author: Follett J.

text:
    John H. Ming et al., Resp'ts, v. Austin Corbin, App'lt

      (Supreme Court, General Term, First Department,

      Filed March 17, 1893.)

    1. Trial—Erroneous submission to jury.
    Where questions of law were submitted to the jury, and rightly decided, the fact that they were determined by the jury instead of the court is not an error for which the judgment will be reversed.
    2. Sale—Severance of contract.
    Defendant agreed to purchase $5,000 of county bonds and $5,000 of territorial warrants at eighty-five per cent. The bonds were shipped to him, but he refused to take them at eighty-five, but offered a less price, which was accepted, but defendant only paid part of such reduced price. Held, that the first contracts were so severed by the later transactions that the failure of plaint iff to deliver the warrants did not relieve defendant from paying the balance due on the bonds.
    Appeal from a judgment entered on the verdict of a jury, and from an order denying a motion for a- new trial.
    This action was brought to recover the balance due on the purchase price of certain bonds of the par value of $5,300, issued, by the county of Lewis & Clarke, in the territory of Montana, and sold in 1872 by the plaintiffs to the defendant at about eighty-, two per cent. In March, 1872, one Sherwood was authorized by the plaintiffs to sell for them $5,000 of the bonds of the county of Lewis & Clarice, and $5,000 of territorial'warrants, at eighty-five per cent, and he did sell $5,000 of each kind, at that rate, to' the defendant. Sherwood’s authority and connection with the affair are disclosed by t*he letters of March 6 and 20, 1872, and the three telegrams of March 19th and 20th, same year.
    “Office of Austin Corbin, 170 Broadway.
    “ New York, March 6, 1872.
    “ Jno. H. Ming, Esq., Helena, Mont. Terr.—Dear Sir: I have an opportunity to place a limited quantity of county bonds dr scrip drawing interest, and also territorial scrip. Gould use five thousand, face of Co. warrants, at 85 cts., and same amt. territorial at 85 cts. Row, don’t get alarmed, for this is no corner,, but simply through friendship. I am enabled to place above amts, at price, and if you have same or portion, and wish to dispose of them, you can send them to me, and I will handle them' for you. Guarantee money.
    “ J. K O. Sherwood.”
    “ Helena, Montana, March 19, 1872.
    “ Jas. EL O. Sherwood, care Austin Corbin, 170 Broadway, R. Y. City:
    “ Will sell five each bonds and territorial warrants, at eighty-five for face and interest, and give you two hundred. If wanted,, telegraph.
    “J. H. Ming & Co.”
    From New York, dated 20th March, 1872 :
    “ To J. H Ming & Co.: Send them. Draw on me. Ten days.
    “ J. K. O. Sherwood.’’
    From New York, dated March 20, 1872 :
    “ To J. H. Ming & Co. : Send bonds. Cannot use warrants unless to be bonded in June.
    “ J. EL O. Sherwood.”
    “ Helena, Montana, March 20,1872.
    “ J. EL O. Sherwood, care Austin Corbin, New York:
    “Your two telegrams of the 20 th are at hand. We will ship $5,000 in bonds to-morrow night, as we were unable to get them ready for to-night’s coach. All territorial warrants issued prior to Dec. 1st, 1871 (under which head ours come), are to be bonded in June at 12 per cent interest, but from the tenor of your second dispatch we think you understand this fact, and are not certain whether ours are of the description or not. But as we are not certain about it, we will not ship till we hear further from you. As a matter of course, we cannot allow vou more than $100 for sale of bonds alone. In case you want the warrants you must let us know. The bonds will reach you the day after this letter comes to hand.
    “Very truly yours,
    “J. H. Ming & Co.”
    The foregoing correspondence was all between the plaintiffs and Sherwood, who acted for both litigants. After the date of the last letter, Sherwood left the city, of New York, and the subsequent correspondence was between the principals. At the time of this correspondence the usual time for the transmission of letters between New York and Helena was about ten days. When the letter of March 20th was received at New York does not appear, but probably about April 1st. April 9, 1872, the defendant sent the following telegram to the plaintiffs:
    “ New York, April 9, 1872.
    “ J. H. Ming & Co., Helena, Montana : Send me five thousand territorial warrants. County bonds not yet arrived. Sherwood gone. A. Corbin.”
    “ White Eiver Junction, Vt., April 13, 1872.
    “ Messrs. J. H. Ming & Co., Helena, Montana, Gentlemen: About six weeks ago I negotiated through Mr. J. K. 0. Sherwood for $5,000 Lewis & Clarke Co. bonds, and a like amt. of territorial warrants at .85 on prin. and accrued interest. I understood that the L. & 0. were such as 1 had had before, 15 per cent. Never knew there were any other. Had no notion they were 12 percent., and I do not think Sherwood had. On Wednesday last, just as I was leaving New York for New England on business, the $4,300 came from you, and a day or two before $1,000 from Phila. (without any advice as to what they were), making together $5,300. I was astonished to find that they were 12 per cent, and at first thought I would hold subject to your order, and write you. Of course, they were not so good into fully 7£ per cent., as what I supposed I had purchased, and I doubted if I could sell them at all to cover cost. On reflection, however, and fearing that a delay might work some inconvenience to you, I determined to place them, if possible, and at best rates without loss, hold funds subject to your order, and trust you to make the thing satisfactory when the situation should be fully understood. Acting upon that, I have sold them, and placed to your credit $4,400, which is subject to your check on me at sight; and I have directed my cashier to send you a check book, as you requested. The balance of $41.77 I let remain open until I hear from you. In regard to the interest, I don’t think you can demand it after the trade was made. It was not my fault, nor yours, that the bonds were not delivered, but my advantage. If you can fairly ask interest of me, then I must hold my money idle in N. Y., waiting for them, and you get interest on it. Eeally, I have never paid it, nor had it charged on bonds coming from there heretofore, and don’t believe I should pay anything after the purchase was concluded by telegraph. If fairly chargeable, then I should, and will. We will settle that satisfactorily. As to the adjustment of this matter generally, as to the misunderstanding, I shall leave it pretty much to you. You can see plainly enough that the bonds are worth fully $350 less than I expected, and I have finally sold them for only enough to let me out about even, and when I might as well have placed other securities paying me at least that much profit. I do not know that it is anybody’s fault that the thing was not better understood. Sherwood, I know, did not speak of their being 12 per cent, and probably did not know it. I did not, and you, probably, supposed we both did. I had never heard that any Co. bonds there drew 12 per cent. It seems to be a very ‘ wide misunderstanding,’ without anybody being particularly to blame; and under all the circumstances I am willing to do my part to harmonize, so that no one will be very much the loser, and all be content, and to this end I will say that if j'ou will discount $100 from the amount as you state it (including the doubtful item of interest, $36.77), say, $4,441.77, less $100, making net, $4,341.77, and call the bonds very well sold at that, as I know they are, I will be satisfied, and try to make up the deficiency on something else. I would not give one cent over 80 for another lot of the same kind. Let me know if I am not, under all the circumstances, pretty reasonable.
    “ Yours, truly, A. Corbin.
    “I received your letter as to territorial warrants, and ordered them forwarded (by telegram) some days ago.”
    The Wednesday preceding April 13th was the 10th, on which date the defendant received $4,300 of the bonds of the county of Lewis & Clarke, and a day or two before that $1,000 of like bonds, as will be seen by the foregoing letter, by which it also appears that there was a misunderstanding between the contracting parties as to the rate of interest borne by the county bonds. To adjust the matter, the defendant offered to credit plaintiffs with $4,341.77. In the usual course of mail this letter reached the plaintiffs about April 23d, who, .on the 29th of the same month, accepted the terms offered by the defendant in his letter of the 13th. The following is a copy of the plaintiff’s letter:

      a April 29, 1872.
    “Mr. Austin Corbin, New York city:
    “Your favor of April 13th, notifying us of receipts of bonds is at hand. They were a long time on the road, and we were quite anxious concerning them. The misunderstanding as to the kind of bonds we offered for sale we regret, and we certainly supposed Mr. Sherwood and yourself were posted as to the new issue of bonds, 12s, in accordance with a law of the legislature of ’71, which forbids the issue of any bonds hereafter at a greater interest than twelve (12) per cent. Your letter states that you think that $4,341.77, which brings the bonds down to a net figure of about 81ic., would be fair for all concerned. In view of the fact that Sherwood’s telegram stopped the shipment of territorial warrants, a portion of which you could have used (as it afterwards seemed) to good advantage, and that the transaction was conducted by you without any profit, we accept the change.”
    “New York, April 22, 1872.
    “ J. H. Ming & Co., Helena, Montana:

