author: Haight, J.

text:
    Edward Garrett, Resp’t, v. The City of Buffalo, App’lt.

      (Supreme Court, General Term, Fifth Department,

      Filed February 11, 1887.)

    1. Municipal corporations—Negligence—Judge’s charge.
    This action was brought to recover damages for an injury sustained by the plaintiff whilst passing along the sidewalk on a certain street in the city of Buffalo. A driveway had long before been constructed across it by lowering the walk about four inches, and on either side of the driveway the flagging-stones were placed so as to be on a level with the sidewalk at one end and then sloped to the bed of the driveway a descent of four inches In two feet. Held, it was not error for the court to refuse to charge that there could be no recovery unless the city had laid or permitted (i. e., an express permission), flagging-stones to be laid at a negligent or. improper angle.
    3. Same—Consent of—When presumed.
    It was not error for the court to charge that the owner of the premises adjoining to and into which this driveway led had no right to cut it through the sidewalk. The consent of the city thereto will not be presumed. Following Urguhart v. City of Ogdensburg, 91 N. Y., 67.
    8, Same—Liability for acts of third parties.
    A municipal corporation is bound to exercise ordinary and reasonable care and diligence to see that the streets are kept in a reasonably safe condition for travel and is liable in case of injury whether the cause of the injury was the act of the corporation or a third party.
    Appeal from a judgment entered upon a verdict of the Erie county court and from an order of that court denying motion for new trial.

      W. F. Worthington, for app’lt; Frank K. Perkins, for resp’t.
   Haight, J.

This action was brought to recover damages for an injury sustained by the plaintiff whilst passing along a sidewalk on Washington street in the city of Buffalo. In April, 1875, R. W. Bell & Co. constructed a driveway across the sidewalk into their premises. It was constructed by lowering the walk between four and five inches, and on either side of the driveway the flagging stone was placed so as to be on a level with the sidewalk at one end, and then sloped to the bed of the driveway, making a descent of four inches in two feet. It was upon one. of these flagging stones that the plaintiff slipped and fell, breaking both bones of his leg above his ankle.

The questions presented upon this appeal arise upon the charge of the court. The defendant’s counsel requested the court to charge the jury that there can be no recovery against the city unless the jury find that the city has laid or permitted to be laid flagging stones and pavement from the level of the sidewalk to the bottom of the driveway at a negligent or improper angle. This the court refused to do, and an exception was taken. The appeal book fails to disclose any evidence upon the question as to whether or not the city had granted to R. W. Bell & Co. a permit to construct the driveway across the sidewalk. That it was so constructed in 1875 is undisputed, and that it had remained in that condition down to the time of the injury is •also undisputed. So that the correctness of the request to charge must depend upon the construction that is to be given to the word permitted. If the defendant meant by that word that a recovery could not be had unless the city had granted a permit to R. W. Bell & Co. to construct a driveway in the manner in which it did construct it, then the charge was properly refused. If, however, it was intended by the expression that the city had merely suffered R. W. Bell & Co. to construct the driveway with flagging ■stones at a negligent or improper grade without affirmatively consenting thereto, then the request was proper and should have been granted. The word permit is defined by Webster as meaning to grant express license or liberty to do, to give leave, to allow, and also to tolerate and to suffer. The sense in which the expression was used on this occasion should be determined from that which precedes and follows the request. The court charged the jury that it was the duty of the defendant to exercise ordinary and reasonable care and diligence to see that the streets and sidewalks were kept in a reasonably safe condition for travel, and that it was for the jury to determine whether or not the stones upon which the plaintiff slipped and fell were in a reasonably safe and proper condition in the position in which they were placed leading down into the driveway; that if they were in a safe and proper condition, there could be no recovery; and further, that the grade of the street, as originally shaped, was nearly a continuous level grade; that there was no evidence in the case tending to show that the city has in any way or manner ever interfered to change the grade. It further appears from the case that a considerable discussion had taken place as to whether or not the defendant should be deemed to have consented to the change of the grade of the sidewalk by reason of the lapse of time since the driveway was constructed. In view of this discussion and of the charge as made, we are inclined to the opinion that the request to charge was understood as embracing the consent or express permit of the defendant to construct a driveway in the manner in which it was constructed, and that consequently the refusal to charge was proper.

Again, the court charged the jury, at the request of the plaintiff’s counsel, that Bell & Co. had no right to cut this driveway through the-sidewalk. To this charge the defendant excepted. It is now contended that in the absence of evidence upon the subject, that it will be presumed that the driveway was constructed with the consent of the city; and there appears to be some authority in support of this claim.

In the case of Woodbury v. The District of Columbia, (3 Central Rep., 788), the proprietors of the Riggs House in the city of Washington, had caused a ditch to be constructed across the sidewalk. The sidewalk had been broken for the-space of about five weeks. It was held that the proprietors would have subjected themselves to a fine for opening the walk without consent and that, it would have been gross neglect of duty on the part of the officers of the city in case it had been so opened without their permit; and the presumption was that the officers had done their duty and that it was opened with their permit.

In the case of Urquhart v. The City of Ogdensburg (91 N. Y., 67), it was held that where a sidewalk had been reconstructed with a steeper grade than that originally adopted in the absence of evidence showing by whom it was so reconstructed, it must be assumed to have been the work of the city and that the establishment of the grade was the exercise of júdicial discretion, and that that discretion extended to the new grade established. But in the same case again considered in 97 N. Y., 288, this doctrine was to some extent modified. It was then held that a change of the grade must be indicated by formal corporate action; that where the plan of the street had been once adopted, and. the work constructed thereon, an unauthorized change whereby it became unsafe, after a reasonable time for notice made- the city liable as for negligence; and that a refusal to so charge upon the ground that the evidence raised the presumption that the common council had assented to the change was erroneous. Under the ruling in this case the charge appears to be correct.

Again, the court charged the jury at the request of the plaintiff's counsel, that a municipal corporation having-power to maintain and control streets is bound to exercise ordinary and reasonable care and diligence to see that they are kept in a reasonably safe condition for travel and is- - liable in the case of injury whether the cause of the injury was the act of the municipal corporation or of a third party. This charge was also excepted to by the defendant’s counsel. The charge as it stands does not present a correct rule of law, for it omits the question of negligence and under a strict reading might be construed to make the municipal corporation liable for the act of a third party, even though the municipal corporation was guilty of no negligence. But we hardly think: that the jury could have been misled by this charge. It must be deemed to have been made in view of the evidence taken upon the trial and the questions at issue in the case. The court had repeatedly charged that there could be no recovery unless the jury should find that the defendant was guilty of negligence in permitting the stones of the sidewalk to remain at an improper angle or grade. This charge had been repeated so many times and such various forms that it would seem as if that fact must have been impressed upon the minds of the jurors. _ The charge does not retract or. withdraw anything previously charged upon that branch; the question of negligence is simply omitted and we think we may properly deem the charge made as in addition to what had been previously charged and qualified accordingly.

Other exceptions were taken to refusals to charge and to the charge as made, but none which we deem it necessary to further consider.

The judgment and order should be affirmed.

Smith, P. J., Barker and Bradley, JJ., concur.


source: Caselaw Access Project

author: Barker, J.

license: Public Domain

text:
    George Chamberlain et al., Resp’ts, v. George Van Campen et al., App’lts.

      (Supreme Court, General Term, Fifth, Department,

      Filed February 11, 1887.)

    1. Evidence—Written contract—Terms of may not be varied byparol EVIDENCE;
    When a contract is consummated by a written instrument the presumption of law is that it contains the whole of the agreement and neither party thereto will be allowed to prove orally, representations which preceded or accompanied the execution of the instrument.
    2. Same—Written contract of sale—Warranty cannot be shown ORALLY.

      Held, that where there was evidence sufficient to warrant the finding that a contract of sale entered into by parties was embodied in a written instrument, oral evidence could not be given of representations preceding the writing and amounting to a warranty.
    An appeal from a judgment entered upon a verdict rendered at the Cattaraugus circuit. The action is to recover damages for the breach of an alleged warranty claimed to have been made by the defendants, whereby they agreed that a cylinder to a steam engine which they sold to the plaintiffs was sound and in good order, and suitable for the use for which it was intended. The parties had oral negotiations concerning the sale and delivery of the machinery which had been theretofore used in a saw mill owned by the defendants, recently destroyed by fire, consisting of a boiler and engine, and other articles, which resulted in an ' agreement for a sale and transfer of the same, at the price of $1,000, for which the defendants received the plaintiffs notes in payment. Upon the trial the defendants insisted ' that the terms of their agreement were reduced to writing, and executed by them and delivered and received by the plaintiffs. The following is a copy of the paper: “Olean, N. Y., April 14,1886. This agreement is to certify, that we have this day, sold and transferred to the Chamberlain Manufacturing Company, for one thousand dollars, and the receipt whereof is hereby acknowledged, all burnt machinery and iron of the Van Campen Mill, situated on Chipmunk creek, viz.: one boiler, one engine, one steam mill, one steam edger, one J. S. Graham planer, together with all shafting, pulleys, bolts, and all iron, cast, wrought, or malleable, connected with said burned mill, of every name and nature. George Van Campen & Son.” The plaintiffs were co-partners doing business in the name of the Chamberlain Manufacturing Company. The defendants were co-partners doing business in the name of “ George Van Campen & Son.” The verdict was for ninety dollars damages.

