author: Giegerich, J. Bischoff, J.

text:
    Henry J. Bridger, Resp't, v. Jonas G. Goldsmith, App'lt.

      (New York Common Pleas, General Term,

      Filed May 1, 1893.)

    Fraud—Estoppel.
    As an inducement to plaintiff to purchase a business the defendant falsely represented that the business had been established since 1867; that it was a large and profitable business; that he had kept no books, and therefore could not tell the profits, and at the last minute procured the insertion in the. agreement of sale of a clause stating that it was agreed that he had not in any manner or form stated, made or represented to plaintiff, for the purpose of inducing the sale, any statements or representations, verbally or in writing, in respect to said business other than that he had been engaged in that business since 1867. Held, that plaintiff was not estopped by said clause from asserting that he was induced to make the purchase by the fraudulent statements above set forth.
    Appeal from a judgment of this court, entered upon the decision of the judge, rendered at an equity term, rescinding a written agreement for fraud, and awarding damages. The material facts are stated in the opinion.

      John C. Shaw and Emanuel J. Myers, for app’lt; John A. Straley, for resp’t.
   Giegerich, J.

This action was brought to procure a judgment rescinding sale of the stock and good will of the'business hereinafter mentioned, for an injunction restraining and enjoining the defendant from disposing of or collecting a promissory note given in part payment of the purchase money and for a recovery of the consideration paid to the defendant on the execution of the contract of sale.

On the 16th day of March, 1891, the defendant, who was doing business under the name of The Goldsmith Piano & Organ Manufacturing Company, entered into an agreement in writing with the plaintiff, whereby the former sold to the latter three upright pianos (Goldsmith make), one caligraph machine, one rolling cylinder desk, and all other fixtures contained in the business of the defendant at 60 Broadway, excepting an iron safe with its contents, and certain claims, together with the good will of the business, for which the plaintiff agreed to pay $3,000 as follows : $2,000 -upon the execution of the agreement, which was paid; $500 by executing and delivering to the defendant his promissory note, payable six months after date, the same to be indorsed by an indorser satisfactory to the defendant, and $500 by a similar note, payable twelve months after date. The agreement also contained a clause that the defendant shall not for the term of twenty years enter into, or engage directly or indirectly in the business of selling pianos under the name of Jonas G. Goldsmith, or the Goldsmith Piano & Organ Manufacturing Company, or in any other name of which the word Goldsmith is any component part, within the. limits of the United States of America.

At the request of the defendant the following clause marked Fourth ” was put in the agreement of sale, viz. :

“Fourth. It is expressly understood and agreed between the parties hereto that the said party of the first part has not in any manner or form stated, made or represented to the said party of the second part, for the purpose of inducing the sale of the said business, or the making of this agreement, any statements or representations verbally or in writing in any respect to the said business other than that the said party of the first part has been engaged in the piano business in "the city of New York since 1867.”

After the contract of sale was made, the plaintiff took possession and attempted to carry on the business. The plaintiff testified: “ I found that there was no business at all, was no business done at all or had been done. I tried to carry it on several weeks or about six weeks, I think. I. sent circulars out; I mailed mail matter, and I conducted the business the same as Mr. Goldsmith told me it had been conducted by him. Mr. Goldsmith told me as to the conducting of the business, that it could be run by any one without experience at all; by an inexperienced person. I asked him the nature of the business, and he said: ‘Why, all you have to do is to advertise, and you get answers to the advertisements for the organs. You answer the letters that you receive, and so get orders.’ That is just the way I carried on the business during the time I was in possession. I had an interview with Mr. Goldsmith at the end of about six weeks. * * * I told Mr. Goldsmith I had been defrauded by him, and I had been treated just the same by him as though I had fallen into the hands of green goods men. "He put his thumb to his nose, and said, ‘lam an old New York boy; you couldn’t get over me ; I was damned artful enough to put a clause in that agreement which will stop you from getting any satisfaction,’ or some words that finished like that, and he was going to strike me. 1 asked him that the contract be rescinded and the money paid on account of the purchase be returned. I offered to return everything. He laughed and refused to do it, certainly.”

