text:
    Augustus Levey, Resp’t, v. The New York Central & Hudson River Railroad Co., App’lt.

      (New York Superior Court, General Term,

      Filed July 3, 1893.)

      Í. Corporations—Supplies—Authority op purchasing agent to contract por.
    The by-laws of a railroad company named the purchasing agent among the officers authorized to conduct its business; the by-laws required that the. comptroller of the company should be furnished with copies of alí written contracts for construction, supplies, etc., made by any officer or agent of the company with individuals; the by-laws defined the authority of the purchasing agent, which was to buy all materials and supplies-in general use in every department, excepting such articles the purchase-of which may be especially intrusted to others. Held, that the purchasing agent had authority to make contracts with individuals to supply the-company with stationery.
    2. Same—Contracts.
    The bids of an individual to furnish such railroad with all its stationery ■and the notification in writing of an acceptance thereof by the purchasing agent constitute contracts which require the individual to deliver-goods whenever called upon by the railroad’company within the period covered by the contracts, and impose upon the company the duty of ordering from the individual all of the goods covered by the contracts-which it requires and to pay therefor.
    Appeal from a judgment, entered on the verdict of a jury.

      Wingate & Cullen (George W. Wingate, of counsel), for respt; Frank Loomis (John F. Burrill, of counsel), for app’lt.
   Gildersleeve, J.

The assignor of the plaintiff was a. ■stationer, printer and blank-book manufacturer in the city of New York, and had been doing business as such with the defendant for more than thirteen years. The action was brought to recover damages for the breach of two contracts, viz; one to supply the defendant with all blank books if would require in its business, called in the testimony the “half bound book contract,”0 from June 1, 1883, to May 1,1884, and one to supply the defendant with all the “ printed blanks ” it would require in its business for the year 1884. The bureau of- defendant which, had charge of purchasing these supplies was the “ purchasing agent’s ” office,.and in 1888 the purchasing agent was Eichard C. Moore. His chief clerk was Frank P. Anderson. Defendant’s by-laws provide that its-business shall be conducted by certain officers, one of whom is a purchasing agent;” that such purchasing agent “ shall, under the-direction of the executive committee, or some one authorized by them, buy all materials and supplies in every department, except, such articles or materials the purchase of which may be especially entrusted to other parties; that he shall order for and furnish supplies to the various departments." Goods -of the character called for by the two contracts had been purchased for many years upon annual contracts, manufacturers being asked, in May of each year, to submit proposals for printed blanks for the year.. The printed blanks included about three thousand different forms. The alleged contracts required extensive preparations, such as procurement of paper of special manufacture, and the construction of thousands of sterotyped. plates, so that the plaintiff’s assignor accumulated large amounts of goods that were of little value, except to the defendant. When bids were received, they were examined by the purchasing agent and his clerk, and thereupon the purchasing agent, or, in his absence, his clerk, Mr. Anderson, notified the successful bidder that he was to nave the contract during the year, This was done sometimes' verbally and sometimes in writing.

The purchasing agent then notified the store-keeper “ who had the contract,” and the store-keéper sent the contractor samples of the goods that he would be required to manufacture. Thereafter, when requisitions were received by the purchasing agent, he, or Anderson, his clerk, would order the goods from the contractor, who would deliver them to the store-keeper, with a bill. The •contractor sent in monthly vouchers containing the items of all bills for the month, which were checked by the store-keeper, audited by the purchasing agent, and paid by the company. Clarence Levey, the plaintiff’s assignor, had been furnishing goods in this way for defendant for many years. In June, 1882, he had been the lowest bidder on the contract for half bound books by the year, and had received a written memorandum, admitted to have been signed by Moore, personally, stating that the contract was awarded to him. Under this contract, all these half bound books had been purchased from Levey during that period.

Following the method of business as above set forth, in May, 1883, Moore called for bids to furnish the defendant with its supply of half bound books for the year following the expiration of the contract which Levey then had. Levey, thereupon, put in the following bid: “ New York, May 15th, 1883, R. C. Moore, Esq., purchasing agent, N. Y. C. & H. R. R. R. Co., Dear Sir: In accordance with request, I herewith submit proposal for blank books for one year from June 1st next. Books, white paper, at 19|- ■ cents a pound: Books, manilla paper, 16£ cents a pound. Eespectfully yours, Clarence Levey.” In a few days after, Mr. Moore . directed his chief clerk, Anderson, to make Levey out a contract for the year from June 1st, 1883, to June 1st, 1884; which was done, being endorsed by Anderson on the back of the previous contract for these goods for 1882-3, signed by Moore, himself, which endorsement was in these words: “Gf. C. Depot, June 1st, ’83. Contract renewed at 16£ cents for all half bound manilla blank books, and 19£ cents for white, to June 1st, ’84. E. C. Moore, P. Agt., A.”

The second contract was as follows: “ In December’, 1883, Moore called for bids for “ printed blanks.” Thereupon, Clarence Levy sent in the following bid, which Moore told him, within a day after, he had received: “ 114 Fulton street, December 18th, 1883. Dear Sir: For the year 1884, I propose to furnish white blanks for 15§, and best manilla blanks, required quality, for 13J cents per pound. Eespectfully yours, Clarence Levey. R. C. Moore, Esq., N. Y. C. & H. R. R. R. Co.” On the 15th of January, 1884, Clarence Levey received the following in reply: “ Clarence Levey, Esq. You being the lowest bidder upon the printing contract for ensuing year, the same has been awarded to you to December 31st, 1884. R. C. Moore, A.” This was in Anderson’s writing.

In April, 1884, after the contract for half bound books had run for ten and a half months, and the contract for printed blanks had run for three and a half months, Moore notified Levey that he would not buy any more printing, stationery or blank books from "him; that the contract was broken. After April, defendant refused to give Levey further orders, and purchased its supplies of the kind of articles in question from others. This course left on Levey’s hands a large quantity of paper of special manufacture, stereotyped plates and goods which he had provided to perform these contracts, which were rendered practically useless.

The jury having been instructed as to what facts it was necessary for them to determine favorably to plaintiff, in order to entitle him to recover, rendered a verdict in his favor for $4,820. There is sufficient evidence to support the conclusions reached by the jury on the questions of fact; and if the instructions of the learned trial judge on the questions of law, intended to guide the jury in coming to its conclusions, are free from error, the judgment should stand.

Did Levey agree to furnish, and did the defendant agree to take, all the blank books and all the printing which the defendant would require in its business during the period covered by the writings that are claimed by plaintiff to constitute the contract ?' The acts done, if any, which, in connection with the acts of Levey, placed upon the defendant the obligation to take Levey’s, goods, were done by Moore. If the acts of Moore and Levey constituted valid contracts, were the contracts binding upon the defendant ? They were, because the acts of Moore were the acts of defendant, and the contracts, therefore, were defendant’s contracts, if Moore was acting within the scope of his duty and authority as an officer of the defendant corporation. The burden of proving that Moore had authority to make the contracts was upon the plaintiff, and the learned trial judge had to pass upon that question of authority as a matter of law. He decided sharply and squarely that Moore was an officer of the defendant corporation, and had authority to make the contracts.

The jury were told that the contracts were valid against the defendant, if made by Moore. All the jury had todo, on this branch of the case, was to determine whether Moore did or did not make-the contracts. The learned counsel for defendant strenuously urges-that this ruling was error. The authority of the purchasing agent to make contracts for the supplies required by the defendant does-not seem to have been seriously contested at the trial. During the-progress of the trial, defendant’s counsel stated: “ the fact that the-purchasing agent’s department made purchases is, of course, beyond controversy. That is what it was there for.” The question, however, is fairly in the case, and calls for discussion.

The by-laws of defendant name the purchasing agent among the officers authorized to conduct the business of the company. This vested in him general authority to conduct the defendant’s, business that fell within his department and within the line of his duties.

The by-laws require (subdiv. 16) tjiat the comptroller “shall be furnished with copies of all written contracts for (1) construction, (2) equipments, (8) repairs, and (4) supplies, made by any officer or agent of the company with individuals, etc., etc.” By this it is-seen that the by-laws clearly contemplate the making of written, contracts by its officers. The only duty imposed upon the comp-trailer by the by-laws, in respect of written contracts made by officers on behalf of the company, is that of keeping a record of such contracts. It does not appear that the officers are required to furnish the comptroller with copies of the written contracts for any other purpose. The authority of the purchasing agent is defined in subdivision 17, as follows: “ The purchasing agent shall, under the direction of the executive committee, or some one authorized by them, buy all materials and supplies-in general use in every department of the service, excepting such ártieles and materials the purchase of which may be especially entrusted to other parties. He shall order for and furnish supplies to the various dapartments on written requisitions of the heads thereof or of such other officer of the company as may be designated by the president or first vice-president. Such requisitions to be examined and approved by the auditing committee, to whom he shall certify all bills for purchases made by him.”

We are of opinion that the by-laws, as a matter of law, confer upon the defendant’s purchasing agent actual authority to make the contracts in question. Having reached this conclusion, it is unnecessary to discuss the force and effect of the evidence outside of the by-laws, as to which there is much, bearing upon the question of Moore’s apparent authority to execute the contracts in question. The contention of respondent’s counsel that Moore’s apparent authority was sufficient to authorize a third person, like Levey, who had for years dealt with him on the faith of his having such powers as naturally belong to the position of purchasing agent, to make the contracts, has strong support in both reason and law. Under the circumstances disclosed in this case the defendant corporation should not be allowed, to the detriment of a third person, to assert that its purchasing agent had not the authority in fact which he apparently had, and which he had for many years exercised unchallenged.