      Carey & Bumsey, for app’lts; J. K. & M. B. Jewell, for resp’ts.
   Barker, J.

If the written instrument was executed by the defendants and delivered to and accepted by the plaintiffs as the agreement between the parties for the sale and transfer of the property, then it is to be presumed, that it contains all the terms of the contract and cannot be enlarged, altered or changed by parol evidence. The writing constitutes a perfect and complete contract for the sale and transfer of the property therein described, stating the consideration and ackowledging its payment. It contains no term relative to the condition, quality or value of any of the articles enumerated. The instrument is entirely silent on those subjects. When a contract is consummated by a written instrument, the presumption of the law is, that the same contains the whole of the agreement, and neither party thereto will be allowed to prove oral representations or stipulations which preceded it or accompanied the execution of the instrument. The agreement to which the contracting parties bound themselves is to be ascertained exclusively by the writing. Filkins v. Whyland, 24 N. Y., 338; Eighmie v. Taylor, 98 id., 288; Niles v. Culver, 8 Barb., 205; Chapin v. Dobson, 78 N. Y., 74; Greenleaf on Evidence, vol. 1, p. 284; Mumford v. McPherson, 1 John., 414.

The plaintiffs were permitted to prove by oral evidence that during the negotiations which resulted in fixing the terms of the sale the defendants promised and agreed that the cylinder was sound and in good order. To this evidence the defendants interposed the objection that the contract between the parties was in writing and that oral evidence to change its terms was incompetent. The objection was overruled and the defendants excepted.

The defendants contend that this ruling was erroneous, as the written instrument was executed and delivered by them and accepted by the plaintiffs as the evidence of their agreement. On the contrary, the plaintiffs insist that it was not made to appear upon the trial that the instrument contained the terms of their oral negotiations or that it was executed or delivered for that purpose. The question is presented by a bill of exceptions which does not contain a very precise and distinct statement of the facts of the case, and we have experienced some difficulty in determining the state of the proofs bearing on the point in dispute when the ruling was made and the evidence received. It does appear, however, that when the negotiations were terminated and the contract consummated the parties were at the plaintiffs’ business office and the property was at another point twelve miles distant therefrom; that the notes were executed by the plaintiffs and delivered to the defendants at that place.

On the trial, Henry W. Chamberlain, one of the plaintiffs, was a witness in his own behalf, and was about to state the terms of the sale for the purpose of establishing the warranty, when, with the permission of the court, the written agreement was presented to the witness by the defendants’ counsel, and he stated that he never saw it before, but admitted that it related to the purchase of the property in question, and that it was found among the plaintiffs’ papers and that they delivered it to their attorney; that he first heard of tho paper some three weeks before the trial; that he himself signed the notes and delivered them to Van Campen and then left the office, and that his father, who is one of the plaintiffs, was then in conversation with the defendant to whom he had delivered the notes; that he did not know whether there was any transaction between his father and the defendants or not after the delivery of the notes, and further, he did not know when the paper was delivered; that he himself concluded the negotiations and no paper of this character was delivered at the time he left the office.

The bill of exceptions states that the defendants’ counsel then offered the instrument in evidence and it was received.

The judge then remarked: “I understand the witness to say that at the time the trade was consummated, himself and father were present at their office, and that the witness made and delivered the note without seeing or receiving any papers; that he left his father there in the office with Van Campen; that subsequently exhibit ‘A’ (the instrument in question) was found among the papers of the firm.”

To this statement by the court, as to the substance of the witness’ evidence on that point, neither of the counsel made any response:

The plaintiff then offered to prove by the witness “that prior to the closing of the bargain the witness and his brother negotiated with the defendants for the purchase of the machinery mentioned in the written instrument, and that the defendants warranted the engine, as stated in the complaint, and that the plaintiffs, relying upon such representation, gave their note in payment theref; in other words, the plaintiffs offered to prove warranty made before or at the time of the delivery of the notes.”

The defendant interposed the objection that the evidence was incompetent, for the reason that the agreement between the parties as to the sale and transfer was embodied in the written instrument, and the same could not be changed by oral evidence. The objection was overruled and the defendant excepted.

We are inclined to the opinion, that from the facts as thus stated in the bill of exceptions, that it had been made to appear at the time the oral evidence was received, that the written instrument was executed by the defendant and received by the plaintiffs as the contract between the parties relative to the sale and transfer of the property. The bill of exceptions does not disclose the ground upon which the judge placed his ruling. But as the plaintiff produced the papers and the other circumstances unmistakably indicate that it had been in their possession from the time the contract was consummated, we think it was, at the time the ruling was made, fairly established, that the paper was delivered at the time the contract was consummated. As the instrument relates to the sale and transfer of the property, and the plaintiffs produced it upon the trial, and nothing was disclosed indicating that it was not executed by the defendants and received by the plaintiffs at the time the contract was consummated, the fair presumption is that it was executed and received by the plaintiff at that time.

After the plaintiffs rested, James Van Campen, one of the defendants, testified that he represented the defendants and had charge of the negotiations with the plaintiffs for the sale of the machinery, and after the terms were finally agreed upon, that he prepared the instrument at his own office and signed the same and then went to the plaintiffs office, and there delivered the same to Lewis Chamberlain, one of the plaintiffs; that at that time Henry Chamberlain drew up and delivered the notes which he then and there received. Henry Chamberlain was then recalled and testified that he delivered the notes to the last named witness at his office and that he saw no paper delivered, but that George Chamberlain, his father, who was one of the plaintiffs, was in the office talking with Van Campen at the time he left. The bill of exceptions contains no further statement of evidence or fact bearing upon the question in controversy; at the close of the evidence the defendants’ counsel, asked the court to direct a verdict in favor of the defendants upon the ground that it appears that the plaintiffs acquired the title to the property in question by virtue of the written contract, and were precluded from a recovery upon the alleged warranty based upon the oral negotiations between the parties prior to the execution of the contract. The motion was denied and the defendants again excepted.

If we should wholly disregard the evidence of the defendants as to the time and circumstances under which the written instrument was executed and delivered, we are yet of the opinion that the evidence fairly established that the writing was intended to embrace the contract between the parties. The case does not disclose the questions of fact which were submitted to the jury for their consideration, and we are to presume that the verdict was based upon the ■oral evidence which tended to prove a warranty.

Smith, P. J., Bradley and Haight, JJ., concur.


author: Smith, P. J.

text:
    Cornelia R. Ganiard, Resp’t, v. The Rochester City and Brighton Railroad Company, App’lt.

      (Supreme Court, General Term, Fifth Department,

      Filed February 11, 1887.)

      1. Negigence—Street cabs,
    Where in an action brought to recover for injuries resulting from the negligence of the defendant, the only negligence imputed to the defendant was the act of its driver in starting one of their street cars while the plaintiff was engaged in stepping on to the platform and before she had time to enter the car. Held, that it was erroneous to refuse the defendant’s request to charge that if the driver was properly engaged in attending to any one of the several duties of looking to his horse, working the door, or looking out, at the moment when the plaintiff came to the car, and he thereby failed to see her, he could not be said to be negligent because so engaged and the defendant would not be liable.
    3. Same—Obligations of common cabbiebs, to intending passengebs.

      Held, that a charge that the extent of the defendant’s obligation was, to exercise the utmost care which a prudent man was accustomed to exercise under like circumstances, was correctly given.
    Appeal from a judgment entered upon a verdict rendered ■at the Monroe circuit.

      Baines Bros., for app’lt; W. H. Beach, for resp’t; J. 8. ■Oarlock, of counsel.
   Smith, P. J.

The action is brought to recover damages, for injuries sustained by the plaintiff, alleged to have been caused by the negligence of one of the car drivers upon defendant’s street railroad in the city of Rochester.

_ On the occasion in question the plaintiff was on the sidewalk on the north side of East Main street, near Exchange street, intending to take one of the defendant’s cars going east. The testimony tended to show that while the car was on the sidewalk she hailed the car, the driver looked at or towards her, and the car stopped in front of the Arcade building, the rear- door having been thrown open for passengers to enter. The plaintiff stepped from the sidewalk along the Arcade crossing, and -was in the act of entering the car, when it started forward, and she was thrown violently backward and off the platform and injured while clinging to the railing of the car. She was able, however, to recover her position and enter the car after it had gone fifty or sixty feet, and to ride to her place of destination.