      “ I have sold the territorial warrants, and must insist upon delivery.
    “A. Corbin.”
    “ The Corbin Banking Company, 115 Broadway.
    “New York, April 23, 1872.
    “Messrs. J. H. Ming & Co., Helena, Montana:
    “ Gentlemen: I was a good deal surprised to get your letter of the 10th inst. yesterday, and I immediately telegraphed you that, as I liad contracted the sale of the territorial warrants I must insist upon having them. I purchased the bonds and warrants from Mr. Sherwood, who acted under your telegram. The bonds were understood to be 15 per cent, and the warrants such as would be fundable into the new bonds. After Sherwood left the office, and not knowing where to reach him, I dispatched you that the bonds must be fundable warrants to meet the contract. Sherwood said they were, but I wanted to be sure on that point, and telegraphed you at my expense. You then wrote that they were fundable, but you did not send them along as you should have done. On receipt of your letter I telegraphed you to send. I took the 12 per cent bonds, and made no words about, it, nothwithstanding I expected to have and purchased 15 per cent bonds. I was bound to take the warrants under the contract with Mr. Sherwood, and I cannot see why you are not bound to deliver them, and I cannot consent that it should be otherwise.
    “Yours, truly, A. Corbin.”
    “ The Corbin Banking Company, 115 Broadway.
    “New York, May 11, 1872.
    “ Messrs. J. H. Ming & Co., Helena, Montana:
    “ Dear Sirs—A draft covering your balance was presented yesterday, which I declined to pay. I presume you understand the reason; but that you may not misunderstand it, I write this to say that I consider my purchase of bonds and warrants one, and that I am entitled to the delivery of both, and do not now propose to pay for either until I get both. I have examined all the dispatches and your letter, and I am at a loss to conceive on what grounds you can decline to deliver the warrants.
    “ Yours, truly,
    “A. Corbin.”
    “ The Corbin Banking Company, 115 Broadway.
    “ New York, May 13, 1872.
    “ J. H. Ming & Co., Helena, Mon.:
    “Dear Sirs—I have yours of the 29th ulto. I wrote you in relation to the warrants on Saturday. I regret exceedingly that we should have any difficulty with regard to these warrants, hut I cannot possibly see why you should decline to deliver them. You say that Sherwood's telegram stopped the shipment of the warrants, a portion of which I could have used to advantage. Let me repeat, I bought through Sherwood $5,000 fundable warrants, believing that they were fundable. On the receipt of a letter from the territorial treasurer soon after, I learned that only a portion was fundable. Sherwood not being here, I telegraphed you not to send unless they were fundable. It is not possible, it seems to me, that you could have been mistaken ; indeed, I have your letter now in my hand of the date of the 20th of March, to Mr. Sherwood, in which you say 1 that all territorial warrants issued prior to Dec. 1st, 1871 (under which head ours come), are to be bonded in June, at 12 interest, but from the tenor of your 2d dispatch we think you understood this fact, and are not certain ours are of this description or not, but as we are not certain about it, we will not ship until we hear further from you.’ I bought fundable warrants. In that letter you expressly state yours are of that character. My dispatch to you not to ship anything but fundable warrants must be construed by any reasonable man that fundable warrants were what I bought. I wish to do exactly right in this matter, and not require anything wrong, but, having bought the warrants fairly, and contracted for their sale when reduced to bonds, I consider myself entitled to have them.
    “Yours, truly,
    “A. Corbin.
    “If your draft had been for $3,000 or $3,500, it would have been paid, but I decline to pay for the bonds in full till I get the warrants."
    The defendant credited the plaintiffs with $4,341.77, the price of the bonds as agreed on in the letters of April 13th and 29th, and June 17th paid $3,500 on account. This action was brought to recover the balance, $841.77, for which, with interest, the had a verdict

      William J. Kelly, for app'lt; Morgan & Worthington (Charles N. Morgan, of counsel,) for resp'ts.
   Follett J.

Sherwood testified, and in this he was not contradicted, that the plaintiffs authorized him to by the county of Lewis & Clarke, of the face value of $5,000, and warrants issued by the then territory of Montana of the face value of $5,000, at eighty-five per centum, and that he did agree for the plaintiffs to sell and thereafter deliver to the defendant such securities for $8,500. This was an entire contract, and, unless modified, the plaintiffs not having performed it, were not entitled to recover. All negotiations subsequent to the original contract were in writing, and their construction and legal effect were questions of law for the court; but, those questions having been submitted to the jury, and rightly decided, the fact that they were determined by the jury instead of by the court is not an error for which the judgment will be reversed. Thompson v. Roberts, 24 How., U. S., 233-240; Miller v. Eagle Life & Health Ins. Co., 2 E. D. Smith, 268; Compston v. McNair, 1 Wend., 457-463; Pangburn v. Bull, id., 345-352; Hall v. Suydam, 6 Barb., 83-88; People v. O'Neil, 49 Hun, 423; 17 St. Rep., 956; affirmed 112 N. Y., 355; 20 St. Rep., 754; 1 Thomp. Trials, § 1020. We think the correspondence not only warrants, but compels, the •conclusion that there was at least a severance of the original contract. By that contract the plaintiffs agreed to sell, and the defendant to purchase bonds of the county of Lewis & Clarke of the face value of $5,000 for 85 per cent. Subsequently the plaintiffs delivered bonds issued by that county of the face value of $5,300, for which the defendant refused to pay eighty-five per centum, because they bore interest at the rate of twelve, instead of fifteen, per cent. However, the defendant, by his letter of April 13th, agreed to pay $4,341.77, which was less than eighty-two per cent., which proposition the plaintiffs accepted by their letter of April 29th.

The defendant wrote to plaintiffs' in the letter of April 13th, that $4,400 of the price agreed on was placed to their credit, and subject to their check at sight. May 10, 1872, the defendant refused a draft for the full amount agreed to be paid for the bonds, and in'explanation said, in a postscript to his letter of May 13th, that if the plaintiffs had drawn for $3,000 or $3,500, it would have been paid, but that he would not pay for the bonds in full until the warrants were received. June 17th the defendant paid the plaintiffs’ draft drawn for $3,500 against the price of the bonds. This is quite inconsistent with the position taken on the trial, that the original contract had not been severed, and that the failure to deliver the territorial warrants was a defense to a recovery of the purchase price of the bonds. It seems to us that the only debatable question arising out of the correspondence and transaction is whether that part of the contract relating to the warrants was abandoned or rescinded. The decision of this question, depending, as it did, upon the construction of writings, was a question of law for the court, but which the court was not asked to determine.

The defendant, by his answer, did not set up the failure to deliver the territorial warrants as a defense to the plaintiffs’ cause of action, but as a counterclaim; and had the case been tried upon this theory, it may be that damages would have been allowed him. But on the trial the defendant, by his counsel, insisted that the failure to deliver the territorial warrants was a defense to the action, and asked that a verdict be directed for the defendant, and also that the complaint be dismissed.

The court was not asked to rule that, if the original contract had been' severed, the plaintiffs were still liable in damages for their non-performance of that part relating to the territorial warrants, which should be set off against the price agreed to be paid for the bonds. Neither was the court asked to instruct the jury to assess the damages sustained by the defendant by the non-delivery of the warrants, and set off the amount against the demand of the plaintiffs.

The defendant insisted that if damages were sustained by him, they amounted to a defense instead of a counterclaim, and so he insists on this appeal, and we see no way of affording the relief which we might have been able to give had the case been tried upon the theory of the answer, and damages denied him.

■ The judgment should be affirmed, with costs.

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


source: Caselaw Access Project

author: Follett, J.

license: Public Domain

text:
    William S. Williams, Resp't, v. Robert Lindblom, Impleaded, App'lt.

      (Supreme Court, General Term, First Department,

      Filed March 17, 1893.)

    1. Pleading—Answer.
    Pleadings are to be construed strictly against the pleader, and, if it cannot be determined what has been denied, none of the allegations of the complaint will be deemed to have been controverted.
    2. Partnership—Accounting.
    In an action for a partnership accounting, it is error, without determining the accounts between all the parties, to enter a judgment for a sum of money in favor of one partner against the others.
    3. Same.
    In such case, it is unnecessary for defendant to request the referee to state the account between the partners, as he has the right to assume that a judgment appropriate to the action would be rendered.
    Appeal from a judgment entered upon the report of a referee, to whom was referred the issues in an action brought for a copartnership accounting.
    June 21, 1883, Robert Lindblom and Nelson Yan Kirk, of. Chicago, 111., Nathan G. Miller and William S. Williams, of the city of New York, entered into a written contract by which they formed a limited partnership for the transaction of a commission business at the city of Chicago, under the firm name of Robert - Lindblom & Co. It was mutually agreed that Lindblom and Yan Kirk should jointly contribute to the capital $150,000 m cash, and Miller and Williams each $75,000 in cash. The partnership was to commence July 1. 1883, and continue for two years. The partners were to share in the profits in proportion to the amount of capital contributed by each, and were to bear the losses in the same proportion, except that Williams was to be liable for the losses only to the extent of the sum contributed by him to the capital of the firm. The firm commenced business and continued until April 3, 1884, when it was dissolved by mutual consent. These facts are conceded.
    January 17, 1890, the summons in this action was served on Lindblom, and on Nathan G. Miller and John H. Kitchen in March of the same year. The action was for an accounting between the partners, and for a judgment against the defendants for such sum as should be found due the plaintiff on the accounting. Miller did not appear in the action, but his receiver appeared and answered, submitting his rights to the court. Yan Kirk was not served, and did not appear. Lindblom answered, and prayed for a judgment for an accounting and determining the rights of all the partners as between themselves. The action was tried before a referee, who rendered a personal judgment in favor of the plaintiff and against Robert Lindblom and Mathan G. Williams for $63,705.16, damages and costs, and that the plaintiff have execution therefor.