The bids óf the plaintiff’s assignor, and the notifications in writing of the acceptance thereof made by Moore as the general purchasing agent of defendant, constitute contracts which required the assignor of plaintiff to deliver goods whenever called upon by defendant within the period covered by the contracts, and imposed upon defendant the duty of ordering from the assignor during the same period all of the goods covered by the contracts which it required, and to pay therefor when delivered. Wells v, Alexandre, 130 N. Y., 642; 41 St. Rep., 334; Nixon v. Zuricalday, N. Y. Law Journal, March 9, 1893; 53 St. Rep., 66; Jugla v. Trouttet, 120 N. Y., 21, 28; 30 St. Rep., 182 ; Booth v. C. R. M. Co., 74 N. Y., 15; Mansfield v. N. Y. C. & H. R. R. R. Co., 102 id., 205; 1 St. Rep., 390; New Eng. Iron Co. v. G. E. R. R. Co., 91 N.Y., 165. This was substantially the ruling of the learned trial judge, and we believe it to be free from error. The breach by defendant was not disputed on the trial, and there is sufficient evidence to sustain the damages awarded to the plaintiff by the jury.

The question whether the relations to Moore of his chief clerk, Anderson, were such as to make his acts in legal effect Moore’s, was left to the jury under proper instructions, and on this question their verdict is conclusive, since it is sustained by sufficient evidence.

We find no error in the admission or exclusion of evidence, and consider the rules of law laid down by the learned court below, that controlled upon the trial, correct.

The judgment appealed from must be affirmed, with costs.

Freedman, J., concurs.


source: Caselaw Access Project

author: Freedman, J.

license: Public Domain

text:
    James G. Wilson, App’lt, v. Richard Cummings, Resp’t.

      (New York Superior Court, General Term,

      Filed July 3, 1893.)

    1. Conversion—Chattel mortgage.
    Plaintiff held a chattel mortgage upon certain mantel mirrors in a house which, a few days after the mortgage became due, was sold to defendant on foreclosure oí a mortgage on the realty. At the time of such sale the mirrors were in apartments occupied by tenants who attorned to defendant. Held, that the sale conveyed no right to the mirrors to defendant; but as long as the tenants remained in possession during their unexpired terms, he did not acquire possession of the mirrors and could not be guilty of a conversion of them.
    3. Same—Re-letting.
    There was some evidence that some of the tenants had moved out and that defendant had relet the apartments to other tenants together with the mirrors. Further proof on this question was excluded. Held,, that the complaint was improperly dismissed, as if the re-letting was proved a conversion to that extent would have been established irrespective of any demand.
    Appeal from judgment dismissing plaintiffs complaint upon the merits, and from order denying plaintiff’s motion for a new trial.
    The action is for conversion of chattels.
    The plaintiff held a chattel mortgage on certain mantel mirrors situate in the houses known as Nos. 221, 223, 225 and 227 West One Hundred and Fifteenth street, New York city, which was to become absolute unless the sum secured thereby should be paid by November 10, 1891, and at least seven days before the sale of said premises where said chattels were situated. This mortgage was executed by Hiram Moore and Arthur E. Moore, who owned the houses and had bought the mirrors. The premises were sold under foreclosure on October 13, 1891, and plaintiff’s title to the chattels became absolute pursuant to the terms of the chattel mortgage, the money secured not having been paid. Nine of these mirrors, worth $109.50, were then in house No. 221. This house was purchased by the defendant, and he took possession of the same some time in October, 1891. The house was then occupied by tenants who attorned to the defendant and held possession of their apartments, and of the mirrors, under him as landlord and owner. The defendant had in his employ a janitress, who had general charge of the building. At the foreclosure sale the plaintiff gave notice of his title to the mirrors, and the defendant received a copy in writing. Afterwards, and when defendant was in possession of the premises, plaintiff made repeated demands upon him for the said chattels. Defendant in his dealing with plaintiff admitted that the chattels were in his possession, but put plaintiff off from time to time with promises of a final answer to his demand. At length defendant’s attorney, to whom plaintiff was referred by defendant, informed plaintiff that if he supposed he had any right to the chattels he must enforce it by suit.
    The janitress had already refused to surrender the mirrors without defendant’s consent.
    The mirrors were simple chattels, and in no wise affixed to the realty.
    On this state of facts the trial court dismissed the complaint on the ground that the defendant was not in actual possession of the chattels at the time of demand-made. And for the same reason the court refused to allow plaintiff to prove that defendant rented the mirrors to his tenants along with their apartments.

      Francis Forbes, for app’lt; Richard N. Arnow, for resp’t.
   Freedman, J.

The complaint having been dismissed at the trial upon plaintiff’s proof and by reason of the failure of the plaintiff to establish that the, defendant was in the actual possession of the chattels for the conversion of which this action has been brought, the dismissal, if otherwise proper, should not have been upon the merits.

A review of the whole case has satisfied me, however, that the complaint should not have been dismissed at all.

Under the chattel mortgage plaintiff’s title and right to immediate possession of the mirrors were complete. The mirrors were simple chattels and thé foreclosure sale of the real property to the defendant conveyed to him no right to or interest in the said mirrors. McKeage v. Hanover Fire Ins. Co., 81 N. Y., 38. Moreover, the plaintiff gave public notice of his claim at the foreclosure sale.

Now it may be conceded that the defendant did not become liable for a conversion of the mirrors simply because he purchased the premises and subsequently refused to deliver "up the mirrors on plaintiff’s demand. Plaintiff was bound to prove, as part of his case, that prior to the demand made, the mirrors, or so many of them as he sought to recover for, had come into the possession of the defendant, or that the defendant had wrongfully taken them prior to the commencement of the action. At the time the defendant acquired title to the premises the mirrors were in different apartments in the building occupied by tenants to whom the apartments had been let by defendant's predecessor in title together with the mirrors, and these tenants attorned to the defendant as their landlord. As long as these tenants remained in possession during their respective unexpired terms, the defendant could not, and in fact did not, acquire possession of the mirrors. If, therefore, the proof ended here, there would be no liability on the part of the defendant.

But there was evidence to the effect that some of these tenants shortly thereafter removed from their apartments and that thereupon the defendant, through an agent, relet the said apartments to other tenants together with the mirrors in them.

Farther evidence which plaintiff desired to give upon this point was excluded by the trial judge against plaintiff’s exception. It must therefore be-assumed that, if he had been permitted, the plaintiff would have fully established the point. The proof would then have been sufficient to show that the defendant took possession of the mirrors of these particular apartments and assumed and exercised control and dominion over them to the exclusion of plaintiff’s rights, although he had notice of them, and to this extent a conversion would have been established within the authorities irrespective of the demand which was made upon the defendant.

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

, Gildersleeve, J., concurs.


author: McAdam, J.

text:
    Patrick Donovan, Resp’t, v. Thomas Sheridan et al., App’lts.

      (New York Superior Court, General Term,

      Filed July 3, 1893.)

      1. Charter party—Warranty as to seaworthiness op vessel.
    In an action upon a charter party there was proof that the vessel drew seven feet while the channel in which it was to ply was only five or six, but plaintiff testified that he told defendants how much water the boat required, and that they said there was over ten feet in the channel. Held, that the court properly instructed the jury that the doctrine as to implied warranty of fitness did not apply if they found the facts to be as stated by plaintiff.
    2. Same—Positive refusal to perform gives immediate right of
    ACTION.
    An action for breach will lie at once upon a positive refusal to perform, although the time for performance has not yet arrived, and the damages recoverable may continue down to the time of trial, if the contract extends beyond that.
    3. Same—Parties.
    It is no defense to such action that the vessel belonged to another person and should have been brought "in her name, where such owner testifies that plaintiff had authority to make any contract he pleased and she was to have . none of the earnings.
    Appeal from judgment entered on verdict of jury in favor of plaintiff, and from order denying motion for a new trial.
    Arnold, Greene & Patterson, for app’lts; Leavitt & Keith, for resp’t.
   McAdam, J.

The action was brought upon an agreement whereby the plaintiff chartered to the defendants the passenger steam tug “ Annie & Maggie,” for 150 days, at twenty dollars a day. The tug was delivered to and accepted by the defendants. The answer was a general denial, nothing more, and the jury having found that the contract was made unconditionally as alleged, their determination ought seemingly to end the controversy.

But the defendants insist upon several matters of defense not specially pleaded.

First. That when the owner of a vessel charters her or offers her for freight, lie is bound to see that she is seaworthy and suitable for the service in which she is to be employed. Work v. Leathers, 97 U. S., 379; The Director, 34 Fed.. Rep., 57 ; McAdams v. Leverich, 35 id., 305; Abbott on Shipping, ed. of 1892, p. 389.

There was no evidence given or offered that the boat was unseaworthy or unfit for the purpose intended. There was proof that the vessel drew seven feet of water and that the channel to Ellis Island, where the boat was intended to ply, furnished only five or six feet, but the plaintiff testified that the defendants told him that there was over ten feet of water in the channel, and that was “ according to their contract with him.” The plaintiff also testified that he told the defendants how much water the boat required, so that the trial judge was right when he told the jury that the doctrine as to implied warranty of fitness was true as an abstract proposition of law, but did not apply to the case, if they found the facts to be as stated by the plaintiff, and the jury did find the facts to be as testified to by him.

