text:
    CHARLES D. W. MERRITT, as Administrator, etc., of BLANDINA MERRITT, deceased, Plaintiff, v. WILLIAM P. COLE, Jr., as Executor, etc., of JOHN R. COLE, deceased, Defendant.

      Note payable to bearer — payment thereof before due, to party in possession, good • —• Right to go to jury on a particular question— waived by request to have jury find on other questions which concede the particular one.

    Motion for a new trial on exceptions ordered to be heard in the first instance at the General Term, after a verdict directed in favor of the plaintiff.
    This action has already been before the General Term, and is fully reported in 9 Hun, at page 98. It is brought upon a promissory note, in the following words and figures:
    “For value received I promise to pay unto Blandina Dewitt, daughter of Charles Dewitt, Jr., of Marbletown, or bearer, the sum of six hundred dollars immediately after the decease of Charles Dewitt, Jr.
    “ In witness whereof, I have hereunto set my hand and seal the twentieth day of May, one thousand eight hundred and twenty-eight.
    JOHN R. COLE. [l. s.]
    “ Witness, Jno. A. Dewitt.”
    The paper also contained the following indorsements, all admitted to be in the handwriting of Charles Dewitt:
    “John R. Cole, Cr. on the within note, two hundred and fifty dollars.
    CHARLES DEWITT.
    “Dated 1845, March 5th.”
    “ [$74.] 1850, Sept. 10, received on the within note, -74 dollars.
    CHARLES DEWITT.”
    “ July 26, 1853. Received from John R. Cole 200 hundred dollars on the within note.
    CHARLES DEWITT.”

      The question was whether or not the payments credited by Charles Dewitt, plaintiil’s father, in whose control the note had been left, should be deducted from the amount due thereon, in the absence of all proof, other than the possession of the paper, to show his authority to receive such payments.
    Upon the second trial, a verdict was directed for-the plaintiff in accordance with the opinion of the General Term on the former appeal, crediting the maker with all the amounts indorsed upon the note as paid.
    Upon this appeal the court at General Term said:
    “ It would perhaps bo hardly necessary to do more than refer to the decision of this case in 16 S. C. N. Y., (9 Hun), 98. But the plaintiff urges very strongly that a recent decision of the Court of Appeals has overruled the views there expressed. That decision was made in the case of Smith v. Kidd in January, 1877. And the point on which the plaintiff urges that decision applies here, is this. It is said in the opinion there delivered that “ even though an agent have authority to receive payment of an obligation, this does not authorize him to receive it before it is due.”
    Now the difficulty in the application of that principle to this case lies in the fact that the note in suit was payable to bearer. By its terms, therefore, the maker was at liberty if he acted hi good faith, to pay to the person in actual possession of the note. That was a part of his contract. When therefore the maker made payments on the note to Charles Do Witt, he did so not as to the agent of Blandina Merritt, but as to the person entitled, as bearer, to receive payment.
    Of course the person entitled on the face of the instrument, to receive payment, may voluntarily receive payment before the debt is payable. It is only the agent, who receives payment as agent of a principal, who cannot ordinarily receive it before that time. This note might pass by delivery, even though it was a sealed-instrument. {Runyan v. Mersereau, 11 Johns., 534.) And there is nothing to show that the maker had reason to think, when the first and second payments were made, that the note did not belong to Charles DeWitt. As to the third payment, the same witness who testifies that Blandina Merritt' asked the maker of the note for that payment, also testifies that- it was made directly to her.

      Was it a question for the jury, whether or not, as a matter of fact, John. R.Cole made the last payment? A son of John R. Cole testified that his father admitted to him that he did not make this payment, and that he wanted this son to swear falsely as to> this one payment.
    It is barely possible that a jury might have believed that story, in contradiction of the endorsement and of the positive testimony of another son of John R. Cole that that payment was made. But the plaintiff did not ask to go to the jury on the fact of these* payments. He specified distinctly the three points on which he asked to go to the jury; and all of these points imply that the payments were made as a matter of fact to Charles DeWitt by John R. Cole. The first is, whether Blandina Merritt was aware-, of the payments, and whether they were made by her consent. The second, whether she conceded the validity of the payments, and agreed to accept the balance. The third, whether John R. Cole made the payments to Charles DeWitt in good faith, believing that he was entitled to the moneys. All these requests admit the fact of payments, and as remarked above, there is no evidence of absence of good faith. The motiou for a new trial should be denied, with costs to the defendant, and judgment should be entered on the verdict.

      F. L. Westbrooh, for the plaintiff;

      D. M. De Witt, for the. defendant.
   Opinion by

Learned, P. J.

Present, Learned, P. J., Bockes and Osborn, JJ.

Motion for new trial denied, and judgment ordered on the verdict with costs.


source: Caselaw Access Project

author: the court.

license: Public Domain

text:
    PETER R. McMONAGLE, Respondent, v. CHARLES N. CONKEY, Administrator, etc., Appellant.

      Commission- to examine party on Ms own behalf — not granted when plaintiff is a fugitive from justice and cannot come into this State for that reason.

      • Appeal from an order granting a commission to examine the plaintiff as, a witness in his own behalf.

      The court at General Term said: “Under the peculiar circumstances of this case we do not think that the plaintiff should have a commission to examine himself.
    “ The case is referred to a referee residing in Ogdensburgh. The plaintiff is in Prescott, Canada, which place is opposite Ogdensburgh, and only about a mile and a half distant therefrom. The plaintiff is a fugitive from justice, having gone to Canada to escape trial on an indictment found against him in this State. He is therefore unwilling to submit to the authority of our courts. And he refuses to come into this State to testify on his own behalf in the present case.
    “We think that in the exercise of a sound discretion the commission should not be granted.”
    Order reversed with $10 costs and printing.

      Leslie W- Russell, for the appellant.

      Vary <& Stone, for the respondent.
   Opinion by

the court.

Present — Learned, P. J., Boardman and Tarpan, JJ.

Order reversed with $10 costs and printing, and motion for commission denied.


author: Osborn, J.;

text:
    THOMAS G. BEECHER, Respondent, v. EDWARD KENDALL and MERRICK KENDALL, Appellants.

      Offer in -Justices’ Court — acceptance of — vihat sufficient — Code of Procedure* § 64, sub. 15.
    Appeal from a judgment of the Schuyler County Court, affirming a judgment of a justice of the peace.
    Upon the return day of the summons, the parties appeared before the justice, and the plaintiff presented a written complaint.’ After the presentation of such complaint to the justice, the defendants made an offer in writing, allowing judgment to be taken against them, in favor of the plaintiff, for the sum of thirty dollars and sixty-eight cents, pursuant to subdivision 15 of section 64 of the Code of Procedure. The offer was dated, and signed by both of the defendants, and fully meets every requirement.
    In the original return, the justice says that, upon this offer being made and presented, he immediately entered judgment in favor of the plaintiff and against the defendants for the sum of $30.68, the amomitof the offer, with $3.40 costs, making the total judgment $34.08. In an amended return, the justice states substantially as folloAVs: “ That the offer of judgment was in writing, and Avas filed; that the plaintiff verbally accepted the offer, and that he entered the acceptance in the docket by the direction and assent of the plaintiff and defendants.” And then immediately rendered the judgment aforesaid.
    The court, at General Term, said: “ The appellants claim that there was no sufficient acceptance of the offer, and that, as no evidence was produced, there is nothing to sustain the judgment. This is the only real question presented for revieAV.” It is provided by section 64 of the Code, old Code, sub. 15, as folloAvs: “ The defendant may, on the return of process and before answering, make an offer in writing to allow judgment to be taken against him for an amount to be stated in such offer, with costs. The plaintiff shall thereupon, and before any other proceeding shall be had in the action, determine whether he will accept or reject such offer. If he accept the offer, and give notice thereof in writing, the justice shall file the offer and acceptance thereof, and render judgment accordingly.” The offer clearly was in form, and was filed, and fully met the requirements of the above language.
    In the amended return, the justice says that the plaintiff accepted verbally the offer, in the presence and hearing of the parties, and that the acceptance Avas entered in his docket by the direction and assent of the plaintiff and defendants. Whereupon he rendered his judgment immediately. So, it is to be presumed that all this took place in the presence of the parties, and by their direction and assent. At least no objection was interposed, and I do not think iioav the appellants should be allowed to allege as error a proceeding of the justice, to which they assented and in part directed. The acceptance Avas m Avriting; it Avas placed on the docket by the justice, by the direction and assent of both parties. The provision of the Code was thus substantially complied with; but, if not, the defendants cannot here take advantage of the error.
    Again, it was a substantial confession of judgment by the defendants when all the parties were present before the justice. (2 Wait’s Law and Practice, 704; Gates v. Ward, 17 Barb., 424.)
    It is the duty of appellate courts to indulge in every reasonable and warrantable intendment and presumption, in order to sustain proceedings and judgments of inferior tribunals. (Schoonmaker v. Spencer, 54 N. Y., 366.) The judgment must be affirmed with costs.

      B. W. and O. M. Woodward, for the appellants

      O. P. Hurd,, for the respondent.
   Opinion by

Osborn, J.;

Learned, P. J., and Boches, J., concurred.

Judgment affirmed with costs.


author: Talcott, P. J.:

text:
    REUBEN P. CAULKINS and ISAAC CAULKINS, Respondents, v. ANGELO HELLMAN, Appellant.

      Parol contract of sale — invalid wider statute of frauds — same person cannot act as agent for both parties in delivery and acceptance respectively of the goods — Bill of sale — cannot be varied by parol evidence.