The plaintiff thereupon brought this action, alleging that the -defendant did, with the intent to deceive and defraud the plaintiff, falsely and fraudulently represent to him that the said business, sold as above stated, was a profitable business, and that the net profits realized during 1890 had been in the average fifty dollars or over on from seventy to eighty pianos sold during that year; that said business had been established since 1867, and had always been profitable; but that he had never kept any books, and could not toll the exact profits; that the business was easily worth $5,000 or $6,000, bat that it had no inducement to him to continue it, because he was wealthy, and wished to retire from it and devote himself to other matters; it being too small for him to bother with; that there was no doubt it would afford a good living for even an inexperienced person in the line; that it was good, sound and substantial in every respect, and that he had orders for twenty organs, which he would turn over to the plaintiff. That relying upon the representations so made, the plaintiff purchased the stock and good will of said business, and paid defendant therefor ,$2,000 in cash, and executed two promissory notes for $500 each, payable respectively six and twelve months from date, indorsed by an indorser satisfactory to defendant, which last note plaintiff thereafter took up and paid. That defendant further, in pursuance of a plan to cheat, deceive and defraud the plaintiff, assured him that everything was all right in the matter incorporated in the fourth ” clause above set forth, which was inserted at the last moment under such circumstances that plaintiff was misled into signing the same.

The defendant denied all allegations of fraud, but- the trial judge believed the plaintiff’s version of the transaction as testified to by him, and the witnesses who testified on his behalf, and their testimony amply sustains the findings of the learned judge, that the sale of the said business was effected, and the consideration therefor obtained, by fraud; that the promissory notes which formed part of such payment were without consideration, and are void; that the defendant should be restrained from disposing of or collecting the said promissory notes, and that plaintiff have judgment against the defendant for $2,500, with interest. Judgment was entered accordingly, from which the defendant has appealed.

It is strenuously urged by the learned counsel for the appellant that the respondent is estopped by the provisions of the fourth section of the contract from asserting that he was induced to make the purchase provided for in the agreement by fraudulent statements. To give to the clause in question the effect the defendant claims for it would be not to discourage, but to put a premium upon artful fraud by allowing the guilty to escape with the fruits of their dishonesty provided they be shrewd enough to so frame the contract as to seal the lips of their victim when he attempts to complain in equity of Ins wrong. It would be a strange anomaly of the law indeed if a sharper could insist upon keeping the gag in the mouth of his victim simply because the latter permitted himself to be gagged while his will was under the dominion of the former.

It is a legal maxim, that nulla factione effeci potest ut doluspraesieiur; “ I cannot effectually contract with any one that he shall charge himself with the faults which I shall commit; a man cannot validly contract that he shall be irresponsible for fraud, FTeithfer will the law permit a person who enters into a binding contract to say, by a subsequent clause, that he will not be liable to be sued for a breach of it.” Broom’s Max, 6th Am. ed., m. p„ 668, and cases cited.

In the case of The Universal Fashion Co. v. Skinner, 64 Hun, 293; 46 St. Rep., 633, the parties entered into a written agreement for the sale of paper patterns for making dresses, which contained a clause stating that its stipulations contained the whole contract, and that any terms different therefrom or supplemental thereto should bind neither party. An action was brought to recover the price agreed to be paid for the patterns, and the defendant by his answer admitted the contract and alleged fraud on the part of the plaintiff in procuring its execution. The plaintiff demurred to the answer, and it was held that as by the demurrer it was admitted that the representations of the agent were false the contract based upon them was void. Yan Brunt, P. J., in one of the opinions of the court, states what is undoubtedly the law of the case, in the following language; “ False and fraudulent representations by which a party is induced to enter into .a con-, tract always avoid the same.”

In Wilcox v. Howell, 44 N. Y., 399, it was held, that a mortgagor is not estopped from setting up fraud in procuring him to give up a mortgage by his own certificate or written declaration that the mortgage is valid and no defense exists thereto, when such certificate was itself procured by fraud. In N. Y. & Oswego M. R. R. Co. v. Van Horn, 57 N. Y., 473, the defendant subscribed to plaintiff’s stock. The subscription paper contained a declaration that he had paid down ten per cent, at the time of subscribing. In fact, he never paid anything upon subscription. The General Railroad Act, Laws 1850, chap. 140, § 4, provided that subscription to the capital stock is invalid when ten per cent, of the amount subscribed has not been paid. In an action to recover the amount subscribed it was held, that the subscriber was not estopped from denying such payment because of a statement' in the subscription paper that ten per cent, had been paid, and that a statute cannot be evaded by estoppel. Any contract which has for its object the practice of deception upon * * * any party in'interest as to the * * * financial condition, the nature of a transaction * * * is void. Greenhood on Public Policy, p. 152, Rule CLIX and cases cited. A party cannot come into court with a fraud upon his lips and obtain relief. To such the halls of justice are not open. Id., p. 153, citing Gregory v. Haworth, 25 Cal, 653, 657. Any agreement calculated to suppress lawful testimony is void. Id., p. 441, Rule COCLXXIII, and cases cited; Runt v. Herring, 49 St. Rep., 126. “The law seeks' to mitigate the consequences of men’s thoughtlessness and improvidence ; and it does not, I think, allow its policy to be evaded by any language which -may be inserted in the contract. Greenhood on Public Policy, p. 498, Rule CCCCXXX. A contract waiving a substantial right to be asserted by a litigant is void. Id., p. 500, Rule CCCOXXXIII and illustrations.

