut that time 1 saw the people in the water.”
At folio 164, lie says. “ I did not see the gate put up "
At folio 170 the witness adds. “My present recollection as to this gate being hung across the gangway before the accident is, that I don’t think it was put in, that is my present recollection.”
The witness, Sliaughnessy testified that he entered the boat in connection with the plaintiff, and says- “The gate was there, 1 know it was there, but •whether it was up or not, I always said I never knew;” and at folio 176 lie adds: “I don’t know as I saw the gate at all, except in the water, ” and at folio 189 he says: “ I don’t think the man who first went through the gate lifted it up; my recollection is that he didn't.”
Plaintiff also called as a witness Patrick Garigan, who accompanied the plaintiff to the pier to see him off, and he says, viz.; “After I got to the pier I was standing about four to five feet from the gangway on the dock; I saw Mr. Cleveland and Sliaughnessy go on the boat; I stood looking at the boat; I don’t ever remember seeing the gate; I would have to say that there was no gate there ”

It was shown by the testimony that the gate was picked out of the water, and that it was not broken, and as bearing upon the plaintiff’s theory of the case, testimony was given tending to show that it was not possible to lift one end of the gate so as to carry it over the top rail. There was only a play of a half an inch after the gate was in position, and that to raise the gate when in place it would have to be raised the width of the top rail and the distance from the clamps, and one witness testified that in order to remove the gate, a man would have to catch hold of the center of it and raise it out; lift it right out bodily.”

The plaintiff and several of the witnesses, from whose testimony the quotations have been made, were sworn on previous trials in this action, and the testimony given by them upon such.former trials was referred to in the course of the cross-examinations had at the trial now before us, and many portions of the evidence given in the former trials were read with a view of contradicting the witnesses and confronting them with such former testimony with a view of shaking or impairing the testimony given upon this trial, so far as the same were in conflict. Several contradictions appear, There is quite a wide difference in the recollection of the witnesses, and some of the contradictions are such that it seems difficult to reconcile the statements made by the witnesses during the former trials with those made on this trial, upon the supposition that the witnesses were honest and truthful on the last occasion.

However, this is not the time and place to determine which statement should be credited, or whether the witnesses, in making the different statements, have intentionally falsified. Such questions belong to the province of the jury. In considering the question of whether the plaintiff was properly non-suited or not, he is entitled to the most favorable construction that may be given in his behalf to the testimony offered upon the issue.

To show that the gate had been placed in position, and contradict the testimony given by the plaintiff, which we have already referred to, the defendant called several witnesses whose testimony is quite positive and pointed to the effect that the gate had been placed in position, or at least in the gangway at the time the accident occurred. Several of the witnesses who speak upon this subject were employees of the defendant; and what force and credit should be given to their testimony, when found in conflict with other witnesses, was an appropriate question for the consideration of the jury. After a careful review of the evidence offered by the defendant, tending to show that the gate had been adjusted before the accident occurred, we are still of the opinion that the evidence which was offered by the plaintiff, and which we have quoted and referred to, together with the facts and circumstances attending the accident, presented a question of fact for the jury to determine.