      L. A. Gould (Cephas Brainerd, of counsel), for app'lt; D. M. Porter, for resp't.
   Follett, J.

The answer of Lindblom is so defective that, had the decision turned upon the state of the issues presented by the pleadings, the defect might have proved fatal to the defendant. The answer “ denies the allegations contained in said complaint from the middle of the ninth folio down to the words ‘ any one therefor,’ near the end of the twelfth folio of said complaint, except,” etc. The folios referred to are evidently those of the original complaint, which are not identical with those of the com-2)laint as printed in the record, and it is impossible to ascertain what is denied and what admitted. This vicious mode of pleading has been several times condemned in reported cases. Pleadings are to be construed strictly against the pleader, and if it cannot be determined what has been denied, none of the allegations of the complaint will be deemed to have been controverted.

An action at law cannot be maintained by one partner against another to recover a sum of money arising out of the partnership transactions until a final accounting has been had and the amount due ascertained. The case at bar is in equity for an accounting between several partners, but by the decision of the referee and the judgment entered thereon it was, in effect, turned into-an action at law, and a judgment for a definite sum of money entered in favor of one partner and against two others, without determining the state of the accounts between the partners.

The rule for taking a partnership account in an action like this is well stated by Mr. Lindley in his learned work on Partnerships : “ (1) Ascertain how the firm stands as regards nonpartners. (2) Ascertain what each partner is entitled to charge in account with his copartners, remembering, in the words of Lord Hardwicke, that ‘ each is entitléd to be allowed as against the other everything he has advanced or brought in as a partnership transaction, and to charge the other in the account with what that other has not brought in, or has taken out more than he ought.’ (3) Apportion between the partners all profits to be divided or losses to be made good; and ascertain what, if anything, each 2)artner must pay to the others, in order that all cross claims may bo settled." 2 Lindl. Partn. (3 Eng. ed.), 1031. This rule has been approved by several cases in this state. Neudecker v. Kohlberg, 3 Daly, 407; Rhiner v. Sweet, 2 Lans., 386; Butler v. Ballard, 43 N. Y. Super., 191; Sweet v. Morrison, 103 N. Y., 235; 2 St. Rep., 781; McCall v. Moschowitz, 14 Daly, 16; 1 St. Rep., 99. Such is the rule in New Hampshire, Raymond v. Came, 45 N. H. 201, and in Massachusetts, Paine v. Paine, 15 Gray, 299. The theory of this action was disregarded by the learned referee, whose decision and the judgment entered thereon violate the rule that judgments must be secundum allegata et probata.

It was urged on the argument that the defendant did not, by an appropriate request, aslc the referee to state the accounts between the partners. This was unnecessary, for counsel had the right to assume that a judgment appropriate to the form of the action would be rendered, and it was no more necessary to make a specific request than it would be, in an action for specific performance, to request that a judgment for money be not given, but that specific relief be awarded or denied. The exception taken by the appellant to the conclusions of law are sufficient to raise the questions here considered. In accountings between partners it is not usual to award costs until the final judgment is entered, when they may be paid out of the fund or charged against the delinquent partner; so the question of costs will be reserved until the final determination. The judgment should be reversed, and a new trial granted, before a new referee to be appointed by this court, with costs to appellant to abide the final award of costs.

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


text:
    George L. Prentiss, Guardian, Resp't, v. John S. Weatherly et al., Ex'rs, Impl'd, Appl'ts.

      (Supreme Court, General Term, First Department,

      Filed March 17, 1893.)

    1. Executors and administrators—Action on bond—Guardian.
    "When; the decree on settlement of an administrator’s accounts directs payment to he made to the general guardian of an infant, such guardian may maintain an action on the administrator’s bond upon return of execution unsatisfied.
    2. Same—Guardian’s bond.
    The mere fact that an acknowledgment and approval is not shown by the record does mot prove their non-existence, and the bond itself being a record, may be received in evidence on appeal.
    3. Same—Leave oe surrooate.
    An action on the bond of a removed administrator by the guardian of an infant to whom moneys were directed to be paid is not within § 2609 of the Code, and leave of the surrogate is not necessary to its maintenance.
    4. Same—New administrator.
    Where an estate has been fully administered, it is not necessary for the surrogate to appoint a new administrator in order to settle the accounts of one who has been removed,
    5. Guardian—Citation,
    The mere fact that the issuing of a citation is not recited in the letters of guardianship is hot proof that a citation was not issued and served.
    Appeal from a judgment entered on a verdict directed for the plaintiff, and from an order denying a motion for a new trial made on the minutes.
    August 18, 1885,William Oarleton died intestate, leaving Marie Carleton, a daughter, aged five years, February 4, 1885, his sole heir and next of kin. June 8, 1886, letters of administration on his estate were duly granted by the surrogate’s court of the city and county of New York to William T. Ward, who afterwards, with James M. Baldwin and William H. Bowden, executed and filed the usual administrators’ bond. On the same date, June 8, 1886, said Ward was duly appointed by said surrogate’s court the general guardian of the estate of said Marie Carleton. Ward entered upon the discharge of his duties as administrator and as guardian, and continued until June 19, 1890, when he was removed from both positions by said court.
    On the 9th of March, 1891, George L. Prentiss, the plaintiff, was appointed by said court general guardian of the estate of said infant in the place and stead of Ward, removed, and on the same day executed the usual guardian’s bond. No administrator has been appointed in the place of Ward, removed, of the estate of William Carleton. December 31, 1890, Ward filed in said court an account as administrator, by which it appears that he then had on hand $3,413.87 in cash belonging to the estate. This account was never judicially settled. March 23,1891, Ward filed a final account as administrator in said court, showing that he had in his hands $3,503 in money belonging to the estate, which, on the 2d of July, 1891, was adjusted and settled by said court. Ward was allowed $212.70 for commissions and counsel fees, and was directed to pay to a creditor $150, in satisfaction of a claim. These sums deducted from $3,503 left $3,140.30 in his hands, which he was directed to pay over to George L. Prentiss, general guardian of the infant. Thereupon a judgment was docketed for the amount, on which an execution was issued in December, 1891, which was returned wholly unsatisfied.
    This action was brought on the administration bond against William T. Ward, the principal (though not so described in the bond), and against James M. Baldwin and William H. Bowden, the sureties (though they were not described as such in the bond), to recover $3,140.30, which Ward, as administrator, was directed, by the decree of the surrogate’s court, to pay to the plaintiff. Bowden alone defended the action, which resulted in a judgment May 26, 1892. On July 8,1892, Bowden died, and the action has subsequently continued against his executors by order of the court.

      George F. Bently; for resp't; Benjamin Patterson, for app'lts.
   Follett, J.

The learned counsel for the defendants insists that the plaintiff cannot maintain this action, for three reasons: (1). That it cannot be brought by a general guardian, but should have been by a guardian ad litem. (2). That it should have been brought by a new administrator, appointed in the place of Ward, removed. (3). That leave to bring it has not been granted by the surrogate’s court.

The answer to the first objection is, that § 2607 of the Code of Civil Procedure provides that an action may be maintained on an administrator’s bond by and in the name of the person in whose favor the decree was made. The decree of the surrogate’s court directed the administrator to pay over to Greorge L. Prentiss, general guardian of the estate of Marie Carleton, $3,140.30, upon his giving the security required by § 2746 of the Code. This brings the case within the section which expressly authorizes a general guardian to maintain the action. The decree was not in favor of a guardian ad litem, and the action could not have been maintained by one. November 27, 1891, the plaintiff executed abend pursuant to § 2746, and the decree was made which perfected the plaintiff’s right to bring this action.

The body of the bond is contained in the case, but the record does not show that it was “approved by the surrogate,” as required by the section last cited. The answer to this is, that no such question was raised on the trial of the action. The bond, as printed, does not appear to have been acknowledged, but its admission in evidence was not objected to on this or any other ground. The fact that an acknowledgment and an approval are not printed as a part of the record does not prove their non-existence. The original bond, being a record, can be received in evidence on this appeal for the purpose of sustaining the judgment. Wines v. The Mayor, 70 N. Y., 613.

There is nothing in the position that a new administrator should have been appointed, who should have brought the action. The decedent’s estate was finally settled, and there was no occasion for the appointment of a new administrator. By the decree the liability of the administrator to this plaintiff was established, and his right of action was perfect

Section 2609 of the Code provides that an action brought thereunder shall be by leave of the "surrogate. That section does not relate to actions like the one at bar, but" to actions brought “ by any person aggrieved,” * * * “in behalf of himself and all others interested.”

The defendant, urged on the trial that the surrogate’s decree was procured through the fraud and collusion of Ward, the administrator, and this plaintiff, and for that reason was not binding on the administrator’s sureties. Upon an examination of the record we are of the opinion that there is not sufficient evidence of collusion to have justified the submission of the question to the jury. The administrator filed two accounts, the first December 1, 1890, which showed an indebtedness to the estate of $3,413.87. The second account, upon which the decree was made, was filed in March, 1891, by which the administrator charged himself with $3,503. The difference, $89.13, is accounted for by the amount charged for counsel fee, which was stated in the first account as $500, and in the second account the item was stated and allowed at $410.87. There is no claim that the first account was not voluntary and made by the administrator in entire good faith. The point that the surrogate could not finally settle the accounts of the removed administrator without appointing a new one, is not well taken. Section 2693 was not'intended to be mandatory, as is clearly shown by § 2609. When an estate has been fully administered, as in the case at bar, the surrogate’s court is not required to go through with the needless formality of appointing an administrator.