    'Where a contract for the sale of goods rests wholly in parol, and no part of the purchase-money has been paid, a delivery of the goods to, and an acceptance thereof by the vendee being relied upon to take the sale out of the statute of frauds, the same person cannot act as the agent of both parties; that is, he cannot claim to act as the agent of the seller to negotiate the sale, and the agent of the buyer to receive and accept the goods.
    .A written bill of sale “ of twenty-three casks of wine ” imports a sale of the casks as well as of the wine, unless the contrary expressly appears, and parol evidence is inadmissible to show that it was agreed at the time of the sale that the vendee should return the casks.
    Appeal from a judgment in favor of the plaintiffs, entered upon the verdict of a jury, and from an order denying a motion for a new trial, made upon the minutes of the justice before whom the action was tried.

      8. K. Williams, for the appellant.

      JE. B. Pottle, for the respondents.
   Talcott, P. J.:

This is an appeal from a judgment, rendered at the Ontario Circuit, on the verdict of a jury; and from an order denying a new trial in the action.

The action is brought to recover the price of a quantity of wine sold by the plaintiffs, through their agent, Gordon, to the defendant, at the city of New York, by a parol contract, void by the Statute of Frauds, unless the defendant accepted the wine» The wine was, by the contract, to be delivered at Blood’s Station, a station on the railroad some six miles from the town of Naples, in Ontario county, where the wine was manufactured, and where the plaintiff resided; and Gordon, who had sold the wine as the agent of the plaintiffs to the defendant, was engaged by the defendant to see to the shipping of the wine to the defendant, at New York, from Blood’s Station.

The wine was sold by sample, which sample was retained by the defendant at his place of business in New York. The case has been once before the Court of Appeals, and is reported in 47 N. Y., at page 449, on which occasion the Court of Appeals reversed the judgment which had been obtained by the plaintiff,, and ordered a new trial. The case now comes up on the defendant’s appeal, after a judgment for the plaintiff, obtained on the-verdict of the second trial, and presents sundry exceptions taken to the rulings on the trial.

On the first trial it seems to have been held that a delivery of the wine at Blood’s Station, in conformity with the terms of the verbal contract of sale, was sufficient to take the case out of the Statute of Frauds, the Court of Appeals holding that “if the contract is oral, and no part of the price is paid by the vendee, there must not only be a delivery of the goods by the vendor, but a receipt and acceptance of them by the vendee, to pass the title or to make the vendee liable for the price, and this acceptance' must be voluntary and’ unconditional. Even the receipt of the goods, without an acceptance, is not sufficient; some act or conduct on the part of the vendee or his authorized agent, manifesting an intention to accept the goods as a performance of the contract, and to appropriate them, is required to supply the place of a written contract.”

Oil the first trial, Gordon was sworn as a witness, and testified fully to the contract, and to his being requested by the defendant to see to the shipping of the wine at Blood’s Station, and his testimony on the subject was before the Court of Appeals. The defendant claims that when the wine arrived at New York, it did not conform to the samples, but had been frozen, and was worthless; that he refused to accept it, and took measures to notify the plaintiff of the condition of the wine, and his refusal to accept it; and that the wine was placed in his cellar, subject to the order of the plaintiff, and while so situated it was destroyed by a fire, which occurred without his fault or neglect, whereby his store was burned.

The opinion delivered in the Court of Appeals states that the plaintiff'’s counsel, in his statement of facts, suggests that Gordon was the agent of the defendant to accept the goods at Blood’s Station, but that “ this statement is not borne out by the evidence.’'’

On the second trial, Gordon was again sworn as a witness, and his testimony substantially corresponds with the testimony given by him on the first trial, except that ho has added a statement not made by him on the former trial, as follows : “He (Heilman) said, ‘ I want you to be very particular and sec that this wine corresponds with the sample.’ I told him I would do so.” And it is claimed that this new evidence shows Gordou to have been the agent of the defendant to accept for the defendant the wine at Blood’s Station.

The plaintiffs, in their complaint, do not claim that the defendant accepted the wine at Blood’s Station, although they do state therein that the defendant “ requested said Gordon to make as favorable an arrangement as possible for the interest of the said defendant, with the said railroad company at Blood’s Station, for the transportation of said wine.”

It seems that Gordon was employed as the agent of the plain-. tills to sell the wine, and, as he claims, it was a casual employment, for which he was to be paid by the plaintiffs at the rate of two dollars a day and his expenses. The learned justice at the Circuit, while recognizing the rule of law that a person cannot be the agent at the same time of both parties to a contract, yet instructed the jury that the sale of the property and the reception, of it at Blood’s station were not necessarily the same transaction, and that “ if Gordon was employed by the plaintiffs only to make the sale, to make a bargain for the sale, and his employment as the agent of the plaintiffs ceased when the bargain was made, then it was competent for him to act as the agent of the defendant in any subsequent transaction that took place between the plaintiffs and the defendant,” thus giving the jury to understand that the sale and acceptance of the wine were distinct transactions, as to which Gordon could act as the agent of the plaintiffs in making the sale, and for the defendant in accepting the goods, upon the theory, also expressly stated to the jury, that “ as soon as Gordon got back from Now York after making the sale of this wine, and had reported it to the plaintiff, his employment ceased.” We think this is drawing too fine a distinction. The agreement for the sale, and the acceptance by the vendee of the thing sold, are too intimately connected as parts of the same transaction, in this ease, to authorize one person to act as the agent of both parties. The acceptance was necessary to a valid contract of sale. Before the wine had not only been received, but had been unconditionally accepted by the vendee with a view to appropriate the same, the contract of sale was utterly void, and was of no effect as the Court of Appeals held in this case.' The acceptance was quite as material to the contract of sale as any other part of such contract, and the agent Gordon was under a strong inducement to make out an acceptance on the part of the vendee, so that the void contract he had made in behalf of the plaintiffs should have infused into it vitality and validity, and we do not see why the objections to the same person acting as agent of both parties, in this case, do not apply with full force, however it might be in the case of a contract originally valid and binding. The rule is well-settled, that the law does not tolerate any man becoming both buyer and seller, at the same time of the same article, nor is it necessary to show that he who assumes to have acted as the agent of both parties has acted in any manner ■unfairly. (Story on Agency, §§ 31, 211; Claflin v. Farm., etc., Bank, 24 How. P. R., 1, 15; N. Y. Cent. Ins. Co. v. Nat. Protection Ins. Co., 14 N. Y., 85, and cases there cited.)

For this reason we are of opinion that Gordon could not be the agent of the defendant to accept the wine at Blood’s station, and that whatever he did there did not amount to an unconditional acceptance on the part of the defendant. Besides which, the language stated by Gordon in his last testimony, said to have been used by Heilman, did not necessarily import that he intended to constitute Gordon as his agent to inspect and accept the wine in his behalf at Blood’s station, and is entirely consistent with the idea that he was addressing him as the plaintiffs’ agent, and enjoining caution in regard to the quality of the wine to be shipped. The idea that the agent of the sellers should be employed as the agent of the buyer in determining whether the wine shipped corresponded in quality with the wine which said agent had just sold to Heilman is, in itself, so improbable that no intendment that such was the meaning of the language used by the buyer can be indulged. We think, therefore, that the justice at the Circuit erred in advancing the theory upon which the plaintiff was allowed to recover the price of the wine claimed to have been sold to the defendant in March, 1866.

The plaintiffs, for a second cause of action, set forth in their complaint that in September, 1865, the plaintiffs sold to the defendant twenty-three casks of wine, by which contract of sale the defendant was to return to the plaintiffs the casks containing the said wine, but that the defendant had neglected and refused to return the said casks. It appeared from the evidence that the sale of the twenty-three casks of wme was made by John J. Webber in his own name, but in fact as the agent of the plaintiffs. In this case it appears there was a regular bill of sale made out. By some apparent oversight, the bill of sale is omitted from the case, although stated to be contained therein; but, from what passed on the trial, we infer there was nothing in the bill of sale from which any obligation to return the casks could be inferred. If this was -so, and the bill of sale purported to be a bill of sale of twenty-three casks of wine, we think parol evidence was inadmissible to add to or change the contract, by showing that at the time of the sale it was agreed that the defendant should return the casks. A sale of so many casks of wine imports a sale of the casks as well as the wine, unless the contrary expressly appears; and we think the court erred in the admission of parol evidence to show that it was agreed at the time of the sale that the defendant should return the casks. For the foregoing reasons, we think there should be a new trial in the case.

Present — Talcott, P. J. • Smith and Hardin, JJ.

Judgment and order denying a new trial reversed, and new trial ordered. Costs to abide the event.


text:
    SILAS H. WHITCOMB and FRANCIS N. WHITCOMB, Executors, etc., Appellants, v. JAMES HOFFMAN, Respondent.

      Action of replevin — return of property to defendant directed — damages for taking of property— not allowed unless claimed in answer— Code, § 261.
    Where in an action to recover the possession of personal property, in which the property has been taken from the defendant and delivered to the plaintiff, judgment is finally entered in favor of the defendant, and a return of the property to him directed, no damages for the taking and withholding of the property so seized can be recovered by him in such action, unless a claim therefor has been set up in his answer.
    Appeal from a judgment in favor of the defendant, entered upon the report of a referee.

      Hamilton Ward, for the appellants.

      Angel & Jones, for the respondent.
   Talcott, P. J.:

This is an appeal from a judgment for the defendant, entered on the report of a referee.

The action is to recover the possession of certain cows, which were, in the complaint, alleged to have belonged to the testator, Josiah Whitcomb, at his death, and which, being in the possession of the defendant, were alleged to have been demanded of him by the plaintiffs, and the defendant refused to deliver them. The property was taken by the sheriff of Allegany county, pursuant to the provisions of the Code of Procedure. The defendant answered, denying the title of the said Josiah Whitcomb and the wrongful taking, and denying that the plaintiffs have any interest hi the property or any right to the possession thereof.