Thus both reason and authority clearly establish the principle, that a party is not estopped from setting up the fraud which induced him to enter into a written agreement, although he thereby expressly agrees that the other party has not made any representation to induce him to enter into such agreement. Applying this principle to the facts found by the learned trial judge “that said defendant further, during said negotiation, and to perfect said sale, with an intent to cheat, deceive and defraud plaintiff in the certain bill of sale of said business to plaintiff, dated March 16, 1871, and further assuring him that everything was all right in the matter, incorporated a clause marked ‘ Paragraph 4th,’ * * * with full knowledge that the same was false and untrue, and which was, with intent to deceive and defraud plaintiff, inserted at the last moment under such circumstances that plaintiff was deceived and misled into signing the same,” it is apparent that the respondent is not estopped by the provisions of the contract in question from asserting that he was induced to make the same by fraudulent representations. The learned trial judge also found, “that there was no means of ascertaining the profits of said Goldsmith Piano & Organ Manufacturing Company’s business at the time of the sale to plaintiff by defendant, except such information as defendant personally could give, or which could be disclosed by the books of said business ; that however probed, the profits of said business could not have been ascertained except through information given by defendant and the books of said business“ that defendant further, during said negotiations, falsely and with intent to deceive and defraud plaintiff into purchasing said business, suppressed and denied the existence of the books of account kept thereof which would have shown said business, to have been a losing one from its establishment.” This fraudulent suppression and concealment of fact, found by the trial judge, vitiates the contract of sale; for it is a well established rule that fraud may consist in the concealment of what is true as well as in the assertion of what is false, if the means of information are not equally accessible to both, but exclusively within the knowledge of one of the parties and known to be material to a correct understanding of the subject. Getty v. Donnelly, 9 Hun, 603; Clark v. Bamer, 2 Lans., 67; 2 Kent's Com., 482; 3 Wait’s Ac. & Def., 429.

The defendant also insists that the trial judge erred in refusing to find certain requests as proposed by him. tlpon the most careful examination of the record we find that the refusals to so find were proper, and that the evidence warranted the findings of fact of the court; which in addition to those already stated show these facts: that defendant on and prior to March 16, 1891, was the proprietor and owner of the business sold, owned and conducted as the Goldsmith Piano & Organ Manufacturing Company, which was established in September, 1889, and that lie was in business under the name and style of the Goldsmith Piano & Organ Manufacturing Company, and that the assets of said business on March 16th, the date of the sale, consisted of the stock in trade of three pianos, office furniture, and appurtenances and good will of said business; that defendant had sold during the year 1890 in said business fourteen pianos and nineteen organs only; that from the establishment of said business to the 16th day of March, 1891, there had been sold twenty-seven pianos and twenty-three organs only; that on and before March 16, 1891, plaintiff was wholly inexperienced in the piano business, of which fact defendant had full knowledge; that books of account had been kept of said business by defendant, or his agents, showing the sales in pianos and organs and the profits and losses in said business from its establishment to the date of the sale to plaintiff of it by defendant; that a duplicate of said books showing the sales of instruments and their prices was kept by Edward P. Spaulding, who-was employed by defendant as general manager of said business from its establishment to March 7, 1891; that the defendant carried on his business at the city of New York by extensively advertising, in various journals and papers, pianos and organs for sale, and soliciting from the public trade and patronage by means of said advertising; that the place of business of the defendant at the city of New York had no patronage incident thereto, but was only an office for the transaction of business; that during the negotiations defendant falsely, and with intent to deceive and defraud plaintiff into purchasing said business, represented that the Goldsmith Piano & Organ Manufacturing Company had been established since 1867; that it was a large and profitable business; that he had made lots of money in it and that he was anxious to give it up because it was too small for him, as he was dealing in' real estate and had no desire to continue the piano business ; that defendant further, during said negotiations, falsely and with intent to deceive and defraud plaintiff into purchasing said business, represented to him that during the year 1890 there had been between seventy and eighty pianos sold on which there was. a profit, after all expenses were paid, of fifty dollars on each instrument sold ; that defendant further, during said negotiations, falsely and with intent to deceive and defraud plaintiff into purchasing said business, represented and stated that lie had kept no books or record of the business done by said Goldsmith Piano & Organ Manufacturing Company, and for that reason he could not tell the profits of said business ; that plaintiff relied upon the false and fraudulent representations made by defendant in purchasing said business, and undertook, after he had purchased the business, to continue it as it had been conducted before; that defendant expended in and about the said business from September, 1889, to December, 1890, the sum of $5,000 for salary, postage stamps, office rentj circulars, and gas fixtures; that before the suit was brought and within six weeks after the sale and at once upon discovery by plaintiff of the fraud of defendant, plaintiff demanded of defendant that the sale be rescinded and the consideration returned, and offered to return to defendant all the stock, fixtures and property conveyed to him, which defendant declined to do, and which tender was renewed on the trial; and that by reason of such false and fraudulent representations and suppressions of fact, plaintiff was deceived and defrauded by defendant into purchasing said business, and was damaged therebjr to the amount of the consideration paid, and interest.