It is also urged that the appointment of the plaintiff as general guardian was illegal, because the letters do not show, on their face, that a citation was issued to the person, Ward, formerly appointed general guardian. The petition, by which the proceedings resulting in the appointment were instituted, stated all the necessary facts, and prayed that a citation be issued to Ward, the late guardian, to show cause, etc. It was prepared in Jauuary, 1891, but the case does not show when it was filed. The plaintiff was appointed March 9, 1891, so that there was ample time for the service and return of the citation.

The mere fact that the issuing of a citation is not recited in the letters is not proof that a citation was not issued and served. .A further answer to this point is that it was not taken on the trial below- If it had been, it might have been obviated by producing the citation.

The judgment should be affirmed, with costs.

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


author: Follett, J. O'Brien, J. Van Brunt, P. J. (dissenting.)

text:
    The People, Resp'ts, v. James Connor, App'lt.

      (Supreme Court, General Term, First Department,

      Filed March 17, 1893.)

    Criminal law—Receiving stolen goods—Identification.
    Proof that a burglary had been committed and cigars in boxes taken ; that defendant was seen about that time in the vicinity in company with two men who ran away ; that he had a bag, into which a witness put his hand and felt boxes like cigar boxes ; that he asked witness not to tell the police, and upon being charged with the oñense made false statements as to his whereabouts on the night in question, is sufficient to support a conviction of receiving stolen goods.
    (Van Brunt, P. J., dissents.)
    Appeal from a judgment adjudging the defendant guilty of receiving stolen property.

      Henry B. B. Stapler, for resp'ts; William F. Howe, for app'lt.
   Follett, J.

The defendant was charged in the indictment (first count) with having, on the 26th day of September, 1891, committed the crime of burglary in the third degree, by breaking and entering a store on the corner of Tenth avenue and West Fifteenth street, known as No. 25 Tenth avenue, and with having (second count), on the same date and at the same place, committed the crime of grand larceny in the second degree, and also (third count), with, at the same date and place, feloniously receiving 7,000 cigars which had been stolen at the date and place aforesaid. Each crime was charged as a second offense. The defendant was convicted on the third count and sentenced to imprisonment in a state’s prison for seven years. It was conceded on the trial that a burglary was committed by some person or persons at the date and place as charged. A witness, who was not contradicted, impeached nor discredited, testified that 7,000 cigars, of the value of $216, were stolen from the building on the night in question, so it was established that a burglary and larceny had been committed.- The cigars were packed in boxes, some containing fifty and others 100 cigars. Sullivan, a watchman, and a most unwilling witness, testified that about one o’clock on the morning of September 26 he saw two or three men near the corner of Fifteenth street and Tenth avenue with a bag, and that he ran across the street to stop them, and they all ran away but one, who remained with the bag. He further testified that he asked the man what he had in the bag, and he replied, “ ¡Nothing that belongs to you.” Thereupon he put his hand into the bag, and found that it contained boxes that felt like cigar boxes, but he did not look at them. He said : “ The bag was full of cigar boxes, whatever kind of boxes you may call them, chalk boxes, or any kind of boxes." The man with the bag said to witness : “ This is none of your stuff. Don’t tell the coppers.”

This vigilant watchman made no reply, but walked away. u Copper” signifies policeman. This "witness testified that he could not exactly tell whether the man with the bag was the defendant or not; but three other witnesses, Heffner, Fagan and Ryan, testified that they knew Connor, were at this corner about one o’clock of September 26th, and saw Connor with the bag and in conversation with Sullivan. Heffner and Fagan testified that they saw Connor drag the bag across Fifteenth street. Ryan testified that he saw Connor have the bag on his shoulder. Dorrigan testified that he saw Connor about midnight on September 2oth one block away from the place of the burglary. On the 5th of October Policeman Burleigh had a conversation with the defendant, in which he said that he did not commit the burglary, but went to his own house, ¡No. 48 Tenth avenue, at about eleven o’clock in the evening, and did not go out until the next morning. The defendant, testifying in his own behalf, said that he did not steal the cigars and that he did not have a bag in that street or neighborhood on the night in question. The defendant admitted that in 1876 he was convicted of burglary and was imprisoned ten months; that in October, 1887, he was convicted of grand larceny, on a plea of guilty, and was imprisoned two years.

The jury was entirely justified in disbelieving the defendant, who was self-impeached, and in believing the other witnesses. The fact that the defendant, at about one o’clock on the morning of September 26th, was in the street near the scene of the burglary with companions who escaped on being approached, and and that he had in his possession a bag, was well established. It was further testified that the defendant tacitly adrhitted that the property in the bag was stolen. He said to Sullivan: “ There is nothing in the bag that belongs to you ; it is none of your stuff; don’t tell the coppers.” The defendant, on being charged with the offense, made false statements as to his whereabouts on the night in question. That a burglary was committed was conceded; that cigars in boxes were taken from the building was established by uncontradicted evidence, and that the defendant was found in the immediate neighborhood at about one o’clock in the morning with a bag containing boxes is established beyond question. The only weak point that it is claimed exists in the evidence is that no person saw the boxes. This is not a fatal objection. The identity of many articles can be as certainly acquired by the sense of touch as by sight. The shape, size, weight and covering of cigar boxes are matters well known to ordinary observers, and a person familiar with cigars and cigar boxes would have little difficulty in determining by the sense of touch whether they contained cigars.

The remark of the witness that they might have been chalk boxes is not entitled to much consideration, as the difference between the specific gravity of chalk and cigars is very apparent. The identification would have been more perfect had the witness seen the boxes, opened them, smelled and tasted the contents. But the evidence given was competent, relevant, and, in connection with the defendant’s conduct, his subsequent prevarication, and all of the circumstances, were sufficient to support the finding of the jury that the contents of the bag were the fruits of the burglary and larceny. Perfect identification is seldom possible of goods sold by count, weight or measure, and impossible in the case of perfect coins or bank notes. Had a bank been robbed of coin in bags, and they had been put in a sack, the testimony of a bank employe, familiar with such bags, that he handled them, but did not see them, and that they were bags of coin, would be competent. It is urged that the learned recorder erred in criticizing, in his charge, the manner of the witness Daniel Sullivan when on the stand. We think not, for it is clear that he was unwilling to testify to what he knew of the transaction and of the defendant’s connection with it.

It is said that the recorder erred in saying to the jury that Dorrigan testified that he saw the defendant near Ho. 25 Tenth avenue at one o’clock in the morning, when the fact was that he testified that he saw him about twelve o’clock. Ho exception was taken to this instruction, nor was the attention of the court called to the mis-statement of time. Other witnesses testified to seeing the defendant in that vicinity near one o’clock. The charge fairly and correctly presented the facts, and laid down the rules of law applicable to them. We do not see that any error was committed on the trial, and the judgment should be affirmed.

O'Brien, J.

My first impression was that there was not sufficient evidence to justify the view that defendant had cigar boxes in his possession. Without such evidence, the judgment must necessarily fall. My associates, however, have both reached a different conclusion upon this question, and with their reasoning I agree. With this established, I think the conclusion upon the entire case reached by Mr. Justice Follett is correct, and I, therefore, concur with him for affirmance.

Van Brunt, P. J. (dissenting.)

I cannot in the conclusion arrived at by Mr. Justice Follett. I fail to find in the record a scintilla of evidence going to show that the defendant had in his possession at the time in question any property which had been stolen from anywhere, which seems to be necessary in order to support a conviction for the offense of receiving stolen goods. It is true that the evidence shows that a burglary had been committed, and that certain cigars packed in boxes had been stolen; and that there was evidence which would justify the jury in finding that the defendant had, in the vicinity of the alleged burglary shortly after it had been committed, cigar boxes in his possession. But that these cigar boxes were any of those which had been stolen there is not a particle of evidence to prove. Without identifying the property in the hands of the alleged receiver with goods which had been stolen, it is difficult to see how he can be convicted of receiving stolen goods.

The mere fact that he acted suspiciously, and that he made a statement which showed that he was not particularly anxious td make the acquaintance of the police, is undoubtedly true. But even that did not make him guilty of receiving stolen goods, the proceeds of this burglary. As already stated, there is not a particle of evidence showing the identity between the goods which this man had and any goods which had been stolen from any place. And yet because he acted suspiciously, and did not want to have the police interview him, he is convicted of receiving stolen goods.

I do not think that there was any evidence whatever to support the conviction, and the jury should have been advised to acquit.

The judgment should be reversed and a new trial ordered.

Judgment affirmed.


author: Van Brunt, P. J.

text:
    William G. Bates et al., Resp'ts, v. The United Life Insurance Association, App'lt.

      (Supreme Court, General Term, First Department,

      Filed March 17, 1893.)

    1. Motions and orders—Judgment on pleading.
    It is no objection to a judgment upon the pleadings that the notice of motion therefor was made returnable at a special court to be held at chambers, where the court also held a special term for hearing non-enumerated motions at the same time and place, and it was heard at the latter term.
    2. Insurance (life)—Waiver—Non-forfeiture clause.
    The policy in question provided that after two years the only considerations that should be binding on the holder were in relation to the payment of dues and assessments, and as to the regulations as to age, occupation and employment, and in all other respects it should be indisputable. In an action brought more than two years from its issue, Held, that fraud in the application was unavailing as a defense, and that an answer setting it up was manifestly frivolous.
    Appeal from an order directing judgment in favor of the plaintiffs upon the complaint, answer and amended answer, and from the judgment entered pursuant to such order.
    The policy contained the agreement that the said does hereby further promise and agree that after two years from the date hereof the only considerations that shall be binding upon the holder of this policy are that he shall pay the annual dues and assessments at the times and places, and in the manner, hereinafter stipulated, and that the regulations of the association as to age, occupation and employment shall be observed, and that in all other respects, if this policy matures after the expiration of said two years, this policy shall be indisputable.” Levi M. Bates died more than two years after the date of the policy. The association filed an answer setting up as a defense fraud on the part of the insured and the beneficiary in the application for the policy. Plaintiffs obtained judgment on the pleadings. The notice of the motion for judgment was as follows: “ You will please take notice that, on the pleadings in this action, I shall move this court, at a special term thereof, to be held at its chambers, in the county court house, in the city and county of New York, on the 7th day of November, 1892, at eleven o’clock in the forenoon of that day, or as soon thereafter as counsel can be heard, for judgment as demanded in the complaint.”