The driver, who was called as a witness by the defendant, testified that he did not see the plaintiff till she entered the car; that he neither saw nor heard any signal or call from her; that he stopped at the Arcade crossing because it was an accustomed place of stopping; and that when he stopped he threw the door open and looked around on both sides of the car, and through the windows and car, saw no one, and then pulled the door to, let off the brake and started. The testimony would have warranted the jury in finding that although the plaintiff had reason to suppose that the driver saw or heard her or her signal, and stopped in consequence thereof to let her get into the car, he did not in fact see her, or know of her attempt to enter the car till she actually went in.

The defendant’s counsel asked the court to charge the jury that if the driver was properly engaged in attending one of the several duties, of looking to his horse, working the door, or looking out, for instance to the north, at the moment when the plaintiff came to the car, and he thereby failed to see her, he cannot be said to be negligent because so engaged, and the company would not be liable. The request was declined and the defendant’s counsel excepted-

We think the defendant was entitled to the charge requested. The only negligence imputed to the defendant was the act of the driver in starting the car while the plaintiff was engaged in stepping on to the platform, and before she had time to enter the car. If he did not see her, as he testified, and as the jury might have found, the question arose whether his failure to see her was owing to any lack of due vigilance and care on his part. Upon. that vital point the request had a direct and important bearing. The entire occurrence took place in a very short space of time. • The driver testified that he thought he was standing there perhaps half a minute, perhaps not as long as that.” If, while he was engaged, as he testified, in looking through the car and around it on both sides, he was looking in an opposite direction from the plaintiff when she approached, so that he did not see her, and in the language of the request he was “properly” doing so, his omission to discover the plaintiff was not the result of negligence on his part. He was in the line of his duty in that event, and the plaintiff’s injury was the result of an accident for which the defendant is not responsible.

It camiot be held that the defendant is liable simply because the car was standing with the door open inviting passengers to enter. As the court charged, the extent of its obligation was to exercise “the utmost care which a prudent man is accustomed to exercise under like circumstances.” It was not contended that the defendant was required to have a conductor or other servant on the car in addition to the driver, and the case was not submitted to the jury upon that theory. As has been said, the only imputation of negligence was that the driver failed to see the plaintiff, or, seeing her, failed to stop a reasonable time.

Etherington v. Prospect Park, etc., R. R. Co., (88 N. Y., 641) was an action against a street railroad company for negligently running over a child with one of its cars. The trial judge charged that “if the driver was paying attention to his horses, and had control of them and his car, and was looking out and attending to his business, and did not see the child in time to stop the car before running over it, then he was not guilty of negligence and the company is not liable. ” The court of appeals held that that charge having been made at the request of the defendant, cured an error complained of by the defendant in another part of the charge, and as they regarded it applicable to the facts of the case, they impliedly sanctioned it as correct.

The other exceptions in the case do not seem to us to point to error. For the reason above stated, the judgment should be reversed, and a new trial ordered, costs to abide the event.

Bradley, J., concurs; Parker, J., dissents; Haight, J., not voting.

So ordered.


author: Bradley, J.

text:
    Parmenio W. Cutler, Resp’t, v. The James Goold Company, App'lt.

      (Supreme Court, General Term, Fifth Department,

      Filed February, 1887.)

    1. Chattel mortgage—Equity of redemption—Mortgagor—Right to RELIEF.
    Until the equity of redemption in the mortgagor is extinguished by sale by virtue of the mortgage there remains in him a means by which the courts may afford him relief.
    2. Same—What mortgagor can make a condition precedent to payment.
    Notes were given in part payment of the purchase price of a carriage secured by a chattel mortgage thereon. Held, that the vendee was justified in requiring that these notes (which were not then due) be delivered up as a condition of paying the remainder of the purchase price represented by said note.
    3. Same—Costs.
    The vendor having refused to accept the remainder of the purchase money secured by said mortgage, and having taken the carriage and sold it, is chargable with costs.
    4. Measure of damage—For loss of use—Redemption of property
    itself.
    In an action for the redemption of property, real or personal, (where the property itself is recovered, or its value, as of the time of the trial), the plaintiff may recover for the use of it during the time he was deprived of such use.
    5. Same—When no damages for loss of use.
    When the measure of damages for the taking and appropriation of property is the value at the time of the taking, such value and interest upon it constitute the extent of the recovery.
    6. Attachment—On what levied—Choses in action.
    While the right of plaintiff herein was one in action, and dependant on its declaration in his behalf by the court, it had no existing tangible quality subject to levy by attachment in another suit, and the officer seeking to make a levy acquires no lien which he could enforce by action.
    7. Same—Cannot levy on property not rightly the judgment debtor’s
    Where a party had no right to extinguish by the sale of mortgaged property the equity of redemption of the mortgagor therein, he cannot by such sale- produce a surplus of proceeds, or any proceeds for the mortgagor which would be subject to attachment issued against said mortgagor.
    Appeal from judgment entered upon decision of Cayuga special term.
    The action is to redeem a landau from the mortgage, arising out of the following facts: On the 6th day of September, 1884, the_ plaintiff purchased of the defendant a landau at the price of $900, paid $500, and gave sixteen promissory notes for $25 each for the balance of the purchase price, payable to the order of defendant at the First National Bank of Auburn, with interest, one of which became due each of the following sixteen months. And to secure such payment, the plaintiff gave to the defendant a mortgage on the carriage, by which he sold it to the defendant; and it provided that if he should make payment of the notes as they became due, it should be void; that the plaintiff should procure, and continue until payment, the insurance of the property for the benefit of the defendant. And in case of default in either respect, or in case the defendant should sooner choose to demand the property, it should be lawful for the defendant, and it was empowered to take, carry away and sell the property at public or private sale, and retain out of the proceeds of the sale the amount remaining due, but that the plaintiff might have the possession and enjoyment of the property until default, unless the defendant should sooner choose to demand it. And until such demand should be made, the possession of the plaintiff would be deemed that of an agent or servant, for the sole benefit of the defendant. Ten of these notes were paid at their maturity, and before the next one of the series of notes became due, and on or about the 30th day of July, 1885, the agent of the defendant went to Auburn, where the plaintiff resided, and demanded, took and carried away the landau to the city of Albany. At the time of the demand, and before the carriage was taken away, the plaintiff offered to pay to such agent, and then and there tendered to him the full amount of the notes remaining unpaid, but required as a condition of giving him the money so tendered that the notes should be delivered up to him. This was not done.
    The agent did not have them in his possession, nor did the defendant afterwards offer to deliver up the notes and take payment. The defendant’s place of business was Albany, R Y.
    After the defendant had so taken the carriage into its possession, and on the same day, this action was brought for its redemption.
    The defendant proceeded to advertise the property for sale, and did on the 17th day of August, 1885, sell it at public auction in the city of Albany.
    The trial court directed judgment against the defendant for the value of the laudau, at the time it was taken ($800), less the amount then unpaid of the notes ($158.10), amounting to $641.90, and for $351 damages for the use of the property, with costs. The defendant appeals.

      Arthur L. Andrews, for app’lt: J. Bosecrans, for resp’t.
   Bradley, J.

The facts found by the trial court are supported by the evidence, and they justify the conclusion that the plaintiff was entitled to maintain his action to redeem. His right under the mortgage was that of redemption from the sale, by payment of the amount secured by it. When this right at law of a mortgagor is terminated, there remains in him an equity of redemption, by the recognition of which the courts may afford him relief, until it is extinguished by sale by virtue of the mortgage. The evidence was sufficient to support the plaintiff’s title as found by the court.

And while there is some conflict of evidence in respect to the manner that the tender and offer of payment were made, it permitted the conclusion of the trial court that the plaintiff had tendered and offered to pay a sum somewhat exceeding the amount of the six unpaid notes. And the fact that the notes were negotiable and then not due, justified the plaintiff in requiring that they be delivered up as a condition of parting with the money so tendered.

In view of these facts, and as they were found by the court, the taking of the laudau by the defendant, transporting it to Albany, and there proceeding to sell it upon the mortgage, seems to have been an unreasonable exercise - of power, and without the observance of the rights of the plaintiff, to such extent as to justify the court in charging the defendant with costs.

The question of the measure and amount of damages presented by the exception taken to the conclusion of the court in that respect requires some consideration.

The plaintiff proved that the value of the use of the carriage was three dollars per day, and the court allowed as damages one dollar per day, up to the time of the decision. There are no special circumstances appearing to take this case out of the ordinary rule applicable to the measure and allowance of damages arising out of the taking and appropriation of personal property which has a value in its use. Nor does it appear that the plaintiff was unable to go into the market and purchase another carriage of like character. Assuming that its place could reasonably have been supplied by another, the value of the use as damages in this case should, we think, have been limited to a reasonable time within which to do that, after the sale was made of the carriage by the defendant.

In an action for redemption of property real or personal, the plaintiff may recover the rents and profits of the property, or what is the same thing for the use of it during the time he is deprived of such use, but this is because he recovers the property itself, and if personal property, it may then be depreciated in value. But here the recovery is not of the property, or of its value at the time of the trial or judgment. The plaintiff recovers the value as of the time it was taken from the possession of the plaintiff.