We are, therefore of the opinion that it was a question of fact for the jury to determine whether the gangway gate had actually been placed within its sockets before the person referred to escaped from the boat, and before the rush of the passengers to the side in response to the exclamation, “Man overboard,” the difficulty which a person would encounter in lifting the gate oiit of its place, the circumstance that it could not be removed by the pressure of the crowd if it had once been put in its proper place, the fact that it was taken out of the water unbroken, bore quite significantly upon the question of whether the position of the plaintiff taken upon the trial, that the gate had not been placed in its proper position, was true and reliable. To solve that question, the principal question of fact, we think, was the province of the jury, If the defendant’s boat started without the gangway gate being set, the defendant omitted to provide in time against one of the dangers to be guarded against by the use of such a gate. We find nothing in either of the decisions heretofore made in this case indicating that the omission to place the gate in position at the time of leaving the pier was not negligence. Presumably one of the uses to be made of the gangway gate was to guard against just such an accident as the one that occurred on the occasion of the plaintiff’s injuries. The case differs quite materially from Dougan v. The Champlain Transportation Co. (56 N. Y., 1). In that case, the only “proof of negligence was the omission to inclose the space between the railing and the deck so as to preclude the possibility of slipping under it. In that case, the evidence was “that all the passenger boats upon the lake had been constructed and run in the same way in this respect.” Besides, that was agateway upon an upper deck where passengers had no occasion to congregate, while in the case in hand the passengers were congregated, doubtless some of them for the purpose of awaiting an opportunity to purchase tickets at the office, which was near by, and some of them awaiting instructions as to the locations of their staterooms, and for information which should lead to their proper distribution in the other parts of the boat.

While we recognize the rule of law which requires the plaintiff to allege and prove that his own negligence did not contribute to the injuries which he received (Reynolds v. The New York Central R. R. Co., 58 N. Y., 248; Hale v. Smith, 78 id., 480), we are of the opinion that upon the evidence given upon the trial now before us it would be error to hold as a matter of law that plaintiff was guilty of contributory negligence. The most favorable view of that question which defendant is entitled to assert is that it was a question of fact for the jury. While we are not advised of the exact evidence that was before the court of appeals on that question when the case was decided as reported in the 68th of New York, we are of the opinion that the rule of law laid down by Judge Folger in his opinion in regard to this question should be applied to the testimony now before us. He said: “We do not think that the evidence will warrant us in holding as a matter of law that the plaintiff is chargeable with contributory negligence in thinking his place inside the bulwarks, yet outside of the partition between the gangway and the main part of the boat. There is nothing to show that it was a position of such obvious or well known danger, that an ordinarily prudent and cautious man would hesitate to remain standing there at the moment of the starting of the boat to take leave of friends on the wharf.”

It does not appear that the plaintiff had violated any known instruction given to him by the defendant. The rule of law was laid down in the opinion of Merwin, J., 5 Hun, 525, upon this subject, when he says the plaintiff .cannot recover “if he had so far contributed to the accident by want of ordinary care, if but for that the accident would not have happened,” and in respect to the defendant’s negligence we are satisfied with the observation he made in the same opinion where he says, “No one would say they were not negligent if the gate had not been placed in at all,” and also with his further remark, viz.: “The very object of barriers of this kind is to prevent the results of such commotions. Vessels are hable to be crowded especially at gangways at the time of starting. The fact that the company provided barriers of such character show that they anticipated their necessity and use, and appreciated the importance of a strong, well secured gate. The failure to use the appliances provided seems to me a reckless disregard of the safety of the passengers.

We may add that if the jury should find that the gate had not been placed across the gangway at the time the plaintiff received his injuries, it may be properly affirmed that the defendant had not discharged its full obligation to its passengers. To discharge that obligation it was its duty, and it was “bound to use the utmost care, which is consistent with the nature and extent of the business it is engaged in, the providing of safe and suitable 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. Any violence must be provided against which might reasonably be anticipated, or naturally be expected to occur, in view of all the circumstances. * * * The precautions to be taken must be such as would be dictated by the utmost care and prudence of a very cautious person.” Deyo v. The N. Y. C. R. R. Co., 34 N. Y., 11; Maverick v. The Eighth Ave. R. R. Co., 36 id., 381; Eaton v. The Boston and Lowell R. R. Co., 11 Allen, 500.

These views lead us to the conclusion that the learned trial judge fell into an error in withdrawing the case from the jury.

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

Boardman and Follett, JJ., concur.


text:
    Abram L. Scudder, Resp’t, v Almon T. Burrows, App’lt.

      (Supreme Court, General Term, Fourth Department,

      Filed April, 1887.)