Second. That the action was commenced before the 150 days mentioned in the charter expired, and was therefore not maintainable. No such point was made at the trial, and is not enforcible now. But apart from this the law. is settled that an action for breach of contract will lie at once, upon a postitive refusal to perform, although the time specified for performance has not arrived, Burtis v. Thompson, 42 N. Y., 246; Freer v. Denton, 61 id., at p. 496; Howard v. Daly, id., 362 ; Gray v. Green, 9 Hun, 834; Wetmore v. Jaffray, id., 140, and the damages recoverable may continue down to the time of trial, if the contract extends beyond that Bruell v. Colell, 1 City Ct., 308; Cummings v. Hausen, 63 How. Pr., 351. The recovery of damages resulting from one and the same cause of action must be assessed and recovered once for all, and should be for the difference between the sum the plaintiff should have received under the contract and that which he has or it is shown might have received elsewhere. The contract expired long before the cause was tried, and at a time when the damages had become fixed and unalterable, and the trial judge carefully limited them to indemnity for the actual loss. No objection was made to the form of the action or of the complaint and none can be raised for the first time now.

Third. That the boat belonged to the plaintiff’s daughter and the action should have been brought in her name. This objection is answered by the fact that the contract was made by the plaintiff, who had authority from the daughter to make any contract he pleased concerning the boat, and she to have none of the earn.ings. The daughter testified to these facts and thereby estopped herself from making any claim upon the defendants, so that the plaintiff was more than the trustee of an express trust. Code, § 449. Indeed he became the only person interested in the recovery and qualified to maintain the action. We have carefully examined the record in all its parts and fail to discover any force in any of the exceptions urged against the recovery. The verdict is satisfactorily sustained by the evidence, and the judgment and order appealed from must be affirmed, with costs,

' . GrILDERSLEEVE, J., concurs.


author: Per Curiam

text:
    Ferdinand A. Strauss, Resp’t, v. John Henry Vogt, Def’t.

      (New York Superior Court, General Term,

      Filed July 3, 1893.)

    Attachment—Motion to vacate—Assignee of debtor.
    A motion to vacate an attachment may be made by the debtor or his assignee, but the right to do so does not necessarily extend to both. Where the debtor has made the motion and it has been denied, such decision, until reversed, precludes the assignee from obtaining a rehearing of the matters adjudicated.
    Appeal by Edward E. Thomas, the assignee for the benefit of creditors of the defendant Yogt, from an order dismissing an order to show cause* obtained by said assignee, and substantially denying to said assignee the right to move to vacate an attachment against the property of the defendant levied prior to the assignment.
    The following is the opinion of the.special term:
    McAdam, J. Under § 682 pf the Code, a defendant or his assignee may lawfully move to vacate an attachment against property. It is a right belonging to either, but does not necessarily extend to both. The defendant moved,- 1st, on the original papers; 2d, on counter affidavits. Both motions were denied, and an appeal is now pending from the decision last made, in which the assignee may be heard at general term. These decisions until reversed preclude the assignee from obtaining a rehearing of the matters adjudicated; he merely succeeds to the rights of the assignor subject to the litigation then pending. The adjudications made bind the assignee on account of the privity between the parties, see Wells on Res Adjudicata, § 32; Luddington’s Petition, 5 Abb. N. C., 307; and by analogy, see rule as to privity bailo.r and bailee, Wells, supra, § 67. Suppose the present application should be denied upon the merits, what is to prevent successive assignees from making similar motions, founded on their newly acquired interest in the property ? The line must be drawn somewhere, or motions of this kind may become interminable. The motion by the assignee will, therefore, be denied, and upon the ground that he has, under the circumstances, no right to a rehearing without leave of the court first had and obtained. No costs.

      F. A. Thomson (James J. Allen, of counsel), for app’lt; W. J. Townsend for resp’t.
   Per Curiam

The order should be affirmed, with ten dollors costs and disbursements, on the opinion of the special term.

Freedman and Gildersleeve, JJ., concur.


text:
    James E. Ehrlich, App’lt, v. Samuel Adams et al., Resp’ts.

      (New York Superior Court, General Term,

      Filed July 3, 1893.)

    Master and servant—Contract of employment.
    In an action for breach of a written contract of employment by the discharge of plaintiff, it was shown that defendants wrote to plaintiff making him an offer of employment. Plaintiff testified that he subsequently wrote a letter of acceptance, and gave it to a messenger boy with instructions to deliver it to one of the defendants, and that the boy returned with word that it was all right, which testimony was subsequently stricken out. Held, that the contract alleged was not proved, and that the complaint was properly dismissed.
    Appeal by plaintiff from judgment dismissing the complaint.
    This action is brought to recover the sum of $1,050 damages for breach of a written contract. The evidence shows that in the beginning of January, 1891, plaintiff was buyer for a Baltimore house, which position he had held for three years. About January 20, 1891, defendants wrote plaintiff a letter, in answer to a. telegram from him, wherein they named the departments in their business for which they wanted a buyer (Plaintiff’s Exhibit 1), upon receipt of which plaintiff called on defendants and had some conversation with them in regard to the position. On January 27, 1891, or thereabouts, the defendants wrote plaintiff a letter, offering him the position of buyer for the departments of their business mentioned in the letter of January 20, 1891, at a yearly salary of $1,800. Plaintiff’s Exhibit 2. On receipt of this second letter, plaintiff called on defendants, coming from Baltimore for the purpose, in regard to the latter part of their letter, Exhibit 2, which was not clear to him. It was explained to him, and he returned to Baltimore, closed up his affairs there, and, on Sunday, February 1, 1891, came to this city, arriving at the Coleman House at about 10:30 P. M. On the following day, February 2d, plaintiff wrote defendants a letter of acceptance from the Coleman House, wherein he informed them that he was in the city, wanted that day to get located, and would “ take hold ” the following morning. On the 3d of February, 1891, plaintiff entered into the employ'of the defendants, and continued in their employ until June 29, 1891, when they discharged him.
    Due notice to produce the letter of February 2,1891, was given to the defendants, and, on the non-production of the same after demand, the court allowed testimony to be given by the plaintiff, showing that he wrote that letter and delivered it to a messenger boy, with instructions to hand it to Mr. Flanigan, and that the boy came back and told plaintiff that it was all right. At a later stage of the trial the court decided to strike out this testimony, and, upon motion by defendants’ counsel, so ordered, to which ruling the plaintiff duly excepted.
    At the conclusion of plaintiff’s testimony the court dismissed the complaint, but not on the merits, to which exception was likewise taken on behalf of the plaintiff.

      Isaac L. Sink, for app’lt; John J. Adams, for resp’ts.
   Per Curiam

The action was to recover a certain sum as damages for the alleged breach of a contract of employment To recover the plaintiff was bound to establish the contract sued upon. The letter of January 27, 1891, written by the defendants to the plaintiff, was a mere offer which had to be accepted before it became binding. In fact this was stated therein in express terms. Nothing passed between the parties which can be construed as an oral acceptance, and no competent proof was given of the delivery to the defendants of the letter which, according to plaintiff’s contention, contained the only notice of acceptance which was given. The subsequent conduct of the parties is consistent with some other arrangement which may have been made. The plaintiff, therefore, failed to prove the cause of action alleged in the complaint.

The record discloses no error, and the judgment should be affirmed, with costs.

Freedman and Gtldersleeve, JJ., concur.


author: Barrett, J.

text:
    The People ex rel. The New York Hotel & Restaurant Co., App’lt, v. Edward P. Barker et al., Com’rs. of Taxes, Resp’ts.

      (Supreme Court, General Term, First Department,

      Filed May 12, 1893.)

    Taxes—Application fob bemission—Coepobations.
    An application for remission of taxes cannot be made under § 832 of the consolidation act, as amended by chap. 376, Laws 1883, by a domestic corporation. Such corporation is not within the provision of that section, as it cannot, like an individual, be prevented by absence or illness from making its complaint within the time allowed by law.
    Appeal from order of special term, denying motion of relator for a peremptory writ of mandamus.

      Charles M Coddington and Alfred B. Cruikshank, for app’lt; James M. Ward, for resp’ts.
   Barrett, J.

The personal property of the relator company was assessed for the purpose of taxation for the year 1892. It failed to apply for the correction of the tax within the time allowed by law. It subsequently applied to the respondents for remission, under § 822 of the consolidation act, as amended by chapter 276 of the Laws of 1883, § 5. The power there given to the tax commissioners is limited by the provision that “ no tax on personal property shall be remitted, canceled or reduced unless the applicant or party aggrieved shall satisfy the commissioners that he has been prevented by absence from the city or by illness from making his complaint or application to them within the time allowed by law for the correction of taxes.” The commissioners refused to coftsider the application, upon the ground that a domestic corporation is not within this provision.

We think the commissioners were right. A domestic corporation cannot, like an- individual, be prevented by absence or illness from making its complaint within the time allowed by law. As a creature of the law, it is present where it is incorporated and exercises its corporate functions, and it certainly cannot be ill. Its officers or agents may be ill or absent, but they are not the corporation. Nor is the illness or absence of an agent contemplated by the act A corporation is not within the mishap for which relief is afforded to an individual. Being present in a legal sense, in the locality of its incorporation, there was no reason for extending the provisions of the act to such a legal entity.

If the relator is right, how could the commissioners deal with the preliminary question? What is the corporation for the purposes of the act? Hot, surely, the stockholders, who can perform no executive functions for the company. And, if the directors and officers are to be deemed the corporation, must the relator show the absence or illness of every such agent ? It is plain that, had the legislature intended to include domestic corporations, it would have specified the particular officer or agent whose absence or illness would have sufficed to give the commissioners jurisdiction.