The referee found, in substance, that the property was in the defendant, and that his possession thereof was not wrongful, and further found “ that the value of the use of said cows so detained from the defendant, from the time of their seizure by the sheriff, on the 17th day of April, 1875, to the date of this report, is the sum of fourteen dollars for each of the five living cows, amounting to seventy dollars, being the amount of damages sustained by the defendant for their detention by the plaintiffs.”

He also found, as a conclusion of law, that the defendant was entitled to recover judgment against the plaintiffs for the return of the possession of the said five living cows and the sum of seventy dollars, for the damages for their detention, and ordered judgment accordingly.

The answer of the defendant did not contain any claim for damages for the detention or withholding of the property, and the plaintiffs excepted to the finding that the defendant had sustained such damages, and to the conclusion of law authorizing a judgment therefor.

Section 261 of the Code of Procedure provides as follows on this subject: “ In an action for the recovery of specific personal property, if the property have not been.delivered to the plaintiff', or the defendant by his answer claim a return thereof, the jury shall assess- the value of the property, if their verdict be in favor of the plaintiff, or if they find in favor of the defendant, and that he is entitled to a return thereof; and may at the same time assess the damages, if any are claimed in the complaint or answer, which the prevailing party has sustained by reason of the detention or taking and withholding such property.”

The right, on the part of the defendant, to recover damages for the taking and withholding property seized, in case he recover, seems to be confined to those cases in which a claim for such damages is set up in his answer. The answer in this case did not claim any such damages, and we think that the ordering of a judgment therefor was erroneous. This error might probably be corrected by ordering the judgment corrected as to the damages, if. the defendant should choose to stipulate to that effect; but as the case contains several exceptions to the admission of evidence,, which evidence objected to might have had more or less influence on the result, we think a new trial should be ordered.

Piesent — Talcott, P.J., Smith and Hardin, JJ.

Judgment reversed, and a new trial ordered before another referee, costs to abide the event.


author: Taloott, P. J.:

text:
    CHARLES WARNER, Respondent, v. ALBERT H. PERRY, Appellant.

      Chapter 682 of 1866, chapter 375 of 1867 —relating to cruelty to animals — what constitutes an offence under.

    The plaintiff was arrested under a warrant issued by a justice of the peace,, upon a complaint which stated that the deponent “ saw a man on a peddler’s, cart, in said town, shoot at a dog of, and belonging to said Squire Perry, in said town; that the said dog was hit in the neck, and he believes the said dog will die.”

      Held, that, as the complaint did not state, or contain any allegation from which the justice could infer, that the act of shooting was malicious or needless, no offense under the acts relating to cruelty to animals was made out.
    That the complaint conferred no jurisdiction upon the justice to issue the warrant, and that he was liable to the plaintiff in an action for assault and false imprisonment.
    Appeal from a judgment in favor of the plaintiff, entered upon the verdict of a jury.

      Thomas Oorlett, for the appellant.
    N. G. Galkins, for the respondent.
   Taloott, P. J.:

This is an appeal from a judgment, rendered on the verdict of a jury at the Genesee Circuit. The action is for assault and false imprisonment, and for extorting from the defendant, under the name of a fine, the sum of fifteen dollars.

The defendant was a justice of the peace of the town of Darien, in Genesee county, and as such issued a warrant for the arrest of “ a man on a peddler’s cart.” The plaintiff was arrested upon the warrant, in Wyoming county, upon an indorsement thereof by a justice of the peace of Wyoming county, authorizing the arrest, not of the plaintiff, but of the person upon whose complaint the warrant had been issued. The complaint upon which the defendant, as such justice, issued his warrant, was as follows, namely:

“ Genesee County, as..-
“ John Mohr, being duly sworn, says: That on the 15th day of July, 1875, he was at the house of Squire Perry, in the town of Darien, in said county, and he saw a man on a peddler’s cart, in said town, shoot at a dog of, and belonging to, said Squire Perry, in said town; that the said dog was hit in the neck, and he believes-the said doar will die.
His
“JOHN X MOHR. ’’
mark.
“ Sworn before me, this 15th ) day of July, 1875. J
“A. II. Perky, J. P.”

The said justice thereupon issued his warrant, reciting that “ Whereas, complaint on the oath of John Mohr has been made before the undersigned, a justice of the peace of the said town, that on the 15th day of July, 1875, at Darien, in said county, that he saw a man on a peddler’s cart shoot a pistol at the dog of Squire Perry, in said town, and that he believed he intended to hill said dog,” and proceeding to command the arrest of the said' “man on the peddler’s cart,” and to bring him before the said justice, at his office, to answer to the matters contained in the said complaint, and to be further dealt with according to law. The plaintiff was arrested on the said warrant, and brought before the said justice, who rendered a decision in the case in the following words:

“ Be it remembered, that Charles Warner was brought before me, on a warrant issued by me, charged, upon the oath of John Mohr, with shooting with a pistol or gun at a dog, with intent to kill said dog; said prisoner, on being informed that he had a right to time to consult counsel, and that he had a right to decline to answer any questions, plead guilty to shooting at the dog, whereupon I did immediately fine the said Charles Warner fifteen dollars, which fine was immediately paid.
“ ALBERT H. PERRY, J. P”

In fact, it appears, from the testimony of the plaintiff and the defendant, that the former did not plead guilty to the said or any offense, but alleged that he was driving a high-spirited team along the highway, when the dog flew out and snapped at the heels of the team, and that he shot the dog, but claimed that he was justified in so doing. It appeal’s that the dog was shot and wounded in the presence of the defendant, who was its owner.

The court at the Circuit charged the jury, among other things, that the said complaint (before the justice) neither stated nor charged any legal offense, and conferred no jurisdiction on the defendant to issue a warrant, and that the defendant was liable in -this action for issuing said warrant, and by virtue thereof causing the plaintiff’s arrest; and further, that facts sufficient to authorize the justice to consider and deteimine the sufficiency of the complaint were not stated therein, and that the justice had no jurisdiction to determine the sufficiency of said affidavit. To both branches of this charge the defendant’s counsel excepted.

The defendant also presented several requests to charge, which were denied; but the questions presented by them were all involved in one or the other of the two propositions, which were charged as above stated. Whether the said charge was correct, involves an examination of the acts of the legislature in reference to cruelty to animals.

Chapter 682 of the Session Laws of 1866, page 1456, amends the Revised Statutes so as to read as follows “Every person who shall, by his act or neglect, maliciously kill, maim, wound, injure, torture or cruelly beat any horse * * * or other animal ■ belonging to himself, or another, shall, upon conviction, be adjudged guilty of a misdemeanor." Chapter 375 of the Session Laws of 1867, contareis the following additional enactment, beai’ing upon the subject: “Section 1. If any person shall overdrive, overload, torture, torment, deprive of necessary sustenance or unnecessarily or cruelly beat, or needlessly mutilate or kill, or cause or procure to be overdriven, overloaded, tortured, tormented, or deprived of necessary sustenance, or to be unnecessarily or cruelly beaten, or needlessly mutilated or killed as aforesaid, any living creature, every such offender shall, for every such offense, be guilty of a misdemeanor.”

Waiving the question, whether “aman on a peddler’s cart ” was a sufficient description of the plaintiff, in the absence of any allegation that the name of the person sought to be arrested was unknown, and could not be ascertained, it will be perceived that the complaint of John Mohr, upon which the warrant was issued, did not contain the language necessary to charge any offense against the law under either of the enactments above quoted.

Assuming that the statement that the “ dog was hit in the neck” implied an allegation that the dog was so hit, by the discharge of the pistol, and that he was thereby mutilated, the complaint fails to contain any allegation from which the justice was authorized to infer that the act was maliciously or needlessly done. Such an allegation is necessary to constitute the offense described by the statute, and unless it be directly made, or facts stated from which the justice was authorized to infer that the act was maliciously or needlessly done, there was no complaint of any offense for which the justice was authorized to issue his warrant for the arrest of the plaintiff. The appearance of the plaintiff before the justice, under arrest, was no waiver of any defect in the complaint or warrant. It was compulsory; not voluntary. We think, therefore, that the judge, at the Circuit, was entirely correct in instructing the jury, that the complaint before the justice neither stated nor charged any legal offense, and conferred no jurisdiction on the defendant to issue a warrant; and, moreover,.' that there were no facts stated in the complaint' which were sufficient to authorize the defendant, as a justice of the peace, to -determine that the complaint was sufficient.

It will be noticed that, in the warrant, the defendant asserted that Mohr had sworn that he believed the “ man on the peddler’s cart intended to kill said dog,” whereas, Mohr only asserted that he believed “¿he dog woidd die." But this mis-statement of the complaint did not meet the objections to its validity, which are noticed.

Present — Talcott P. J., Smith and Hardin, JJ.

Judgment affirmed.


text:
    BERNARD BRONNER and SECKEL BRONNER, Respondents, v. MARTHA A. LOOMIS, Appellant.

      Forgery — party alleging, writing his name in open court — when such signature evidence.

    “Where, upon the trial of an action brought upon an instrument claimed to be a forgery, the party asserting the forgery writes his name, in open court, at the instance of the adverse party, the latter may offer the signature so acquired in evidence, for the purpose of having it compared with the signature in controversy.
    Appeal from a judgment in favor of the plaintiff, entered upon the report of a referee.
    The action was brought upon a promissory note purporting to have been signed by the defendant as maker, and which was subsequently transferred to the plaintiff.
    During the trial, upon her cross-examination, the defendant was requested by the plaintiff’s counsel to write her name in the presence of the referee, and she accordingly did so. Upon the close -of the case, this signature was offered in evidence by plaintiff’s counsel, and, against the defendant’s objection and exception, was received by the referee.

      J. J. Sagles, for the appellant.

      Wm. Q. Tluger, for the respondents.
   Talcott, P. J.:

This is an appeal from a judgment entered on the report of a. referee. The action was upon a promissory note. The defense was that the signature to the note was not the genuine signature of the defendant, but was a forgery.