    1. Duress—Per minas—What constitutes
    Where there is no arrest, no imprisonment, no actual force, and it is claimed that a promise was obtained by duress per minas, then, whether or not the promise was obtained by duress, must be a question of fact and cannot be determined as a question of law It is not sufficient in such a case to satisfy the trial court that the threats were uttered, but it'must also be shown that they constrained the will of the promissor and induced the promise. Following Dunham v Onswold, 100 N. Y 224.
    2. Same—When threats to sue not sufficient
    Where the plaintiff, who appeared to have been a business man in full possession of his faculties, was not under arrest or restrained of his liberty in any way, a mere threat to sue is not sufficient to make out duress.
    3. Trustee and cestui que trust—When competent to adjust their AFFAIRS.
    Where the trustee and his cestui que trust both have equal knowledge of their affairs, and each has an opportunity to protect himself, it is com potent for them to make an adjustment of their affairs.
    Appeal from a judgment entered in favor of the plaintiff upon the decision of a referee, in Delaware county.
    The complaint is for money had and received by the defendant of and from the plaintiff, and for notes, accounts, etc., transferred by plaintiff to defendant, and contains thirty six separate causes of action. The thirty-sixth cause of action is stated as follows, viz.: “Plaintiff alleges that on or about the 15th day of February, 1880, one William R. Wilcox paid to this defendant the sum of $300, at the request of this plaintiff and for this plaintiff’s benefit, and that the defendant is justly indebted to this plaintiff in said sum of $300. That said defendant has not paid the same nor any part thereof. ”
    Besides a general denial, the defendant avers, viz.; “That on or about the 15th day of February, 1880, the plaintiff and the defendant, being unable to agree upon the amount due defendant on account of the services so rendered, money loaned, advanced and paid, and other business deal between them, this defendant claiming that there was due him' upwards of $500, and the plaintiff insisting that the sum due was much less, it was finally agreed that as a compromise, and in satisfaction of all debts; claims and demands, the plaintiff should pay and the defendant accept the sum of $300 in full, and that at the same time, to wit, on or about the 15th day of February, 1880, one W. R. Wilcox paid to the defendant for the-plaintiff the sum of $300, and this defendant and the plaintiff sold to said Wilcox all their and each of their interests in said goods and property covered by said mortgage, remaining unsold, as well as the goods so purchased by the defendant, and that such payment was intended to be and was in full satisfaction of and for all debts, claims and demands of the plaintiff against the defendant, and of the defendant against the plaintiff.”
    The referee found, viz.: “That on and prior to the second day of August, 1875, the plaintiff was engaged in business. as a jeweller at Deposit, N. Y., owning a stock of jewelry and certain store furniture and fixtures in the store occupied by him.
    “That on said second day of August, 1875, the plaintiff was indebted to various persons and firms for goods bought of them, and was financially embarrassed, being unable to pay his indebtedness as it became due, and was desirous of effecting a compromise and settlement with his creditors at a sum less than the face value of their several claims.”
    Also, That on the said second day of August, 1875, the plaintiff applied to the defendant to assist him in making a compromise with his creditors, and it was agreed, by and between the plaintiff and defendant, that the defendant should and would assist the plaintiff in making such compromise, and that in pursuance of such agreement, and to aid in carrying the same into effect, on the second day of August, 1875, the plaintiff made, executed and delivered to the defendant a chattel mortgage upon all the goods and fixtures in the plaintiff’s store in Deposit village. The consideration expressed in said mortgage was the sum of $1,425, and purporting to be for money loaned, and then in four promissory notes * * * and the said mortgage was made payable on or before the first day of February next ensuing.”