The order should, therefore, be affirmed, with costs.

Van Brunt, P.- J., and Follett, J., concur.


author: Follett, J.

text:
    The People, Resp’ts, v. John F. Evans, App’lt.

      (Supreme Court, General Term, First Department,

      Filed May 12, 1893.)

    1. Larceny—Money obtained by trick—•'Variance.
    Defendant was indicted for grand larceny; the indictment did not set forth the means whereby he acquired the stolen property. On the trial it appeared that defendant advertised for “ a young man as manager, who can loan or invest $600;-salary §18; money secured;” the complainant answered it, agreed to deliver the money as security for his good conduct, as he testified, although defendant and others testified that it was delivered as a loan; and defendant delivered to complainant a chattel mortgage, without interest, for $600 on certain fixtures, to which he had no title, although representing that he had, and received the money. Complainant went to work, but shortly left and demanded his money back and was refused. Held, that the evidence sustained a conviction under sub. 1, of § 528, Penal Code, there being no variance between the offense charged and the crime proved.

      2. Same—Evidence—Intent.
    Evidence that defendant never had title to the mortgaged property bore upon his intent in obtaining the money, and was competent.
    3. Same.
    So, also, evidence that defendant had, through similar advertisements, obtained money from others, which he had not repaid. '
    Appeal from a judgment of - the court of general sessions, convicting the defendant of the crime of grand larceny in the first degree. 0

      P. J. McManus, for app’lt; Henry B. B. Stapler, for resp’ts.
   Follett, J.

The following facts were established by unconevidence; indeed, the defendant, who was a" witness in his own behalf, testified to the most of them.

In 1892 the defendant was engaged in the laundry business at Ho. 2160 Seventh avenue, and in the stove business at Ho. 35 Peck slip, but whether this latter business was carried on on his own account does not appear. In the latter part of March, 1892, either on the 28th or 31st, the defendant caused to be published in the World newspaper an advertisement, of which the following is a copy:

“ Manager—A young man as manager, who can loan or invest $600 or $800; salary $18; money secured; experience unnecessary.”

The complainant, Carl Sophers, who came to this country from Denmark in April, 1891, saw the advertisement and wrote the defendant, who replied. The result of the correspondence was that the complainant and his wife called on the defendant, at No. 35 Peck slip, on the 1st day of April, 1892. Later in the day, the three in company went to the laundry at No. 2160 Seventh avenue. On that day an oral contract was entered unto between the complainant and the defendant, by which the former was engaged to superintend the laundry for $18 per week, and at the-same time the complainant agreed to deliver to the defendant $600, as security, he testified, for his good conduct and integrity in the management of the business. The defendant testified that, the contract was that the sum should be loaned to him. This was the issue of fact on which the case turned, and about which more will be said later on.

The parties agreed to meet on Monday, April 4th, at the office of William King Hall, who was defendant’s legal adviser. His office was on the corner of Warren and Church streets, in this city. The complainant, his wife, and the defendant met at the time and place mentioned. Hall drafted, and the defendant executed and delivered to the complainant, a mortgage on all his right, title and interest in the machinery, furniture and fixtures, and all other goods and chattels in the premises occupied by him as a laundry at No. 2160 Seventh avenue, to secure the payment, of $600 on or about July 4, 1892. It will be observed that the-mortgage does not provide for the payment of interest. It was then agreed that the complainant should begin work on the following Monday, April 11th, at which time he went to the laundry to begin service; but the defendant saying that certain repairs-were being made which were uncompleted, the time of the commencement of the complainant’s employment was postponed until Wednesday, the 13th, on which day, at the defendant’s request, the time of beginning work was again postponed until Monday, April 18th, when the»complainant began work. At the end of the first week the complainant was paid $18, his stipulated wages; at the end of the second, he was paid $15 ; at the end of the third, $12,«and at the end of the fourth, $10. Immediately after this the complainant stopped working for the defendant, and demanded the return of his money, which has never been returned.

June 22,1892, the defendant was arrested on the charge of having stolen the $600. On his person four advertisements were found, all of which had been published in the World, and of which the following are copies:

“For Sale—$300 cash; profitable business; experience unnecessary ; plenty of machinery; experienced hands; call to-day. Purdy, 2160 Seventh avenue.”
“ Wanted—Active young man as delivery driver; must have $300 cash; salary to commence $10; quick advancement for smart man.” Marvin, World.”
“ Wanted.—Young man as office assistant and delivery driver; must furnish $250 cash; salary to commence $10; advancement. Andrews, World office.”
“ For Sale—$300 cash necessary to establish a profitable business; great chance for lady or gentleman; call to-day. Purdy, 2160 Seventh avenue.”

The defendant was indicted on June 28th and convicted July 19th, 1892, of grand larceny. He testified, on his cross-examination, that on April 4, 1892, he had in his employ a Miss Mann and a Miss Kessler, both of whom he secured through advertisements, and that he borrowed of one $150 and of the other $200, and never had paid them. It was also shown that the defendant had no legal title to the property mortgaged, having purchased it on executory contracts, the title to remain in the vendors until the purchase price was paid. The defendant did not testify that he disclosed to the complainant the fact that he had no title to the property. The complainant testified that defendant represented the property as free from all incumbrance, except a mortgage for $350, which was to be paid the next day, and perhaps was paid. The defendant does not deny having made this representation. By the uncontradicted evidence and testimony of the defendant, he obtained possession of the $600 by fraudulent and false representations and pretenses, and was guilty of larceny as described by the second paragraph of § 528 of the Penal Code, and that he was at about the same time engaged in the commission of similar wrongs upon others.

Under such circumstances, the jury was justified in disbelieving him and all others who were so closely connected with the transaction that they probably knew his purposes. The complainant and his wife testified that there was no agreement to loan- the money, but that it was deposited with the defendant as security that the complainant should honestly and faithfully discharge his duties, and that when either party elected to end the contract of employment the $600 should be returned. On the contrary, the defendant, his lawyer and a person present in the office when the mortgage was drawn testified that the $600 was leaned by the complainant to the defendant. The learned recorder submitted this question to the jury in a charge to which no exception was taken. The jury was further instructed that if they found that the transaction was not a loan, but a mere deposit of money as security, to he returned at the termination of the contract of employment, and that if they further found that the defendant obtained possession of the money by a trick or device, with intent to deprive the complainant of it and convert it to his own use, the defendant was guilty of grand larceny.

These, instructions are justified by many cases decided before and since the adoption of the Penal Code.

The jury having found these issues of fact in favor of the People, the crime committed fell within the first paragraph of § 528, of the Penal Code, which provides : “ A person who, with intent to deprive or defraud the true owner of his property, or of the use and benefit thereof, orto appropriate the same to the use of the taker, or any other person, either (1) takes from the possession of the true owner * * * any money * * * is guilty of larceny.” The section also provides that “whoever takes from the possession of the true owner * * * or obtains from such person by color or aid of fraudulent or false representation or pretence * * * any money, personal property * * * is guilty of larceny.” The indictment charges: “The said John F. Evans, late of the city of New York, in the county of New York, aforesaid, on the 4tli day of April, in the year of our Lord, one thousand eight hundred and ninty-two, at the city and county aforesaid, with force and arms, in the daytime of said day,” (here follows a description of the property taken), “ the goods, chattels and property of one Carl Sophers then and there being found, then and there feloniously did steal, take and carry away, against the form of the statute in such case made and provided, and against the peace of the People of the state of New York and their dignity.”

Section 275 of the Code of Criminal Procedure provides that “ the indictment must contain * * * (2) a plain and concise statement of the act constituting the crime, without unnecessary repetition."

Section 284, subdiv. 6, provides that an indictment shall be held sufficient when the “act or omission charged as the crime is plainly and concisely set forth.”

This indictment is not sufficient to authorize the People to show that the defendant acquired possession of the property by color or aid of fraudulent or false representation or pretence. People v. Dumar, 106 N. Y., 502 ; 11 St. Rep., 19. In order to sustain a conviction under that section of the statute the indictment must charge the means by which the property was obtained.

In People v. Morse, 99 N. Y., 662,. the defendant obtained possession of $600 by substantially the same means adopted by the defendant in the case at bar. An indictment was found charging him with grand larceny under the first provision of § 528. An examination of the record on the appeal in that action shows that the indictments in that case and in the present case are identical. Morse gave the complainant a chattel mortgage as security for the payment of the money, with interest. Nevertheless, a conviction under the indictment was sustained, it being held that the acceptance by the complainant of a promise that the money should be repaid was not conclusive evidence that he intended to part with his title to it.

In People v. Gottschalk, 66 Hun, 64; 49 St. Rep., 726, the indictment charged, as in the case at bar, the defendant with having taken from the owner $200, intending to deprive-him of it and to appropriate it to the use of the taker. The means by which it was acquired were not set forth. The ofíense charged in that indictment was committed in the same way as the crime in this case ; and the jury having found that the transaction was not a loan but a deposit, and also having found the guilty intent of the defendant, a conviction was had which was sustained.

The indictment in the case at bar charged tiie defendant with larceny, and the evidence was sufficient to convict him of the crime charged. There is no variance between the offense charged and the crime proved.

It is insisted that the indictment charges the defendant with taking only $300, petit larceny, instead of grand larceny. The indictment charges that the defendant took $300 in United States Treasury notes and also “divers other ” bank notes of the value of $300. This plainly charges the taking of $600.