The only exception to which our attention is called by the counsel for the defendant is that stated at the close of the case, as. follows: “ A signature made by the defendant upon trial, at the request of the plaintiff’s counsel, offered in evidence, written by the defendant, objected to by the defendant’s counsel and objection overruled, and exception taken by the defendant.” The defendant’s counsel undertakes to sustain his objection and exception by a reference to the general rule of law as settled in this State, that when the question is upon the genuineness of a signa- . ture, you cannot give in evidence other instruments which are genuine to enable the jury to compare the signatures thereto with the one which is disputed. It is true, this is the general rule as ■ adopted in this State. This rule seems to be founded on two reasons: 1. Because, in the absence of such a rule, there would be a great temptation to make an unfair selection of signatures. 2. Because the introduction of a large number of signatures would create a number of collateral issues, and thus tend to burthen the case with irrelevant questions and to embarrass the jury. ( Van Wyck v. McIntosh, 14 N. Y., 439; Greenleaf’s Ev., § 580.)

But, where the signature is made by the person whoso signature is in controversy, in the presence of the court and jury at the request of the adverse party, or where such a signature is obtained on the cross-examination of the witness, the reasons for the application of the rule do not exist. The party asserting the forgery cannot, upon the trial, make his own signature, and then offer the signature so made in evidence for the purpose of comparison with the controverted signature for obvious reasons; (King v. Donahoe, 110 Mass., 155); but, if the opposite party chooses to take the risk, we-think'a signature thus made may be offered in evidence by the latter, for the purpose of comparing it with the signature in question. (Greenleaf’s Ev. [13th ed.], § 581, note. Taylor on Ev., § 1669, and note; 1 Wharton on Ev., § 706; Chandler v. Le Barron, 45 Maine, 534; Roe v. Roe, 40 Superior Court Rep. [Jones & Spencer], 1; Hayes v. Adams, 2 Sup. Court [T. & C.], 593; Doe v. Wilson, 10 Moore’s Priv. Council Cases, 202.)

In the case of Doe v. Wilson, last cited, which was decided by the English Privy Council in 1857, the court, in its opinion, says : “ Then* lordships have no doubt that, if on trial at nisi jorius, a witness denies his signature to a document produced in evidence, and, upon being desired to write his name, has done so in open court, such writing may be treated as evidence in the case and be submitted to a jury, who may compare it with the alleged signature to the document.” (See, also, as bearing upon the question, Birch v. Ridge., 1 Foster & Finlason, 270 and note; Cresswell v. Jackson, 2 id., 24; Cobbett v. Rilminster, 4 id., 490 and note.)

We think the referee committed no error in allowing the signa- . ture to be introduced in evidence, under the circumstances in this . case. The question of fact passed upon by the referee was upon conflicting evidence of the force and effect of which he was the judge, and his finding cannot be disturbed.

Present — Talcott, P. J., Smith and Hakdest, JJ.

Judgment affirmed.


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    STEPHEN K. WILLIAMS, Respondent, v. THE SUPERVISORS OF THE COUNTY OF WAYNE, Appellants.

      Boards of Supervisors— eorreetiom, of errors in assessments try — what errors may . be corrected — chap. 855 of 1889, and chap. 695 of 1871.
    Under the provisions of section 5 of chapter 855 of 1869, as amended by chapter 695 of 1871, authorizing- boards of supervisors, upon the recommendation of the County Court, “to correct any manifest clerical or other error in any assessment,” and requiring them to “ refund to such person the amount collected from him by any tax illegally or improperly assessed or levied,” only manifest errors can be corrected; that is, such as are clear, plain, obvious, and evident; such as are apparent from an examination of the tax-roll itself, or at least needing for their demonstration nothing more than a mathematical calculation.

      The statute does not include errors of judgment, of fact, or of law, or jurisdictional questions.
    The decision of the assessors as to whether or not a tax should be imposed upon an agent, having in his hands for the purpose of collection and reinvestment bonds and mortgages belonging to a resident of another State, cannot be reviewed under said statutes.
    Appeal from an order of the County Court of Wayne county, ■ordering the board of supervisors of that county to refund certain moneys to the plaintiff herein.
    ■/S'. K. Williams, in person, for the respondent,

      E. K. Burnham, for the appellants.
   Talcott, P. J.:

This is an appeal from the order of the County Court of Wayne county, ordering the board of supervisors of that county to refund to Stephen K. Williams the sum of one hundred and seventy-four dollars and nine cents, being the amount collected from him of a tax, adjudged by the said County Court to have been “ illegally and improperly ” assessed and levied.

The petition of said Williams to the County Court sets forth, that he is a resident and tax-payer of the town of Arcadia, in said county; that in the year 1871, he was assessed upon the tax roll of said town for his real and personal property; that the assessors for the said town completed their assessment roll for the year 1871, and made a fair copy thereof, and caused notices to be posted settiiig forth that they had completed their roll, and that one copy thereof was left with one of their number, etc., until the third Tuesday of August then next; and that said assessors would meet on that day at a place specified, to review their assessments; that the petitioner appeared on the day named and the assessors met; that the petitioner then and there carefully ■examined said roll and found no assessment upon it against himself as agent for Z. S. Crane, but at an adjourned meeting of said assessors, for the purpose of further reviewing said roll, and after the day fixed for reviewing said roll, the petitioner found that his name had been placed on the said roll with an assessment thereon ■as agent for Z. S. Crane, for personal property, in the sum of ten thousand dollars; that the petitioner made affidavit before the said assessors, at a time appointed by them for reviewing their assessment, that such property belonged to a non-resident owner, therein stating that the owner’s name was Zenas S. Crane, and that his residence was Montclair, in the county of Essex, and State of New Jersey; that the property consisted wholly of bonds and mortgages and demands belonging to said Crane, which were sent to and deposited in this State for collection; and that the petitioner had no property in, or the control of any of said securities, except as aforesaid; and that petitioner had no property in, nor the control of any property of said Crane, except as aforesaid; and except a small sum of money, about $100, collected from said securities to send to said Crane; but that the said assessors then and there and always refused to deduct the said assessment or any part thereof from the petitioner’s assessment, or to strike the sum from the assessment roll; and the petition .then avers the truth of the statements made in the affidavit submitted to the assessors; and that such proceedings were had that a tax was carried out and set down opposite to said sum on said roll, to the sum of $165.50, by the board of supervisors of said county of Wayne.

That the board of supervisors annexed their warrant to said tax list, commanding the collector of the town to collect the said tax. That the collector levied upon the goods and chattels of the petitioner, and that in order to save his property the petitioner, under protest, paid the tax, with the collector’s fees. That the tax ■was illegally assessed and collected from him, and praying that the amount may be refunded by the order of theCounty Court.

A copy of the petition, with notice, was served on the board of supervisors. The County Court, on the 1st day of October, 1877, the board of supervisors appearing by counsel, ordered that it be referred to M. J. Greenwood, Esq., to take the testimony in the matter, in addition to the petition, and to report the testimony to the court, and to report the same, with- his opinion, to the' County Court, and providing for a hearing on the coming in of the referee’s report, reserving the question of the jurisdiction oí the court to hear the motion. The referee took testimony in the matter, and among other testimony the evidence of the petitioner, on the subject of how and for what purpose he held the bonds and' mortgages, and when he received the same, showing that he held the bonds and mortgages for collection and reinvestment. On the coming in of the report of the referee, the County Court ordered the board of supervisors to refund the amount of the tax to the petitioner, adjudging the same to have been “ illegally and improperly assessed and levied.” This proceeding in the County Court was instituted under chapter 855 of the Laws of 1869,, section 5, as amended by the Laws of 1871, chapter 695.

The act of 1869 authorizes the board of supervisors of any county, excepting New York and Kings, on the recommendation of the County Court of such county, “to correct any manifest clerical or other error in any assessment or returns made by any town officer to such board of supervisors, or which shall properly come before such board for their action, confirmation, or review.” The act of 1871 referred to provides, in addition to the act of 1869, that upon the order of the County Court, made on application of the person aggrieved, and notice thereof to the board of supervisors, “ it shall refund to such person the amount collected from him of any tax illegally or improperly assessed or levied, and an appeal may be taken from such order, as from a judgment of said court in an action. * * * ”

It is to be observed that the only case in which the County Court is authorized to order the refunding of a tax, is in the case of a manifest clerical or other error. The error must be manifest ,- that is, clear, plain, obvious and evident. The statute concerning the assessment of taxes relating to the subject, provides as follows: “ Every person shall be assessed in the town or ward where he resides when the assessment is made, for all personal estate owned by him, including all personal estate in his possession or under his control as agent, trustee, guardian, executor, or administrator, and in no case shall property so held under either of these trusts, be assessed against any other person; * * * but the products of any State of the United States, consigned to agents in any town or ward of this State for sale on commission, for the benefit of the owner thereof, shall, not be assessed to such agent, nor shall such, agents, or moneyed corporations or capitalists, be liable to taxation under this section, for any moneys in their possession or under their control, transmitted to them for the purposes of investment or otherwise.” (Revised Slat. [6th ed.], vol. 1, 934, § 5.)

That any error committed by the assessors, in assessing the petitioner for the amount of the personal estate, consisting of bonds and mortgages and other securities, which were in Ms possession as the agent of Zenas S. Crane, of New Jersey, was not a manifest error, is evident. Hence the County Court directed a reference to take testimony directed to the questions of fact, showing whether that portion of the estate of Crane which had its situs here ivas properly taxable to the petitioner, who was the agent. (Hoyt v. Com’r, etc., 23 N. Y., 233.)