    Also, “That said four notes referred to in said chattel mortgage were made, executed and delivered on said second day of August, 1875, to the defendant by the plaintiff without any consideration, and were without value in the hands of the defendant.”
    Also, “That at the time of the execution and delivery of said mortgage on the second day of August, 187-5, the plaintiff was not indebted to the defendant in any amount whatever; and on the same day of the execution of the mortgage and of the said notes the defendant executed and delivered to the plaintiff a receipt, dated October 4, 1875, cancelling said four notes in full.”
    Also found, viz.: “That at the time of the execution of said mortgage, the plaintiff being indebted as aforesaid to various parties, it was agreed by and between the plaintiff and defendant that compromises and settlements should be made with the several parties holding such indebtedness against the plaintiff, and that the defendant would give his notes or obligations for the amount agreed upon on such compromise; that the plaintiff should remain in possession of the goods described in said mortgage and should sell and dispose of the same, and from time to time pay over and deliver to the defendant, from the avails of his business, such sum or sums of money as should be necessary to pay said notes, or the amount of such compromised claims, and the defendant should pay the same, and in case of the plaintiff paying over or delivering to the defendant more money than was used therein, or was for any purpose paid out by defendant for the benefit of the plaintiff in compromising plaintiff’s debts, the defendant should and would repay and return such surplus to the plaintiff; and it was also understood between the parties that the defendant was to have reasonable pay for his assistance and the services performed by him. And the true and actual consideration of said chattel mortgage was to secure defendant for future obligations and advances to be made and incurred by him.”
    The referee, among other things, found that in February, 1880, “a controversy arose between the plaintiff and defendant in regard to their dealings, and that they began to look over their matters with a view of settlement, but could not agree and had a dispute. Both of the parties had lost ”■ some of their papers by fire, and defendant claimed that plaintiff owed him some four or five hundred dollars. The plaintiff claimed that he owed him nothing, and that defendant was indebted to him. The defendant informed plaintiff that he would close him out; that he would show him what he could do; that he would have the thing shut up in less than twenty-four hours, and defendant finally offered to take $300, and said if that amount was not paid him he would close the plaintiff out. Under such circum stances, and influenced by such threats, in order to obtain possession of his goods, the plaintiff, on the 18th day of February,. 1880, borrowed $300 of one W. R. Wilcox and caused the same to be paid to the defendant, and defendant released all claims to said goods. This payment is the thirty-sixth cause of action in the complaint, and was the last transaction between the parties. This action was commenced March 3, 1881. No special demand or request of defendant to pay the moneys in his hands to plaintiff, aside from what appears from the above facts, was shown upon the trial.”
    The referee also found, viz.: “That said payment by plaintiff to defendant of $300 was not a voluntary payment by him, but was a payment by compulsion under the facts as found as aforesaid.”
    As a matter of law he ruled that there was “ a trust between plaintiff and defendant for the benefit of plaintiff.”
    Also, “that under said trust the defendant became and was a trustee for plaintiff to take the money and property paid and advanced, and, so far as the same was necessary, pay the same out in compromising plaintiff’s debts.” And as a third conclusion of law, he found, viz.: “That said sum of $300 paid defendant February 18, 1880, did not constitute a settlement between the parties, but was money paid under duress of goods, and as such can be recovered for in this action.”
    Appropriate exceptions have been taken to the conclusions of law.