The evidence of Danmyer that defendant never had the title to the mortgaged property bore upon the intent of the defendant in obtaining the money and was competent. The contract between Wilcke and the defendant of April 8, 1892, was not received in evidence, and the preliminary testimony by which the existence of a contract of that date was shown could not have prejudiced the defendant. The defendant was a witness in his own behalf, and it was shown by his cross-examination that he had, through advertisements, obtained money from Miss Mann and Miss Kessler, employes in his laundry, which he had not repaid, and also that he obtained money from others by like means. This evidence bore on the credibility of the defendant, and besides it tended to show that, about the time this crime was charged to have been committed, he was engaged in the commission of similar offenses, and it was competent as bearing upon the question, with what intent did he obtain the $600 ? Further, the questions by which the evidence was elicited were simply objected to, no ground being stated.

No error was committed on the trial which affected “ the substantial rights of the parties,” and the judgment sbould be affirmed.

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


author: Van Brunt, P. J.

text:
    Charles Lex Brooke, Recr., Pl’ff, v. The Tradesmen’s National Bank, Def’t.

      (Supreme Court, General Term, First Department,

      Filed May 12, 1893.)

    1. Banks—Liability foe failure to fay note of depositor— Damages.
    Plaintiff, as receiver of one R., a judgment debtor, brought an action against the defendant bank for $50,000 special damages arising from the fact that in consequence of the bank’s failure to pay a note of R’s for $517, payable thereat, when R. had on deposit at the time $6ll, the creditors of R. had the right to and did enter judgment against him for $8,000 immediately, issued execution, levied and thereby ruined his business. Held, that the damages claimed, were not those which naturally arise from such a breach of contract and therefore cannot be recovered, and the complaint was properly dismissed.
    8. Same.
    Ordinarily the only damages which can be recovered in an action for breach of contract to pay a debt is the amount of such debt, with interest and costs.
    8. Appeal—Objection not raised below.
    An objection not taken in the court below, and which might have been obviated if so taken, is not available on appeal.

      4. Same—Dismissal of complaint.
    But if an action cannot be maintained at @11, and the trial court has dismissed the complaint, the appellate court will not interfere with such dismissal even though it was upon an erroneous ground.
    Exceptions ordered heard in first instance at general term, after dismissal of complaint at circuit.

      H. R. Leavitt, for pl’ff; C. E. Rushmore, for def’t.
   Van Brunt, P. J.

This action is brought by the plaintiff as receiver of one William 0. Rogers, a judgment debtor, to recover damages sustained by said Rogers because of the failure of the defendant to pay a note of said Rogers which had been made payable at the defendant’s bank, the said Rogers having at the time of such refusal on deposit with the defendant more than sufficient money to pay said note.

The plaintiff does not claim to recover as such damages the amount of the deposit, but certain special damages arising from the fact that, in consequence of the failure of the bank to pay the note in question, certain creditors of Rogers had the right to enter judgment for some $8,000 immediately and issue execution thereon, which they did, under which execution the sheriff levied upon the stock and fixtures of said Rogers at his store and remained in possession thereof for a period of about three weeks, by reason whereof it is claimed that said Rogers was unable to atttend to his business, and did not attend to the same, and said business was thereby ruined and the credit of Rogers lost, and said Rogers was forced thereby to, and did, give up business, and that the value of said business was the sum of $50,000, for which sum judgment was demanded.

Upon the case coming on for trial, the counsel for the defendant moved to dismiss the complaint upon the ground that the complaint did not state facts sufficient to constitute a cause of action, in that it disclosed a cause of action which could not be maintained by the plaintiff as receiver of the property of the judgment debtor, and set forth a cause for damage for tort, and is one to which such receiver could not succeed, but was personal to the judgment debtor, being not transferable in its" nature. The court dismissed the complaint and the plaintiff duly excepted, and this is the exception which was ordered to be heard in the first instance at the general term.

This case having heretofore been before the court upon a previous occasion and argued but - not decided because of defects in the papers, the question arose as to whether the plaintiff could maintain this action in any event without more specific allegations showing some duty upon the part of the defendant to pay the note in question other than that disclosed by the complaint, and in the points submitted upon this argument the counsel have addressed themselves somewhat to this point.

But it seems to us that this question cannot be considered upon this motion, for the reason that no such ground was stated upon the dismissal of the complaint, and it being a ground which might have been avoided by amendment, which, if objection had been taken, the court might have allowed upon proper terms, it cannot be made available here.

The plaintiff disclaims that the action is an action ex delicio, but that on the contrary it is simply an action for damages for the breach of a contract, andalthough it is alleged in the complaint that the bank wrongfully, negligently and unjustly refused to pay the note, and that by reason thereof said Rogers suffered special damages, the use of these terms does not turn the complaint setting forth a contract and a breach thereof into an action sounding in tort.

Treating, therefore, the complaint as it is interpreted by the counsel for the plaintiff, can the special damages alleged be recovered against the defendant?

There seems to be no dispute between the parties but that the relation existing between a bank and its depositor is that of debtor and creditor, and that the law implies a contract upon the part of the bank to disburse money standing to the depositor’s credit only upon his order and in conformity with his directions.

It is undoubtedly the rule that the refusal to pay a check upon presentation gives the drawer a right of action in case he lias funds in the bank to meet the check, and the refusal to pay was without authority, and that the measure of damages will be the amount of actual loss the party has sustained, and that damages which may fairly and reasonably be considered as naturally arising from the breach of contract according to the usual course of things are always recoverable.

In applying this rule to the case at bar, how can it be claimed that because the bank neglected to pay the note of Rogers for $517.51, he having on deposit with the bank at the time $611.08, the result which in the usual course of things would follow was the immediate entry of a judgment against Rogers forever $8,000, and the seizure of his business by the sheriff? This condition of things arose because of an agreement made between Rogers and his creditors of which the bank had no notice, and which they had no reason to suppose existed.

Now, as has already been stated, the relation between the bank and its depositor is that of debtor and creditor, and that only; and the ordinary liability to which a debtor subjects himself for nonpayment of a debt in an action for damages for the breach of his contract to pay is that he be mulcted in damages to the amount of his debt with interest and costs, and these are the only damages which in such case might fairly and reasonably be considered as naturally arising from the breach of the contract according to the usual course of things.

As well might it be said that if A. promises to pay B. a certain sum on a given day, and B. had agreed with C. to make a payment to him upon that date or subject himself to a forfeiture which would be very detrimental to his interest, and B. relied upon receiving the money from A. to make the payment, that A., upon making default in payment, would be liable in damages for the whole interest which B. had forfeited because he was unable in consequence of A.’s default to B. to make his payment to C.

The damages claimed in this action are clearly not those which naturally arose from the breach of a contract between debtor and creditor, and, therefore, cannot be recovered.

It may be said that this question was not raised in the court below, and the point is subject to the same criticism that is made in reference to the duty of the bank to pay the note in question. But it does not stand upon the same footing, as, if the action cannot be maintained at all, the court having dismissed the complaint, the appellate court will not interfere with 'such dismissal even though it wras upon an erroneous ground.

The exceptions should, therefore, be overruled, and judgment entered upon the dismissal, with costs in this court and -in the court below.

O’Brien, J., concurs.

Ingraham, J.—There being no cause of action alleged in the complaint, I think the court was required to dismiss the complaint. I, therefore, concur.


text:
    John B. Hagenbuchle, Resp’t, v. Louis Schultz, App’lt.

      (Supreme Court, General Term, First Department,

      Filed May 12, 1893.)

    1. Partnership—Construction op agreement—Expenses.
    A partnership agreement provided that letters patent owned by the individual partners should remain their individual property, but that the copartnership should be entitled to the use of the improvements which were the subject matter of such letters'patent during the existence of the copartnership, upon assuming all the expenses which might be incurred in maintaining title to such patents. Held, that a member of such copartnership was not entitled to credit for money paid in purchasing a patent.
    2. Same—Salary.
    It was provided by a partnership agreement that defendant should he entitled to draw §2,500 yearly salary, and three per centum of the gross receipts of the business, and the plaintiff should be entitled to $1,200 yearly salary. Thereafter a substantial part of the copartnership business was transferred to a corporation, of which they were stockholders, and an agreement made then that if defendant should be twice elected president of the company at a certain salary, the plaintiff should be released from all liability by reason of the provision of the copartnership articles which gave defendant three per centum of the gross receipts. Held, that the defendant was still entitled to draw his salary of §2,500.
    3. Same—Accounting—Costs.
    On a partnership accounting, where the referee found $8,8:9 and interest due jilaintiff, and which was the only amount involved in the action, an extra allowance of $2,000 is exorbitant, and should he set aside.
    Appeal from judgment in favor of plaintiff, entered, upon report of a referee.

      Arthur Murphy (Esek Cowen and George H. Yeaman, of counsel), for app’lt; Melliss & Richards (N. T. H. Melliss, of counsel), for resp’t.
   Van Brunt, P. J.

plaintiff and defendant in this action were copartners, doing business under the firm name of “The Excelsior Quilting Company. L. Schultz & Co., Proprietors ; ” and this action was brought for the dissolution of such copartnership, and to require the defendant to render an account of all money received by him in said business, and to pay to the plaintiff his share thereof, and also for the disposition of certain persona] and real estate. The defendant answered, and, upon the coming in of said answer, it was stipulated between the parties that the complaint should be amended, and it was deemed amended by striking therefrom all allegations in respect to the real estate therein described, and also as to certain personal property; and the action was left to proceed for a dissolution of the firm and an accounting A reference being ordered of the issues remaining, a trial was had before the referee, who reported in favor of the plaintiff, and. a motion being made for an extra allowance, an order for an extra allowance of $2,000 was made; and from the judgment entered upon said report and order this appeal is taken.