The errors of the assessors, for which the County Court is empowered to order the refunding of a tax, must be of the character of clerical errors, and the words of the statute embracing “ other errors ” are to be construed as referring to and including only errors of the same character as those particularly specified, on the principle frequently applied in the construction of statutes noscitur a sociis.

The errors which may be corrected by the order of the County Court are something which is apparent from an examination of the tax roll itself, or at least needing for their demonstration nothing more than a mathematical calculation — not errors of judgment, errors of fact, errors of law, or jurisdictional questions. This has been so held in a recent case in the Court of Appeals (Hermance v. The Supervisors of Ulster County), a statement of the points decided in which is contained in the Weekly Digest, 5th volume, 575; the opinion in which fully covers the case at bar, and seems decisive of the question presented on tMs appeal.

We are, therefore, of the opinion that the County Court had no authority, in this case, to order the refunding of the tax, but that the determination of the assessors on the subject was conclusive, except such determination should be reviewed by a certiorari,.

The order of the County Court of Wayne county appealed from is reversed, with costs to the appellants (ten dollars), and disbursements for printing.

Present — Talcott, P. J., Smith and HardiN, JJ.

Order of the County Court of Wayne County appealed from, reversed, with ten dollars costs and disbursements.


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    AMELIA McARTHUR, Respondent, v. THE GLOBE MUTUAL LIFE INSURANCE COMPANY, Appellant.

      Application for policy of insurance — answers filled in Toy general agent having full knowledge of the facts — effect of falsity of, upon policy

    In October, 1873, one McArthur applied to B. & B., who were the agents of the Guardian Life Insurance Company, for a policy in that company. The application was refused. B. & B. were also the general agents of the defendant. Subsequently, Cooper, who was a sub-agent employed by B. & B., solicited McArthur to apply for a policy in defendant’s company, telling him that the policy was refused by the Guardian, principally because it was going out of ■ business, although nominally placed on the ground of the certificate of the medical examiner. An application was then produced, read over to McArthur, and all the questions but three answered, and the application was then signed by McArthur. These three questions were, at the suggestion of 'Cooper, left to be answered by the general agents. Two of these inquired whether any other application for life insurance had ever been declined, and called for a statement as to company and cause. Cooper delivered the application to B. & B., called their attention to the unanswered questions, and said he did not know how to answer them, and also attached a slip thereto, stating the refusal of the application by the Guardian, and the reason therefor. Subsequently, by direction of B. & B., he filled in as answers to the questions, the word “ No.”
    A policy having been issued upon the application, and this action having been brought by McArthur’s widow to recover the amount of the policy, it having been taken out for her benefit; held, that as the answers to the questions were filled in by the general agents of the defendant, who had full knowledge of all the facts of the case, the policy was not avoided by their falsity, and that plaintiff wfis entitled to recover. .
    Appeal from a judgment in favor of the plaintiff, entered upon the verdict of a jury, and purporting to be also from an order denying a motion for a new trial, made upon the minutes of the justice before whom the action was tried, (no such order, however, appearing in the case on appeal).

      Robert Sewell, for the appellant.

      W. E. Ilughlit, for the respondent.
   Talcott, P. J.:

This is an appeal from a judgment for the plaintiff, entered on a verdict taken at the Cayuga Circuit, amUalso purports to be an appeal from an order denying a motion for a new trial on the minutes. There is no snch order contained in the case, and no record evidence before us that any such motion or order was made, consequently this can ,only be treated as an appeal from the judgment, and only the exceptions contained in the case can be considered.

The action was upon a policy of life insurance on the life of Olin McArthur, of Fairhaven, in Cayuga county, insured by the defendant in the name of, and for the benefit of, his wife, Amelia McArthur, the plaintiff. “Beecher & Bancroft” were agents of the defendant at Syracuse, and as such they employed one Cooper to solicit insurance in the county of Cayuga. Beecher & Bancroft had also been the agents of the Guardian Life Insurance Company, Avhich had discontinued business. The insured had made an application to the Guardian company whilst Beecher & Bancroft were its agents. The application passed through the hands of Beecher & Bancroft, to whom the rejection of the risk was communicated by the Guardian company, and they communicated the rejection to McArthur, through Cooper. This rejection was in October, 1873. Cooper testified that after the rejection by the Guardian company, he had a conversation with Beecher several times about insuring McArthur in the Globe company, and that Beecher told him to take it, and they would send it to the Globe. Cooper then applied to McArthur to take an application in the Globe-company. McArthur said he had concluded to carry the insurance himself; that is, that he did not want any policy of insurance, and expressed some doubt whether the Globe company would' issue a policy. Cooper informed McArthur that the policy was refused by the Guardian company principally for the reason that that company was about quitting business, although they made-the examiner’s remarks the basis of the refusal of the risk. Cooper-then produced-a blank application for insurance by the defendant, which contained some thirty-five questions to be answered by the-party whose life was proposed to be insured. Cooper read the application to McArthur, and wrote his answers to the questions until he came to question number thirteen, which was a question inquiring of the applicant whether he had been afflicted since-childhood with any of the complaints named, proceeding to specify numerous complaints. McArthur answered- no to all but the latter part of the question, which was whether he had been afflicted with “ diseases of the urinary organs or bladder.” When Cooper arrived at this question, he said: “You remember saying that you had been troubled with the backache, and this is the only question that it will come under, and I will leave this blank, and let Beecher & Bancroft direct about that.”

This was au allusion to what McArthur had informed the medical examiner in the case of the application to the Guardian company, and which was the ostensible cause of the rejection of the application by that company. The answer to that question was left blank. McArthur then answered the questions which followed, down to questions, respectively, numbered twenty-eight and twenty-nine, which inquired whether any proposal to insure the life of McArthur had ever been declined; if so, by what companies and for what cause, and whether any proposal to insure his life had ever been made to any company upon which a policy had not been issued; and if so, calling for a statement of what company or agent. McArthur and Cooper talked about these questions, and Cooper told McArthur he would also leave the answers to those questions blank, and forward a statement to the general agents, and lot them answer it, as they probably had the original application to the Guardian company. Cooper then read the application over to McArthur, and the latter signed it, with the answer's to the three questions above specified left blank. Cooper then took the application, with the answers to said questions left blank, to the office of Beecher & Bancroft, and talked with them about the application, calling their attention to the blank answers, and tolling them that he did not wish to fill them up or make any remarks about them, until he. saw,Beecher & Bancroft, and let them fill out the answers or show the witness how to do it. Cooper states that he had attached a slip to McArthur’s application to the Globe company, stating that McArthur’s application had been declined by the Guardian company, and for what reason. Bancroft informed him that the application to the Guardian company was not declined for cause, and that the questions should be answered “ no;” and Bancroft then asked Cooper to go on and finish the application. Cooper replied that he would do so if it was proper. Bancroft replied that it was, and Cooper then wrote the answer “no ” to the three questions to which the answers had been left blank when McArthur signed the application. Cooper left the application with Bancroft, who subsequently handed it to Beecher. Cooper also handed to Beecher the “ statement of the application,” meaning the slip, showing that the Guardian company had declined the previous application of McArthur. Beecher said it ivas of no importance, but if necessary he would send it along. This is the substance of the testimony of Cooper relative to the manner in which the answers to the questions which had been left blank were filled up, and we must assume that the jury found his statement to be substantially correct.

Our attention is directed only to the exceptions taken by the defendant to the refusal of the justice, at the trial, to charge as requested in several particulars.

The defendant’s counsel requested the court to charge, “ that if the negative answers to the two questions, twenty-eighth and twenty-ninth, were made by Cooper without the direction or concurrence of the general agent.” The case omits to state ivhat the defendant’s counsel desired the court to charge would be the legal consequences, if those questions were negatively answered without the direction or concurrence of the general agents, but we assume that it was, in effect, that the plaintiff in such case would not be entitled to recover. To this the court answered : “I do so charge, that if they were answered by any body except the general agent of the defendant, or by their direction, he cannot recover.”

The counsel for the defendant excepted to so much of the charge as holds — that if the answers were inserted by the direction of Beecher & Bancroft, then the policy is not violated, and that the warranty, etc.

The judge had instructed the jury as follows : “ If the application went out of his (McArthur’s) hands with those questions unanswered, and the negative answers now found attached to it were inserted there by anybody except the defendants themselves, or them agents, Beecher & Bancroft, or by their direction, in that case no recovery can be had upon it, and it is void. But if that application went out of the hands of the applicant with the questions unanswered, with the expectation and direction that it should be left with the general agents of the defendant to supply the answers to those questions, in accordance with the facts of the case, which facts were known to them, then I charge you that those false answers are not the answers of the applicant: that he and his widow are not chargeable with the falsity of those answers, and the policy was not vitiated by them; but it was a good contract on the part of the defendant, and the plaintiff is. entitled to recover the amount which I have stated to you.”

The counsel for the defendant requested the court to charge,. “ 1. That the plaintiff is responsible for the truthfulness of the several answers contained in her late husband’s application, and that they are in the nature of warranties.”

“ 2. That if any such answers were untrue, such fact constitutes a breach of warranty which must deprive the plaintiff of any right to recover in' the action.”

“ 3. That Beecher & Bancroft could not bind the defendants by directing the insertion of untruthful answers to questions.”

These several requests were declined by the justice, except as he had charged, and the defendant’s counsel excepted. The justice had charged most fully and explicitly on those questions, and the subject of his views as expressed to the jury is given in the above extract from the charge.