In an action where the plaintiff recovers the value of property as of the time of the trial, or when by the judgment he may be required to take the property, the reason applies which may enable him to recover as damages the value of the use of which he has been by the defendant deprived when there is a value in its use.

Such is the nature of actions to recover the possession of personal property, and such there may be the rule of damages, because the party recovering may be required to take the return of the property, and the value of it is assessed as of the time of the trial, and any depreciation in value, or loss occasioned by deprivation is measured by the damages allowed and recovered. Brewster v. Silliman, 38 N. Y., 423; Allen v. Fox, 51 id., 562; N. Y. G. & I. Co. v. Flynn, 55 id., 653.

Although there may be circumstances which will permit the recovery of special damages of the character of those, awarded in this instance, not within the rule before stated, none appear by the evidence here to justify it, beyond those before suggested, and interest upon the value of the property, from and after such reasonable time, within which the plaintiff might recover the value of the use of it. The value of personal property is ordinarily depreciated by use, and when the value as of the time it is taken from the party entitled to it, is adopted as the measure of recovery in that respect, it would seem to be difficult by any well defined rule to apportion the value of the use and the amount of the concurrent depreciation in value, so as to produce a residue for the use. There is no evidence appearing in this case to furnish any aid in that direction. As a general rule when the measure of damages for the taking and appropriation of property is the value at time of the taking such value and interest upon it constitute the extent of the recovery. And this case as presented by the evidence does not require here any particular reference to the exceptions to such rule.

The defendant by the answer alleges that after the laudan was taken to Albany, a warrant of attachment was issued in an action brought by the defendant against the plaintiff and levied upon the carriage by the sheriff of Albany county; that at the time of the sale of it upon the mortgage the sheriff was present and demanded the payment to him of the surplus of the proceeds of the sale, remaining after satisfying the mortgage and the expenses thereon; that such surplus was paid to the sheriff, and that judgment was recovered in that action, and execution to him issued, upon which he applied the amount so received by him.

The defendant offered the warrant of attachment, judgment roll, etc., in that action in evidence; they were excluded, and exception taken.

The defendant’s counsel contends that the rejection of this evidence was error. The legal title to the property at the time of the alleged levy of the attachment, was in the party plaintiff in that action, while the right of the defendant there, and plaintiff here was in the equity of the redemption* only.

This equitable interest was not reached by the levy of the attachment, in the manner which it was alleged to have been made.

The levy alleged was made as upon property of a debtor capable of manual delivery, which embraces that only, of which he has in whole, or in part the legal title. Code Civ. Pro., §§ 644, 649.

The right of the plaintiff at that time was one in action, and dependant on its declaration in his behalf by the court, and it then had no existing tangible quality subject to levy by attachment, and the officer thus seeking to make the levy, acquired no lien which he could enforce by action. Mattison v. Baucus, 1 N. Y., 295; Thurber v. Blanck, 50 id., 80; Anthony v. Wood, 96 id., 180; Lawrence v. Bank of the Republic, 35 id., 320.

This action was brought and the recovery had upon the theory that the defendant had no righh to extinguish by sale of the property, the equity of redemption of the plaintiff, and such was the effect of the judgment.

It would seem to follow, that the defendant could not, through the sale, produce a surplus of proceeds, or any proceeds, for the plaintiff subject as such to application, by means of the process of attachment, and of execution, upon the judgment which the defendant recovered against the plaintiff. Thurber v. Blanck, supra.

The evidence so offered was therefore wholly immaterial in this action, and its exclusion was not error.

No other question requires the expression of consideration. And none of the exceptions other than that relating to the damages seems to have been well taken.

The judgment should be reversed, and a new trial granted; costs to abide the event, unless the plaintiff stipulate to reduce the recovery, exclusive of costs, to $641.90, and interest thereon from the 30th day of July, 1885. And in that event, the judgment be so modified, and as modified affirmed; without costs of this appeal to either party.

Smith, P. J., Barker and Haight, JJ., concur.


text:
    Frank Moll, Resp’t, v. Frank X. Foery et al., App’lts.

      (Supreme Court, General Term, Fifth Department,

      Filed February, 1887.)

    Contract—Part performance does not entitle one to recover.
    Plaintiff contracted to remove the earth from a portion of the defendant’s quarry, constituting an area sixty feet in width by one hundred and twenty five feet in length, for $200. There was evidence tending to show that when he quit work there was a part of said area, from three to five feet in width, that had not been excavated. Held, that plaintiff could not recover under the contract unless the jury found that he had performed it as it was made.
    Appeal from a judgment of the Monroe county court entered on a verdict.

      William F. Bampe, for app’lts; George W. Hall, for resp’t.
   Smith, P. J.

The action was brought to recover for work done in removing the surface earth of a quarry owned by the defendant, and in drawing away certain chips thrown up from the quarry and loose stone found in removing the surface earth. The work was done under a special contract by which the plaintiff agreed to remove the earth from a portion of the defendant’s quarry constituting an area of sixty feet in breadth and 125 feet in length, for the sum of $200. The plaintiff claimed to have fully performed the contract, but the defendants disputed the claim, and one of the defenses set up by them was that the contract had not been performed. Upon that issue, the evidence was conflicting. The testimony on the part of the plaintiff tended to show that he had removed the surface earth from the entire area specified in the contract, while on the part of the defendants there was evidence tending to show that when the plaintiff quit the work there was a part of said area from three to five feet in width that had not been excavated; that the defendants called the plaintiff’s attention to it and insisted that he should excavate it, and he refused to do so.

The defendants’ counsel requested the court to charge the jury that they must consider as a question of fact to be determined by them, whether the contract has been performed by the plaintiff, and that if he has not performed it as agreed, he cannot recover anything under the contract.

The court charged in that regard in the following language: “ That if there has been a total failure on the part of the plaintiff to perform the contract, so that he would not have done any work at all, or done it in such a manner as would not have been a benefit to the defendants, he cannot recover. If you find he substantially complied with the terms of the contract, he is entitled to recover for the work done under the contract. The defendants cannot recover any damages by way of counterclaim, because there is no evidence by which you can arrive at a conclusion as to the amount of such counterclaim.”

The defendants’ counsel excepted.

The defendants’ counsel then asked the court to charge the jury that they must find that the plaintiff has performed his contract as it was made, before he can recover on the contract.

The court declined and the defendants’ counsel excepted.

The exception taken to the charge was probably unavailing, for the reason that the part of the charge excepted to contained several distinct propositions, some of which were unexceptionable, and the exception taken was general.

But the exception taken to the refusal to charge as requested, raises the distinct question whether, in view of the evidence, it was error to refuse to instruct the jury that the plaintiff could not recover under the contract unless they should find that he had performed it as it was made.

In view of the evidence given on the part of the defendants tending to show a failure to perform the contract' in full, we think they were entitled to the instruction asked for. By the terms of the contract, performance was to precede payment and was a condition thereof. There are cases holding that when a contracting party has in good faith intended to and has substantially complied with the contract, although there may be slight defects caused by inadvertence or unintentional omissions, he may recover the contract price, less the damage on account of such defects. Glacius v. Black, 50 N. Y., 145; Johnson v. Be Peyster, id., 666; Phillip v. Gallant, 62 id., 256. Most of those cases relate to building contracts, but whether or not the rule extends to other contracts as well, the present case is not within it.

According to the testimony on the part of the defendants, the plaintiff intentionally abandoned the work leaving the contract unperformed in a substantial particular. It is like the case supposed by Comstock, J., in Smith v. Brady (17 N. Y., 173, 188). “If A should agree to plough the field of B, consisting of twenty acres, at a given price for the whole service, or at so much per acre to be paid when the service is done, and after ploughing nineteen acres should abandon the contract, he can recover nothing for his work.

“ The owner of the field may enter, sow it with his grain and reap the harvest, thus enjoying fully the benefit of the part performance. In so doing he waives nothing, because he cannot reasonably do otherwise. He is not obliged to abandon his field in order to be enabled to insist upon the condition of the contract.”

We think the judgment should be reversed and a new trial had in the county court of Monroe, costs to abide event.

Barker, Haight and Bradley, JJ., concur.


text:
    William F. Wait et al., Resp’ts, v. John E. Borne et al., App’lts.

      (Supreme Court, General Term, Fifth Department,

      Filed February, 1887.)

