author: Lawrence, J. Daniels, J.

text:
    William A. Darling, Jr., App’lt, v. Mary W. Howe, Resp’t.

      (Supreme Court, General Term, First Department,

      Filed May 15, 1891.)

      1. Brokers—Evidence of agency.
    In an action by a broker to recover commissions for selling defendant's' house, he testified that the house was put in his hands for sale by defendant’s son. He was asked whether the son had placed this and other houses of his mother in the same way in plaintiff’s hands for sale. This was excluded. Held, error; the evidence was competent upon the question of the son’s authority, and also upon the question of the mother’s ratification of the sale.
    2. Same—Commissions.
    After an interview between the broker and the defendant, the sale having been agreed upon previously with the purchaser, in which defendant stated that she did not wish to pay the commission, the defendant signed the contract of sale. Held, that it was a question for the jury whether the plaintiff was not entitled to compensation.
    Appeal from a judgment entered upon the dismissal of the complaint at circuit.

      J. Albert Englehart, for app'lt; Joseph S. Wood, for resp’t.
   Lawrence, J.

The plaintiff alleges that on or about June 30, 1890, he sold for the defendant certain premises situated in Mount Yernon, to one Catherine Smith, for the sum of $7,500, that the defendant promised and agreed to pay said plaintiff for said services the sum of $187.50, that no part thereof has been paid, and that there is now due and owing to the plaintiff said sum with interest from the 30th of June, 1890, for which amount judgment is demanded.

The defendant by her answer admits the first paragraph in the complaint, which alleges that the plaintiff sold the premises in question for the defendant, but she denies the second and third allegations in respect to the amount agreed to be paid, and in respect to her indebtedness to the plaintiff. She then avers that she consented that the plaintiff should make the sale referred to in the said complaint, and that said sale was made upon the express condition that she should not be liable for any commission on such sale, or any charge for making the same, but that she should receive the full amount of $7,500 net, without any reduction or deduction whatever. The only witness examined on the part of the plaintiff was the plaintiff himself, who testifies as follows: “I reside at 133 South Third avenue, Mount Yernon; I am the plaintiff in this case; I know Mary W. Howe; I had something to do with the sale of the property of Mrs. Howe in South Third avenue, Mount Yernon; I think it was in the first part of May, her son authorized me to sell the house, allowed me to sell it; I did not have any conversation with Mrs. Howe in respect to the sale of the house; about the time when the house was being sold, a contract was made, and I had a conversation with Mrs. Howe then; I called on Mrs. Howe in the evening; I went to see her son; I thought, I can’t get around it otherwise unless I mention; at about the time-the contract was signed, or about .the time the contract was made between the parties, I had conversations with Mrs. Howe. She signed the contract, and said nothing about the commission, the day the contract was signed.

“ The night I went, the night before she signed the contract, or two days before, it was Saturday evening; she told me she didn’t want to pay any commission, and. she got a good price for the house. I went there to ask her for a refusal of the house for three days, so the transaction could date from the first of the month; so the gentleman, Mr. Smith, who was tenant then of the house, would not, she would not lose her rent; that is, the transaction was to figure from the first of the month. She said she didn’t think there would be any objection to it, a refusal for the sale of the house for three days. She then knew that I had Mr. Smith as a purchaser. She said: I see you have sold our house. I says, Yes; I want to ask you for a refusal for three days. She says, you know you sold the house for a pretty good price and you ought to get a commission out of the other party. I says: ‘ The other party is not the one to look to for the commission.’ I says, I was authorized to sell the house by your son. She said she knew that; and that was all the conversation I had with her. The next Monday morning I went over and signed the contract. Mrs. Smith bought the house and signed the contract in her house in the presence of her husband and a lawyer. I sold the house to Catharine Smith. The contract was signed by her, and the house has been conveyed to her; to Mrs. Smith. I have not been paid any commission. My commission is $187.60. That has not been paid me; that isAhe legal commission. How I came to go to Mrs. Howe’s son was, I was out in the yard and saw him going past, and we had just bought—

“ Q. Had he placed the house and other houses of Mrs. Smith in your hands for sale the same as he did this ? ”

Objected to as immaterial; sustained; exception.

Cross-examination, by Mr. Wood:

I stated on my direct examination that when I saw Mrs. Howe she said: I see that you have sold our house; and I then stated that I wanted a refusal for three days. I wanted the refusal for the reason that the gentleman I sold it to was a tenant of hers and I didn’t want to beat her out of a month’s rent. We wanted the transaction to go from the firsf of the month. She said, you know I don’t want to lose my month’s rent out of it. 1 wanted a refusal of it so as to date from the first of the month. She accepted ; her son accepted the house when I sold it. I say I sold the house, and then I asked for a refusal of it for three days. I mean by a refusal that I asked for the privilege to make a contract within three days. I think I had sold it because she accepted me. When I saw her there she said, I see you have sold my house. I stated also that Mrs. Howe said she did not want to pay any commission. She didn’t say she wouldn’t pay any commission ; she said I ought to get the commission out of' the other party ; they get the house very cheap. I said they wouldn’t pay any commission. She didn’t say she would. I said she might compromise with me for $100. This was before the contract was signed. She' said she didn’t want to pay any commission; she didn’t say she would not.

At the conclusion of this testimony the plaintiff rested, and the defendant’s counsel moved for a nonsuit, which motion was granted, and the plaintiff excepted. It cannot be contended that the appellant cannot present the questions sought to be raised on this appeal on the ground that he did not aslc to be allowed to go to the jury upon the question whether his services were rendered gratuitously or in anticipation of compensation therefor. Where the court at circuit nonsuits the plaintiff on the whole case, and an exception is taken, to enable him to present the exception to the appellate court for review, it is not necessary that he should ask permission to go to the jury upon the whole case or upon any question therein. Train v. Holland Purchase Ins. Co., 62 N. Y., 598; Clemence v. City of Auburn, 66 id., 334.

It is also well settled that in case of non-suit, the rule requires that upon an appeal all contested facts shall be deemed established in favor of the plaintiff and the most favorable inference to be drawn from the evidence must be assumed in bis favor. Calvin v. The Mayor, etc., of New York, 20 N. Y. State Rep., 569; Rehberg v. The Mayor, 91 N. Y., 141.

Bearing in mind these principles, we are of the opinion that upon the evidence presented by the plaintiff, it was error to dismiss the complaint. A broker claiming a commission upon the sale of real estate must show an employment, and that the sale was made by means of his efforts or agency. Sussdorff v. Schmidt, 55 N. Y., 319; Jarvis v. Schaefer, 105 id., 289,; 7 N. Y. State Rep., 502.

The evidence given by the plaintiff was intended to show that the sale of the property in question was effected by the plaintiff after he had been authorized by the plaintiff’s son to sell the same. What the son’s authority was in that respect does not appear from the evidence, but it does appear that when the plaintiff went to the defendant before she signed the contract, “ She then knew that I had Mr. Smith as a purchaser. She said: I see you have sold our house,” when the plaintiff said: “Yes; I want to ask you for a refusal for three days. She says: You know you sold the house for a pretty good price and you ought to get a commission out of the "other party.”' I says: “The other party is not the one to look to for the commission. I says I was authorized to sell the house by your son. She said she knew that, and that was all the conversation that I had with her.”

This being on Saturday the next Monday morning, the contract was signed between the parties. It thus appears that the defendant knew that the plaintiff had been employed by her son to sell the house, and that she was satisfied to adopt and ratify the employment of the plaintiff by her son. It, therefore, was important to know precisely what transpired between the son and the plaintiff at the time he placed the property in question in plaintiff’s hands for sale. The plaintiff sought to elicit that information by the question which his counsel put to him, at page 9, folio 36 of the case, as follows:

Q. Had. he placed “ (that is the son) ” the house and other houses of Mrs. Smith in your hands for sale the same as he did this ?

Objected to as immaterial; sustained ; exception.

We are of the opinion that the exclusion of that question was erroneous. It was designed to ascertain precisely what authority the son had from his mother in respect to the property in question, and was designed to elicit evidence ewhich would show the understanding between the son as the agent (if proven to be the agent of his mother), and the plaintiff. Furthermore, we think the evidence sufficient to establish prima facie, that the defendant accepted the result of the plaintiff’s services in the sale of the house without repudiating expressly the promise which the law would imply, from such a transaction, that she intended to compensate the plaintiff. The plaintiff, whose testimony is for the purposes of this trial to be taken as entirely true, says upon his cross-examination that “she didn’t want to pay any commission. She didn’t say she would not pay any commission; she said I ought to get the commission out of the other party; they got the house very cheap. I said they wouldn’t pay any commission. She didn’t say she would.” After this had transpired between the parties, the contract was signed, and the defendant accepted the result of the plaintiff’s labor or services. A jury, under such circumstances, it seems to us, woidd be perfectly justified in finding that, while the defendant wished to avoid paying the plaintiff for his services, after knowing that he claimed compensation, she availed herself of these services and thereby assented to his demand. Whether the services were intended to be rendered gratuitously, or whether they were understood between the parties to be rendered for the usual commission allowed to brokers, upon the purchase and sale of real estate, was a question which we think should have been submitted to the jury. See Smith v. Long Island R. R. Co., 1 N. Y. State Rep., 403 ; Pendleton v. The Empire Stone Dressing Co., 19 N. Y., 13. In the latter case, the plaintiff rendered services for a corporation under a formal appointment as treasurer, but with no arrangement for its compensating him, and there was evidence tending to show that he expected compensation, only from the incidental advantages of his connection as partner with another officer of the company. It was held to be a proper question for the jury whether the services were intended to be gratuitous as it respected the company. See also Green v. Roberts, 47 Barb., 521.