There was no question raised on the trial but that Beecher & Bancroft were the general agents for the defendant. The application was headed, “ Recommended by Beecher & Bancroft, General Agents.” It was so sent to the defendant, and it does not appear that the defendant ever repudiated the title thus bestowed upon them, or that the applicant was ever informed of any limitation upon the agency of Beecher & Bancroft. The counsel for the defense on the trial, as appears by his first exception, assumed that Beecher & Bancroft were “ general agents,” and there was nothing in anything which transpired at the trial to call the attention of the judge, in any manner, to the fact that the general agency of Beecher & Bancroft was questioned. We must understand, therefore, that the exceptions taken by the defendant’s counsel were intended, or at least understood by the court, to draw in question, not the fact, that Beecher & Bancroft were the “ general agents ” of the defendants, but to ask an instruction to the effect that the general agents of the company could not bind it by the insertion of answers to questions which were, perhaps, untrue in point of fact, but where they were familiar with all the facts, and where the applicant, knowing that the general agents were well acquainted with all the facts, left the answers to the questions indicated to be inserted by the general agents, with such explanations as they might deem necessary or proper under the circumstances.

It was held in Flynn v. The Equitable Life Insurance Co. Society of the United States, that one who was merely authorized by the company to make medical examinations of applicants for life insurance, but having no authority to solicit applications, and who had never acted as or been held out by the company as an agent for any other purpose, did not bind the company by the insertion of false answers to the questions propounded to the applicant, and that the authority to insert answers to the questions was not incident to, or within the apparent scope of his agency as medical examiner. Yet the same case concedes that companies may be bound by mis-statements contained in applications written by, or under the advice of their agents authorized to solicit insurance and take applications. (See cases cited by Earl, J., in the opinion, in 67 N. Y., 500.)

In Merserau v. The Phœnix Life Ins. Co. (66 N. Y., 274), it was held that where the policy contained a clause whereby the powers of the agent were limited, and he had no authority by the express limitation to receive any premium without first presenting a receipt signed by the president or secretary, an agent to solicit and take applications for insurance, to issue and deliver policies, and to receive premiums and deliver receipts for them, was not as a matter of law, a general agent of the company, authorized to waive conditions in a policy as to payment of premiums ; but on the question whether a general agent of an insurance company can waive the condition forfeiting the policy in case of non-payment of the premium, the Court of Appeals seems to have been equally divided, a majority having been reached on the first proposition by the vote of Folger, J., who thought the “facts put to the jury, as sufficient as matter of law to make him (Weller) a general agent, were not enough for that purpose.” Folger, J., declining to vote on the general question, whether upon a policy upon which was endorsed a notice that no agent has authority to receive any premiums without first presenting a receipt signed by the president or secretary of the company, or to alter the policy, or to receive any premium after it is due, a general agent can waive the condition forfeiting the policy in case of non-payment of the premium; and the residue of the court being equally divided on the question. (See, also, Van Schoick v. The Niagara Fire Ins. Co. 68 N. Y., 434.)

But this question does not involve the question of the powers of a general agent, as such, so much as the question of whose agents Beecher & Bancroft were, in regard to an application for insurance, the agents being well acquainted with all the facts, and whether they could, in behalf of the defendant, direct what answer the applicant should give to certain questions propounded to him, and as to which he is in doubt what answer should be ' given. In this case it was natural for the applicant to suppose that if his application to the Guardian company had not been declined, in fact, for any cause affecting the nature of the risk, but solely because they were about to retire from the business; that the rejection of the application to the Guardian company would not be considered material, and that Beecher & Bancroft having been the agents for the Guardian company at the time when his application was made, would understand better than himself, the policy which led the latter company to reject the application, and that their explanation to the Globe company would be more satisfactory than any which could be made by him.

And #ie applicant was justified in supposing that Beecher & Bancroft would make all necessary explanations to the Globe company, of the circumstances of his previous application to the Guardian Company. According to Cooper’s testimony, he desired and expected that the “ slip,” which was by him attached to the application, stating the prior application to the Guardian company should be sent to the Globe company, with the application.

Whether this was done or not, does not appear. If it was omitted, the omission was due to the neglect or intention of the agents of the defendant, who, in their capacity of agents, received the “slip;” and the omission to send it forward, if there was such omission, was their omission, as agents of the defendant, to forward a communication to the company, truly stating the facts in reference to the prior application. It was to be considered a part of the application, according to Cooper’s testimony. If the information contained in the “ slip ” had been given to the defendant, it could not be pretended that it could make any objection that the prior application was not disclosed, or was denied, in-the answers tilled in to the printed application.

We think the judgment should be affirmed, notwithstanding any of the exceptions to which our attention has been directed.

Present — Talcott, P. J., Smith and Hardin, JJ.

Judgment affirmed.


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    LEVI BALLOU, Appellant, v. JAMES BOLAND, Impleaded, etc., Respondent.

      Supplementary proceedings — lien acquired by — lost by discontinuance of — not revived by auditor’s bill — Equitable assignment of fund — what sufficient to constitute.

    Where, in supplementary proceedings, instituted by a judgment-creditor, an injunction is served upon the debtor, and a person holding property belonging to him, and such proceedings are subsequently abandoned before the appointment of a receiver therein, the lien acquired by the judgment-creditor upon such property is lost, and is not revived or continued by the commencement of an action, in the nature of a creditor’s bill against the debtor, the person •who held the property, and one to whom it was subsequently transferred.
    Although an ordinary bill- of exchange or check on a bank does not operate as an equitable assignment of so much money, so as to vest the title in the payee without acceptance, yet when a particular fund out of which the amount is payable, or the source from which the money is to be derived, is specified, the order operates, with or without acceptance by the drawee, as an equitable assignment of the fund, or so much thereof as is necessary to satisfy the draft; •and so operating, it transfers the fund, so that the drawee, having notice of the draft, is bound to keep the fund, as upon a special deposit in his hands for the benefit of the payee.

      One who had taken a contract to build a school-house, sub-let the mason work to one Boland, and thereafter drew the following draft upon the person who was to pay for the school-house : “ Please pay to James Boland two hundred and forty-nine dollars ($249), being the balance due on contract for building said school-house, the above amount to be paid on the acceptance of the said school-house.”

      Held, that the draft operated as an equitable assignment of so much of the fund as was necessary to pay the same.
    Appeal from a judgment in favor of the defendants, entered upon the trial of this action by the court without a jury.

      George A. Strong, for the appellant.

      Marshall, Clinton & Wilson, for the respondent.
   Talcott, P. J.:

This is an appeal from a judgment in favor of the defendant, entered at the Erie Special Term. The action was in the nature of a creditor’s bill, brought by the plaintiff against Richard Caldwell, trustee of school district No. 6, in the town of "West Seneca, in Erie county, and James Boland and James H. Day, by which the plaintiff sought to obtain the satisfaction of a judgment originally recovered by Hurley and Stygall against the said James H. Day and assigned to the plaintiff, out of moneys in Caldwell’s hands as such trustee, and to have a certain order given by Day on Caldwell, declared fraudulent and void as against the plaintiff.

The facts are as follows: On the 15th of March, 1876, Hurley and Stygall recovered a judgment in the Superior Court of Buffalo against James H. Day for $187.44, a transcript of which was duly .filed and docketed in the office of the clerk of Erie county, and execution was issued on said judgment and returned unsatisfied. Afterwards an order was made by the county judge of Erie county, under section 294 of the Code, directed to Richard Caldwell and the said James H. Day, by which they were forbidden from in any way interfering with the property of said Day or any debt due to him. On the 20th day of March, 1876, James H. Day had entered into a contract with Thomas B. Prior, as trustee of West Seneca school district No. 6, to build a school-house for said district, and on the same day Boland made a sub-contract with Day for the mason work on the said school-house. Prior died before May 22, 1876, and Caldwell succeeded him as the trustee for said school district. The school-house was built under these contracts. On the second day of June, after the service of the injunction order of the county judge on both Caldwell and Day, Boland and Day came to the house of Caldwell to settle up the accounts between them, in respect to the said mason work, and they then settled and agreed that there was due from Day to Boland $249, and Day gave Boland an order for that amount in the words and figures following, to wit: .

“ Mr. Richard Caldwell, trustee West Seneca school district No. 6: Please pay to James Boland two hundred and forty-nine dollars ($249), being the balance due on contract for building said school-house, the above amount to be paid on the acceptance of the said school-house.
“West Seneca, June 2, 1876.” “JAMES H. DAY.”

When Boland received the order, he forthwith presented it to Caldwell, who declined to accept it on account of the injunction order, a copy of which had been served on him, and Boland left the order with Caldwell with directions to keep it and the money until this was settled.

The order made by the county judge recited the fact that Richard Caldwell has property of the judgment-debtor (Day), and ordered him to appear before a referee named, at a place therein specified, to be examined concerning the same on the 20th of May, 1876. It did not appear that any examination was ever had, or that anything further was done under the order, except to serve the same on Day and Caldwell, which was done on the 22d and 23d clays of May, 1876. Boland knew of the injunction order when he received the order of the 2d of June.

The court, at Special Term, found that the proceedings supplementary to execution against Day, were not further prosecuted after the granting of the order of the county judge, and the same were then dropped. And it was also found, as conclusions of law, that the order by Day on Caldwell, constituting an equitable assignment of so much of said fund, then in the hands of , Caldwell as trustee and due to Day, for the building of said. school-house, up to the said sum of $249, and that the lien, if any, which the said Hurley and Stygall acquired on said fund in the hands of defendant Caldwell, by the service of the order in supplementary proceedings, was lost when-the said order became functus officio, and did not attach to the present action and cannot be enforced in it.

Both these conclusions of law are controverted by the plaintiff. We think, however, the Special Term committed no error as to either one of them. That the lien, if any, acquired by the order of the county judge in supplementary proceedings on the judgment cannot be extended to this suit, so as to create or continue a lien in behalf of the plaintiff for the purposes of this suit, seems to have been directly decided in Edmonston v. McLoud (16 N. Y., 543), where a similar question -was presented. Harris, J., delivering the opinion of the Court of Appeals in that case, says: “The equitable lien obtained by a judgment-creditor upon the property of his debtor, by the commencement of an action in the nature of a creditor’s bill, does not relate back to proceedings supplementary to execution upon- the same judgment which did not proceed, to the appointment of a receiver. * * * Such order (for the appointment of a receiver) would have the effect to divest the defendant of “his interest in the property and to vest it in the receiver for the benefit of the plaintiff * * * I know of no principle upon which the lien acquired by the plaintiff upon the debtor’s property by the commencement of this action (which is in the nature of a creditor’s bill), can be made to relate back to the proceedings before the county judge. The two proceedings have no proper relation to each other.”