      Harry Wilber, for app'lt; W. I. Washburn, for resp'ts.
   Van Brunt, P. J.

An answer having been interposed in this action, the plaintiffs claiming that no defense whatever was set up by such answer, made a motion for judgment upon the pleadings at a special term of this court. It is true that in the notice of motion the counsel falls into the error, so frequently committed in this district, of not distinguishing between the judge’s chambers and the special term for the hearing of nonenumerated motions, simply because the judge acting at chambers also holds in the same room a special term for the hearing of nonenumerated motions. The motion was made at a special term duly designated by the judges of this district to be held for the hearing of nonenmnerated motions, and it, therefore, was heard in the proper court.

The motion seems to have been unwittingly made under § 537 of the Code, which provides that if a demurrer, answer or reply is frivolous, the party prejudiced thereby, upon a previous notice to the adverse party of not less than five days, may apply to the court, or to a judge of the court, for judgment thereupon, and judgment may be given accordingly. The motion in question was a motion upon the pleadings for judgment, manifestly upon the ground that the answer contained no defense, and was, therefore, frivolous, and this motion was granted. The only difficulty in the disposition of this appeal is the length of the brief which has been submitted by the defendant, which would seem to indicate that he did not think the answer frivolous, although it manifestly is. The defense set up by the answer seems to have been expressly held to be unavailing in the case of Wright v. Mutual Benefit Life Association, 118 N. Y., 237; 28 St. Rep., 817, between which case and the one at bar we can see no distinction.

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

O’Brien and Follett, JJ., concur.


author: Macomber, J.

text:
    Louis J. Shelmire, Resp't, v. The Williams & Clark Fertilizer Company, App'lt

      (Supreme Court, General Term, Fifth Department,

      Filed April 13, 1893.)

    Master and servant—Contract of employment.
    Plaintiff sued to recover unpaid and unearned salary upon tire ground of liis discharge from, the employment of defendant in violation of a written agreement. The c mlract appeared to have been executed in supposed duplicate, consisting of a letter from defendant to plaintiff, and the latter’s-acceptance. The letter relied upon by plaintiff read: “We will pay you $800 for one year; we to have your services for two additional years at $1,000 per year.” This paper was m -rked “ copy,” but signed by defendant as an original. The contract retained by defendant was in all respects-like the one quoted above, except that it read: “ We to have the refusal of your services for two additional years ” Held, that plaintiff should have been nonsuited, as he failed to show by a preponderance of evidence a contract for three years.
    Appeal by the defendant, The Williams & Clark Fertilizer Company, from a judgment of the county court of Monroe county, entered ni the clerk’s office, ¡November 23, 1892, on verdict of a jury in a case appealed by the plaintiff to that court from a judgment of the municipal .court of the city of Rochester, and also from an order denying the defendant’s motion for a new trial made - on the county judge’s minutes.

      R. E. White, for app'lt; T. D. Wilkin, for resp't.
   Macomber, J.

This action was originally brought in the-municipal court of the city of Rochester, and, on the trial thereof before one of the judges of that court, resulted in a decision in favor of the defendant upon the merits. On appeal by the plaintiff from such judgment demanding a new trial, the case was retried in the county court of Monroe county, before the county judge and a jury, and resulted in a verdict in favor of the plaintiff for the amount claimed in the complaint, and to which the plaintiff was entitled, provided he had any right of action.

The action was brought to recover the plaintiff’s unpaid and unearned salary, for five months from September 30, 1891, upon the ground of a discharge of the plaintiff from the employment of the defendant in violation of the written agreement between the parties. This contract bears date October 3, 1890. It appears, however, that it was executed in duplicate, or in supposed duplicate, consisting of a letter from the defendant to the plaintiff, and the latter’s acceptance of the same. The one relied upon by the plaintiff is as follows:

“Mr. L. J. Shelmire, Dear Sir: We will pay you the sum of eight hundred dollars and traveling expenses, for'the term of one year, commencing October 1,1890, and ending September 30,1891. We to have your service for two additional years at a salary of one thousand dollars per year and expenses as above stated. You to attend to shipping and such office work as we may assign to you, and traveling on the road, soliciting orders if we wish you to.”

The plaintiff duly accepted in writing the terms of the foregoing proposition properly indorsed upon the letter. The paper which was retained by the plaintiff was marked “ copy,” although it was, in fact, signed by the defendant as an original, and accepted as an original by the plaintiff.

The contract retained by the defendant, executed in the same way, was in all respects like the one above quoted, except that in the second sentence it read: “We to have the refusal of your services for two additional years,” instead of “ we to have your services for two additional years.”

It is plain, therefore, if the contract relied upon by the plaintiff was the true and only one between the parties, that the judgment appealed from should be sustained; while it is equally apparent, that if the contract retained by the defendant is the true one, no cause of action was made out by the plaintiff; for it is clear that a contract for the “refusal ” of the services of the employe for the two years would not obligate the employer to accept such services.

But for the purpose of arriving at the intent of the parties, and particularly for the purpose of determining any liability of the defendant, these two instruments must be construed together as constituting the agreement between the parties. Morss v. Salisbury, 48 N. Y., 648; Martin v. Martin, 48 St. Rep., 690.

The plaintiff has no legal right, because he happens to be in possession of the duplicate favorable to his present contention to claim that the defendant shall respond to him in damages, while the duplicate of such agreement, executed with the same formalities, in the hands of the defendant, shows that he cannot recover anything. The burden of proof rested upon the plaintiff to show that the contract in his possesion was the true one. This he has failed to do, because the contract in the possession of the defendant must be deemed equally true and binding. The plaintiff having failed, therefore, to establish bis case by a preponderance of the evidence, such evidence consisting wholly of writings for the construction of the court, should have been non-suited at the trial. Syms v. Vyse, 2 St. Rep., 106.

It is true that evidence was permitted to be given upon the trial by the plaintiff designed to establish that the verabal agreement between the plaintiff and the defendant was for an employment for three years at the rate of eight hundred dollars for the first year, and a thousand dollars per year for the two remaining years. But in an action at law, in a court having no general equity jurisdiction, and hence, with no power to reform a contract, this evidence appears to'us to have been incompetent under the well established rule, that all negotiations leading up to a written contract are deemed to be merged in the written instrument.

The learned county judge permitted the jury to have recourse to the conversation and circumstances anteceding the making of the agreement. The relation of facts given by the plaintiff was diametrically denied by the principal officer of the defendant, with whom the negotiations were conducted, and whose testimony tended to show quite clearly that, on account of the lack of experience of the plaintiff, and hence the uncertainity of his giving satisfaction to the company, the defendant’s agent would not enter into any arrangement beyond one year at the outset, but would determine afterwards, and in view of the character of the services, whether he would retain the plaintiff iti the employment of his company. These were the only two witnesses testifying upon that subject.

Should this judgment be permitted to stand, it would be palpably in violation of a written contract executed by the plaintiff and held by the defendant. We must hold, therefore (the case having originated in a court where a reformation of the contract was neither sought nor attainable), that the plaintiff has failed to carry the burden imposed upon him by law, of showing that his right to recover was based upon a preponderance of the evidence.

The judgment and order appealed from should be reversed.

Judgment and order of the county court of Monroe county appealed from reversed and a new trial granted, with costs to abide the event.

Dwight, P. J., Lewis and Haight, JJ., concur.


text:
    Daniel McIntosh, App'lt, v. Michael Battel et al., Resp'ts.

      (Supreme Court, General Term, Fifth Department,

      Filed April 13, 1893.)

    Specific performance—Agency.
    To entitle a purchaser to specific performance of a contract to sell real estate alleged to have been made by the agent of the vendor, the proof of ag mcy must be clear, certain and specific.
    Appeal by the plaintiff, Daniel McIntosh, from a judgment entered in Brie county clerk’s office, June 14, 1892, on decision of the Erie special term, dismissing plaintiff’s complaint, without costs.

      Baker, Schwartz & Dake, for app'lt; Frank R. Perkins, for resp'ts, Battel; John T. Gardner, for resp't, McBlroy.
   Macomber, J.

This action was to the performance of a contract, alleged to -have been entered into between the plaintiff and the defendants, Maria McBlroy and Michael Battel, January 27, 1892, for the conveyance to the plaintiff of a farm of sixty acres of land in Gheektowaga, Brie county, at the agreed price of $12,000, tcj be paid partly in cash and the balance by the assumption of mortgages.

The alleged contract was made by one James McBlroy, the husband of the defendant, Maria McBlroy, who assumed to act as agent of all the defendants. The plaintiff’s counsel filed exceptions only to the refusal of the court to find upon certain questions of fact, which he had requested as follows: That James Mc-Blroy was authorized to execute the contract on which this action is brought; and that the. defendants ratified the contract which James McBlroy assumed to have executed as their agent.