The case of Hewett v. Bronson, 5 Daly, 5, relied upon by the respondent’s counsel is not in point in this case, as the services therein rendered were such as the learned court found, would be rendered by one person to another, without contemplation of pecuniary reward, and were such as are performed by relatives, friends, acquaintances or strangers as duties from motives of humanity. Ho such element exists in this case. There was no duty resting upon the plaintiff to sell the defendant’s house, and the legal inference would be that, in selling it, he expected compensation, and that she intended after adopting the fruits of his labor, after being informed that he expected compensation, to give him that compensation which the law would imply that he ought to receive. Whether this be so or not, the plaintiff certainly was entitled to have placed before the jury what transpired between the defendant’s son and herself, for the purpose of showing what were the powers of the son, and, secondly, what was the agreement between the plaintiff and the son.

For these reasons, we are of the opinion that the judgment below should be reversed and a new trial ordered, with costs and disbursements to the appellant to abide event.

Daniels, J.

It appears by the admission of the answer that the plaintiff sold the property for the defendant. And from that fact it may be inferred that it was understood that the defendant would pay him for his services in making the sale. She did not deny the existence of that understanding in the conversation with her, but claimed that the commissions should be paid by the purchaser. And when informed that the purchaser was not the party who would be expected to pay, did not then deny her own liability. This evidence was sufficient to present the question as one of fact, whether it was not the intention that she should pay the commissions. And that entitled the plaintiff to have the case submitted to the jury. It was not one therefore for the dismissal of the complaint, and the judgment should be reversed and anew trial ordered, as directed by Mr. Justice Lawrence.


source: Caselaw Access Project

author: Daniels, J. Van Brunt, P. J.

license: Public Domain

text:
    Adam Dutenhofer, Resp’t, v. The Adirondack Railway Co. et al., App’lts.

      (Supreme Court, General Term, First Department,

      Filed May 15, 1891.)

    Corporations—Improper issue op bonds—Damages.
    An action had been brought to forclose a railroad when the parties interested therein entered into an agreement appointing trustees to receive existing bonds and stock and issue certificates in place of them; also, providing for a new corporation to which the property of the old should be conveyed; and for the execution of two mortgages to secure two sets of bonds, of which the latter should be used to replace the certificates. _ This agreement provided that it might be changed by a vote of a majority, in par value, of the certificate holders. The agreement was carried out to the extent that the trustees conveyed the property to the new corporation. Some years afterwards the corporation executed one mortgage and issued one set of bonds instead of two, as stated in the agreement. In an action by a certificate holder who had not assented to the change, Held,thah the action of the corporation was illegal, and that the rights of parties could not be changed by any vote of the certificate holders, taken after the creation of the new corporation; but that, as a specific performance had become impracticable, plaintiff could only be compensated in money for the value ■ of his bonds.
    ' Appeal from a judgment entered upon trial at the special term.

      B. M. Bristow and David Willcox, for app’lts; John W. Wood and Rich. M. Henry, for resp’t.
   Daniels, J.

The plaintiff was the owner of twenty bonds of $1,000 each, which had been issued by the Adirondack Company and secured by a mortgage on its railroad, lands, privileges and franchises. The company made default in the performance of the conditions of the mortgage, and a foreclosure was commenced by the trustee for the benefit of the persons holding the bonds secured by it. On the 30th of April, 1880, and after the foreclosure suit had been commenced, an agreement was entered into between William W. Durant and William Sutphen, of the one part, and the bondholders, stockholders and creditors of the company of the other part, by which these two persons were made trustees of the other parties, with power to do what should be necessary for the promotion and protection of their interests. In the execution of their powers they were to, and did, receive the outstanding bonds and stock of the company and issued their own certificates for them, by which the persons receiving them became entitled to receive certain amounts of the stock and bonds of a new corporation to be formed after the sale of the property of the company then included in the foreclosure action. The plaintiff surrendered his bonds and stock to the two trustees and received the certificates for stock and bonds in the new company to which he became .entitled. Judgment was afterwards recovered in the foreclosure suit, and the trustees, under this agreement, purchased the property of the Adirondack Company for the benefit of the stockholders, creditors and bondholders of that company, and it was conveyed to them in October, 1881. They, with their associates, incorporated the Adirondack Bail way Company, to which, on the 24th of Hovember, 1882, they conveyed the property purchased by them at the foreclosure sale.

By the agreement which was first made, the corporation which was to be, and was, in fact, formed, was to execute two mortgages, the first to secure the sum of $4,000,000 to defray the expenses of construction and equipping a railroad from Saratoga Springs to a„ point in St. Lawrence county, on the St. Lawrence river; the second, to secure the sum of $1,500,000 of bonds bearing interest at the rate of six per cent. These second mortgage bonds the new corporation was to deliver to the trustees nominated in the agreement, who became obligated to “ further pay off, retire, and cancel their said certificates, and shall pay, satisfy and discharge all sums advanced to protect the rights and interests of the parties of the second part, and of the said certificate holders, and their own proper fees, charges and expenses, all according to the terms and provisions, of this agreement and'thereafter, and with all convenient speed, they shall retransfer and deliver to said successor corporation all of the said second mortgage bonds and new stock not required or used for the purposes aforesaid, and shall adjust all the claims in their hands by transfer or cancellation, as the case may require, and thereupon they shall be fully discharged from all liability under this agreement

Neither of these mortgages were executed, nor was either of the series of bonds made which they were to secure. And as the plaintiff, and others similarly situated with him, were to have received certain proportions of the second mortgage bonds in satisfaction of these issued by the Adirondack Company, and surrendered by them under the agreement to the. trustees, he brought this action to secure the performance of that part of the agreement for the benefit of himself as well as others having the same cause of complaint.

The action was resisted on the ground that more than,a majority of the holders in amount of the certificates issued by the trustees under their agreement with the stockholders, bondholders and creditors had so changed and modified that agreement, by their action, taken at different times upon it, that they had dispensed with the execution of the first and second mortgages, and the issuing of the bonds to be thereby accrued, and had agreed to and authorized the execution of a mortgage in the sum of two millions of dollars to secure a series of bonds bearing interest at the rate of four per cent, which should, so far as that became necessary, be used to retire and satisfy the trustee certificates, which by the original agreement wére to have been exchanged for the second mortgage bonds of the new company. This change was not made by the action taken by the holders of the certificates at one time. But it resulted from a succession of meetings commencing in October, 1886, and held in 1887, 1888, 1889, and finally consummated in 1890. It was then agreed, in the manner already stated, that the company should make but one mortgage, which should secure a series of bonds amounting to no more than two millions of dollars. And that there should be delivered to the persons who had been selected and appointed the successors of the two trustees named in the agreement “such number of said first mortgage bonds and such additional amount of stock, if any, as may be necessary to carry out the terms and provisions hereof and of such agreement as modified hereby. Thereupon the said trustees shall forthwith pay off, retire and cancel the certificates heretofore issued pursuant to said agreement of April 30,1880, by the trustees thereunder, and which by their terms are redeemable and payable in second mortgage bonds of the successor corporation. The said certificates shall be paid off, retired and canceled by issuing and delivering to each of the holders thereof such first mortgage bonds to the amount of fifty per cent of the certificates held by each of them respectively, and to each of such certificate holders stock of the said successor corporation, The Adirondack Railway Company, to the amount of fifty per cent of the certificates held by each of' them respectively. The remainder of said first mortgage bonds, and their proceeds, shall be used by the said Adirondack Railway Company for the purpose of completing, constructing and equipging the said railroad from Saratoga Springs, New York, to •gdensburg, New York, or to some other point on the St. Lawrence river, in the county of St. Lawrence, and in protecting and developing the property of the company, or for any and all other corporate purposes which the said railway company may deem proper and expedient.”

The changes resulting in this final agreement were agreed upon without the assent of the plaintiff. But it was believed by the majority acting in this manner that they had been empowered to bind him, as well as the others in the minority withholding their assent, under the tenth article of the agreement to which the holders of the bonds of the Adirondack Company had become parties. By this article it was agreed that

“ The said certificate holders may, at any time, by the vote or assent of a majority in par value of their number modify, amend or change this agreement, or any provision thereof or the plan herein set forth, in any manner they may deem best for the interest of all concerned.”

But while the language of this article is broad and general, it will not justify so extended a construction. Its design, as well as that of the entire agreement, was to empower the trustees named in it, and their successors, to obtain possession of the bonds and stock of the Adirondack Company, and issue their own certificates therefor, and to mature and perfect a plan for the satisfaction and retirement of the certificates, through the organization of another corporation, to which the property of the insolvent company should be conveyed, and by which a series of second mortgage bonds should be issued, amounting to the sum of fifteen hundred ° thousand dollars: The plan was intended to be so far carried out by the newly organized company that it should provide the bonds to be used in taking up the trustees’ certificates. And that was made subject to alteration by a majority in value of the holders of the certificates. But that power of alteration could not, in the nature of the enterprise to be promoted, extend beyond the creation of the company which was to issue the bonds and the conveyance of the property to it. For then its rights and obligations became fixed and beyond the control of this mere majority.