If any of the defendants committed a contempt in violating the injunction order of the county judge, he or they must be pursued by appropriate proceedings. We think, also, that the order made by Day on Cadwell constituted an equitable assignment of so much of the amount in the hands of the latter. It seems to us perfectly clear 'that the intent of the drawer was to specify the particular fund out of which the amount was directed to be paid. A reference to the existing and surrounding facts and circumstances may aid in explaining the intent of a written instrument or contract, and by reference to them, there can be no doubt what contract or what school-house was referred to and intended by the order.

In Hall v. The City of Buffalo (1 Keyes, 193), the language of the order was, that the sums be paid “ in orders on my contract in filling Elk Street market grounds, when the same are drawn.” In Lell v. Meries (4 Lewinz, 607), cited in the case of Hall v. The City of Buffalo, where a builder, who ivas erecting a house under a contract, gave an order to one who had furnished him with lumber for certain sums “out of moneys payable to him on the contract,” the order was held to constitute a good, equitable assignment. (See, also, Lowery v. Steward et al., 25 N. Y., 239; Morton v. Naylor, 1 Hill, 583; Bradley v. Root, 5 Paige, 632; Field v. The Mayor, etc., 6 N. Y., 179; Taylor v. Bates, 5 Cow., 376; Story’s Eq. Jur., § 1044.)

The principle derived from these, and other cases which might be referred to, is that, though an ordinary bill of exchange, or check on a bank, does not operate as an equitable assignment of so much money, so as to vest the title in the payee, without acceptance; yet, when a particular fund is specified, out of which the amount is payable, or the source from which the payment is to be derived, the order operates as an equitable assignment of the fund, or so much as is necessary to satisfy the draft, with or without acceptance by the drawee; and so operating it transfers the fund, so that the drawee, having notice of the draft, is bound to keep the fund, as upon a special deposit in his hands, for the benefit of the payee.

The draft was drawn, and notice given to the drawee, on the 2d of J une. This suit was commenced in August, so that, if the order operated as an equitable assignment, as we think it did, Boland had acquired an interest in the fund before the lien of the plaintiff under this suit attached.

The judgment should be affirmed, with costs.

Present — Talcott, P. J., Smith and Hardin, JJ.

Judgment affirmed, with costs.


text:
    JOHN W. VAN ALSTYNE, Respondent, v. THE ÆTNA INSURANCE COMPANY, Appellant.

      Policy of insurance — provision against further insurance — when two policies cover the same interest— Usage— “ trip policy.”
    The owner of a canal boat applied for and procured a policy of insurance for $1,000, to be issued thereon by the defendant, “ loss, if any, payable to John W. Van Alstyne, as his interest appearsthe policy providing that it should become void if any other insurance should be made upon the boat. Van Alstyne held a mortgage against the boat, but this fact was not communicated to the defendant. Subsequently the owner of the boat procured another policy of insurance, to be issued upon the boat by a different company, without the knowledge or consent of Van Alstyne.

      Held, that the first policy was thereby avoided ; that it was not a case of two policies being issued upon two different insurable interests, but that both policies covered the same interest, viz., that of the owner.
    A usage or custom in hostility to the express provisions of a contract, so far as that contract is concerned, is of no effect.
    Appeal from a judgment in favor of the plaintiff, entered upon the report of a referee. The action was upon a policy of insurance of a canal boat, to the amount of $1,000.

      Humphrey & Lockwood, for the appellant.

      Fuller & Vann, for the respondent.
   Talcott, P. J.:

This is an appeal from a judgment for the plaintiff, entered on the report of a referee.

The action is to recover for the loss of a canal boat, which was insured by a policy issued by the defendant’s agent at Buffalo, on which policy was written: “ Loss, if any, payable to John W. Van Alstyne, as his interest appears.” The policy was procured by and issued to C. J. Van Wort, the owner of the canal boat, the “ Mary Eleanor,” and was issued on the 13th day of September, 1872. Van Alstyne, to whom the loss, if any, was payable, was a mortgagee of the boat. The policy contained the following condition, viz.: “It is also agreed that this policy shall become void if any other insurance is or shall be made upon the boat hereby insured, which, together with this insurance, shall exceed the sum of |1,000.”

The policy permitted the boat to be employed “ in the general freighting business, and to navigate the inland lakes, rivers, and canals of the State of New York, and the harbor of the city of New York, usually navigated by vessels of this class engaged in the common carrying trade, including the North river, when it forms a portion of the vessel’s continuous trip; also the East river, as far as the southwesterly end of Blackwell’s island.”

The insurance was for one year; that is, until the 13th day of September, 1873.

On the 14th day of June, 1873, the said C. J. Van Wort procured another policy of insurance from the St. Paul Fire and Marine Insurance Company, from the said 14th day of June, 1873, till noon of the 1st day of January, 1874, also in the sum of $1,000, with the same permission as to the business in which she should be engaged, except that on the policy issued by the defendant there was an indorsement, as follows: “ Privileged to run to Philadelphia, and the waters of New Jersey,” and in the policy issued by the St. Paul company it was expressed in the body of the policy, “also to run to Philadelphia, Fort Johnson, and Elizabeth port,” and indorsed on the latter policy were the words, “ privileged to run as far east as New Haven, and as far south as Baltimore.”

On the 27th day of July, 1873, the said boat was sunk in the Hudson river, near Poughkeepsie, and was a total loss. The insurance in the St. Paul company was not notified nor assented to by the defendant. The procuring of the policy from the St. Paul company was alleged in the answer as a defense under the condition aforesaid.

The premium charged on the policy of the defendant was 'thirty dollars, only ten dollars of which was paid down. In the application made by Van Wort for the policy, it was stated: “Ten dollars to bo paid down and the balance next trip (1872),” and the referee finds in his additional findings, on the settlement of the case, that the balance of the said .premium, twenty dollars, has never been paid, and “that the defendant never waived the payment of said premium, or consented to any change of the terms of the said application as to the payment thereof.” Van Wort testified that he purposely omitted paying any more of the premium than the ten dollars, on the ground that he wanted to run the boat to Bridgeport, New Haven, Baltimore, and all inland waters, and that he told the plaintiff that he should pay no more on the defendant’s policy. It is clear, from the testimony of Van Wort, that he designedly omitted to pay the balance of the premium for the reason that the policy granted by the defendant restricted him more than he desired in regard to the places where the boat should be used, and he did not make any proof of the loss to the defendant, or make any claim upon the policy issued by the defendant. The policy was, therefore, designedly suffered' to lapse by Van Wort.

. The party to whom the loss is made payable by the policy can only claim through the contract itself, and his interest in the policy is subject to all the express stipulations and conditions contained therein. This would be true, even if the policy had been assigned to the plaintiff, and a subsequent breach of the conditions of the policy would avoid it, as if the assignor subsequently obtains other insurance without consent. (Wood on Fire Ins., §§ 342, 353; Grosvenor v. The Atlantic Fire Ins. Co., 17 N. Y., 391; State, etc., Ins. Co. v. Roberts, 31 Penn. St., 438.)

The counsel for the plaintiff seeks to liken this case to those in which it has been held, that the insured cannot be affected by the acts of some other party Avho also has an insurable interest in the same property, and obtains insurance of that interest. As the case of a vendor and vendee under a contract of sale, as in Acer v. The Merchants' Ins. Co. (57 Barb., 68), anti numerous other cases where it has been held, that, in order to constitute a breach of the condition against further insurance, the further insurance must be on the same interest. But we think the cases are not at all analagous. Here, the insurance was obtained, and in both instances the policy Avas procured by Van Wort, and each policy purports to have been made “ on account of C. J. Van Wort.” It is unnecessary that the party who is specified as the person to Avhom the loss, if any, is to be paid should have any insurable interest in the property insured, or that, if he has such interest, the insurance company should be notified of the fact. There is nothing to prevent the assured from ordering the loss, if any, to be paid to the party to whom it is directed to be paid on any other account than that of an interest in the property insured. We think that it cannot be claimed that under this policy, which limits the amount of insurance on the boat to the sum of $1,000, that Van Wort could effect any further insurance without a breach of the condition of the policy which has been referred to.

Evidence was given before the referee, under the objection and exception of the defendant, to the effect that there was an established custom to take out what is called a “ trip policy,” whereby a party desiring to navigate his vessel beyond the points permitted in his yearly, or time policy, takes out a policy for the particular trip he desires to make; and that, according to the custom, it is supposed that the time policy is suspended while the boat is outside of the limits permitted by it, and revives again when she returns within those limits. And the referee has found that this policy, issued by the St. Paul company, was “in the nature of a trip policy,” and issued “ according to the custom pertaining to canal boat insurance, which custom was well known by the contracting parties in the defendant’s policy, and that their said contract was made in reference thereto; and that in no other sense did said policy ever have any valid existence, as an insurance on said boat.”

The referee, it will be noticed, does not specify the custom as it was established before him. According to any intelligent account of the custom, as given by the testimony, the trip policy and the time policy could not be in force at the same time; otherwise, it would render the condition in the contract against further insurance ineffectual; and a usage or custom in hostility to the express provisions of a contract can be of no avail against the contract, and so far forth as that contract is concerned, is void. (Mutual Safety Ins. Co. v. Hone, et al., 2 Comst., 235; Markham v. Jaudon, 41 N. Y., 235.)