The land in question was owned in common by the defendants, Maria McBlroy and Michael Battel, and was incumbered to the amount of $6,400 by two mortgages. The other defendant is the wife of Michael Battel. Two contracts were executed by James McElroy, the first, providing for the sale of this property to the plaintiff for the sum of $12,000; the vendee to assume the two mortgages; this was signed as follows: “James McElroy, agent for Michael Battel and Catherine Battel and Maria McElroy.”

By the second contract, the defendant, Maria McElroy, was to take a lot on Main street in the city of Buffalo, owned by the plaintiff, at the value of $2,200, as part payment of her share from the sale of the Oheektowaga farm. This contract was signed as follows: “James McElroy, agent for Maria McElroy.”

These contracts, which were executed at the same time, without the knowledge of the defendants, were made after several conversations had between the plaintiff and the defendants and James McElroy; but nothing took place between the parties from which the plaintiff had a right to assume that James McElroy was authorized to execute these contracts. To entitle plaintiff to specific performance of a contract to sell real estate alleged to have been made by the agent of the vendor, the proof of agency must be clear, certain and specific.

In this case the plaintiff has failed to show that James McElroy had either authority or a clear and unequivocal appointment as agent, and on this ground, and if it appears that there was no subsequent ratification of his unauthorized act, the finding of the learned justice at special term must be affirmed.

While the defendants were anxious to sell their farm, they were unwilling to receive other real estate in exchange; in fact, the refusal of the defendants to consent to that portion of the contract relating to the Main street lot was well known to the plaintiff, and he had no right to assume that James McElroy had any authority for signing contracts over the heads of these defendants which contained conditions contrary to their expressed wish, the import of which he well knew.

On the trial Michael Battel testified that he never told Mr. McIntosh that he would accept the Main street lot, but told him that he would not; that he never authorized James McElroy to make any contracts for him; that he was living not three blocks from McIntosh’s house, and thought that he had sufficient time to go' and sign those papers himself, without asking McElroy to sign them for him. And Mrs. McElroy says : “I told him (McIntosh) that I did not let Mr. McElroy sell my property; Mr. McElroy never sold any of my property, for I would not let him; he never bought any real estate for me; I never gave him any instruction or any authority to sell this Oheektowaga property or to take the Main street property, because when I sold that farm I intended to get the money for it, to help me out of the difficulty I was in.”

From this and other testimony, it is clear that James McElroy was unauthorized to sign these contracts.

As regards the refusal to accept the contracts by the defendants but little need be said. It was evident that they were ready and willing to sell the farm, but such sale must be for cash. As soon as the plaintiff sought their signatures to the deed, under the alleged agreement, they immediately repudiated the aúthority of James McElroy, and then and there refused to ratify the contracts. No part of the $100 paid by the plaintiff to James McElroy has ever come to the hands of the defendants.

As the contracts were made on the 27th of January, Wednesday, it was not more than two days subsequent when the refusal was made, and James McElroy, in the meantime, having left for parts unknown, without fully explaining his action, the defendants cannot be held responsible for negligence in refusing to ratify the contracts, under the rule contended for by the appellant, that after a party fails to disavow the acts of a person assuming to act as his agent, as soon as he can after they come to his knowledge, he makes these acts his own. But the defendants are upheld1 by the case of Schmidt v. Garfield National Bank, 64 Hun, 298; 46 St. Rep., 639, where it is held “ that negligence of a principal in failing to discover and prevent an agent’s unauthorized and fraudulent acts does not estop the former from disavowing such acts.”

Though the appellant’s counsel in an elaborate course of reasoni ng gives a suspicious aspect to the apparent contradictions in the testimony of Mrs. McElroy, tending to show that her reason for refusing to ratify the alleged contracts was because she had heard that the price of land in that neighborhood was likely to rise, and that, in fact, she soon after sold this farm for $30,000, 3'et upon the testimony as presented we see no reason to interfere with the decision of the trial court on that ground. She repudiated the contract executed by James McElroy at the first opportunity, and it was ten or twelve days after this before the negotiations ftir the sale at the larger price were had.

For these reasons we think that the trial court committed no error in his refusals to find as requested by the plaintiff’s counsel. His contention that such refusals were against the weight of the evidence is not substantiated by the testimony.

Therefore, the judgment appealed from should be affirmed.

Judgment appealed from affirmed, with costs.

Dwight, P. J., Lewis and Haight, JJ., concur.


text:
    Theodore E. Bramble, Resp't, v. Elston Hunt et al., App'lts.

      (Supreme Court, General Term, Fifth Department,

      Filed April 13, 1893.)

    1. Evidence—Opinion.
    In an action by an attorney for professional services another attorney was called as a witness for plaintiff, and asked: “From what you know of the services of plaintiff to the defendants in this litigation, what you know of his standing as a lawyer, the responsibility of the work, and from your personal knowledge of all the facts in the case, assuming plaintiff did prepare the trial brief, what, in your judgment, were the plaintiff’s services to these defendants worth? Held, incompetent.
    2. Same—Habmdess ebbo.b.
    Where an incompetent question is allowed, but no harm results, a new trial will not bo granted.
    Appeal by Elston Hunt, William R. Hunt, and Arthur H. Hunt, defendants, from a judgment entered in Monroe county, September 14, 1891, on tlie report of a referee in an action by the plaintiff to recover for professional services, as an attorney and counsellor at law.

      Edwin Hicks, for app'lts; George F. Slocum, for resp't.
   Macomber, J.

The plaintiff, between the years 1880 and 1887, rendered professional services as an attorney and counsellor at law to the defendants, who were co-partners in business at Honeoye Falls, H. Y., under the firm name of Hunt Bros., and who were engaged, in the manufacture of woolen goods in their mills, situated on the outlet of Hemlock, Ganadice and Honeoye lakes. These services to the defendants grew out of the fact that the defendants, with many other mill owners, were interested and were parties to proceedings instituted by the city of Rochester to acquire the right to draw water from Hemlock and Ganadice lakes for public use. The defendants were not, consequently, the sole parties interested in these proceedings. Hor has the learned referee attempted to hold them for any more than a fair proportionate share of the expense for the services of the plaintiff. Ho question, however, is made in regard to the liability of other persons to counsel. Indeed, we do not see how any question of liability of the defendants, jointly with other millers, could be raisd6 because a non-joinder of their associates was not set up in their answer; and not having been pleaded is unavailable to them under §§ 488, 498 and 499 of the Code of Civ. Pro.

An examination of the testimony cbnvinces us that the allowance made by the referee to the plaintiff, which was the sum of $250.00, was not excessive, but was rather a conservative estimate of the value of the plaintiff’s actual services to these defendants.

But a somewhat embarrassing question is presented in respect to the mode by which this conclusion was reached by the referee. He says in his opinion, that he has adopted as the proper measure of damages in this case the sum mentioned by the witness, Beckley, who was called in behalf of the plaintiff. Mr. Becldey was asked : “ Q. Mr. Becldey, from what you know of the services of Mr. Bramble to the defendants, Hunt Bros., in this litigation,what you know of his standing as a lawyer, the responsibility of the work and from your personal knowledge of all the facts in the case, and assuming Mi; Bramble did prepare the trial brief of the evidence in all these cases, that the Hunt Bros, claim, in round numbers, $19,500, and that they were awarded $8,500, what, in your judgment, were the plaintiff’s services to these defendants worth?”

This was objected to as incompetent, and upon the ground that it involved the services performed in nineteen other cases besides that of the defendants, and that the witness was not qualified to answer the question. The objection was overruled, and the defendant excepted. His answer was: “I should put the value of the services, in answer to the question put to me, as about $250, and if Mr. Hunt’s case had been tried alone, I should put a much greater value on them.”

The referee says in his opinion: “ It seems to me, therefore, that I may, with propriety, rely upon the judgment of Mr. Beckley, who was engaged in the proceedings on the opposite side throughout, and whose opportunities for knowing the value of the services are better than those of one whose only knowledge is received from the statement of witnesses as to what the services were.”*

That this question put to Mr. Beckley was incompetent hardly admits of doubt under the decision of Carpenter v. Blake, 2 Lans., 206, and 77 N. Y., 180, which follows the well-established rule that a hypothetical question should be throughout what its name imports, and not a question calling for the personal judgment of the witness upon facts known to him outside of the question and outside of the testimony.

This would ordinarily lead to a reversal of the judgment and to a new trial. But we find that Mr. Beckley’s estimate of the value of the plaintiff’s services was the smallest of the three witnesses who were called and gave testimony upon that subject. The'witness Bzziggs estimated them to be worth $850, and the witness Humphrey, $300. It is true that the referee was not bound either by the judgment of the witness Beckley, or of that of the other two witnesses. But he being the lowest in his estimate of the value of the services, and such estimate being, in our judgment, manifestly low, under the facts, we hardly deem it necessary to grant a new trial upon that ground. The opinion of the referee cannot be resorted to for the purpose of reversing his findings. Such findings show, not Mr. Beckley’s estimate, but the referee’s judgment, from the whole case, of the value of the plaintiff’s services.