    1. Principal and agent—Extent op authority op agent—Warranty by.
    An agent employed to do an act is authorized to do it only in the usual way of business.
    3. Same—General agent—Usage of business.
    The usage of the business in which a general agent is employed furnishes the rule by which his authority is measured. Hence, the general selling agent has authority to sell on credit, to warrant the soundness of the article sold when such is the usage of the trade. Cases cited.
    3. Same—Evidence—Admission—When failure to answer letter is NOT.
    The omission of one of the parties to a transaction to answer a letter written to him, after the transaction, by the other party thereto, giving the latter’s version thereof, may not be taken as an admission of the truth of the statement in the letter. They are mere declarations of the writer in his own behalf, which do not demand an answer, and are not admissible as evidence against the person to whom the letter was sent.
    An appeal from, a judgment entered upon a verdict rendered at the Cayuga circuit in the plaintiffs’ favor for the sum of $6,000 damages and from an order denying the defendants’ motion for a new trial founded upon the minutes.
    The action is for a breach of warranty that certain oil manufactured by the defendants, and sold and delivered to the plaintiff, was better in every respect than other oils for use in manufacturing carpets; and if the plaintiff would make the purchase and use the oil in the manufacture of their carpets the defendants would pay all loss and damage to the plaintiffs resulting from its use.
    The plaintiffs were manufacturers of carpets in the city of Auburn, and doing an extensive business at the time the sale in question was made, and they were then using in their business an oil known in the trade as the Elaine Oil, not manufactured by the defendants. The defendants were manufacturers of a wool oil which they called “Breton Oil,” designed to be used in the manufacture of wool carpets and other woolen fabrics. They employed as their traveling agent or salesman S. E. Tucker, who called at the plaintiffs’ factory with a sample of the oil manufactured by the defendants, and solicited an order of purchase from the plaintiffs. And the plaintiffs gave an order for one barrel, which was shipped to them by the defendants from their factory in the city of New York on the 4th of March, 1884, at the price of thirty-five cents per gallon, making the cost of the package $17.50. Afterwards, and on the 8th day of April, five barrels more were shipped to the plaintiffs, at a cost of 90.65; and on the 1th of May five barrels, at a cost of $82.83. This oil was all used by the plaintiffs within the period of about two months, and during that time they manufactured from wool treated by this oil upwards of 90,000 yards of carpets.
    The oil was compounded and the ingredients, as well as the mode and manner of treating the same in the process of manufacture, was claimed by the defendants to be their own discovery, and was a secret of trade. Oils of this character are used for the purpose of oiling the wool used in the manufacture of carpets before the same is carded and spun for the purpose of reducing the electricity in the wool, and to make it pliable in the process to which it is subjected in the course of manufacture. It is necessary at some time in the process of manufacture to remove the applied oils, and in carpets it is the practice to eliminate the same after carding and spinning, and before the same is woven.
    The plaintiffs claim, and give evidence tending to prove,, that the said oil supplied them by the defendants did not possess the qualities and characteristics of good and perfect wool oils, so that the same could be, by the usual proof of scouring and cleaning, eliminated from the wool; and that in consequence of that defect a portion of the same remained in- the wool and manufactured articles, although the yarn produced from the wool was subjected to the usual and customary process for removing the oil. The plaintiffs also gave evidence tending to show that before they discovered the defect in the quality of the oil they suffered damages equal to the verdict in the depreciated value of the carpets manufactured from the wool to which the oil sold by the defendants had been applied. The plaintiffs evidence also tended to prove that they used proper skill in attempting to .remove the oil from the woolen out of which the damaged carpets were made.

      C. W. West, for the app’lts; W. E. HugTiitt, for resp’ts.
   Barker, J.

The evidence tended to prove, and the jury were well justified in reaching the conclusion, that Tucker,the defendants’ salesman, made the special warranty as to the properties and qualities of the oil as set forth in the complaint; and that he also further agreed, if the plaintiffs suffered a damage by its use, the defendants would pay all the damages resulting therefrom.

We are thus brought directly to the main question of fact: Did Tucker have the authority from his principals to make.an agreement as to the quality of the oil, as the same is alleged in the complaint and found by the jury ?

This is the serious and underlying question involved in the controversy. The learned judge, in his instructions to the jury as to questions of fact and law presented by the issues, stated to them in very distinct and appreciative language, that they must be satisfied from the evidence that Tucker had the authority from the defendants, either expressed or implied, to make the contract of warranty as claimed by the plaintiffs; and if he did not have such an authorization from his principals, the plaintiffs could not recover. And he also instructed the jury in substance, that from the facts and circumstances disclosed by the evidence, they would be justified in reaching the conclusion that the defendants had conferred upon their agent the authority to make the warranty, although they should find there was a failure to establish that they had given him special permission to make a contract of the nature and import claimed by the plaintiffs.

He gave them the further instructions, that there was evidence in the case to which he called their particular attention, which would justify them in reaching the conclusion that Tucker had a special delegation of authority to make the contract of warranty and to indemnify the plaintiffs against loss resulting from the defects in the quality of the oil.

The defendants contend that there was no evidence in the case authorizing the submission of the question to the jury as to whether Tucker, their agent, had special authority from them to make the agreement, and insist, on the contrary, that the proof establishes that he was expressly denied the power to make a warranty^ as to the quality of the oil. The defendants also insist, in view of the undisputed facts of the case, that the law does not infer that their agent had authority from them to sell the oil with a warranty as to its fitness for the use intended, and to indemnify the purchaser against loss arising from its use. We may first inquire what is the nature and extent of the authority which the law presumes a selling agent possesses on making a sale of merchandise for his principal ? The correct answer to the question is, as we think, he is presumed to be authorized to sell in the usual manner, and only in the usual manner in which goods or things of that sort are sold. The usage of the business in which a general agent is employed furnishes the rule by which his authority is measured. Hence, the general selling agent has authority to sell on credit, to warrant the soundness of the the article sold, when such is the common usage of the trade.

This power and the limitations placed upon him is in strict conformity to the elementary principle that an agent, employed to do an act is authorized to do it only in the usual way of business. Story on Agency, § 60; Smith’s Mercantile Law, 144 (Holcomb & Cholson edition, 1850); Nelson v. Cowing, 6 Hill, 336; Easton v. Clark, 35 N. Y., 225; Smith v. Tracy, 36 id., 79; Ahern v. Goodspeed, 72 id., 108; Upton v. Suffolk County Mills, 11 Cush., 586.

The evidence will now be examined with a view of ascertaining whether by the usage of trade it was customary for manufacturers of wool oils to warrant the quality of the same, and to indemnify the purchaser against all loss arising from its use in the business to which it is applied.

The defendants gave evidence that there was no such usage or custom known to the trade. On this subject the evidence is all one way and is wholly uncontradicted.

The defendants called as a witness Isaac Weatherby, who had been engaged for many years in the manufacture of woolen goods in the state of New Jersey. He stated in substance, that it was not a usage or custom among dealers in oils to be applied to wool in process of manufacture, to warrant the quality of the oils sold, or authorize their salesmen to make warranty as to the character of the oil in any respect. Other witnesses engaged in the manufacture of carpets and woolen fabrics, and doing business in the states of Massachusetts, New York, New Jersey and the state of Maine, testified substantially to the same fact, that it was not a usage or custom of trade for dealers in oils of this character to give purchasers a warranty as to its quality and fitness for use.

As bearing upon the same question, reference may be made to the testimony of two of the defendants and as well as of their general agent, Sullivan, all of whom as witnesses made similar statments, that it was not the usage and custom of the trade for dealers in wool oil to sell with warranty as to quality.

Two of the plaintiffs, Mr. Nye and Mr. Wait, who made purchases of oil for their firm were witnesses, and who purchased the oil in question made no claim whatever that it was a usage of the trade for the purchaser to require the seller of oil to give a warranty in any respect as to the fitness of the article for use in the business for which it was intended. This evidence coming from so many distinct sources was not contradicted in any respect, nor was any evidence given that there was a custom among dealers in oils to give a warranty as to its character, or the results which would be produced by its use.

We are, therefore, of the opinion that the fact was not established that it is the custom of the oil trade to make sales with a warranty as to quality, and for that reason 4 case was not made from which it could be inferred that the defendants had conferred upon their agent, Tucker, the authority to make the warranty which he gave to the plaintiff as to the quality of the oil. In the absence of such a custom, the plaintiffs had no right to suppose that Tucker was acting within the limits of his authority when he gave them the warranty, upon a breach of which the action was founded.

In support of our conclusion on this point, reference may be had to some of the adjudged cases where the general rule, which has already been stated, was applied.

In Upton v. The Suffolk County Mills (3 Cush., supra), the defendant was a milling corporation engaged in the manufacture and sale of flour, and its general agent, on the sale of a large quantity of flour, intended to be shipped by the buyer from Boston to San Francisco for a market, made a warranty that the flour would keep sweet during the entire voyage. The defendant’s general agent, in the management of its business, was also its general selling agent and had no special instructions in regard to making sales and no special authority was delegated to him to make the warranty upon which the action was brought. It was held that the principal was not-liable for the contract or warranty made by its agent. The court remarked, that "as there is no evidence nor suggestion of usage to sell flour with a hazardous warranty that it shall keep sweet during a sea voyage, in which it must twice cross the equator, we deem it quite clear that nothing short of an express authority conferred on Alcott, the agent, by the defendant, would empower him to bind them by such a warranty.”