It was the paramount design of the agreement, that the property purchased by the trustees when it was conveyed to the company, should pass into its own control, subject only to the restraints and qualifications at that time created and existing. That was to be, as it in fact was, the final object to be attained in the conveyance of the property by the trustees, and when it was secured, the power of the holders of a majority of the certficates to change the situation ceased to exist. What remained to the trustees then was no more than to receive the second mortgage bonds, and stock of the company, and exchange the bonds and the stock for their own certificates. And this understanding of the effect of the agreement is supported by the deed which the trustees named in it executed and delivered to the company which they and their associates formed. That was executed on the 24th of ¡November, 1882, eight years nearly, before the final change now relied upon by way of defense was made under the sanction of a majority of the holders of the trustees’ certificates. This deed was absolute in form, conveying an indefensible title to the property obtained by the trustees under the foreclosure sale, to the company afterwards created. The company then became bound to issue these second mortgage bonds, as that had been provided for in the agreement, which was made a part of its own articles of incorporation. The nature of what was done, was such as to create that obligation, and thereby so provide for the satisfaction and retirement of the trustees’ certificates. And that obligation a mere majority of their holders did not after-wards have the power to change. Frothingham v. Barney, 6 Hun, 366; Post v. Simmons, 16 N. Y. State Rep., 246.

While it is true that the language of the tenth article of the agreement is very broad, it is more consistent with the construction which should be given to it that its power must be exercised before the conveyance of the property to the company, than that it shall survive and extend beyond that event, and be employed through an indefinite period afterwards. The latter would be far too loose to warrant its adoption. And as much as that is required to support and sanction this action of the majority of the holders of the certificates. It is as to the right to the bonds alone that this controversy has arisen, for the shares of stock have been delivered, as that was fixed by the agreement. And the plaintiff appears to be entitled to his proportion of these bonds.

But the fact is proved that over seventy per cent, of the holders. o°f the certificates, having.the same right as the plaintiff to receive second mortgage bonds, have consented to receive in lieu of them their proportionate shares of the two million mortgage bonds, and the railroad company has consented to that substitution. They cannot now be obliged to receive second mortgage bonds of the series mentioned in the agreement. As to themselves they possessed this power of modification. And by the concurrence and acceptance of the railroad company it has so far been made. The plaintiff cannot insist that they shall receive the second mortgage bonds in contravention of their own agreement. And the agreement for their issue and security by a second mortgage can no longer be specifically performed. In this condition of the-affairs of the parties a specific performance has become impracticable. And all that the court can do is to provide an equivalent to the plaintiff of that performance by giving him the value of the bonds he is entitled to receive. That can be done by modifying-the judgment so far as to direct a reference to ascertain that value. And that modification should be made. And as so modified the judgment should be affirmed, without costs of the appeal to either party.

Van Brunt, P. J.

I think the judgment should be affirmed, and I concur with hesitation in its modification.


author: Van Brunt, P. J.

text:
    Charles G. Landon et al., Ex’rs, Resp’ts, v. Mary N. Townshend et al., App’lts.

      (Supreme Court, General Term, First Department,

      Filed May 15, 1891.)

    1. Executors and administrators—Devise of realty to them—Ejectment.
    Where real estate is devised to executors as such, although they are also named in the will as trustees, they may as executors maintain ejectment.

      2. Adverse possession—Title in assignee in bankruptcy.
    The fact that the legal title to land is in an assignee in bankruptcy does not prevent the statute of limitations from running and thereby creating a title by adverse possession.
    3. Same—When established.
    The holder of a mortgage foreclosed it, but failed to make the owner of the equity of redemption a party. At the sale the holder purchased the premises. Held, that whether he thereafter entered and held only as mortgagee in possession or whether he held as absolute owner, statutory possession for twenty years by and under him would establish an adverse possession as against any persor.
    Appeal from judgment entered upon report of referee.

      John Townshend, for app’lts W. D. Page, for resp’ts.
   Van Brunt, P. J.

This is an appeal from a judgment entered in favor of the plaintiff upon the report of a referee.

The action was brought in ejectment by the plaintiffs as executors of Benjamin H. Hutton, to recover possession of certain land in the city of Hew York. The defendants are Mary H. Townshend, who claims to own the property, John Townshend, her husband, and one Wieck, who occupied the premises as tenant of Mary H. Townshend at the time of the commencement of the action.

The referee found in favor of the plaintiff upon the ground that in 1867 Benjamin H. Hutton had acquired title to the premises in question superior to to the title represented by the defendants, by adverse possession; and from the judgment entered upon the referee’s report this appeal is taken.

In September, 1835, one Edward Price owned the property in question, and at said time conveyed it to John Scudder, who gave back to Price a purchase money mortgage. In 1836 Scudder conveyed the premises to Ebenezer L. Williams. In 1843 Williams, still being the owner of the premises in question, was declared bankrupt, and William 0. H Wardell was his assignee as the official assignee in bankruptcy.

At or about this time one George Born entered into possession of the premises in question, they then being vacant and unoccupied, and such entry was without right, or claim of right, to the premises or any part thereof.

In 1845 Price commenced a suit to foreclose the mortgage, but did not make said Williams or his assignee a party. A decree was entered in that suit for a sale and foreclosure; a sale was had and the premises struck off to Price in 1846, and ,a conveyance was made by the master in chancery of the same to Price. Some time in the same year Born became the tenant of Price of the premises and continued as such tenant until the year 1858, when he sold to Louis and Frank Sargent the crops then upon the premises and all his right in and to the premises in question. The Sargents continued in joint occupation until 1856, when Louis sold out'to Frank Sargent, and continued in possession and cultivated the premises, paying tent to Edward Price during his life, and as the referee finds (which is contested by the defendants) to his heirs after his death until the conveyance of the premises in question to Benjamin H. Hutton hereinafter mentioned. In 1858 Edward Price died intestate, leaving certain children his heirs-at-law. In 1856 letters of administration upon the estate of Edward Price were issued to William Coulter. In 1858 one of the heirs-at-law of Edward Price commenced an action for partition of the premises in question against his co-heirs, and in June of that year judgment was entered in the action for a sale. In August of that year a sale was had, and a portion of the premises in question were struck off to Benjamin H. Hutton and a portion to one Cushman, who afterwards assigned his bid to Hutton.

In 1850 Ebenezer L. Williams died intestate. In 1858 William Coulter, as administrator of Edward Price, commenced an action in the supreme court against Rhoda Williams, the alleged widow of Ebenezer L. Williams, who was then dead, and William C. H. Wardell, to foreclose said mortgage of Scudder to Price. In December of that year judgment of foreclosure and sale was entered, and in January, 1859, a sale was had and the premises in question were struck off to one Gordon, who on the same day assigned his bid to Hutton, and in the same month the referee conveyed to Benjamin H. Hutton. In March, 1859, the referee appointed to sell in the partition suit, conveyed the premises to Hutton, and on the same day the heirs of Edward Price also conveyed to Hutton.

After these several conveyances Hutton saw Sargent, who was in the occupation of the premises in question,and it was agreed between them that he should continue to cultivate and occupy the premises without payment of rent, and he so continued until July lr 1865, when he sold his crops in and upon the premises and his rights under Hutton to one Bischoff, who thereupon entered and continued to occupy and cultivate the premises under Hutton until his (Bischoff’s) death, about the year 1872 or 1873. Aftér Bischoff’s death, his widow continued in possession of and cultivated the premises until the defendant, Mary ¡N. Townshend took possession of the same, in the year 1875, by enclosing the premises with a substantial fence, which gradually disappeared.

In the year 1880, Mary ¡N. Townshend let the premises to' one John Warner, and in 1884 she let the premises to the defendant Wieck. In January, 1869, Wardell, as the assignee of Williams, presented a petition to the United States court in bankruptcy, praying for an order to sell the right, title and interest of Williams in the premises, which was granted.

Pursuant to said order, the assignee offered the premises for sale, and they were in February, 1869, struck off to George Law, and the assignee, in March, 1869, conveyed the same to said Law-Law paid the assignee the purchase money, which was subsequently deposited in court to the credit of the estate of Williams. In January, 1873, Law quit claimed the premises to Mary ¡N. Townshend, and it was by virtue of the title thus procured that she assumed to enter into possession. Benjamin H. Hutton died in 1884, leaving a last will and testament, which was duly proved, and by which he devised his real estate to his executors in trust

One of the executors of said will having died in 1885, this action was commenced to recover possession of the lots in question by the remaining executors of Benjamin H. Hutton, deceased.

The case has been twice tried, and upon the first trial the plaintiff relied upon the title acquired under the deed in the foreclosure suit in 1858, in which William 0. H. Wardell was a party; but the court of appeals held that having made Warded personally a party, did not cut off his title as assignee in bankruptcy, because there was nothing upon the face of the proceedings that indicated that he was made a party because of the fact of his being such assignee. Upon the present trial further evidence was given of the facts above mentioned, and, as already stated, the referee found that in 1867, Hutton had acquired a title superior to that of the assignee in bankruptcy by adverse possession.

The first point raised by the counsel for the appellant is, that the question is this case is res adjudicata, because when the court of appeals reversed the first judgment it decided that the facts proved by the plaintiffs did not entitle them to recover. The court expressly placed its decision upon the fact that the plaintiff could not maintain the action under his title in the foreclosure suit, and refused to consider any other question.