But it is urged by the learned counsel for the appellants that the hypothetical question put to the witnesses, Briggs and Humphrey, was also objectionable. It was,-it is true, objected to as incompetent; but, on examination, the question, which is too long to quote in this opinion, shows that it did not contain the vice ascribed to the question put to the witness Beckley, in that it did not call upon these witnesses to take into the account their own personal knowledge of the extent and value of the services as actually rendered.

But neither was the learned referee, nor is this court, confined in its judgment to a statement in figures of the value of professional services rendered by a lawyer. Being matters peculiarly within the knowledge of courts, when the facts are disclosed, a mere opinion of a witness, though entitled often to much respect, is not by any means controlling. We think, taking all of the circumstances together, that while the question put to Mr. Beckley was incompetent, no harm has resulted to the defendants by reason of the error, and that consequently we are not compelled to reverse the judgment upon that ground.

Judgment appealed from affirmed.

Dwight, P. J.,. Lewis and Haight, JJ., concur.


author: Lewis, J.

text:
    Alpha Roberts, Resp't, v. Alanson Derby, App'lt.

      (Supreme Court, General Term, Fifth Department,

      Filed April 13, 1893.)

    Contract—Reformation.
    In an action brought to reform a written contract, it appeared that the defendant desired to sell the timber on his farm, and plaintiff wished to purchase the same. Negotiations were had between the parties which resulted in a verbal agreement for the sale of the timber for $1,000. Plaintiff testified that during such negotiations defendant said he would skid the logs to the mill for §1.00 per thousand, and that he said he should have the job. Thereafter the parties went to L., who held the mongage on the farm, and he drew up a contract, read it over to them and they executed it. Nothing was said therein about skidding the logs, which plaintiff complains was omitted by mutual mistake. Defendant denied ever offering to do the skidding, and nothing was said about it to L., and shortly after signing the contract plaintiff engaged a party to do it for §1.50, but he maimed that theretofore he asked defendant if he was going to do it and he refused. Held, that the facts did not make out a case for reformation of the contract on the ground of mistake.
    Appeal from a judgment entered upon the report of a referee, in. Cattaraugus county.

      Fred. J. Blackman, for app'lt; J. M. Congdon, for resp't.
   Lewis, J.

This action was brought to obtain reformation of a written contract, and for damages for a breach thereof as reformed. The learned referee to whom the action was referred found that by the mutual mistake of the parties the contract failed to express their actual agreement, and he directed judgment for the plaintiff reforming the contract, and for damages for the breach thereof; and the question presented for our decision is, whether the evidence sustains his findings.

The defendant, Derby, .was the owner of a farm in the town of Persia, Cattaraugus county, on which was a considerable quantity of hemlock and other timber. He purchased the farm, of Franklin D. Locke, Esq., of Buffalo, and Mr. Locke held a purchase money mortgage thereon of $1,900. The defendant was desirous of selling the timber on the farm, with a view of applying the money obtained therefrom iu part payment of the Locke mortgage. Plaintiff owned a portable steam sawmill, and wished to purchase the timber for the purpose of converting it into lumber and marketing it. Negotiations were had between the parties which resulted in a verbal agreement for the sale of the timber to the plaintiff for the sum of $1,000. Plaintiff testified that, while negotiating for the purchase of the timber, he stated to the defendant that he knew what the labor of converting the timber into lumber and marketing it would cost, with the exception of the cost of skidding the logs to the mill, and that the defendant thereupon said that he would do, or cause to be done, that part of the labor for one dollar per thousand, and that he told defendant if he purchased the timber he should have the job of skidding the logs.

Plaintiff further testified that he was to have a week’s time to determine if he would make the purchase, and that at the end of the week he informed the defendant that he would take the timher, and that they agreed to go to Buffalo and see Mr. Locke and arrange the terms of the contract and have Mr. Locke put it in writing, and that they met Mr. Locke and Derby stated to him the bargain and all about it, and that Mr. Locke drew the contract and read it over to the parties, and they executed it. No mention was made in the contract about skidding the logs. Plaintiff claims that by the mutual mistake of the parties that part of the agreement was omitted from the written contract. The plaintiff and his hired man, McMillan, testified that the defendant agreed to skid the logs for one dollar per thousand. The defendant admitted that he told the plaintiff during the negotiations that he thought that work could be done for a dollar a thousand, but that he was so busy with other work that he could not do it, but would assist the plaintiff in finding some one to do the work, but he denied that he agreed to do the work. The facts and circumstances tend to a considerable extent to corroborate the defendant’s contention. Concededly nothing was said about skidding the logs to Mr. Locke. The contract contains everything Mr. Locke was told to put in it. It bears date on the 20th day of May, 1890, and provides that Mr. Derby, party of the first part, shall proceed with reasonable diligence to fell all the hemlock timber upon the premises which is fit for cutting into timber, and shall peel the bark therefrom, which' he reserves to himself; that Roberts, party of the second part, shall forthwith erect upon the premises a steam sawmill, and with due diligence proceed in the work of sawing into lumber and timber all the hemlock and other timber upon the premises aside from the beech and maple ; that as rapidly as the timber is sawn it shall be marketed by the plaintiff as the agent of the defendant, and that out of the purchase money the plaintiff may retain $3 per thousand feet and pay the remainder to Mr. Locke to be applied upon the mortgage until the sum of $1000 and interest thereon from date is paid, that the surplus received from the timber shall belong to the plaintiff.

It is further provided that the title to the timber and lumber shall remain in the defendant until the thousand dollars are fully paid; it contains other provisions carefully guarding the defendant against loss from the inability of the plaintiff to pay for the timber. The plaintiff is required to commence operations by the 10th day of July, 1890, and complete the work of marketing the lumber and timber by the 1st of February, 1891. Skidding the logs at $1 per thousand would have amounted to $500 or $600. Plaintiff testified that nothing was said as to how or when he was to pay the defendant for his labor for skidding the logs. After having so carefully protected the defendant in the written agreement against loss by plaintiff’s failure to pay for the timber, it is a significant fact, if such an agreement was made, that the terms of payment for the work were not mentioned. If plaintiff’s version of the contract is correct, the defendant was obligated to do the work and wait for his pay until the job was entirely completed. The record shows that plaintiff was pecuniarily irresponsible. Plaintiff testified that on their way home from Buffalo, after executing the contract, he and defendant had a conversation about skidding the logs, and defendant said that he would not do the work for $3 a thousand, for the reason that he had so much other work to do, and that he would have to give up the job; that he told Derby he supposed he had the job. No suggestion was made by the plaintiff that the agreement for skidding the logs had been by mistake left out of thea written contract; and there is not in the entire ease any direct evidence that it was ever agreed or suggested that that part of the agreement was to be included in the written contract. It could properly have been put in the writing, or allowed to rest in parol. The contract obligated Derby to fell the trees and strip the bark.

It is quite remarkable, if the plaintiff understood that the agreement to skid the logs was to be included -in the contract, that he did not suggest it to Mr. Locke when he heard the clause read requiring defendant to fell the trees and strip the bark. If he is right in his contention, he was at liberty to refuse to perform the contract when Derby informed him that he would not do as he had agreed; but, instead of so doing, very shortly after signing the contract he entered into negotiations with other people to do that work, and finally agreed to pay $1.50 to $1.85 a thousand therefor. He testified that when he was negotiating with some parties to skid the logs the defendant was present, and that he called him one side, and privately inquired of him if he intended to do that work, and that defendant refused (this interview was denied by the defendant), and that thereupon he let the contract to another, without making any complaint, or suggesting that the defendant had made such an agreement and refused to perform it. Plaintiff testified that the defendant admitted he had agreed to do the work, but gave as an excuse for not performing that he supposed when he agreed so to do that the work could be done through the following winter; that he did not suppose the plaintiff was to saw the timber so soon; and yet at the time this admission was alleged to have been made they both knew that the contract required the plaintiff to commence doing the work by the 10th of July, and to have it completed by the 1st day of February.

To entitle the plaintiff to a judgment reforming this written instrument, it was incumbent upon him to prove by a preponderance of clear and satisfactory evidence that the defendant not only agreed to do the work, but that it was agreed it should be incorporated into the written contract, and that by the mutual mistake of the parties it was omitted therefrom.

A person who seeks to rectify a deed on the ground of mistake, must establish in the clearest and most satisfactory manner that the alleged intention to which he desires it to be made conformable continued concurrently in the minds of all parties down to the time of its execution, and also must be able to show exactly and precisely the form to which the deed ought to be brought. Bispham’s Principles of Equity, § 469; Stockbridge Iron Co. v. Hudson Iron Company, 107 Mass., 290.

We think the plaintiff came far short of making such a case; on the contrary, the preponderance of the evidence tended to establish the defendant’s contention.

The plaintiff elected to bring an equitable action for the reformation of this contract, and it was tried as such. It is too late upon appeal to seek to convert it into a law action. Although the distinctions between actions at law and suits in equity are abolished, the distinguishing features of the two classes of remedies, legal and equitable, are as clearly marked and rigidly observed as they ever were. Chipman v. Montgomery, 63 N. Y., 230.

If a party brings an equitable action when the same court administers both systems, he must maintain his action upon equitable grounds or fail, even though he has a good action at law on the trial. Mann v. Fairchild, 2 Keyes, 111; Bockes v. Lansing, 74 N. Y., 437; Oakville Co. v. The Double Pointed Tack Co., 105 id., 658; 7 St. Rep., 528.

Had the plaintiff brought this action to recover damages for the breach of a parol agreement, the defendant would have been entitled to a jury trial.