In Nelson v. Cowing (6 Hill, supra), the agent, on making a sale of pumps for his principal, made a warranty as to their quality; and it was held, that in view of the facts of that case, it was rightly inferred that the agent had the authority to bind his principals upon the contract of warranty, which he made in their name and behalf; and the court, in discussing the legal propositions, said: " When the owner sells by an agent, it may be presumed, in the absence of proofs to the contrary, that the agent has been clothed with all the usual powers for accomplishing the proposed end. So long as the agent is acting within the general scope of his authority, persons dealing with him are considered as dealing with the principal * * * his authority to warrant the quality or condition of the thing sold would be presumed until the contrary appeared.”

In Easton v. Clark (35 N. Y., 225), the question was discussed as to the powers of an agent to sell; and the rule was there stated to be that an agent could not bind his principal by disposition of the property in any other way than by a sale in the usual course of trade; and that the purchaser is bound to take notice whether the agent is departing from the usage of trade in the contract which he proposes to make in the name of his principal. That it is to be presumed that a party dealing with the agent understands the restrictions and limitations imposed by the usage of the trade upon a general agency, and if the agent departs from such usage the principal may repudiate his act.

In Smith v. Tracy (36 N. Y., 79), the defendant gave to his agent _ the power and authority to sell his bank stock for cash and imposed a limitation as to the price; and the court in support of its conclusion, that the agent was without power in that instance to sell with a warranty cited with approval the rule as stated by Mr. Parsons in his work on contracts, that an agent employed to sell, without express power to warrant, cannot give a warranty which shall bind the principal, unless the sale is one which is usually attended with warranty.

All the authorities seem to concur, that where no express authority is given to a selling agent he is presumed to have conferred upon him by his principal the power to make a sale according to the customs and usages of the trade and nothing more.

There remains for consideration, the other question whether there was evidence produced upon the trial to justify the submission of the question of fact to the jury for them to pass upon, whether the defendants gave special authority to their agent to make the sale with a warranty as to the quality of the oil.

After a careful inspection of the record, we are unable- to find any evidence from which it can be inferred, that the agent had special permission to make the contract which he did with the plaintiffs. The agent testified that he had no authority to make the contract as claimed by the plaintiffs, and that he was expressly forbidden by the defendants to make a sale of the oil with a warranty of any description. Two of the defendants testified that they never gave Tucker, their agent, authority to sell with warranty, but expressly forbade him from making warranties or entering into any agreement to indemnify the purchaser against loss resulting from the use of the oil.

One item of the evidence pointed out to the jury by the judge in his charge from which they were instructed they might conclude that the agent had express authority to make the contract was this circumstance; after the plaintiffs had discovered as they supposed, that the oil was of poor quality and that they had suffered damages in consequence thereof, and on the 2d of August, 1884, they addressed to the defendants a letter, the first paragraph of which is as follows: “ When. we first bought your Breton oil of you, we did so on the strength of your statements guaranteeing it to be equal to any wool oil in the. market, and a very easy oil to scour out, and against any damage that might arise from its use.” The balance of the letter relates to the nature and character of the damages, which they had sustained, and the extent of the same, and that it could be traced directly to the bad quality of the oil. To this letter, the defendants made reply on the twenty-fifth of August, and the first paragraph is as follows: “Tour favor to hand, we regret to hear of the trouble you have had, but must repudiate all responsibility for the same.” The balance of the letter relates to the circumstances under which the oil was shipped; and that the same was part of a larger quantity manufactured at one time all of which had been sold, but they had heard no complaints from their customers using the same.

In calling the, attention of the jury to this item of the evidence as bearing upon the question whether an express warranty had been given or not, the learned judge said: “There is other evidence upon this question of authority to warrant. You will recollect that after the attention of the plaintiffs was called to the working of this oil by their correspondent in New York, that is, called to the results which had occurred from the use of the oil, the plaintiffs wrote a letter to the defendants, in which they set forth, with great plainness and directness, the grounds of their claim upon the defendants for remuneration for the injury -Which they had received in the use of this oil, and you will remember that that letter expressly put the claim of the plaintiffs upon the ground that the agent of the defendant had sold this oil with warranty, had warranted it to be a good and proper oil for its purpose, a warranty to the extent of guaranteeing them against loss or damage in the use of the oil, and that in answering that letter the defendants made no reference whatever to the question of warranty, although in terms they repudiated the responsibility for the loss which the plaintiffs had sustained. They refused, without disclaiming for a moment that they had given the warranty in question. They did not deny it. Not only did not claim that Mr. Tucker, their agent, had given the warranty, but did not question that Mr. Tucker was not authorized to give the warranty. There was no law requiring the defendants to disclaim their responsibility on the ground that they did not give the warranty, or that their agent was not authorized to give it. But it is a question of probability for you. It is a question of presumptive evidence. What is the presumption in regard to the claim being made upon them expressly upon the ground of warranty? What is the probability? Would they have been silent in respect to the warranty, or would they probably have disclaimed giving the warranty, or denied that their agent had authority to give it?”

We have quoted thus largely from the charge for the purpose of bringing out in this connection the importance which the learned judge gave to this item of the evidence. From the nature of his comments thereon, it is obvious that the jury could not have failed to understand that they would be justified in finding from the circumstances alone that the defendants gave express authority to their agent to make the agreement. We think that the letter and the answer, when read together, constituted no evidence whatever bearing on the question. If the defendants had remained silent and made no reply_ to the letter, the omission to do so would have been no evidence against them in the form of an admission that the statement was true.

The omission of one of the parties to ■ a transaction to answer a letter written to him, after the transaction, by the other party thereto, giving the latter’s version thereof, may not be taken as an admission of the truth of the statements in the letter; they are mere declarations of the writer in his own behalf, which do not demand an answer and are not admissible as evidence against the person to whom the letter was sent. Learned v. Tillotson, 97 N.Y., 1.

But it was replied to, and both were properly received in evidence as a correspondence between the parties. We think that the. defendants’ letter contained in effect a denial that the oil was. sold with warranty and a guarantee against all damages arising from its loss as stated in the plaintiffs’ letter; the claim which they repudiated was their liability to respond to the plaintiffs for the damages which they alleged they had sustained. The plaintiffs base their claim for redress upon the alleged warranty, and the first utterance made by the defendants in reply to this demand was to repudiate it. As we think there was a denial of the plaintiffs’ claim of warranty, the correspondence when read together made nothing in the plaintiffs’ favor upon that point. By an arrangement between the parties after the suit was commenced, the defendants’ general agent, Mr-Sullivan, and Mr. Agnew, also representing the defendants, had an interview with two of the plaintiffs with a view of • adjusting the claim. On the trial the defendants called as-witnesses in their behalf both Sullivan and Agnew, for the-purpose of proving the admissions the plaintiffs made-during that interview. They admitted that Tucker, the-agent in making the sale, did not make any warranty. In their interview with the plaintiffs, neither Sullivan nor Agnew made a denial of the plaintiffs’ claim, that Tucker' had power to make the warranty.

This is alluded to in the charge as another circumstance from which the jury might find that the defendants did give express authority to Tucker to make the warranty.

We fail to see how the silence of these men on that subject is to be construed as an admission against the defendants. We are, therefore, of the opinion that the plaintiffs’ case was without evidence in support of their contention that Tucker had express authority to make the contract upon which the action is founded. The plaintiffs’ counsel, in support of the judgment, invokes the rule, that where a vendor sells an article of his own manufacture, to be used for a particular purpose, there is an implied warranty that the article is suitable for the use intended, and that the verdict of the jury was justified upon that view of the case, which was fairly presented by the evidence.

This question is not in the case as now presented, for it was held on the trial that the plaintiffs’ complaint was not framed so as to present that question, and the jury were so instructed; and the judge further ruled, as has been already stated, that the defendants could not recover unless they found that the agent had authority from the defendants, either express or implied, to make the warranty.

The questions which we have considered were presented by exceptions properly taken during the trial.

Exceptions were taken by the defendants to the rule of damages adopted. Upon the assumption that the plaintiffs made a case entitling them to recover for a breach of warranty, of tho nature and character of the one set forth in the complaint, we see no error in the general rule adopted for ascertaining the same. But if, upon another trial, the plaintiffs should make a case entitling them to a verdict for damages for a breach of warranty, which should in any respect vary from the one alleged in the complaint, then the general rule which we now approve may not be applicable.

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

Smith, P. J., Haight and Bradley, JJ., concur.


text:
    Jane Bishop, as Administratrix, etc., of William Bishop, Deceased, Resp’t, v. The Grand Lodge of the Empire Order of Mutual Aid of the State of New York, App’lt.

      (Supreme Court, General Term, Fifth Department,

      Filed February 11, 1887.)