It is further urged that the plaintiffs as executors could not maintain this action; that if the executors took as legatees they are trustees, and should have sued as such. That is undoubtedly the fact, but by the terms of the will itself, which is in evidence without objection, it appears that the real estate in question was devised to the executors as such, and although the executors may be trustees, they are such trustees in their representative capacity, and the proofs which were admitted without objection, show that they were ves'ted with the legal title.

The criticism as to the legality of the trust contained in the will, it is not necessary to consider at length, because at most the disposition made of the income pending the ascertainment of the amount of the residue of the estate, would only be void, and not at all affect the title of the executors as trustees.

The main question in the case is as to whether the referee was justified by the proof in holding that Hutton had in 1867 or thereabouts acquired a title by adverse possession. It seems to be suggested that because the legal title was in the assigneee in bankruptcy, a title bv adverse possession could not be acquired upon the theory that the property of the bankrupt was in custodia legis under the control of the U. S. district court as an asset to be administered in that court and could not be removed from that custody or sold except by the order of the court. We are not aware of any rule which prevents the statute of limitations from running in reference to real estate, simply because the owner of the fee becomes a bankrupt. The main point of contention, however, seems to be that Price after he obtained the deed in foreclosure in 1846 and entered into possession of the premises under said deed was only a mortgagee in possession and our attention is called to the adjudication in Schriver v. Schriver, 86 N. Y., 580. But all that was held in that case was that prior to the Code, where a mortgagee becomes a purchaser at a foreclosure sale made in an action in which the owner of the equity of redemption was nót a party, and enters into possession by virtue of a deed pursuant to such sale he could claim that he thereby became a mortgagee in possession and could defend against the owner of the equity of redemption or his representative any action except for an accounting of the rents and profits and to 'redeem, which action must be commenced within ten years; but that in case any other person purchased and went into possession the owner of the equity of redemption had twenty years from the entry in which to bring suit to regain possession.

But this case does not decide that where a mortgagee purchasing at a foreclosure sale enters into possession of the premises under the deed, supposing that he has thereby acquired a good title, he can defend such possession, no matter how long it may continue only as mortgagee in possession. On the contrary, it decides exactly the converse of that proposition. It decides that as against an action brought by the owner of the equity of redemption against a mortgagee in possession for an accounting the ten years statute applies, and that in every other case a right to maintain the action to recover the possession of the premises is barred by the limitation of twenty years. Therefore, if Price and his heirs and their grantees were in possession for twenty years, under such circumstances as would constitute adverse possession, their title would ripen into an absolute one against the owner of the- equity of redemption and those representing him.

Now the evidence in this case shows and the referee finds that upon the receipt of the deed on the first foreclosure said Price entered into possession, and Born, the person in possession, became his tenant and remained there until 1853; then Lóuis and Frank Sargent succeeded as tenants and remained there until his death, and subsequent thereto until in 1858 Hutton acquired the title to the premises by the partition sale and the conveyance from the heirs of Price, and one of the Sargents remained in possession as such tenant of Hutton (at will, it is true) until 1863, when Bischoff succeeded him and remained until his death in 1872, all these parties cultivating the premises for the purpose of market gardening during this period. This clearly showed a possession of the premises in Price and his successors for a period of over twenty years.

It is urged that the possession of Bischoff was not the possession of Hutton, because Sargent, being a tenant at will, is disqualified from granting a lease available against any one but himself, for a demise would amount to a termination of the tenancy at sufferance, and it would be optional with the landlord to regard the entry of the lessee of the tenant at will as a disseisin.

This proposition is absolutely true, but there is no evidence that Hutton ever exercised the option to terminate the tenancy because of the entry of the lessee of the tenant at will, but rather assented to such transfer.

Our attention is called in respect to this proposition to the case of Reckhow v. Schanck, 43 N. Y, 448, but the adjudication in that case was simply to the effect that there being no evidence that the plaintiff assented to the occupation of the transferee, and having the option to terminate the lease because of such transfer, notice to quit was unnecessary before commencing the possessory action. The very taking of the proceedings to regain possession was an exercise of the option: a very different case from the one at bar.

But it is urged that Price’s possession could not, under any circumstances, be other than that of mortgagee in possession. We think that the case of Schriver v Schriver shows conclusively that such is not the case. But in any event it does not appear that Price went into possession of the premises as mortgagee.

It is true that he had the right to claim possession as such mortgagee if his title was assailed by the owner of the equity of redemption. But in the case at bar he went into possession under the deed, evidently supposing that the deed conveyed a title, although it may not have done so, and that is all that is necessary in order to start an adverse possession; namely, entry and occupation under a claim of title founded upon a written instrument.

The question as to how much Price got by his deed is entirely immaterial; because if the party entering gets a title by his deed there would be no reason for quieting his title by claiming adverse possession. A title by adverse possession is only necessary to be established where there is a defect in the paper title in that the deed does not bar the rights of the owner of the equity of redemption. But Price went into possession, claiming title by reason of his deed, and exercised the rights of ownership, his heirs and their grantees, continuing the same subsequent to his death for a period of much more than twenty years. This it would seem did establish a title by adverse possession.

It is urged that by the foreclosure of the mortgage by the administrator of Price in 1856 the claim of adverse possession was broken and that because Hutton fortifying himself by purchasing at this sale, and acquiring whatever title that proceeding might give him he thereby waived the superior title which he might otherwise have acquired.

It may be true that if Price was in possession simply as a mortgagee in possession, his heirs took no interest in the property, but as-already seen Price’s possession was not necessarily that of mortgagee in possession, but he went into possession claiming an absolute title by virtue of the deed he received under the foreclosure proceedings.

This claim descended to his heirs and was subsequently conveyed to Hutton, either by them directly or in the partition sale and Hutton succeeded to all the rights acquired by the previous possession and which in 1867 ripened into a perfect title, and the mere fact of his having bought at foreclosure sale what might appear to have been an outstanding title, which could not, because of defect in the proceedings, ripen into a perfect title, he certainly did not lose the advantage which had been gained by reason of the previous adverse holding of the property in question.

Our attention is called to the case of Calkins v. Isbell, 20 N. Y., 147, to establish the proposition that the attempted foreclosure was an acknowledgment that the mortgage was an existing mortgage and the right to redeem in force. But in that case it appeared that the mortgagee, who had granted the premises instituted the proceeding at the request of his grantees, and for this reason it was held that a proceeding to foreclose with whatever motive instituted, seems to be entirely inconsistent with any contention on the part of the mortgagee that his possession had ripened into a title. There is no evidence in this case that this foreclosure suit was commenced by and with the assent of the heirs of Price, although, perhaps, it may have been so instituted; but such a finding cannot be made as will cut off their rights obtained by, adverse possession except upon proof of the fact.

The claim that Hutton's adverse possession only commenced in January, 1859, is founded upon the erroneous theory, as already stated, that because he took a deed of these premises under the foreclosure proceedings of 1858 the rights which he acquired in the partition proceedings or from the heirs of Price were lost.

We think, therefore, as already stated, that the evidence in this case justified the conclusion of the referee that there had been a continuous adverse possession of these premises since 1847 by Edward Price, his heirs and grantees, and that the plaintiff in this action representing such title could recover possession of the premises from the defendants.

The judgment should be affirmed, with costs.

Daniels and Lawrence, JJ, concur.


author: Macomber, J.

text:
    Anna M. Zent, Adm’rx, App’lt, v. John Fuchs, Resp’t.

      (Supreme Court, General Term, Fifth Department,

      Filed June 2, 1891.)

    Services—Quantum meruit.
    Z., being childless, arranged with defendant to formally adopt his child. The child lived with Z., no formal papers of adoption having been drawn up, until his death. Thereupon the plaintiff, the wife of Z., voluntarily surrendered the child to the defendant. Held, that this was a mutual abandonment of the original purpose of adoption, and that the plaintiff could not thereafter recover upon a quantum meruit for the board and care of the child.
    Appeal from an order of the county court of Erie county, entered November 25, 1890, setting aside a verdict for the plaintiff and granting a new trial.

      George W. Cothran, for app’lt; Emery & Sickmon, for resp’t.
   Macomber, J.

This action is brought upon alleged implied contract for the care and maintenance of the defendant’s child by Philip Zent and his wife, Anna M. Zent, the latter being the plaintiff, from May 27, 1886, to May 9, 1888. The jury rendered a verdict for the plaintiff in the sum of $255. On motion made upon the minutes of the court, this verdict was set aside and a new trial granted.

Though no opinion was written by the county judge, it is apparent, from an inspection of the case, that the verdict was set aside solely upon the ground that it was against the weight of evidence. In this final conclusion of the learned county judge we concur.

The plaintiff’s husband, being childless, arranged with the defendant to adopt this child, and accordingly took it into his possession. It appears that it was the common purpose of the father of the child and of the plaintiff and her husband, that such adoption should be made, and that formal papers should be prepared and presented to the court, and an effective and binding order be made in pursuance of such intention of the parties. Though the matter of formal preparation and execution of such papers was, from time to time, the subject of conversation between the parties, yet nothing was done in furtherance thereof. Immediately after the death of Philip Zent, the child was voluntarily surrendered by Mrs. Zent, the present plaintiff, to the defendant. This step on her part was a complete abandonment and cancellation of the orignal purpose of the parties, by mutual consent.