The investigation of the facts supposed to be contained in this record has been rendered exceedingly laborious because of the manner in which the record has been made up, the alleged judgment roll containing a large number of papers which have no proper place in a judgment roll, viz., the findings of fact which have been refused, the exceptions to the findings which do not appear to have been filed before judgment, and the affidavits and order in respect to the extra allowance ; and our investigation has .been by no means aided by the manner in which the counsel for the respondent has presented the facts of the case in his brief, it being claimed in the brief that certain facts are established by the evidence, without any reference whatever, except in one or two immaterial instances, to any testimony given in the case. And, furthermore, upon an investigation of the findings of fact and conclusions of law contained in the referee’s report, it has been impossible to ascertain the basis upon which the referee arrived at the amounts for which he rendered judgment. Even the plaintiff’s attorney seems to have given this up as a hopeless task, as, from the statement he has presented, it is apparent he has not solved the riddle.

The duty of the referee was to make a plain, simple, intelligent statement of the accounts between the parties, and to show how the balance was struck or arrived at. This he has utterly failed to do ; and, from the figures contained in his report, it is impossible to arrive at the amount which he has reported. The discrepancy may not be large, but accuracy is certainly essential in cases of this description. If such an account had been presented in the referee’s report, this court might have disposed, perhaps, of all the questions involved without ordering a new trial; but, as the case now stands, it is impossible for us to determine what is the judgment which should have been entered; and it is to be observed that the defendant seems to have thrown every obstacle in the way which it was possible for his ingenuity to suggest, to hinder and hamper the investigation of the facts relating to. his connection with the business of the copartnership which by this action was sought to be dissolved, and his conduct and attitude are not such as commend his case particularly to the favorable consideration of the court. We will, however, endeavor to point out some of the contentions' advanced upon the part of the defendant which cannot be sustained, and others upon the part of the plaintiff which are evidently erroneous, and also to show that the various experts examined were evidently entirely ignorant of the business which they professed to perform.

' In order that the questions to be discussed may be understood, it will be necessary to refer to the articles of copartnership entered into between the parties in February, 1886, and which seem by agreement to have been extended to the time of the commencement of this action. Such articles, after providing for the formation of the 'copartnership, and that the copartners shall contribute to. the copartnership certain stock and good will, provide that- letters patent owned by the individual partners, not excepting a certain license owned by the defendant, should remain the individual property of the partners, but that the copartnership should be entitled to the use of the improvements which are the subject of such letters patent and licenses during the existence of the copartnership, upon assuming and meeting all the expenses and payments which might have been incurred and might be incurred in maintaining title to such patents; it being understood that, for the use of the patent under the license the partnership should pay all sums which might be due and become due, and which the defendant should be obligated to pay at the time of. his acquiring such license, together with all expenses of litigation in which such letters patent might be involved.

Now, it is claimed upon the part of the defendant that certain items should have been allowed him which were excluded by the .referee in reference to these patents under the clause in the articles above quoted; but we are of opinion that the referee was entirely right in excluding these items, for the reason that they were evidently moneys which were paid by defendant for letters patent, and were not expenses which were incurred in maintaining letters patent. This is apparent from the defendant’s own testimony in reference to the $6,250 paid in respect to the Koch patent. The defendant testifies as follows: “ I had

no agreement with Koch, any more than that he was to assign the patent to me for the consideration of $6,250.” The same is true of the item of $808.20. It appears from the bill of items furnished that certainly all of that amount (except perhaps, the sum of $72.25) was paid in the procuring of letters patent; and the - same applies to the item of $700. These items were not expenses incurred in maintaining title to the letters patent; and that they were not intended to be so embraced is evident from the provision that, upon the dissolution of the partnership, each party was to be placed in the same position, with respect to these letters patent and licenses, as though the partnership had never been formed; the provision being that on the dissolution of the partnership, or the retirement of the plaintiff, the latter loses all right to the letters patent owned by the defendant, and the defendant loses all right to the plaintiff’s letters patent.

The next question is that presented in respect to the salary provided for the plaintiff and the defendant in the articles. It was provided therein that the defendant should be entitled to draw $2,500, and the plaintiff $1,200, in weekly sums, and that these payments should be charged as expenses of the business before any division of profits, and that there should be also paid, before any division of profits, to the defendant, as expenses of the partnership, three per centum of the gross receipts of the business. It appears from the evidence that in February, 1888, a substantial part of the business of the copartnership was transferred to a stock corporation called the “Excelsior Quilting Company,” and that both the plaintiff and" the defendant were interested in the capital stock ; and on the 23d of February, 1888, an agreement was entered into between the parties to this action that their stock was to be voted upon as a unit; and the defendant agreed that, if he should be elected president and secretary of the company for two terms, at a salary of $5,000 and five per cent, of the net profits, so that he would have received such salary for two years, the plaintiff should be released from all liability by reason of the provision of the copartnership articles which gives to the defendant three per cent, on the gross sales of the firm of L. Schultz & Co. This agreement clearly contemplated the continuance of the business of Schultz & Co., and that it should not be deemed dissolved, and, in fact, it never was dissolved, as found by the referee. It also contemplated the fact that, the parties were entitled to draw certain sums to be charged as expenses against that business, and they agreed, one with the other, that, under certain circumstances, the defendant should relinquish a certain portion of his rights under the copartnership agreement,—a clear recognition of the existence of the copartnership and the rights of the parties thereunder. Therefore, as to the amounts which the partners were entitled to draw, the provisions of the copartnership articles continued until the dissolution of the copartnership, and the defendant was entitled to the salary as claimed by him.

The question as to the salary of Wagner, who was employed by the copartnership as bookkeeper and assistant, is a question of more difficulty. It is exceedingly doubtful upon this record whether Wagner was entitled, after the formation of the quilting company, and after he had virtually ceased to render any services to the copartnership, to draw his salary under this agreement. There is also a manifest error in the manner in which the expert for the plaintiff makes up his accounts. In the statement prepared by him showing the partnership assets and liabilities of Schultz & Co. he remarks that the figures indicate that the plaintiff had drawn $1,745.55 less than the defendant, and that that amount was therefore due to the plaintiff at the date of the account, and he treats it apparently as a liability as against the defendant. This is clearly erroneous. All that there was due to him, so far as this item was concerned, from the defendant, was one-half of that amount, because, as soon as he received one-half of the amount from the defendant, the drawings of both were equal.

The learned referee, in the imperfect statement of the account which he makes, commits several errors. In the first place, he does not commence such account with the commencement of the partnership. Then, in the giving of credits, he excludes all payments to the partners individually, which would seem to be a very necessary item in the making up of the accounts as between these parties. Furthermore, he treats all drafts made by either of the partners upon the firm as overdrafts which in any way exceeded the money contributed by such copartner, utterly ignoring the rights of the partners to profits, a manifestly erroneous method of stating the account. There is no explanation given of the various items which enter into the account stated by him, and it is impossible to understand what these items represent, particularly the item of machinery, amounting to $17,070.65. If that is intended to represent the cash received for machinery sold, the money must have passed into the bank account, and thus the defendant would be charged twice with the same. If it represents machinery on hand, then the defendant is also charged twice, certainly in respect to some of the same, because he is expressly charged, in addition to that item, with sums amounting to over $9,000 for machinery. It further seems to have been supposed that the defendant had no right to sell his interest in any of the copartnership property. This, clearly, was erroneous. He had a perfect right to sell his interest in any of the property owned by the copartnership, the purchaser taking the same subject to the equities of the other partner and of the creditors of the concern. Without further consideration of the facts appearing uoon this record, it is evident that the whole construction of the account proceeded upon an erroneous basis, and results were arrived at which were not sustained by the evidence.

It is proper here to say a word in regard to the extraordinary allowance which seems to have been granted to the plaintiff upon the coming in of the referee’s report. The referee reported $8.819.11 due the plaintiff, with interest from January 31, 1891, and an allowance of $2,000 was granted. This seems to us to have been an exorbitant allowance, even had the amount involved been the whole assets of the firm without deducting the payments made on account of those assets, which seems to have been the theory upon which the allowance was granted. The amount involved in the action was the amount for .which judgment was obtained, and nothing else. We are of opinion, therefore, that this order should be reversed, with ten dollars costs and disbursements, and that the judgment appealed from should be reversed, and a new trial ordered before a new referee, to be appointed by this court, with costs to the appellant to abide the event.

O’Brien and Follett, JJ., concur.


author: Herrick, J.

text:
    The People and The Superintendent of Insurance, Plffs, v. The Reliance Marine Insurance Co., Limited, Def’t.

      (Supreme Court, General Term, Third Department,

      Filed July 8, 1893.)

    1. Taxes—Foreign marine insurance companies—Laws 1885, chap. 276. A foreign marine insurance company is not entitled to exemption under chap. 376, Laws 1885, from payment of taxes upon premiums of reinsurance made by it, that act appiying to fire insurance companies only.
    3. Same—Laws 1893, chap. 690.
    But under chap. 690, Laws 1893, such company is entitled to exemption from taxation upon the amount paid by it for premiums for reinsurance after October 1, 1893.
    Submission of controversy on agreed statement of facts under § 1279 of the Code.