The judgment appealed from should be reversed and a new trial granted, with costs to abide the final award of costs.

Dwight, P. J., Macomber and Haight, JJ., concur.


text:
    John M. Bedford, Pl'ff, v. Durfee A. Sherman et al., Def'ts.

      (Supreme Court, General Term, Fifth Department,

      Filed April 13, 1893.)

    1. Corporations—Directors—Transferee of claim.
    A corporation, maker of certain notes, pledged as collateral security therefor certain warehouse receipts for grain, which grain was fraudulently withdrawn, and the company thereafter became insolvent. The notes not being paid when due, the holders, not being able to find the grain, called upon the warehousemen to make good their receipt. They did so by paying the amounts due the pledgees, who indorsed the notes in blank and delivered them with the receipts attached to the warehousemen. Held, that the warehousemen became creditors of the corporation and had the right to maintain an action against its directors to recover the penalty provided by the act of 1875 for failure to make an annual report.
    3. Same.
    Such a penalty is an incident of the claim and passes to its transferee.
    Motion for a new trial by the defendants upon exceptions ordered to be heard at the general term in the first instance.

      Tracy C. Becker, for pl'ff; Seward A. Simons, for def'ts Sherman; Martin Clark, for def't, Henry L. Fish, Jr.
   Lewis, J.

In the year 1883, Sherman Brothers & Company, Limited, was incorporated under chapter 611 of the Laws of 1875 of the state of New York, relating to the organization and regulation of business corporations.

The defendants, in March, 1886, were elected directors of said corporation for the term until the next annual election. They accepted the trust, and entered upon the discharge of their duties as directors. Ho election of directors was thereafter had. In July, 1889, an action was commenced in behalf of the People of the state of New York to dissolve said corporation; a temporary receiver was appointed in July, 1889. The action came on for trial in January, 1890, and a decision was made that the corporation should be dissolved. Final judgment of dissolution was entered in January, 1890; the temporary receiver was made permanent receiver. The affairs of the company were closed on the 15th day of January, 1891, and the receiver discharged.

Sherman Brothers & Company, Limited, was engaged in buying and selling grain, and doing a general brokerage and commission business in the city of Buffalo. There were, during these years, three corporations in the city of Buffalo engaged in the business of elevating and storing grain, viz.: “ International Elevating Company,” “ The Buffalo Elevating Company,” and 11 The Lake Shore Elevating Company.” These several corporations formed an association known as “ The Associated Elevators.” The business of this association was elevating and storing grain in the elevators of these three corporations. The association issued warehouse receipts for grain delivered to and stored in said elevators respectively. The defendant, Stephen F. Sherman, during all the times mentioned, was the general manager of the individual elevators and of said association of elevators, and as such had authority to issue warehouse receipts for grain received and stored therein. Sherman Brothers & Company, Limited, from time to time, during the years 1888 and 1889, for the purposes of its business, made its promissory notes, and procured them to be discounted by the American Exchange Bank of Buffalo, or the Merchants’ Bank of Buffalo, and the said Stephen F. Sherman, as such manager, issued, or caused to be issued by the associated elevators, warehouse receipts for grain stored in said elevators, subject to the order thereon of Sherman Brothers & Company, Limited, and the company pledged said warehouse receipts to said banks as collateral to its notes, discounted by said banks as aforesaid. The company suspended payment on the 8th day of July, 1889, and at that time there were held by the banks the promissory notes of said corporation amounting to some $243,000. Said banks also held as collateral to said notes the warehouse receipts of said associated elevators, issued and pledged as aforesaid, calling for grain exceeding in value the amount of the notes thus held by them. Intermediate the time of the issuing of the said warehouse receipts respectively, and the suspension of Sherman Brothers & Company, Limited, said corporation had fraudulently removed from the said elevators and converted to its own use substantially all the grain represented by said. receipts. Said notes matured and, not being paid, the holders appropriated and sold all the grain in the elevators and applied the proceeds upon the said notes, and thereupon called on the said associated elevators to honor their receipts. The stockholders of said elevators finding that the banks held such receipts calling for grain exceeding in value the amount due upon the notes, paid the amount due thereon and the banks indorsed the notes in blank and delivered them, with the warehouse receipts, to said stockholders. The receiver thereafter paid upon said notes their percentage of the assets of Sherman Brothers & Company, Limited, leaving due from the company, on account of said, promissory notes, a sum which, with interest to the time of the trial, amounted to $268,516.78.

Thereafter, and before the commencement of this action, the stockholders individually and the elevators composing said association, by proper instruments in writing, assigned, transferred and delivered to the plaintiff said promissory notes and said warehouse receipts, and by said instruments constituted and appointed the plaintiff their attorney, in their names, or otherwise, to take all legal measures for the recovery and enjoyment of the assigned premises.

The plaintiff thereupon commenced this action against the defendants, to recover the amount of said indebtedness with interest, basing his claim upon the failure of the said corporation and the defendants, its directors, to make and file the annual report required by § 13, of chap. 611, of the act of 1875. At the conclusion of the evidence the plaintiff and the defendants requested the court to direct a verdict in their favor respectively. The defendants’ motion was denied and proper exceptions were taken, the court thereupon directed a verdict in favor of the plaintiff against the defendants for $268,516.78, and directed the defendants’ exceptions to be heard at the general term in the first instance.

There was evidence tending to show that the defendant, Henry L. Fish, Jr., was elected a director of Sherman Brothers & Company on the first day of March, 1886, his term of office was for and until the next annual election. As we have seen, no other election of directors was thereafter had. Being a director and taking part as such in the affairs of the corporation, the entries in its books during the period of his directorship were properly admitted in evidence against him. Huntington v. Attrill, 118 N. Y., 379, 380; 29 St. Rep., 5; Blake v. Griswold, 103 N. Y., 434; 4 St. Rep., 221.

Two reasons are urged by the counsel for the defendants Sherman why the plaintiff was not entitled to a direction of a verdict against them.

First. That the banks used the property of Sherman Brothers & Company, Limited, to pay the notes, and consequently the debt having been discharged, the simple transfer of the evidence of indebtedness vested^ no right of action in the transferee of the notes. The argument being that the warehouse receipts being payable to the order of the company, represented property in store belonging to that corporation, and that the transfer of the certificates to the banks carried with them the ownership of the property represented by the receipts ; and that when stockholders of the elevators paid Sherman Brothers & Company’s debt to the banks and received the notes and warehouse receipts, the notes were in effect paid, and no right of action passed to the transferee.

No account is taken in the counsel’s argument of the important circumstance that his clients had fraudulently removed from the elevators and converted to their own use the grain called for by the warehouse receipts. The holders of the notes not being able to find the grain, called upon the warehousemen to make good their receipt; they did so by paying the amounts due the pledgees, the banks; the banks indorsed the notes in blank and delivered them with the receipts attached to the representatives of the elevators, who had paid them the money; they thereby, we think, became the creditors of Sherman Brothers & Company, and as such had the right to maintain an action against the defendants to recover the penalty provided by the act of 1875 for the failure of the directors to make their annual report.

It is further contended by appellants’ counsel that the plaintiff never became the creditor of the corporation so as to entitle him to sue for the penalty, for the reason that at the time he took title to the notes the corporation of Sherman Brothers & Company, Limited, had been by the judgment of the court dissolved and was no longer in existence. As we have seen, for the purpose of convenience, by proper instruments in writing, the legal title to the notes and receipts was put in the plaintiff. As between plaintiff and the elevators and their stockholders, the evidence tends to show he occupied the relation of trustee. He testified that he paid nothing for the notes or the stock. He had acted for the stockholders in settling their affairs with Sherman Brothers & Company, and he took an assignment of the claim for the purpose of bringing the action. The indebtedness to the banks was incurred in 1888 and 1889, before the corporation was dissolved. The notes were transferred to the stockholders of the elevators by the banks in September, 1889 ; they were assigned to the plaintiff on the 17th day of March, 1891, after the dissolution of the corporation.

It is provided by § 39 of the act of 1875, that “ the dissolution of the corporation shall not take away or impair any claim or remedy existing against the corporation, its stockholders or officers, for any liability incurred previous to its dissolution.”

The claims were unquestionably valid in the hands of the transferees of the banks, and no reason is apparent why they could not transfer their claim to the plaintiff. It has been held that a naked transfer of the penalty cannot be made without a transfer of the claim, but the penalty is an incident of the claim and passes to its transferee.

The notes indorsed in blank were delivered to the plaintiff, accompanied by written transfers in form sufficient to pass the title, and this gave the plaintiff valid title as against the assignors. The defendants would be protected, should they pay to the plaintiff any judgment which he might recover thereon. Plaintiff’s assignors would be estopped from thereafter making any claim against the defendants.

The plaintiff having obtained the legal title to the claim, the defendants are not concerned to inquire as to what consideration ho may have paid thérefor. Sheridan v. The Mayor, etc., 68 N. Y., 30.

The assignment of a debt, though made after the liability of directors for failing to file an annual report had accrued, carries with it a cause of action for the penalty. Pier v. George, 20 Hun, 210; Bolen v. Crosby, 49 N. Y., 183; Blake v. Griswold, 103 id., 435; 4 St Rep., 221.

We think the plaintiff was entitled to the verdict as directed.

The motion for a new trial should be denied and judgment ordered for the plaintiff as directed at the circuit.

Dwight, P. J., Macomber and Haight, JJ., concur.