      Arthur Moore, for app’lt; E. H. Hanford, for resp’t.
   Hardin, P. J.

Upon this appeal, made upon a cause presenting all the evidence given, and from which the referee has made findings of fact and conclusions of law based thereon, it is the duty of this court to exercise “its unquestioned power of reviewing the evidence with a view of ascertaining whether the findings of fact accord with the weight of evidence ” Finch v. Parker, 49 N. Y., 8, Grover, J.; Smith v Ætna Life Ins. Co., 49 id., 211, Peckham, J.; Parsons v Brown, 5 Hun, 112; Roe v. Roe, 14 id., 612

At the time the adjustment was made in February, 1880, the plaintiff was in possession of the store containing the jewelry which remained, that had been covered by the chattel mortgage, and also of the property that had been purchased from time to time to supply and keep up the stock. There remained outstanding upon it the chattel mortgage referred to in the findings of fact, which was long past due and was held by the defendant.

The parties had several conversations to the tenor and effect that a settlement ought to take place between them, and thereafter they had an interview in which many of the incidents of the transactions that had taken place between them, intermediate the second day of August, 1875, and February, 1880, and some papers and accounts and statements were used between them, although it was alleged that some of the papers and entries had been destroyed by fire, and that the parties were not in the full possession of the details from which to make a consecutive and careful statement on both sides of the transactions that had taken place.

It is manifest from the testimony that the parties had a long discussion, ending in a disturbed and angry state of feeling in respect to the settlement. In the course of ‘that interview the defendant maintained that he had a claim of four or five hundred dollars against the plaintiff, and the plaintiff quite strongly insisted that there was nothing due, or, if anything, not as much as claimed by the defendant. Before they had finally separated, the defendant offered to take the sum of $300 in liquidation of all matters between them.

It appears that the plaintiff was a business man, not destitute of shrewdness and craft. He had been equal to procuring a somewhat unusual state of affairs, as he had been sufficiently sharp in coercing a settlement with his creditors, to warrant his being considered a person of ordinary intelligence and understanding, with a will of his own sufficient to enable him to secure such advantages as properly belonged to him.

Though he was told by the defendant that, unless a settlement was had, the goods would be sold upon a chattel mortgage, it is difficult to suppose that the plaintiff did not understand and comprehend that he had the right to tender to the defendant the amount that was due to the defendant, and that in default of an acceptance thereof by the defendant, that he had the right to redeem the property by an appropriate action. Of course, to determine what was the actual state of accounts or indebtedness between the parties, might require a somewhat protracted investigation, either voluntary or through the medium of the court.

The plaintiff was aware that there was an unadjusted claim on the part of the defendant for his services in the premises. Indeed, the referee finds that it was “understood between the parties that the defendant was to have reasonable pay for his assistance, and the services performed by him.” According to the plaintiff’s own testimony he, at the time of the controversy, understood quite well his rights in the premises, for, in connection with his testimony as to the threats made by the defendant, he says, viz.: “ He (defendant) said he was going to close me out; he would show me what he could do; he would have the thing shut up in less than twenty-four hours; I told him he would have to show I owed him something before he could do it; he said he could and would do it, and I told him to go ahead, he would have a good time of it; he got up and went out, and that is about all there was of it; I said I did not think he would close me without he could show that I owed him something; don’t know whether I understood that or not; that was what I said; we next met up in the office, and Wilcox paid him $300; I think it was at the time of this quarrel that defendant claimed I owed him $500 or $600, and I think we looked over a part of page 133 then, and must have looked over it once or twice before.”

It appears that after that interview the plaintiff applied to Wilcox to advance the money, and Wilcox, as a witness, testifies, viz.: “A short time prior to the execution of the bill of sale plaintiff came to me for a loan of money; we had several talks; the first time he wanted something over $300; said he wanted to pay Mr. Burrows. It is my impression that Burrows claimed between $400 and $500; we made no bargain at first talk; I don’t think I told him at the first talk what amount I would let him have; he called again and said he and Burrows had settled on an amount of $300; I think plaintiff told me so, and I think they both told me so; that was shortly before bül of sale * * * I was in More’s office when the bill of sale was drawn.”

The defendant, in his testimony, states that he presented a bill to the plaintiff, and the plaintiff said “he was poor and didn’t feel able to pay it, and wanted to know what was the least I would take and square off all our deal and go out at that time; I am quite positive I showed him bill and figures now shown me, claiming $577.26. This was at the time we looked over page 133. After this looking over I saw plaintiff again, and he asked me if I had made up my mind what I would take; don’t think I told him at that time; I think I asked him a question at the time I claimed the $577.26; he said he was considerably indebted to me, but not as much as that; after looking over the plaintiff asked me if I would take $300 if he would find a man to help him and settle up; he said he knew a man he could get $300 of and buy out my interest then, whatever it was, and if he could, would take it, if I would take $300; my impression is I told him I would let him know very soon; I saw him again on the afternoon of the same day, or the next morning; he said William R. Wilcox would let him have $300, and, as near as I remember now, I then told him I would take $300, and settle all up and pass receipts; I think he got Wilcox, and the writings were drawn up in More’s office the same day, that is, the bill of sale to Wilcox.”