      Simon W. Rosendale, attorney-general (John W. Hogan, deputy attorney-genera], of counsel), for pl’ff; MacFarland & Parkin (W. W. MacFarland, of counsel), for def’t.
   Herrick, J.

This is a submission of a controversy pursuant to § 1279 of the Code of Civil Procedure.

The defendant is a marine insurance company incorporated under the laws of Great Britain and Ireland, for the purpose of carrying on the business of marine insurance; it lias a branch office in the city of New York, where it carries on such business under and pursuant to the laws of the state of New York.

For the year ending December 81,1892, the premiums received by it, or agreed to be paid to it, upon insurances effected or procured in this state against marine losses and risks, was the sum of $193,570.17.

During the same j^ear the defendant reinsured part of the risks taken for said premiums in domestic and foreign insurance corporations, authorized to issue policies in this state; the total amount of the premiums paid by it for such re-insurance, was the sum of $48,482.88.'

The amount paid for such re-insurance before the 1st day of October, 1892, was $43,207.40: the amount paid after the 1st day of October, 1892, was $5,275.48.

The net amount of premiums received by the defendant after deducting the amount paid for such re-insurance was the sum of $145,087.29.

The defendant has paid to the superintendent of insurance the tax of two per cent on such net amount after deducting therefrom all other taxes paid the state, but refuses to pay a tax of two per cent on the sum of $48,483.88, the amount paid by it for re-insurance.

The plaintiff claims that the defendant is liable to pay the tax on the premiums received by it without any deductions for premiums paid for re-insurance.

It is conceded that the defendant is liable to pay the tax of two per cent upon all the premiums received by it upon insurance procured in this state, unless there is some exception, reservation or exemption in some of the statutes relative thereto.

Any rebate, deduction or exemption from taxation will not be presumed, but must be found plainly expressed in the statute. People v. Commissioners of Taxes of New York, 95 N. Y., 554.

The defendant, in its claim for exemption, relies upon chapter 276 of the Laws of 1885, and § 22 of chanter 690 of the Laws of 1892. Chapter 276 of the Laws of 1885 provides that;

“No credit of any kind shall be allowed or given, either as a reduction of taxes or liabilities, to any company transacting business in this state for reinsurance made in companies not authorized to-issue policies herein; and it shall be the duty of the superintendent of the insurance department to require schedules of reinsurance to be filed by each company at the time of making its annual statement to said department.”

The plain inference from this is that where reinsurance is made in corporations authorized to issue policies in this state, credit shall be given and allowed either as a reduction of taxes or liabilities; and that, I understand, has been the construction placed upon it. by the insurance department of the state.

But the question arises as to whether corporations such as the defendant in this case come within the provisions of that act. Chapter 276 of the laws of 1885 is an amendment of chapter 489> of the Laws of 1879, and must be construed as a part of that act

The intention of the legislature “ must be sought by joining the amendment with the act to which it is an addition, and considering the whole but as one act.” Matter of the Hudson City Savings Inst., 5 Hun, 612. Interpreting the act of 1885 in that manner, and I cannot see that it applies to foreign marine insurance companies.

The title of the act refers to fire insurance companies, and those only, and the different sections of the act refer to fire insurance companies; the sections preceding the one amended by the act of 1885 refer exclusively to fire insurance companies; and it is evident, in considering the act as a whole, that it was intended to apply to fire insurance companies only.

The defendant, I conclude, therefore, is not exempted by the act of 1885 from paying taxes upon premiums of reinsurance made by it. Chapter 690, of the Laws of 1892, it is provided shall take effect October 1, 1892. See § 293.

By § 1, the provisions of that law are applicable to all corporations authorized by law to make insurance. The law, therefore, applies to the defendant.

Section 22 of the act of 1892 contains in substance a re-enactment of the provisions of chapter 276 of the Laws of 1885, and by virtue thereof I think the defendant is entitled to exemption from taxation upon the amount paid by it for premiums for reinsurance paid after the 1st day of October, 1892. But the act cannot be held to relate to premiums paid for re-insurance prior to October 1, 1892.

There is nothing in the act to show that the legislature intended that it should be retroactive, and in the absence of any such expressed intent, it must be construed as referring to the future only. Matter of D. & H. C. Co., 129 N. Y., 105; 41 St. Rep., 241.

I am of the opinion, therefore, that the defendant, for the purposes of taxation, is entitled to have deducted from the gross amount of the premiums received by it during the year 1892 the amount o£ premiums paid by it for re-insurance after October R 1892, and that the plaintiff is entitled to have judgment against the defendant for the sum of $864.14, being two per cent, upon the sum of $43,207.40, the amount of premiums paid by it for re-insurance prior to October 1, 1892. Let judgment be entered accordingly. Mayham, P. J., and Putnam, J., concur.


author:
Herrick, J.
      Mayham, P. J.,

text:
    Ann E. Smith, Resp’t, v. Michael J. Varley et al., Mark T. Ferris, App’lt.

      (Supreme Court, General Term, Third Department,

      Filed July 8, 1893.)

    Guaranty—Of payment of mortgage.
    Defendant Ferris, on assigning a mortgage for $4,000, executed a guaranty of ‘ ‘ the payment of the within mortgage, according to its terms, until the same is reduced to $3,000.” The mortgage provided for the annual payment of the interest and $100 of principal, and also that the property should be insured for $1,000 for the benefit of the mortgagee. A fire occurred and the insurance moneys were applied on the mortgage, reducing tlie same to $2,700 and interest. Held, that the terms of the guaranty were complied with and that defendant was no longer liable thereon.
    (Mayham, P. J., dissents.)
    Appeal from a judgment entered upon the decision of a trial judge against Mark T. Ferris, one of the defendants.

      D. E. Wing (L. B. Pike, of counsel), for app’lt; Maxon & Wiswall (J. L. Henning, of counsel), for resp’t.
   Herrick, J.

The defendant Mark T. Ferris appeals from a judgment entered against him upon a foreclosure of a bond and mortgage. Ferris was the owner of a bond and mortgage executed by the defendant Varley to secure the payment of the sum of $4,000, conditioned to pay the interest, and $100 of the principal, on the first day of April of each and every year, until the whole amount was paid. The mortgage also contained the stipulation that the party of the first part was to have the buildings insured in the sum of $1,000 for the benefit of the party of the second part. Ferris sold and assigned the bond and mortgage, and at the time of the sale and assignment executed upon the face of the mortgage a guaranty in the following language, 11 hereby guarantee the payment of the within mortgage, according to its terms, until the same is reduced to $3,000.”

Subsequent to the assignment the buildings upon the premises were destroyed by fire.

The plaintiff realized from the insurance the sum of $1,434, which was applied as follows: $1,200 upon the principal, and $234 upon the interest, which paid the interest up to April 1, 1890, leaving for the principal $2,700, with interest from April 1, 1890.

A default having been made in the payments of interest and one of the instalments of the principal, this action was commenced for the foreclosure of the mortgage, and judgment was rendered against all the defendants, and against the defendant Ferris, which in substance renders him liable for any deficiency that shall arise upon the sale of the mortgaged premises.

The court held as a conclusion of law that the defendant Ferris “was not discharged by the payment of $1,434 on April 1, 1890.” The appellant Ferris claims that the reduction of the amount of the mortgage to the sum of $2,700 by the payment of the insurance relieves him from his guaranty, the mortgage thereby being reduced below $3,000. Contracts of guaranty are subject to similar rules of interpretation as other contracts; but they should not be extended by construction beyond the plain and explicit language used in the contract. People v. Zee, 104 N. Y., 441-449 ; 5 St. Rep., 777 ; McCluskey v. Cromwell, 11 N. Y., 593.

The liability of the guarantor is not to be extended by,construction. McCluskey v. Cromwell, 11 N. Y. 598.

Where the language is plain and unambiguous there is no room for construction or interpretation ; that meaning must be given to it that its language imports, without taking into consideration surrounding circumstances, or possible intentions of. the parties; the intent is to be sought in such cases in the plain meaning of the words used. It is only where the language is indefinite and uncertain, and the meaning ambiguous, that resort is had to surrounding circumstances, or an effort is made to ascertain the intention of the parties in order to assist us in discovering the meaning of the words used; in this case the words are plain and certain, “I hereby guarantee the payment of the within mortgage according to its terms until the same is reduced to $3,000.” The terms of the mortgage are, the annual payment of $100 upon the principal, and that the property shall be insured for the benefit of the holder of the mortgage in the sum of $1,000; which means that the insurance to that amount shall be paid upon the mortgage in the event of the morgaged property being destroyed by fire.

The terms of the guaranty have been complied with; the mortgage has been reduced by payments made in accordance with its terms to the sum of $2,700.

Ingenious arguments are used to show that it was not the intention of the parties to include payments made of the insurance money, because if the property insured was destroyed by fire, the property would pay the mortgage to that extent, and the security would be reduced, and the guaranty be of no benefit, and that such a construction would not be beneficial to the assignee of the mortgage.

Whatever was the intention of the parties in that respect, they did not embody it in the contract; if it was the intent to exclude the payments made by the insurance money, they should have mentioned it; as it is, such a payment is just as much in accordance with the terms and conditions of the mortgage as the annual payment of the $100 therein provided for.

Courts cannot make contracts, and cannot inject into them provisions which the parties omitted to insert themselves.