No qualification was made of the original arrangement by which the plaintiff, as the representative of her husband, should receive any compensation for the care bestowed upon the child for the two years while it was in their possession. In the absence of such an agreement, we think no recovery could be had on a quantum meruit for such services. Undoubtedly the contention of the learned counsel for the appellant is correct, that if the defendant, when he surrendered the possession of the child to the plaintiff and her husband, did not in fact intend to clothe the latter with the legal custody of the child, and did not intend, as they expected him to do, to execute proper papers to accomplish such adoption, a right of recovery would be shown. But, under the facts disclosed in the case, there is not any evidence to warrant the jury in arriving at such a conclusion.

The learned county judge at the trial distinctly charged the jury that no recovery could be had in the case unless they were satisfied from the evidence that the intention on the part of the defendant was to get the Zents to take care of the child, and never himself to execute adoption papers

He further charged as follows:

“If you can find from the evidence that that was in his mind, simply to get somebody to take care of the child, and not give him the papers, so that in the hereafter he could reclaim the child whenever he saw fit, then the law would compel him to pay for the taking care of the child; but if the fact that they did not get out adoption papers was a mere neglect on both sides, then the plaintiff here is not entitled to recover.”

This we deem to be an accurate presentation of the law of this case. But, as stated above, on a review of the testimony, it is quite apparent that there was not sufficient evidence to enable' the jury to say that the defendant had in his mind at the time of making the original arrangement any purpose not to carry out the same fully, or that he resorted to this means to procure the support and maintenance of his child until such times as he should reclaim him.

The order appealed from should be affirmed, with costs.

Dwight, P. J., concurs.


text:
    William B. Moody, App’lt, v. Francis W. Belden et al. Resp’ts.

      (Supreme Court, General Term, Fifth Department,

      Filed June 2, 1891.)

    Foreclosure—Pleading—Inconsistent defenses.
    A denial by the defendants in an action of foreclosure that they have or claim an interest in the premises which accrued subsequent to the lien of the plaintiffs mortgage is not inconsistent with the further defense of payment. Both defenses may stand.
    Appeal from so much of an order of the special term, entered in Wayne county on the 15th day of December, 1890, as denied the plaintiff’s motion for judgment and a bill of particulars, and as. also denied his motion to make definite a certain paragraph in the answer of the defendants containing denials and allegations of payment.

      S. B. McIntyre, for app’lt; Camp & Dunwell, for resp’ts.
   Macomber, J.

The motion made by the plaintiff at special term was: (1) For the direction of judgment in his favor upon the answers as frivolous. (2) That if that part of the motion was-denied, then that the defendants be required to make definite and certain the allegations of such answers. (3) That a bill of particulars of certain payments alleged as set-offs be delivered by the defendants to the plaintiff.

The court at special term denied the motion for judgment and for a bill of particulars, but that part directing the defendants to make the answers in certain particulars definite and certain, was granted.

The denial by the defendants that they have or claim any interest or lien upon the premises which accrued subsequent to the lien of the plaintiff’s mortgage, does not seem to be inconsistent, with their further defense of payment. Under allegations contained in the complaint that such defendants were subsequent, lienors, the latter had an undoubted right to answer denying such an allegation. If they, at the trial, should be defeated in that contention, there appears to be no legal objection to their relying upon other matters to show that the amount of the plaintiff’s recovery is not as great as is claimed, and that, in fact, his bond and mortgage, of which he is the assignee, have been entirely extinguished by payment. The question is not whether it was necessary for the defendants to make this answer, but it is rather whether they had a right to do it. We know of no reason, having been thus brought into court undeh the allegation named, why a complete denial of the plaintiff’s claim should not be made available to the defendants. The cases cited by the learned counsel for the appellant-have, in this aspect of the case> in our judgment, no application. Undoubtedly, if the sole defense relied upon by the defense was the fact that they were not lienors subsequent and subordinate to the plaintiff, they could have omitted to answer on that ground. But they have not chosen to'place themselves exclusively upon that defense. They have coupled it with a substantial, affirmative defense that in case they should be declared to be subsequent lienors, that still their rights were intact, because the claim made by the plaintiff had Tceen either greatly reduced or entirely extinguished.

In respect to the bill of particulars, the conclusion arrived at by the learned justice, and the reason he assigns for the same in his opinion, are satisfactory. So much of the order as directed that the answers and certain particulars be made definite and certain, seems to us to satisfy this branch of the plaintiff’s motion.

It follows, therefore, that the order appealed from should be affirmed, with ten dollars costs and disbursements.

Dwight, P. J., concurs.


author: Dwight, P. J.

text:
    James Rock, Resp’t, v. John Doerr, App’lt.

      (Supreme Court, General Term, Fifth Department,

      Filed June 2, 1891.)

    Deeds—Boundaries—Acquiescence.
    One who was owner of a tract of land sold a lot to plaintiff and built a fence as marking the line between his property and the rest of the tract. Subsequently he sold the adjoining lot to another person, from whom by mesne conveyances it came to defendant. This line had been acquiesced in for thirty years, when defendant attempted to change it, upon the ground that plaintiff's deed did not call for the frontage which he actually occupied, field, that acquiescence for such a period would control rather than the measurement in the deed.
    Appeal by the defendant from a judgment entered on the report of a referee.

      P. P. Dickinson, for app’lt; Q. Van Voorhis, for resp’t.
   Dwight, P. J.

The action was ejectment for a gore of land six inches wide in front and running to a point at the distance of about thirty feet to the rear, on the division line of lots of the plaintiff and the defendant.

In 1851 Martin Gralusha was the owner of lot Ho. 13 in the northeast comer of what was known as the Shamrock tract in the city of Eochestcr. In that year he sold a building lot off the •east end of lot 13 to the plaintiff. That lot was described in the deed as bounded on the east by the east line of the Shamrock tract, on the south by lot 15, on the north by Hand street and on the West by a line parallel with the first line, and as being thirty-three feet wide front and rear. The lot was sold under an agreement of Gralusha to build a house on it for the plaintiff. The house was built and before possession was delivered to the plaintiff Gralusha staked out the west line, dividing the plaintiff’s lot from his own land, and caused a fence to be built on it and also on the front on Hand street, for which the plaintiff paid, under his agreement with Gralusha. The front and side fences met in a corner marked by a square post into which the rails, for pickets, were set.

In 1865 Gralusha sold a lot next west of the plaintiff’s to one Schmidt by a deed which described the land as bounded on the east by land conveyed to the plaintiff. The defendant took his, title to the last mentioned lot, by mesne conveyances, in 1872.

In 1869, Schmidt being in possession of the last mentioned property, and having always acquiesced in the location of the line-between the two lots, the plaintiff took down the division fence built by Gralusha, back as far as the rear end of his house, which stood within about eighteen inches of the line, leaving the corner post and the front fence standing where it was set by Gralusha. So the fences and the possession remained until 1882 when the defendant sawed off six inches of the plaintiff’s front fence, took up his corner post and set another post six inches further to the east and extended his own tight board fence in front of his lot up-to the new post; by this means intending to assert his title to the gore in question and to assume possession thereof. This he did upon ascertaining that, as he says, and as the evidence tends to-show, the plaintiff’s lot as fenced was thirty-three feet and six inches wide in front, whereas his deed described it as thirty-three feet in width.

The case is plainly one of the practical location of a boundary line agreed to and established by the plaintiff’s grantor, who at the time was the owner of the entire tract, and acquiesced in by his grantees of the premises subsequently conveyed, on the other side of the line, for a period of more than thirty years. This establishes title up to such line, in the first grantee, by evidence of' the most conclusive character, and overrides the evidence contained in the deed of the supposed measurement of the lot intended to be conveyed. Baldwin v. Brown, 16 N. Y., 359; Reed v. Farr, 35 id., 113; Eldridge v. Kenning, 35 N. Y. State Rep., 190, and the cases cited.

We have examined the exceptions taken on the tidal and find none which vitiate the judgment The judgment appealed from, should be affirmed.

Macomber, J., concurs.


text:
    Aultman, Miller & Co., App’lt, v. Frederick Hacker, Resp’t.

      (Supreme Court, General Term, Fifth Department,

      Filed June 2, 1891.)

    1. Evidence—"Written instruments—Parol evidence inadmissible.
    The general rule of law is that a written instrument supersedes all oral' negotiations or stipulations, concerning the subject matter, which preceded or accompanied the execution of the instrument. The exceptions to this rule are where the instrument has been procured through mistake, menace, duress, undue influence, or fraud.
    2. Same—Fraud must be pleaded.
    Where fraud is charged it must be pleaded.
    Appeal from a judgment entered in Erie county, June 16, 1890, on the verdict of a jury at the circuit in favor of the defendant, and from an order denying the plaintiff’s motion for a new trial made on the minutes of the court.

      John J. Snell, for app’lt; Abram Bartholomew, for resp’t.
   Macomber, J.

It was decided at the trial on motion of plaintiff’s counsel and with consent of counsel for the defendant, that the affirmative of the issue, under the pleadings, was with the defendant, and that consequently the plaintiff had nothing to prove at the outset to maintain its case. It was the duty, therefore, of the defendant to show affirmatively some defense which was set up to defeat an admitted cause of action as stated in the complaint.