But a satisfactory answer to this proof of an alleged custom is, that the St. Paul policy was not a “trip policy,” and was not procured as such by Van Wort. It was a time policy, authorizing the navigation of the boat in the same waters as those specified in the defendant’s policy, and extending the privilege to navigate as fax* south as Baltimore, and as far east as New Haven, and was evidently intended by Yau Wort as a substitute for tbe policy of the defendant, which be bad suffered to lapse by the non-payment of the premium.

We are of opinion that the policy sued on was forfeited by a breach of the condition against further insurance, and that the judgment should, for that reason, be reversed.

Present — Talcott, P. J. Smith and Hardin, JJ.

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


text:
    JOHN H. BROOKS and others, Respondents, v. THE AMERICAN EXPRESS COMPANY, Appellant.

      Packages sent G. O. D. — power of carrier to receive money conditionally — ratification of'dots of— what constitutes.

    The plaintiffs, tailovs residing at Syracuse, delivered to the defendant a suit of clothes, marked C. 0. D., to be delivered to one S. at Oriskany Falls. The clothes were sent in pursuance of an agreement that they should he sent subject to inspection, and by which plaintiffs also warranted that they would lit, and agreed that if they did not, S. could return them. S. took the clothes from defendant, paid the amount due, §47, telling defendant’s ag-ent what they were and the agreement in regard to them, and instructing him to retain the money until he heard from him. The clothes did not fit, and S. took them to plaintiffs, at Syracuse, who promised to alter them and send them back, S. telling plaintiffs that be had deposited the money with the company, and that it was plaintiffs, as soon as the fit was satisfactory, but not otherwise. Plaintiffs sent the clothes again to S. who notified them that they still failed to fit, and afterwards, hearing- nothing from them, returned the clothes to the company and took back his money. Plaintiffs brought this action against the company to recover the money, declining to take back the clothes.

      Held, waiving the question whether or not defendant was authorized to receive the money conditionally and subsequently return it upon a breach of the condition, that in this case the acts of the plaintiffs, in altering the clothes and returning them to S., after he had told them the terms upon whieh he had deposited the money with the company, were a ratification of the act of the company in so receiving the money, and that plaintiffs were not entitled to recover.

      Ajpppeal from a judgment of the County Court of Onondaga county, entered upon a verdict in favor of the plaintiffs, directed by the court, and from an order denying a motion for a new trial ' made upon a case and exceptions.

      h'ving (i. Vann, for the appellant.

      D. Pratt, for the respondents.
   Talcott, P. J.:

This' is an appeal by the defendant from a judgment of the Onondaga County Court, in a cause originating in a justice’s court, and appealed to the County Court for a new trial.

The plaintiffs were merchant tailors, at Syracuse. One Sargeant, residing at Oriskany Falls, made a bargain with plaintiffs for a suit of clothes for himself, to be sent to him by express, with the agreement that the clothes, when sent, were to be subject to inspection by Sargeant, and it was part of the bargain that the plaintiffs guaranteed that the clothes should be a fit. On the 4th of January, 1875, the plaintiffs delivered to the defendant, a common carrier between Syracuse and Oriskany Falls, a package containing the clothing, addressed, “ S. A. Sargeant, Oriskany Falls, C. O. D.,” and at the same time took a receipt from the agent of the defendant, in these words: “ 1875. Jan. 4th. Clothing. C. O. D. $47. S. A. Sargeant, Oriskany Falls, Oneida county.” Sargeant received the goods at Oriskany Falls, and at the same time handed to the defendant’s agent forty-seven dollars, telling the agent that the package contained a suit of clothes, sent subject to inspection, and guaranteed to fit, and instructed him to retain the money until he heard from Sargeant. Sargeant tried on the clothes, and they did not fit, and then he personally carried them back to the plaintiffs, at Syracuse. The plaintiffs then requested Sargeant to try on the suit, which he did, when it was ascertained that the several garments fitted, except the pantaloons, which were too small. The plaintiffs ripped open the pantaloons, and undertook to alter them so as to make them fit, and promised, in the event of their not fitting, to send for more of the same description of cloth and make Sargeant another pair. Sargeant then informed the plaintiffs that the money was at the express office, awaiting the plaintiffs’ action; that he (Sargeant) had deposited it, subject to his order, and when the fit was made satisfactory, the money belonged to the plaintiffs; otherwise, not.

It does not appear that the plaintiffs made any objection. They received the clothes from Sargeant, retained them from three to five days, altered the pantaloons, and returned the suit a second time by the same express, but not marked C. O. D. Sargeant tried the suit on again, and still the pants did not fit. lie immediately advised the plaintiffs of that fact by letter, to which he received no reply, and he wrote to them several times, but receiving no reply, and having waited nearly a month without receiving any reply or directions from the plaintiffs, he took the clothes back to the express company’s office, withdrew his deposit of forty-seven dollars, and advised the plaintiffs that the goods were at the express office subject to their order. It was shown that the letters, “ C. O. D.,” were a direction to the express company to collect the sum named on delivery. Some of the facts mentioned in the foregoing narrative were proved, and others offered to be proved, by the defendant; but the evidence was rejected on objection, and the defendant’s counsel excepted to the -ruling. The express company was held liable for the price of the clothes (forty-seven dollars), with interest.

The express company duly notified the plaintiffs that the clothes were at their office, subject to their order; but the plaintiffs did not give any orders in regard to them. They were brought in on the trial, and tendered to the plaintiffs, who declined to receive them. The court held that the forty-seven dollars paid by Sargeant to the express company was received by it as the agent of the plaintiffs; that the company had no right to receive the money conditionally, and had no right to say they received the money conditionally; that the money, when deposited with the company, was the money of the plaintiffs. The plaintiffs made no demand of the money of the express company until after it had been returned to Sargeant, and some time after the clothes had been sent to Sargeant a second time.

Without reference to the question whether Sargeant had not a right to countermand the money deposited with the express company, upon ascertaining that the clothes did not fit as warranted, by reason simply of the breach of the plaintiffs’ warranty, before the express company had paid over to the plaintiffs the money deposited by Sargeant, we think the case shows a ratification by the plaintiffs of the act of the express company in receiving the money conditionally, and afterwards allowing it to be withdrawn by Sargeant on the breach of the condition 'that the clothes were warranted to fit.

In Green v. Clark (5 Denio, 497), the carrier agreed with the consignors to take a cargo of salt from Oswego to Lower San-dusky. It was consigned to the care of William Neil. The carrier delivered the salt to William Neil at Sandusky City, thirty miles from the place of consignment. After this the consignors wrote to William Neil stating that they had learned that the salt had been delivered to him at Sandusky City, and instructing him not to sell any of it, as they intended it for certain named parties. In delivering the opinion of the court in that case, Beardsley, C.J., said: “ The letter was written with full knowledge that the defendants (the carriers) had violated the contract by leaving the salt at Sandusky City, and were consequently liable to the owners for its value. Everything material as between the defendant and the owners was known to them when the letter was written. * '* * Their violation of duty was in omitting to deliver the salt at Lower Sandusky, as they had agreed to do, and if the owners had thought proper to stand upon their rights, the defendants would have been liable for the full value of the salt. But the owners might ratify the act, unauthorized as if was, of leaving the salt at Sandusky City, and thus waive their right of action against the defendants, and I think this letter to Neil was a complete ratification of what had been done by them. Any act of the owners with knowledge indicating an intention to hold on to the salt at Sandusky City as their own, and, therefore, wholly inconsistent with the supposition that the defendants were to be held liable for their breach of duty, amounts to a positive ratification of what had been done without authority.”

Here the plaintiffs had full notice that the express company had delivered the package, without requiring the unconditional payment of the money it was instructed to collect on delivery. They made no objection, but proceeded to act as though the deliveiy of the clothes had been, in all respects, rightful and in pursuance of the rights of Sargeant to inspect the garments before he paid for them. They acquiesced in the claim of Sargeant, and went on, after notice of the terms on which the package had been delivered, and attempted to remedy the defect in the clothes so as to make them comply with the warranty. One of the plaintiffs, Miller, who made the bargain with Sargeant, admitted that he told Sargeant that when he shipped the goods to him he might try them on; that Sargeant said he wanted them shipped, subject to inspection, and he (Miller) had not any objection. The plaintiffs apparently recognized this as the contract under which the goods were shipped, and did not intimate that Sargeant was not light in inspecting the clothes, to see if they fitted, before paying the money for them unconditionally.

True, this communication was between Sargeant and the plaintiff, and not with the carrier. As in the case of Green v. Clark (supixi), the communication, which was held to be a positive ratification of the mis-delivery by the carrier, was not to the carriers but to Neil, who was the consignee of the owners of the salt. A subsequent ratification by the principal of an authorized act, or omission of his agent, is equivalent to a prior authorization.

A small matter is sufficient to establish a ratification, and the acts of a principal are to be construed liberally in favor of his agent. If what was done without authority has been adopted in any manner, even for a moment, the principal cannot recede; but is conclusively bound. (Story on Agency, § 239-243; 4 Dunlap’s Paley on Agency, 171-2.)

We think the acts of the plaintiffs, in receiving the clothes from Sargeant, without any objection to the manner of delivery, but with full knowledge on the subject, and assuming to make such alterations as were necessary to make them comply with the warranty, was a waiver of any claim to hold the express company liable for having delivered the package without exacting payment of the $47 unconditionally, and an admission that Sargeant had a right to have an inspection of the clothes before absolute payment; and that it was a ratification of the act of the agent of the express company in delivering the package without the unconditional payment. "VVe think, therefore, that the judgment should be reversed on this ground.

Smith, J., concurred; Hardin, J., not sitting.

Judgment and order reversed, and new trial ordered in the County Court, costs to abide the event.