    1. Mutual benefit association—Laws 1879, chap. 189, §§ 3,4,6—Charter AND BY-LAWS FORM PART OF CONTRACT BETWEEN ASSOCIATION AND MEMBERS.
    The defendant was incorporated under Laws 1879, chapter 189, the third section of which act provides that it shall he lawful for such corporation to create, hold, manage and disburse a beneficiary fund sufficient to pay all losses and expenses incident to the corporation for the relief of members and their families of the lodges under the jurisdiction of the defendant. It is provided by section 4 of that act that such beneficiary fund as may be ordained suitable by the defendant may be provided and set apart to be paid over to the families, heirs or legal representatives of deceased or disabled members or to such person or persons as the deceased member may, while living, have directed; and that the collection and disbursement of the fund, and the persons to whom the sum shall be paid, shall be regulated and controlled by the rules and by-laws of the defendant. By section 6 of said act the defendant is empowered to make from time to time such constitution, laws, by-laws, rules and regulations as it may judge proper for the management of its affairs. By its "by-laws the defendant provided that each member of the order should be entitled to a mutual aid certificate setting forth the name and good standing of the member, and the amount payable and to whom payable. Held, that the charter and by-laws respecting the designation of the person to whom the beneficiary fund should be made payable were a part of the contract with the defendant, which was entered into by a person becoming a member, and that these provisions not having been observed, the defendant was not liable to anybody.
    2. Same—Condition precedent to liability of.

      Held, that the designation in the certificate provided for by the by-laws was a condition precedent to the liability of the defendant.
    3. Same—No presumption in favor of liability.

      Held, that there was no presumption that the corporation issued a certificate in favor of anyone.
    Appeal from a judgment entered on a decision in an action tried at the Erie circuit by the court without a jury.

      BaJcer & Schwartz, for app’lt; Truman C. White, for resp’t.
   Smith, P. J.

The defendants were incorporated by chapter 189 of the Laws of 18^9, for the purpose, among others, “of aiding, assisting and supporting members, or their families, in case of want, sickness or death.”

The plaintiff’s intestate, who was a member of the defendant corporation in good standing, died in February, 1886, leaving the plaintiff, his widow, and two minor children surviving him.

The third section of the act provides that it shall be lawful for said corporation to create, hold, manage and disburse a beneficiary fund sufficient to pay all losses and expenses incident to the corporation for the relief of members and their families of the lodges under the jurisdiction of the said grand lodge of the state of New York, working under and subordinate to said grand lodge, and such conditions and regulations as may be adopted by the said grand lodge.

The fourth section provides that such beneficiary fund as may be ordained suitable by said grand lodge may be provided and set apart to be paid over to the families, heirs or legal representatives of deceased or disabled members, or to such person or persons as such deceased member may, while living, have directed; and the collecting, managing and disbursement of the same, as well as the person or persons to whom, and in the manner and time in which the sum shall be paid, on the death of a member, shall be regulated and controlled by the rules and by-laws of the said grand lodge.

And by section five of said act the defendant was empowered to make from time to time such constitution, laws, by-laws, rules and regulations as it should judge proper for the management of its affiairs.

The only by-laws adopted by the defendant appearing in the case are sections 24 and 25 of chapter 6 of the general laws, so called.

Section 24 provides that each member of the order shall be entitled to a mutual aid certificate. Said certificate shall set forth the name and good standing of the member, the amount of benefit to be paid at death, and to whom payable, and such certificates shall be issued, or caused to be issued, by the grand lodge, and signed by the president and secretary, with the seal of the subordinate lodge attached.

Section 25 provides that the certificates issued shall represent $2,000.

It does not appear that any certificate provided for by the by-laws above referred to was ever issued to the intestate. The lack of such certificate, we conceive, is fatal to the plaintiff’s action. The statute does not designate the beneficiary. It describes certain classes of persons who may be made beneficiaries, to wit.: “ the families, heirs or legal representatives of deceased or disabled members, or such person or persons as such deceased member may, while living, have directed,” and it directs that the amount of the fund and the person or persons to whom it shall be paid, shall be regulated and controlled by the rules and bylaws of the lodge. In accordance with that direction of ■ the statute the defendant has “regulated and controlled ” the subject by providing in its by-law that the person to whom the fund shall be payable on the death of a member shall be the person named in the mutual aid certificate issued to such member. Thus, by the statute and the bylaw, the designation in the certificate gives the sole right to the fund, and without such designation it is impossible to say that either, or which, of the persons or classes of persons mentioned in the fourth section of the act is entitled to the fund. Such designation is made the condition precedent of the defendant’s liability.

The trial court found that the intestate was not guilty of any default or neglect of duty as a member of said order in not procuring a certificate. That finding does not aid the plaintiff. There is no finding or evidence that the lack of a certificate was owing to any neglect or omission of duty on the part of the defendant. If the intestate had applied to the proper officer of the defendant to issue a certificate designating as the benificiary a person named by the intestate, and the officer had unreasonably refused, it may be that the person so named would have had a right-to recover on the death of the intestate, but that is a question not before us and upon which we express no opinion.

The respondent’s counsel contends, that as there is no evidence that the intestate procured a certificate payable to any person other than his family, heirs, or legal representatives, it is to be presumed in the absence of proof to the contrary, that a certificate was issued payable as the statute provides it shall bé payable. To this there are two answers. In the first place, the statute, as we have seen, does not provide to whom the certificate shall be made payable, but remits that subject to the control and regulation of the corporation by its rules and by-laws. In the next place, no presumption arises that the corporation issued a certificate to anyone. It was under no duty to do so, unless the intestate requested it and designated a person to whom it should be made payable, of which there is no evidence.

The charter and by-laws respecting the designation of the person to whom the beneficiary fund shall be made payable were a part of the contract with the defendant, which the intestate entered into when he became a member, and as their provisions have not been complied with the defendant is not liable. The defense does not rest, as the respondent’s, counsel seems to suppose, upon the objection that the present plaintiff is not the proper party, but it stands upon the ground that the defendant is not liable to anyone.

If these views are correct, it follows that the judgment should be reversed and a new trial ordered, costs to abide the event.

Haight and Bradley, JJ., concur; Barker, J., not voting.


text:
    John York, Jr., App’lt, v. Lyman Briggs, Resp’t.

      (Supreme Court, General Term, Fifth Department,

      Filed, February, 1887.)

    1. Right of way—Given in deed.
    The dimension in width of the right of way, given by a certain deed, was not defined by the terms of the conveyance, otherwise than in the expressed purpose for which it was granted. And this was understood to require passage way for teams to go to and from a certain warehouse, in drawing grain and fruit to it and returning to the highway. Held, the plaintiff, under this grant, was entitled to such a way at the place designated as was necessary for its proper and reasonable enjoyment.
    2. Same—Width.
    Necessarily incident to the right of way for ingress and egress, are the means to turn around to go out, after having gone to the warehouse. But this does not necessarily require sufficient width of way its whole length to turn about with team and wagon, nor the most convenient means of doing so at any place.

      3. Same—Fob passage op vehicles op exceptional width.
    It cannot be said, as a matter of law, that the passage abreast of vehicles of exceptional width, which were used for carrying apples, came within the contemplation of the grant of way, or that the width of it at all points for such purpose was actually or reasonably necessary to the enjoyment of the way granted.
    Appeal from judgment entered on decision of Wayne special term.
    The action was brought to require the defendant to remove an alleged obstruction in the private way of the plaintiff, and to restrain him from further proceeding with the work of such alleged obstruction.
    It appears that in 1873, the plaintiff and one Catchpole, erected a ware-house on the premises of Jonathan Briggs, west of, and some distance from a highway, running northerly and southerly; that in March, 1874, Jonathan Briggs, conveyed to them a parcel of land (embracing that on which the ware-house was erected) bounded east, by the highway, extending from it west, 223 feet, and of the width of 34 feet, “with the privilege of space for teams to go to, and from, said York & Catchpole’s ware-houses, north of the north line of said lot;” that the north line of the land so conveyed was four feet north of the ware-house, that at the time of the conveyance the grantees had placed gravel along from the highway, on Brigg’s land adjacent to, and north of that conveyed, for a passage-way for teams from the highway to the north side of the ware-house, and then and thereafter were engaged in purchasing and receiving at the ware-house, grain, and apples; that in May, 1876, Catchpole conveyed his interest in the premises to the plaintiff, who thereafter carried on the like business there; that in April, 1879, Jonathan Briggs conveyed to the plaintiff a strip of land fifteen feet wide, adjoining on the north that first mentioned, and extending from the highway west to the west side of the north door of the ware-house, also another parcel, extending from there west, 31 feet in width to the west end of the lot first-above mentioned, and from thence further west, bounded by a continuance of the same north fine, and on the south, by a continuance of the south line of the ware-house lot (the last described parcel was known as the store-house lot, “ its length 300 feet, and its width at the west end 65 feet); that in January, 1880, Jonathan Briggs conveyed to One Aldrich five and three-fourth acres of land lying west of and extending further north than the store-house lot, “with a right of way from said lot to the highway along next to John York, Jr., north fine of his storehouse lot;” that Aldrich afterwards conveyed to Weed, who on January 2, 1880, conveyed to the plaintiff; that at the time of the conveyance to Aldrich, Jonathan Briggs owned a strip of land lying north of the store-house lot, 17 feet in width at the west end, and extending east from that conveyed to Aldrich to the east end of the store-house lot, where it was 19 feet in width, and extending from there of the width of 35 feet east to the highway, and bounded south by the 15 feet width strip before mentioned. Jonathan Briggs died in July, 1881. The defendant is one of his heirs. And in October and November of that year, he dug a cellar and constructed foundation walls for a building north of, and two feet distant, from the 15 feet strip before mentioned, and having the dimensions of 20 feet in width, north and south, and about 40 feet in length, east and west, with the front 17 feet from the highway. This structure is the obstruction complained of. The trial court found .that it was no obstruction to the plaintiff’s right of way, and directed judgment dismissing the complaint on the merits. The plaintiff appeals.