The action is upon a contract to recover the purchase price of a combined reaper and binder, known as the Buckeye Light Banner Binder. The contract as set forth in the complaint is as follows:

July 16, 1889.
I hereby order of Aultman, Miller & Co., through their agent, Henry Kihm, one of their Buckeye Light Banner Binders, to be shipped to Orchard Park on or before July 20, 1889, for which I agree to pay the sum of $135, and in manner as follows : forty-five dollars September 1, 1889; forty-five dollars September 1, 1890; forty-five dollars September 1,1891; Cr. one "W alter A. Wood reaper, fifteen dollars; with interest on any sum remaining unpaid on the 1st day of September, 1889, and agree to make payment and settlement as above stated, giving notes for deferred payments upon delivery of the machine. ' The warranty and agreement hereon endorsed are hereby made a part of this order.
(Signed) Frederick Hacker.”
The warranty and agreement so called, which was endorsed upon and made a part of the above contract, is as follows:
“ Warranty and Agreement.
“ The Buckeye machine, for which the within order is given, is warranted to be well made, of good material, and, if properly managed, to do good work. The purchaser shall have one day in the harvest field to give it a fair trial, and agrees to see that the machine is properly managed. In case the machine does not do good work, the purchaser is to give written notice both to the agent from whom he received the machine, and to Aultman, Miller & Co., Akron, Ohio, stating wherein it fails, and shall allow reasonable time to get to it and remedy the defects, if any; and the purchaser shall render necessary and friendly assistance to the person sent to look after the machine, and furnish a suitable team for making further test of the machine, and if it cannot be made to do good work, he shall return it to the place where he received it, free of charge, in as good condition as when received, excepting natural wear, and a new machine will be given in its place, or the money will be refunded. Continued possession of the machine, or failure to give notice as above, shall be conclusive evidence that the machine fills the warranty, and no one has any authority to change this warranty in any manner whatever.
(Signed) Aultman, Miller & Co.”

The answer, after putting in issue the corporate character of the plaintiff, besides a general denial of all the allegations in the complaint not admitted, is in .substance, that the defendant, at the time mentioned in the complaint, was a German and wholly unable to read and write, the English language, .which fact was well known to the plaintiff’s agent ICihm, at the time of the execution of the agreement; that Kihm stated to the defendant that the agreement contained nothing but an order for a machine at the price of $135, and the terms of payment of the same as set forth in the complaint; “ that said Kihm represented and warranted said machine to be perfect in all respects, and that it should do good and perfect work in all sorts of grain; that if it did not do good and perfect work after testing the same, said defendant need not take or accept of said machine, and said order should be a nullity; that said defendant relying upon the representations of said Kihm as to what said paper should and did' contain, signed the same.”

It then avers that the writing on the back of the order, which is headed “ warranty and agreement,” was not read over, or the contents thereof stated to the defendant, and that the defendant did not know that the paper which he signed had any such clause t in it.

Before considering the ultimate question in the case it should •be stated that there was evidence given' at the trial from which a jury would be warranted in finding, as a matter of fact, that the particular machine which was delivered, in pursuance of the foregoing order, was not, by reason of an imperfect adjustment of its parts, sufficient properly to cut and bind both light and heavy grain, so that, if the case depended upon the evidence relating to this matter, we should unhesitatingly say that a clear preponderance of the testimony was in favor of the contention made by the defendant.

Before any evidence was given the plaintiff’s counsel made a motion that the court direct a verdict for the plaintiff for the recovery demanded in the complaint, upon the ground that inasmuch as the contract set forth in the complaint was admittedly in writing, the answer contained no defense thereto, and there was no allegation in it of fraud, deception or imposition, practiced by the plaintiff or its agents upon the defendant. This motion was denied and an exception was taken.

When the evidence relating to the matters hereinafter stated was offered, the same objection was renewed and the same ruling was made. The defendant was then permitted to give testimony in his own behalf to the following effect: That he signed the order before seeing the machine; “ they told me that it was the best binder, and then this other agent, I don’t know whether he was agent or not, he read this paper. He wants me to sign it, and then I told him I wouldn’t sign no contract; such a thing; then they commenced, both of them, Henry Kihm, both of them said it was no contract at all, it was just an order; that they could order the machine for the company and then we get more chance to sell the machine around in j'our neighborhood, and if the machine is not so as we tell you, we take it back any time. The machine would do all kinds, all the work; make no mistake in binding; bind all kinds of gram, heavy or light. Then when I signed this paper they gave this paper to Mr. Sehroeder I was working for. One of them men gave it to him; I don’t know whether it was Kihm or the other one; I guess it was the other one; I told him I wanted to see my son first; the one that gave it to Sehroeder, to see what he said about this ; they gave it to Sehroeder to hold till I saw my son; Sehroeder was to hold the paper till I could see my son.” * * *

Q. Did Mr. Kihm or this' other man read this paper to you? A. He writes it. He did not read it right off. He didn’t read it to me, just the payments he read to me; he asked me how long a time Í wanted to pay him; I take all the time I can get. He says, we put it in three years, and divide it in three years to pay. That is all he read to me. I did not read over the paper. I could not read it. I cannot read English. I cannot read or write any other English. I did not know what there was in the paper that I signed.”

On cross-examination, the defendant said he was fifty-eight years of age, and had lived in this county twenty-eight years. The son referred to in the foregoing testimony was twenty-eight years of age at this time, and had been sent to the district school of the county from seven to fourteen years according to the testimony of the defendants. The defendant also testified that Schroeder spoke English and German; that after he had signed the paper it was left in the hands of Sehroeder, and that after consulting his son he did, three days after, direct Sehroeder to deliver it to the plaintiff’s agent, which was accordingly done. On cross-examination the defendant further said : “ Then they told me in addition to that, that that warranted it. • They told me they warranted the machine to do all good work, and if they didn’t do the work I should fetch it right back. They didn’t, say that in case it didn’t do good work I was to let them know. They didn’t tell me to let them know.”

The witness Sehroeder testified that he was present at the negotiations between Kihm and the .defendant, and that the defendant told Kihm that he would not sign his name to the paper because if he did he would have to keep the machine whether it worked or not. “ Hacker said they wouldn’t do that when I sign the name, then I have to keep the machine. Ho, sir, the other agent told him that had nothing to do with that, only it was an order so that they could order a machine on the same place and try the machine on the same place. Then as Hacker wouldn’t sign the name, Kihm said that had nothing to do with it, that was only so they could try the machine; and Hacker signs his name on that paper, and the agent hands that paper to me to keep that paper in the house so long until Hacker could talk with the boy. The agent handed me the paper and told me to keep it till Hacker could see his boy. I could not read it. He did not read the paper in my presence; the agent asked him if lie could' read it, and he told him that he .couldn’t read it; he had no glasses along and he couldn’t read much English. The other man asked him that. There was nothing more said there at that time. That is all I heard.”

All of this testimony was, as it seems to us, incompetent and inadmissible under the answer. There was no denial in the answer, that the last clause. of the order signed by the defendant which .is as follows: “The warranty and agreement hereon endorsed are hereby made a part of this order,” was not read over and understood by the defendant. The testimony of both the defendant and his friend Schroeder shows with reasonable certainty, that the endorsement on the back of this order, which is called a warranty and agreement was also read over, because in one part or another of their testimony all of the material portions of such writing are in substance given with the exception of the clause, that in case there was a return of the machine for defective operation the plaintiff should have the option, either of refunding the money or giving a new machine in place of the former one, and the provision for a written notice.

It is a familiar rule, that a contract made in writing, whether the law requires it to be written or no,t, supersedes all oral negotiations or stipulations concerning the subject matter of the contract which preceded or accompanied the execution of the instrument. Lamatt v. Hudson River Ins. Co., 17 N. Y., 199, note, and cases there referred to. The exceptions to the foregoing general rule, and under which, when established by evidence, a written contract may be defeated, may be placed under the following heads. Where the instrument is procured by the plaintiff or in his behalf through (1) mistake, (2) menace, (3) duress, (4) undue influence, (5) fraud, including all forms of deceit The case clearly does not fall within any of the first four of these exceptions. Does it come under the head of fraud? We think not. No fraud is shown without the existence of which the contract in question would not have been executed. There is no evidence of any deceit practiced by the defendant or its agents upon the defendant. On the contrary, with the exception as stated above the recollection of the defendant and his principal witness is such as to enable them to state orally, at the trial, the substance of the whole agreement. Had the consent of the defendant to this been procured by any suppression or trick, or other means, by which his name was procured to the paper, a defense would be made out. But there is no evidence of this character.- The whole of the evidence taken together fully disproves such a statement made on the part of the defendant.

But if such evidence existed, it was incumbent in order to make the same admissible, that such fraud be actually pleaded in the answer. The answer, however, contains no allegation that the defendant was by any act of the plaintiff or its agents, deceived into signing a paper which he did not intend to sign. The allegation that the defendant could not read English, and that he did not know the contents of the writing on the back of the order is, in the absence of proof that the final clause of the order itself abeve quoted, was not read to him, of no avail whatever in the defense of this action.

We are not concerned here with the reasonableness of the terms of this agreement. It may indeed be true, as the learned justice at the circuit charged the juty, that under the written contract taken together, there could be no pretense that any facts existed constituting a defense thereto, provided the defendant entered into the same understandingly.