It appears the- parties then repaired to the office of Mr. More, an attorney, and executed a paper in the following language: “For and in consideration of the sum of $300, duly paid by William R. Wilcox, of Deposit, N. Y., we Almon T. Burrows and Abram L. Scudder, hereby sell, assign, transfer and set over to said William R. Wilcox the following property now in the store occupied by said Scudder in Deposit aforesaid, to wit.: One regulator clock, one stove, all the show-cases now in said store, and all the jewelry, gold and silverware now on the shelves and in the show-cases in said store, and all our and each of our right, title and interest in and to said goods and property, to have and to hold the same for his own use and benefit.

In witness whereof we have hereunto set our hands and seals this 18th day of February, 1880.

A. L. SCUDDER,
A. T. BURROWS.

The defendant testifies in addition, viz.: “Wilcox paid or satisfied me for the $300; this action was commenced .March3, 1881; from the time bill of sale was made until this action was commenced no complaint was made to me by plaintiff in regard to this account; my services in the matter were worth $300.”

The witness More, who drew the bill of sale, among other ■ things, testified, viz.: “Plaintiff said to me that he had paid, or was going to pay, defendant $300; that it was more than he owed him, but he was going to pay him and get rid of him; I heard him further say in substance that he might better make some sacrifice and get rid of defendant than to continue any longer with him.”

In his re-examination the witness said, viz.: “I cannot tell whether plaintiff said he did not owe defendant anything, or that he didn’t owe him so much; plaintiff said he thought it was better to pay him $300 to get rid of him; he thought it was better, as he 'was situated to settle up with Burrows and get rid of him.”

From the testimony of the witness Wager, it appears that in the winter of 1880 the plaintiff told the witness he had got possession of the goods or interest defendant had in the goods in the store, and plaintiff informed the witness that “Mr. Wilcox had bought out defendant, and he had bought Wilcox out. He told me how much he had paid defendant through Wilcox.”

It seems that Scudder, the plaintiff, was examined in supplementary proceedings on the, 30th of January, 1877, in the suit of- one Jacobs, in which he testified, among other things, viz.: “Burrows owns all the goods I now have in my store, excepting some I took to sell on commission. The goods in my store were sold to Burrows some two years ago. The most of the goods now in my store were bought by Burrows himself. Burrows bought plated goods, clocks and jewelry now in the store of the dealers in his own name. There was a written assignment to Burrows, which he holds, of the notes and accounts. A. T. Burrows took possession of the goods in the store under a mortgage, dated August 2, 1875. Burrows did not remove the goods from the store, but appointed me an agent for him to sell the goods. -There was a written agreement to that effect. I have since the assignment ordered goods in my own name and sent the money to pay for them, sometimes with money arising from the sale of goods, and sometimes with money furnished by Burrows. I don’t know how the account now stands between me and Burrows, but know that the balance is a good deal; have not looked over in six or eight months, but know it is against me. The consideration for the mortgage was in notes that he held against me, some fourteen or fifteen hundred dollars. The notes were all given before; the mortgage, and the mortgage was given to secure the notes. These notes were for money that Burrows lent me. I might have given the notes sometime after I borrowed the money, and think the notes were all given before the mortgage. My books only show what money I have paid Burrows since the assignment. Burrows let me have this money from time to time some six months prior to my giving him the mortgage. Have not _ had _ any settlement with Burrows. The goods specified in schedule to the mortgage are not yet all sold. Burrows let me have money out of his pocket for this indebtedness in small sums at different times. There are no goods in store besides what Burrows owns.”