      Vandenberg & Saxton, for appl’t; T. Robinson, for resp’t.
   Bradley, J.

The dimension in width of the right of way, given by the deed of the warehouse lot, was not defined by ,the terms of the conveyance otherwise than in the expressed purpose for which it was granted. The intention was to give the means of access from the highway to the warehouse for the purposes of the business there. And this was understood to require passage-way for teams to go to and from the warehouse, in drawing grain and fruit to it and returning to the highway.

The plaintiff, under this grant, was entitled to such a way, at the place designated, as was necessary for its proper and reasonable enjoyment. Maxwell v. McAtee, 9 B. Monroe, 20; S. C., 48 Am. Dec., 409; Rexford v. Marquis, 7 Lansing, 249; Farrington v. Bundy, 5 Hun, 617; Bakeman v. Talbot, 31 N. Y., 366.

The gravel road made by the plaintiff and Catchpole, from the highway to the warehouse before the conveyance of the lot to them, was upon the fifteen feet strip after-wards conveyed to the plaintiff, and there is some evidence tending to prove that the gravel was extended over a portion of the place occupied by the cellar dug by the defendant, about which there is some question upon the evidence. The way, by the deed, was located adjacent to and north of the north line of the warehouse lot. This fifteen feet strip was situated there, and the distance between the north line of the warehouse lot and the cellar wall is seventeen feet. The question at the trial was whether that was a reasonably suitable width for the passage, or such width as was within the contemplation of the parties to the grant at the time it was made. Much evidence was given upon the subject, embracing also the situation, and the character and extent of the business done there. The warehouse is about eighty feet from the highway, and the west end of the defendant’s foundation wall is a short distance west of the east line of the warehouse. The distance between them is twenty-one feet, and between the north line of the warehouse lot and the cellar wall, seventeen feet. The grain drawn there is taken to the north side of the warehouse and there unloaded. And it is claimed that when the wagons are unloaded thirty feet in width is required to turn the teams and wagons around, and that they cannot at the warehouse turn and go back into the highway south of the defendant’s wall, and that ' there is not sufficient width of passage between the warehouse lot and such wall to enable teams and wagons to pass when they meet there. It is contended on the part of the plaintiff that those are facilities within the requirements necessary to the way, which he is entitled to have, and which are denied to him by the defendant’s structure in question.

Prior to the time of putting the cellar there, the open space between Briggs’ north hue and the warehouse lot east of . the warehouse and to the highway was forty-eight feet in width. And directly north of the warehouse, and fifteen ' feet from the lot on which it stands, was a coal shed, constructed by the plaintiff in 1876 or 1877. And teams usually came to the warehouse upon the graveled way, known as the fifteen feet strip, and after unloading passed on a little west and turned and went out north of such shed. And since the defendant’s cellar was dug, they have usually turned around and passed out north of the cellar to the highway. The space between the cellar wall and the north line of the Briggs’ land is thirteen feet. And that space is the right of way from the highway to the lot conveyed by Briggs to Aldrich, which was afterwards conveyed to the plaintiff.

In May, 1881, the plaintiff connected with the north side of his warehouse a covered shed, extending six feet and eight inches north of the north fine of the warehouse lot and 10 8-12 feet from the building, to cover teams and loaded wagons while discharging their loads into the warehouse.

This shed, and the coal shed opposite, embarrassed turning around at that point and going out on the way to the highway. This was the situation when the defendant proceeded to stake out and dig his cellar. There was plenty of room to turn west of this projecting shed upon the storehouse lot and go around the place where the coal shed was, or to get back to the 8$ feet space between the two sheds and pass through there to the highway, but they usually went out north of the coal shed, and after it was removed, north of the place where it had been located. The defendant’s cellar and its walls have not essentially interrupted the use of the way, as it was used before this structure was made there by the defendant, because teams can enter upon the graveled path from the highway, and turn and pass out north of the cellar, although the space is somewhat reduced. But this north opening is upon Briggs’ land, and the right of way there is solely for the benefit and enjoyment of the Aldrich lot, and is not appurtenant to the warehouse lot. And the question is whether the plaintiff is, by the act, of the defendant, deprived of the enjoyment of the way to which he is entitled as appurtenant to the. latter. The trial court has found that the fifteen feet strip is sufficient for the plaintiff’s purposes for teams to come and go to and from his warehouses, and all that was contemplated by Jonathan Briggs or his grantees.

The plaintiff has taken exception to this finding, and contends that it is not supported by the evidence. It appears that at times several, or quite a large number of teams and wagons loaded with producé, etc., arrive and are there at the same time, and some are waiting to approach the warehouse to discharge their loads while others are being unloaded. The warehouse being eighty feet from the highway, extends in length ninety feet further west. Convenience requires sufficient room for the unloaded wagons to pass the loaded ones waiting to approach or on the way to the warehouse.

This can be done in fifteen feet by wagons ordinarily rigged, but there is evidence tending to prove that wagons come there loaded with apples in barrels, upon racks of such width that to pass each other would require a way at least twenty feet wide, and more than fifteen feet for one of them to pass a wagon ordinarily rigged and loaded.

These extreme widths of vehicle are exceptional, and it cannot as matter of law be said that the passage of them abreast came within the contemplation of the grant of the way, or that the width of it at all points for such purpose was actually or reasonably necessary to the enjoyment' of the way in view at the time it was made. Necessarily incident to the right of way for ingress and egress, are the means to turn around to go out after having gone to the warehouses. But this did not necessarily require sufficient width of way its whole length to turn about with team and wagon, nor the most convenient means of doing so at any place.

The evidence tends to prove that a little west of the north door of the warehouse, on the storehouse lot, there was adequate room to turn and get back on to the gravel way. That lot belonged to Jonathan Briggs until his conveyance of it to the plaintiff in 1879. And there is evidence to the effect that it was used as the place to turn before and since such conveyance. This storehouse lot for the distance of ninety feet, west of the north door of the warehouse is north of and adjoins the warehouse lot, and that distance was subjected by the grant to a right of way as appurtenant to the last named lot. That right was merged in the conveyance of the land to the plaintiff. In view of the opportunity existing there at the time of the conveyance of 1874, and the use made of it to turn the teams and wagons to get back to the highway, the inference is permitted that the plaintiff had the facilities for that purpose reasonably necessary for the enjoyment in that respect of the right of way.

And as to that portion of the way east of the warehouse and south of the cellar, the finding of the trial court last referred to was permitted and supported by the evidence. It was sufficient to justify the conclusion, that for the ordinary purposes of the passage of teams and wagons required by the business there, the width was adequate. And there is evidence which the trial court adopted as proving the fact that before, and about the time that the defendant was proceeding to stake out the boundary lines for the cellar and foundations of the building to be erected thereon, the plaintiff, being advised thereof, stated in the presence of the defendant that he had purchased the fifteen feet strip before mentioned so that he might own his own right of way and travel upon it.

And the trial court also found that when the .cellar was being dug, and the cellar walls being built, the plaintiff was present at various times and made no objections and no claim that they infringed his right of way, and made no claim to that effect until two weeks after the walls were finished. These findings are supported by the evidence, although it is somewhat in conflict in that respect.

These facts tend in some degree to show the understanding the plaintiff then had of the extent of his right of way taken by the grant. And tends to the corroboration of the other evidence in support of the conclusion of the court as to the width of the way which was within the contemplation of the parties to it and requisite at that place for such purpose. The fact is, that instead of fifteen feet, the width between the cellar wall and the north line of the warehouse lot is seventeen feet.

And the store is far enough from the street to permit teams to turn into the way from the north on a curve if necessary to do so.

The facts found by the trial court have the support of the evidence, and they required the conclusion of law that the plaintiff was not entitled to recover-for any of the relief demanded in his complaint. So it does not become important, to consider the exception to the further conclusion of the trial court that the plaintiff was estopped from maintaining the action. And none of the exceptions seem to have been well taken.

The judgment should be affirmed.

Smith, P. J., Barker and Haight, JJ., concur.