The court charged the jury as follows: If Kihm the agent of the plaintiff, when he went to Schroeder’s and had this conversation with the defendant, which resulted in the signing of this paper, if he represented to Hacker, the defendant, that this paper contained nothing but a simple order for the machine, that it was not a contract, that it was only a paper necessary for them to have in order to enable them to get this machine, that he was not required to keep it because he had signed it, then this paper has nothing to do with this contract, except so far as the terms of the contract, if he concluded to keep the machine are concerned; that is, the terms of the payment and the price. The defendant would not be bound by this printing upon the back of this paper, which is called a warranty and agreement. He would be under no obligation to square his conduct in accordance with the terms of that particular agreement. But he would have the right in dealing with this machine and these parties, who rely upon their oral agreement ; and upon the agreement which they made there at the time by word of mouth.”

This portion of the charge was excepted to by counsel for the plaintiff. The learned judge also charged as follows: “This paper may be safely left out of this case and then the contract depends entirely upon what was said between the parties at that time, and upon that question there seems to be dispute at all, no dispute.” * * * “ ¡Now, in view of this evidence, if it is true this paper is out of the case, and this case must then turn upon the verbal agreement, then there is but a single other question in in the case and that is whether the machine did perform in such a way as to, justify the defendant, under the agreement, in returning it to Kihm.”

This portion of the charge does not seem to have been excepted to, and would not, therefore, afford any proper ground for reversal, particularly as later on the question whether the defendant signed the paper understandingly and without any misrepresentation on the part of Kihm, but after it had been read to him, or after the contents had been disclosed to him, was submitted to the jury. But as has already, in substance, been stated, the denials and defenses contained in the answer are insufficient to support the evidence of an actual fraud or deceit practiced by Kihm upon the defendant in the sale of this machine. The defendant having, at the outset of the trial, acceded to the propositions of plaintiff’s counsel in respect to the affirmative of the issue was left, under the answer, without a defense.

It follows, therefore, that the judgment and order should be reversed and a new trial granted, with costs to abide the event

Dwight, P J., concurs.


text:
    The People ex rel. John P. Titsworth, Commissioner, v. Edwin A. Nash, County Judge of Livingston County, Resp't.

      (Supreme Court, General Term, Fifth Department,

      Filed June 2, 1891.)

    1. Certiorari—Highways.

      Certiorari will lie to review an order of a county judge confirming the report of commissioners appointed to lay out a highway.
    2. Highways—Different towns.
    The provisions of 1 R. S., m. p. 516, § 72, 8th ed., R. S., 1377, relative to disagreements between commissioners of highways of different towns as to the laying out of a highway extending into both towns, apply equally to roads which lie upon and to roads which cross the town line.
    3. Same—Monuments.
    A monument may be disregarded where mention of it is manifestly inconsistent with the description intended.
    Certiorari to the county judge of Livingston county to review an order made by him confirming the report of commissioners appointed by him, in proceedings to lay out a highway.

      A. J. Abbott, for the relator; C. J. Bissell, for commissioner of highways of the town of West Sparta.
   Dwight, P. J.

The objection that certiorari will not lie to review the order in questioiris not well taken. The order is not a “ determination which can he adequately reviewed by an appeal to a court or to some other body or officer.” Code of Civ. Pro.,. § 2122. The order is not one “ made by a court of record * * * or a judge thereof, in a special proceeding instituted in that court, or before a judge thereof, pursuant to a special statutory provision ; ” nor “ instituted before another judge and transferred to, or- continued before, the judge who made the final order,” id., § 1357, and therefore an appeal cannot be taken therefrom. In proceedings of this character the county judge acts not as a judge of any court, hut as an officer specially designated by statute under his title of office. Besides, the proceeding is not instituted before him, or before any other judge, but before a commissioner or commissioners of highways of the proper town or towns.

The writ of .certiorari was, therefore, properly issued in this case “ to review the determination of * * * an officer,” Code of Civ. Pro., § 2120, in a case “ where the writ may be issued at common law by a court of general jurisdiction, and the right to the writ * * * is not expressly taken away by statute.” Id., subd. 2.

By the return of the county judge to the writ of certiorari, it appears that the proceeding was instituted by the separate application of a resident of each of the towns of G-roveland and West Sparta, liable to be assessed for highway labor therein, addressed to the commissioner of highways of each of those towns respectively, for the laying out of a new highway. The description of the proposed new highway was the same in both applications, and was as follows : “ To commence upon the easterly side of the now present highway leading from Dansville to Mt. Morris, at a point upon the town line between the said town and the town of, “ in the one case Groveland, in the other West Sparta, thence easterly up said town line to McNair’s station.”

It further appears from the return, that the commissioners of the towns of Groveland and West Sparta, respectively, united in a certificate to the county judge of Livingston county, that they were “ unable to agree in regard to the opening and construction of a proposed highway, extending into both of said towns, beginning at or near the Erie railway depot in said town of Grove-land, and running thence westerly along or near the town line between said towns of Groveland and West Sparta, to a point in the highway leading from Dansville to Mt. Morris, near Kysorville in said town of West Sparta.” The commissioners also certified that juries had been drawn in each of said towns to consider and certify as to the necessity and propriety of the said proposed highway, and that the jury in the town of West Sparta certified that the road was necessary and proper, and the jury in the town of Groveland that it was not necessary or proper. And the commissioners of highways thereupon ask for the appointment of three commissioners to lay out the road and appraise the damages.

It further appears from the return that the county judge thereupon made an order appointing three commissioners “ to hear and decide upon all questions relating to the laying out of said road,” which was described in the order as it was in the certificate of disagreement of the highway commissioners, above quoted; and that the commissioners so appointed went on and viewed the line of the proposed road; took evidence relating to its location, determined to lay out the road, located it accordingly to a survey and description contained in their report, and ascertained and appraised the damages, consequent thereon, to the owners and occupants of lands taken therefor. The description of the road thus laid out is as follows: “ Beginning at a, point in the said town of Grove-land where the center line of the highway leading from the flouring mill at Groveland station to McNair’s station meets the east line of the lands of the Erie and Genesee Valley B. B.; thence westerly on a straight line to the point where the division line of the towns of Groveland and West Sparta crosses the west line of the land of the Erie and Genesee Valley B. B.; thence westerly along the division line between said towns to a point on the said town line 350 feet east of the Dansville and Mt. Morris highway'; thence south 51 degrees 51 minutes west to a point in the east line of the said Dansville and Mt. Morris highway in said town of West Sparta. Said line to be the central line of said road, and said road to be three rods in width.” All this, with the evidence taken by them, and other matters, the commissioners reported to the county judge who thereupon made his order in all things confirming such report.

The certiorari was issued on the application of the relator, the commissioner of highways of the town of Groveland, to review that order and all the proceedings leading up to it, and it is argued here that the county judge had no jurisdiction of the proceeding, or to make either of the orders contained in his return, nor, consequently, had the three commissioners any jurisdiction to lay out the road or to do any of the acts in respect thereto mentioned in their report.

Whether this contention is well based depends upon the true construction of the provisions of the statute relating to highways between towns, as they existed prior to the much needed revision of the highway laws by the act of 1890. Those provisions, in their full extent, will be found to be contained in § 72, et seq. of article 4, of chap. 16, of part 1, of the Revised Statutes (1 R. S., 516, § 72, (as amended by Laws of 1881, chap. 513. §§ 73, 74, 75). It was under § 72 that all the steps in this proceeding were taken. The application of that section is shown by its introductory words which, so far as it relates to towns of the same county and to new roads, are as follows: “ When the commissioners of highways of any town * * * shall disagree with the commissioners of any other town, * . * * relating to the laying out of a new road * * * extending into both towns, * * * the commissioners of both towns shall meet, etc.” The next three or four sections, § 73, et seq. contain special provisions relating to the laying out of a highway “ upon the line between two towns." The contention of the relator, appellant, in this case, is that §§ 72 and 73 apply each to a distinct and separate class of highways; that the former class includes only those which cross the line of towns, extending longitudinally into each; while the latter class includes all those which are laid out (in the language, of § 73) upon such line or as near thereto as the convenience of the ground will permit.” The difficulty with this construction of the section is that its adoption would leave no provision for cases of the latter class in which the commissioners of the two towns should fail to agree upon the necessity, propriety and location of the road, which would be a state of things as liable to occur in the case of roads of the latter class, as in the case of those of the former.

Section 73 provides that town line roads shall be laid out by the joint action of commissioners of both towns, and the next following sections prescribe special duties for those commissioners, in connection with the laying out of such roads. But unless recourse can be had to the provisions of § 72 there is absolutely no provision in the statute for the laying out of a town line road if the commissioners of the two towns fail to agree. This consideration seems to us controlling in favor of the conclusion that the provisions of § 72 were intended to apply equally to roads which lie upon as to those which cross the town line, and to prescribe a mode of procedure to procure the laying out of a road of either class in case of a disagreement of the commissioners of the two towns. The construction adopted does no great violence to the language of § 72 ; a road may, without much impropriety, be described as extending into both towns when it lies partly in each, though the extension into either may be lateral, or, for short distances, alternately, rather than continuous in the direction of the general course of the road. At least it may be said that the uncertainty or incongruity of the provisions in question is slight compared with that exhibited by many of the provisions of the highway law as it stood before the late revision.

Another objection to the proceeding is, that the description of the proposed road contained in the certificate of disagreement of the two commissioners, is inconsistent with that contained in the original application for the laying out of the road, and also with the survey and description contained in the report of the three commissioners. But upon careful comparison the discrepancy will not be found to be essential. The description in the application began at the west end of the proposed road, where the Bansville and Mt. Morris road crosses the town line, and ran east on that line to McNair’s station. The description in the certificate of disagreement began at the east end of the road, at the railroad station, which we understand to be McNair’s, and ran west along the town line to a point in the same Bansville and Mt. Morris road, near Kysorville.