In the fifth finding of fact, the referee says that the notes given simultaneously with the mortgage to defendant by the plaintiff “were made, executed and delivered on the second day of August, 1875, to the defendant by plaintiff without any consideration, and were without value in the hands of the defendant.”

9 In considering the credibility of the plaintiff as a witness, attention must be given to the evidence we have just quotedt given by him in the supplementary examination.

In considering the credibility of the defendant as a witness, it must be borne in mind that he was called as a witness by the plaintiff, and that a party calling a witness certifies to his credibility.

We are not satisfied to approve of the findings of fact made by the referee from the evidence before him. The plaintiff “ was not under arrest or restrained of his liberty in any way.

“He appears to have been a business man in full possession of his faculties.” * * *■

A mere threat to sue is not sufficient under such circumstances to make out duress.

“Where there is no arrest, no imprisonment, no actual force, and it is claimed that a promise was obtained by duress per minas, then, whether or not the promise was obtained by duress, must usually be a question of fact, and the question cannot be determined as one of law. It is not sufficient in such a case to satisfy the trial court that the threats were uttered; but it must also be shown that they constrained the will of the promissor and induced the promise.” Dunham v. Griswold, 100 N. Y., 226.

In McPherson v. Cox (86 N. Y., 473), it was said: “That it is not duress for a person to insist upon his legal rights.”

Eadie v. Slimmon (26 N. Y., 8), is not applicable to the case before us. That was a case where a married woman was terrified nearly to hysterics by threats of prosecution of her husband for alleged embezzlement, and the court held that there was such coercion as to avoid a transfer of her separate property thus obtained.

Nor do the facts in this case bring it within Haynes v. Rudd (30 Hun, 239), or Bishop v. Fisher (36 Hun, 112). In each of those cases reference was made to threats ‘' for the purpose of overcoming the will of the party threatened by intimidating or terrifying him, ” and they were based upon the assumption that the threats had “constrained the will of the promissor and induced the promise, ” in accordance with the rule as stated by Earl, J., in Dunham v. Griswold (supra).

In one aspect of the evidence the $300 was paid to the defendant to induce him to sell his interest in the goods to Wilcox, and it was a satisfaction of all his claims against the plaintiff. Such seems to be the tenor of the bill of sale executed by the parties. Evidently the plaintiff at the time of the execution of the bill of sale, deemed it advisable to compromise and settle a disputed claim. They compromised, and the settlement should remain final between the parties if the case properly warrants the application of the language of Bockes, J., in Farmer's Bank of Amsterdam v. Blair (44 Barb., 642), where he says, viz.: “The controversy was a substantial one, and the compromise was, therefore, binding on the parties according to its terms. In such cases it is not admissible to go behind the settlement with a view to determine which of the parties was right. Compromises áre to be encouraged because they promote peace, and where there is no fraud, and the parties meet on equal terms and adjust their differences, the court will not overlook the compromise, but will hold the parties concluded by the settlement. 2 Duer., 302; 2 Sandf., 542; 4 Denio., 166; 4 Seld., 402; 35 Barb., 157. The compromise in this case was, therefore, binding on the parties.” Dolcher v. Fry, 37 Barb., 155.

Assuming that the defendant held the relation of trustee towards the plaintiff, it was still competent for them to make an adjustment of their affairs. Apparently each had an equal knowledge" of their affairs, and each had an opportunity to protect himself. Fisher v. Bishop, 36 Hun, 114, and cases there cited.

Under all the circumstances appearing in the evidence, we are of the opinion that the parties made a valid adjustment of their differences, and evidenced the adjustment by the bill of sale signed by them, to which reference has been had.

- The transactions in which the parties had been engaged do not commend themselves to this court, and it leaves the parties as they are by their voluntary adjustment, and to do so does not offend its sense of justice. See Nellis v. Clark (20 Wend., 26).

Judgment reversed and new trial granted before another referee, with costs to abide the event.

Boardman and Follett, JJ., concur.