Courts can only enforce contracts that the parties have made, and can only interpret those contracts from the language used, unless it is susceptible of more than one interpretation, or its meaning is doubtful. In this instance, it seems to me, the terms are plain and unambiguous; that the mortgage has been reduced to $3,000, and that the defendant Ferris is not liable upon his guaranty, and that as to him the judgment appealed from should be reversed, with costs.

Potnam, J., concurs.

Mayham, P. J.,

(dissenting.)—The The defendant, Michael J. Varley, executed his bond to one Frank Ferris, dated January 16, 1886, conditioned for the payment of the sum of $4,000 at the terms and in the manner therein specified; and as collateral to such obligation executed to the same Ferris his mortgage on certain real estate, which mortgage contained an insurance clause, conditioned that the buildings should be kept insured against loss or damage by fire to the amount of $1,000, for the benefit of the mortgagee.

The bond and mortgage were duly assigned by Frank Ferris, the mortgagee, to Mark T. Ferris, April 1, 1887, who, on the 27th day of April, 1888, duly assigned it to the plaintiff and at the time of making such assignment guaranteed the mortgage in the following words: “ I hereby guarantee the payment of the within mortgage according to its terms until the same is reduced to $3,-000. Mark T. Ferris.”

The interest was paid on this mortgage up to April 1,1889, and on the 1st day of April, 1890, the following indorsement was made on the bond:

“ April 1, 1890, received on the within $1,434, being $1,200 of principal and $234 interest to date, leaving a balance due of $2,700 with interest from date.”

The case shows that before the commencement of this action the building insured on the mortgaged premises was destroyed by fire, and the insurance of $1,000 applied in part payment of the mortgage, and that at the time of the commencement of the action the amount remaining unpaid upon the mortgage was $2,700. The trial judge held in effect that the application of the insurance money on the mortgage did not reduce the amount of the same to $3,000, within the terms of the guaranty, or its legal effect, and gave judgment against the appellant upon the guaranty. ‘ From that determination the guarantor appeals.

On an examination of the facts we think the trial judge was correct in his conclusion and that the judgment should be affirmed on his opinion. Judgment affirmed, with costs.

J udgment reversed, with costs.


text:
    Almira Trumpbour, Pl’ff, v. John Trumpbour et al., Def’ts.

      (Supreme Court, General Term, Third Department,

      Filed July 8, 1893.)

    Trust—Liability of depository of the court m case of failure to OBTAIN FUND.
    Certain moneys were directed to be brought into court in this action, to be held for the benefit of the heirs of one of the parties when he should die, and the same were deposited by the referee in bank. Thereafter the court directed the hank to pay the same to the New York Life Insurance & Trust Co., and directed tlie latter to hold it subject to the order of the court, and to invest the interest, and dividends accruing as a new principal. A copy of the order was served on the trust company, which agreed to accept the moneys and pay four per cent, thereon, to be compounded, hut omitted or neglected to demand the money from the hank. Held that, under these circumstances, it was no deiense to an application for the moneys that said company had not received, them; that if it had not. it was by reason of its own omission or ngglect, and it was responsible for said fund and its increase to the court, and those for whom it was held in trust, the same as if it had been actually drawn from the bank.

      Appeal by the New York Life Insurance & Trust Co. from an order directing the payment of moneys to the petitioners.

      Emmet & Robinson (R. E. Robinson, of counsel), for app’lt; Horace R. Peck, for resp'ts.
   Herrick, J.

On the 8th day of June, 1871, a judgment in partition in the above entitled action was rendered, and entered in the Columbia county clerk’s office.

Pursuant to the provisions of the will of one Paul Trumpbour, ■ deceased, which are declared by said judgment, the sum of $500, a part of the proceeds of sale under said judgment of partition, was brought into this court to be held for the benefit, after the death of John Trumpbour, Jr., who is one of the defendants in said action, of the persons who, at the death of said John Trumpbour, Jr., should be his heirs, or the assigns of any of them.

The referee in said action in partition deposited the said $500 in the Farmers’ National Bank of Hudson, subject to the order of the court. I assume it was so deposited with the remainder of the proceeds of the sale of the real estate in question in the action.

Upon the judgment, the referee’s final report of sale, and other orders and papers in the action, an order was made at a special term of the court on the 30th day of March, 1872, ordering the Farmers’ National Bank of Hudson to pay to the order of the New York Life Insurance & Trust Company the sum of $500, and it was further ordered that the New York Life Insurance & Trust Company retain said sum of $500 and the interest and accumulations thereof, subject' to the further orders of this court, for the benefit of the plaintiff, Almira Trumpbour, and others, except their right thereto is subject to be defeated or varied according to the provisions of the will of Paul Trumpbour, as stated in said judgment. It was further ordered that while such sum of money remained on investment in such Life Insurance & Trust Company, the interest or dividends that should from time to time accrue thereon should be added to the principal, to constitute a new principal, upon which further interest or dividends should be computed and allowed:

A copy of said order was duly served on such Life Insurance & Trust Company on or about the 3d of April 1872, and said company agreed to accept the money as a deposit, subject to the future orders'of this court, and to allow interest thereon at the rate of four per cent, per annum to be compounded annually.

John Trumpbour, Jr., died on or about May 13, 1892.

The petitioner^ in these proceedings are the -heirs, and the assigns of the heirs, of the said John Trumpbour, Jr.; there is no question raised, but what they are the persons legally entitled to the $500, so ordered to be deposited as heretofore stated, and its increase.

Two of the heirs of said John Trumpbour, Jr., on or about the 20th day of March, 1877, duly assigned their interests in said fund to Horace R. Peck, one of the petitioners, and thereafter and on the 24th day of April, 1878, an order was made at a special term of this court, entitled in the action, directing the New York Life Insurance & Trust Company to retain and invest the interest of .said heirs so assigned and the accumulations thereof, for the benefit of said Horace R. Peek, and that in the final disposition of said fund the said Horace E. Peck, his legal representatives or assigns, should be entitled to receive and be paid by the said Hew York Life Insurance & Trust Company such portion of said fund as would otherwise belong to the heirs of the said John Trumpbour, Jr., who made such assignment. A copy of such order was duly served on the said Hew York Life Insurance & Trust Company on the 27th day of April, 1878.

The Hew York Life Insurance & Trust Company for some reason failed, omitted or neglected to ask or demand in any way from the Farmers’ Hational Bank of Hudson the said sum of $500, pursuant to the order of the court, and has never received it, but it has always remained where it now is, in the Farmers’ Hational Bank of Hudson.

If the terms of the aforesaid order and agreement of the Life Insurance & Trust Company in relation to said fund had been complied with, the fund would now amount to about the sum of $1,094.30, with interest at four per cent, per annum from the 3d day of April, 1892.

The petitioners, Almira Trumpbour and others, ask an order of this court for the distribution of the fund in the proportions set forth in the petitition, and for an order directing the Hew York Life Insurance & Trust Company to pay the same to them or their respective attorneys.

The special term made an order directing the distribution and payment of such money as prayed for by the petitioners and from that order the Hew York Life Insurance & Trust Company appeals to this court. The facts are undisputed.

Ordinarily the fact that a person, bank or other depository, had not received the money, would be a complete defense to an application made to compel him or it to pay it over.

But the Hew York Life Insurance & Trust Company does not stand in this case in the position of an ordinary depository; it is incorporated under chapter 75 of the Laws of 1830, as amended by chapter 250 of the Laws of 1834 and chapter 630 of the Laws of 1872. Subdivision 5 of § 2, chapter 75, Laws of 1830, empowers its corporators, “ to accept and execute all such trusts of every description as may be committed to them by any person or persons whatsoever, or may be transferred to them by order of the court of chancery or by a surrogate.”

Section 2, chapter 630 of the Laws of 1872, after limiting the amount which said company may have in trust, provides as follows, “ but the said company may at any time receive in deposit and loan out any money which may be deposited with them by the supreme court, or any of the courts of law or equity, or surrogates’ courts of this state, notwithstanding the limitation contained in this act.”

Under these acts, such company is made one of the depositories of the court, and without entering into the question as to whether it can be compelled to receive deposits, it is sufficient to say that in this particular case it agreed to receive the deposit in question.

¡Now while it is true that it did not receive in fact a deposit of cash, or a check or draft, it received what under the circumstances was the equivalent of a check or draft, and it is only by, its own neglect or omission that it failed to realize, upon it as it could upon a check or draft where there was money on deposit to the credit of the person drawing such check or draft.

The fund in question was in the possession and under the control of the court, and deposited for the time being in the Farmers’ ¡National Bank of Hudson.

The court does not pay cash or draw checks or drafts, but makes and directs payments by its orders. In this case it directed the transfer of the money in its possession from and its payment by the Farmers’ ¡National Bank of Hudson to, the ¡New York Life Insurance & Trust Company, by its order, which took the place of a check or draft of an individual or corporate drawer.

That order was given to and left with the ¡New York Life Insurance & Trust Company, such company in nowise refusing to accept the same, but agreeing to take the money therein mentioned, and to pay interest upon it as prescribed by its terms.

This, I think, was a complete acceptance of the trust which it was authorized to receive and execute under its charter, and that it must be held to possess the money mentioned in the order subject to an order of this court If it does not in fact possess it, it is by reason of its own omission and neglect, and it is responsible for it and its increase to the court and those for whom it was to hold it in trust just the same as if it had drawn it from the Hudson Bank.

The order of the special term should be affirmed, with ten. dollars costs, and with printing and other disbursements.

Mayham, P. J., and Putnam, J., concur.