The only discrepancy between the two descriptions is that in the latter the western terminus of the road is described as being near Kysorville. The terminus is necessarily the same because it is at the point of intersection of the town line with the well known highway mentioned. It seems that in point of fact Kysorville is nearly a mile south and east of that point. The mistake seems not to have been in the location of the terminus of the road, but in the location of Kysorville; which we are told is a collection of not more than two or three houses. The case is clearly one where course and distance must prevail over monuments, or rather, perhaps, where one monument must prevail over another. For here the course westerly along the- town line between Groveland and West Sparta to the intersection of that line with the Bansville and Mt. Morris road is absolutely definite and not to be misunderstood because the point thus reached is erroneously described as being near another point from which it is in fact nearly a mile distant. The authorities are abundant which justify the disregard of monuments where the mention of them is manifestly inconsistent with the description intended. Baldwin v. Brown, 16 N. Y., 361; Higinboiham v. Stoddard, 72 N. Y., 94.

So also the course and location of the road adopted by the three commissioners, and described in their report, deviates no further from the previous descriptions than was entirely justified under the statute. 1 R. S., 516, § 73, supra.

It seems that the contention of the relator before the three commissioners did not embrace the objection to their jurisdiction, nor to that of the county judge, argued here, but was in favor of the location of the proposed road on a line, direct from McNair’s Station in a southwesterly direction, to Kysorville, as a more eligible route than the one petitioned for and upon which the road was located. Of that route it is sufficient to say that it was not the road petitioned for and that if it had been all the proceedings here reviewed would have been clearly without jurisdiction. It was a route wholly within the town of West Sparta and- § 72, •under which all the proceedings were taken, could have had no application to the case.' No other objection than those considered has been argued before us.

The writ of certiorari should be dismissed.

Macombeb, J., concurs.


author: Pratt, J.

text:
    Henry C. Henderson, Resp’t, v. William McReynolds, App’lt.

      (Supreme Court, General Term, Second Department,

      Filed May 11, 1891.)

    False imprisonment—Damages.
    In an action for false imprisonment the evidence showed that plaintiff was arrested and detained only long enough to walk across the street. The court charged that at most it was only a technical arrest, and that the measure of damages was entirely in the discretion of the jury. A verdict of six cents was set aside as inadequate. Held, error.
    Appeal from order setting aside verdict and granting a new trial.
    Action for false imprisonment. Plaintiff testified that the defendant asked a police officer to arrest him for assault, which the officer refused to do without a warrant, but did so on a charge of having locked defendant in a room, and took him across the street, where he met another officer and on his advice discharged the plaintiff. Defendant and the officer testified that defendant requested the officer to arrest the plaintiff for an assault; that the officer after enquiring into the matter refused to arrest without a warrant, and that the whole occurrence took only three minutes.

      Jacob S. Van Wyck, for app’lt; Lewis J. Grant, for resp’t.
   Pratt, J.

This was an action of false imprisonment tried before a jury who assessed the damages at six cents, which verdict was set aside as inadequate.

The judge charged the jury that, at most, the detention was only a technical arrest and that the measure of damages was entirely within their 'discretion.

This was right as the evidence showed that plaintiff was arrested and detained only long enough to walk across the street and the verdict was consistent with the charge.

There was no basis for any specific sum' as damages, and the jury having estimated the same as nominal it was not proper for the court to interfere.

Indeed it is not clear that a verdict for the defendant would not . have been justified.

We think it is clear that the case is one where a verdict cannot be properly interfered with.

Order reversed, with costs.

Babptabd, P. J., concurs; Dykhah, J., not sitting.


text:
    Rachel Weinberg et al, Resp’ts, v. Philip Weinberg et al., App’lts.

      (Supreme Court, General Term, Second Department,

      Filed May 11, 1891.)

    Election between actions.
    Where a defendant after service of the summons upon him brings an action in another county upon a claim which might have been interposed as a counterclaim, and in such action the plaintiffs interpose as a counterclaim the facts on which their action is based, they should not be required to elect in which action their claim be tried.
    Appeal from order denying motion of defendants that plaintiffs be ordered to elect to either proceed in this action or coniine themselves to the counterclaims set up in their answer in an action brought by defendant, and if they elect to confine themselves to such counterclaims for a stay in this action.
    This action was commenced on November 12, 1890, to recover damages for breach of contract, and the complaint was served November 26th. On the 18th of November the defendant brought an action against the plaintiffs for moneys paid, laid out and advanced and for moneys loaned, in which action these plaintiffs interposed as counterclaims the causes of action set forth in the complaint in this action. Thereafter this motion was made and denied.

      Ferdinand Kurzman, for app’lts; Charles E. Burke, for resp’ts.
   Pratt, J.

This action was begun November 12, 1890. Defendants have, a claim against plaintiffs which they might have pleaded as a counterclaim. They preferred to bring an independent action in another county.

In that action these plaintiffs interpose as a counterclaim the facts on which this action is based.

A motion is now made that the plaintiffs be required to elect in which action their claim be tried, and that they be stayed from proceeding in the other action. Various answers to the motion •suggest themselves. The causes of action in dispute between the parties are in no way connected, and it is very doubtful whether justice will be promoted by trying all the claims in one action.

Moreover, the plaintiffs were entirely within their rights in beginning this action, and if defendants desired to try all the claims together, they should have interposed their demand to this action. Not having done so, they have lost their right.

It is by. their own choice that two actions are pending, and for the inconveniences, if any, resulting, they are alone responsible.

The motion appealed from must be affirmed, with ten dollars •costs and disbursements. .

Barnard, P. J., and Dykman, J., concur.


text:
    Stewart Pink, Resp’t, v. William S. Church, Adm’r, App’lt.

      (Supreme Court, General Term, Second Department,

      Filed May 11, 1891.)

    Gift—Delivery.
    • In an action to recover certain bonds claimed by plaintiff to have been given to him by defendant’s intestate, plaintiff's wife testified that intestate informed plaintiff of his intention to give him these bonds; told him where they were deposited and gave him the key by which to gain possession of them. The court charged that if the key was given with intent to transfer a present title to the bonds, it effected the purpose. Held, no error, and that a recovery by plaintiff would be sustained.
    Appeal from judgment entered upon the verdict of a jury in •favor of plaintiff for the delivery of certain Union Pacific railroad bonds, or their value, which were assessed at $11,660.44.

      Mr. Henry Stewart, defendant’s intestate, who was a bachelor, lived in the house with plaintiff’s folks at the time plaintiff was born; he was named after Mr. Stewart, he (Mr. Stewart) choosing the name. When plaintiff was only four years of age his folks moved away, and Mr. Stewart took plaintiff to live with him, and he lived with him down to the time of Mr. Stewart’s death, in 1890, it being twenty-four years, and no other person lived with them; and they did the work in and out of doors down to the time of plaintiff’s marriage, four years before Mr. Stewart’s death, when his wife went to live with them. Mr. Stewart spoke of plaintiff as “ his boy ” and as “ his son,” and repeatedly said that “he meant to provide for him,” to give him the “biggest portion of his property.” (The amount of the securities in question is less than one-half of his estate.) He also spoke about buying a farm to give to plaintiff.
    Plaintiff’s wife testified that about a year before his death, and while sick, the intestate told plaintiff to take the key of his chest and get the key to the safe deposit vault, saying: “There’s ten thousand in securities in the bank at Poughkeepsie which I want you to have for what you have been and done for me, and I hope you will make good use of it; ” that plaintiff took the keys and unlocked the chest; that after he got well intestate told plaintiff to get the keys and go to the bank with him and arrange matters, and that in his last sickness he told plaintiff to take care of the key and he would find the securities at the bank all right
    At the time of Mr. Stewart’s death there were ten Union Pacific Railroad bonds, of the face value of $1,000 each, in the safe deposit vault of the Merchants’ National Bank of Poughkeepsie, rented by Mr. Stewart, which plaintiff claims were given him by Mr. Stewart before his death, in payment for his services in pursuance of his repeated promise and expressed intention. The key to the safety deposit vault was delivered to Mr. Butts, an attorney, by plaintiff after Mr. Stewart’s death, with the understanding that he should be notified when the bonds were to be taken out, and his rights should not be prejudiced thereby. Under this arrangement the bonds were produced before the appraisers and were demanded by plaintiff of the defendant and he refused to deliver them, and this action is brought for their recovery.

      Allison Butts (H. A. Nelson, of counsel), for app’lt; S. G. Guernsey, for resp’t.
   Pratt, J.

The proof is decisive that the deceased regarded plaintiff as his son, had brought him up as such, intended to provide for his future as for that of a son, and had put aside the bonds in suit as such a provision for him. The only question is whether he succeeded in so putting his intentions into acts that the law can carry them into effect.

An examination of the testimony shows that he informed the plaintiff of his intention to give him the bonds; told him where they were deposited, and gave him the key by which to gain possession of them.

The jury were charged that if the key was given with intent to transfer a present title to the bonds, it effected the purpose. There can be no question of the correctness of the law thus laid down.

There are no questions that require discussion, and the verdict is fully sustained by the testimony.

Judgment affirmed, with costs.

Dykman, J., concurs; Barnard, P. J., not sitting.