We have examined with great care the other exceptions taken at the trial and points raised on this appeal, and fail to discover the existence of any substantial errors which require the reversal of the judgment appealed from.

The judgment, in our opinion, should, therefore, be affirmed, with costs.

Bischoff, J.

It is apparent that defendant’s suppression of his business books deprived plaintiff of every reasonable means of ascertaining whether or not defendant’s representations concerning the duration, extent and worth of his business were true. Hence, the rule that one to whom the means of ascertaining the facts of a particular representation were offered, of which he did not avail himself, is estopped because of his own laches from subsequently complaining that the representation was false, does not apply. The fact that defendant required the interpolation of the so called “ fourth ” clause of the agreement which is annulled by the judgment appealed from furnishes in itself a corroboration of plaintiff’s claim that he was induced to execute the agreement and to conclude the purchase of defendant’s business by fraud. Acia exteriora indicant interiora secreta. Treated as a contract, it is in effect that plaintiff will not seek redress if it should subsequently transpire that he was defrauded by means of defendant’s representations which induced him to conclude the purchase, and the falsity of which was not disclosed to him. Such a contract is repugnant to justice, against public policy, and void. Bell v. Leggett. 7 N. Y., 176, 179; Sedgwick v. Stanton, 14 id., 289, 291; Bay’s Contractual Limitations, chap. 1, § 2, p. 6.

As an estoppel the clause is equally unavailing. The doctrine of equitable estoppel, or estoppel in pais, is invoked to prevent deception and to promote justice. Its use in the consummation of a fraud or the perpetration of injustice and oppression will not be tolerated. Dickerson v. Colgrove, 100 N. S., 578, 580; Royce v. Watrous, 73 N. Y., 597.

It is a constituent of an equitable estoppel that the party seeking its aid was, while acting in good faith and with reasonable care and diligence, misled by the representations or conduct of the party against whom it is sought to be enforced. Bigelow on Estoppel, 480; Am. & Eng. Encvl. of Law, vol. 7, p. Í5; Blair v. Wait, 69 N. Y., 113, 116. This element is absent from the case at bar, the facts being conclusive that, despite plaintiff’s admission or alleged agreement to the contrary, defendant was aware that in concluding the purchase of his business plaintiff proceeded in reliance upon his representations theretofore made concerning it.

I agree that the judgment should be affirmed, with costs.

Pryor, J., concurs in result.


source: Caselaw Access Project

author: Bischoff, J.

license: Public Domain

text:
    Ebenezer T. Baker, App'lt, v. D. Edgar Codding et al., Resp'ts.

      (New York Common Pleas, General Term,

      Filed May 1, 1893.)

    -Costs—Retaxation—Does not aspect judgment.
    A relaxation of costs does not affect the judgment for costs which were taxed without notice, and the judgment cannot be modified by deducting the sums disallowed on the relaxation, but such sums are to be credited on the execution when issued.
    Appeal from two several orders of the general term of the city court of New York, each affirming an order made at special term which denied plaintiff’s motion to modify or correct a judgment for costs entered in defendant’s favor by reducing the amount to the costs as adjusted upon the relaxation thereof.

      Leonard S. Wheeler, for app’lt; Jno. B. Adger Mullally, for resp’ts.

       Affirming 49 St. Rep., 924.

   Bischoff, J.

Upon defendants’ appeal from a judgment for plaintiff, the general term of the court below directed its reversal and awarded judgment absolute for defendants, with costs. The costs were taxed by the clerk without notice to plaintiff’s attorney and judgment for the amount was entered in defendants’ favor. Thereafter defendants caused notice of retaxation to be given as required by § 8264 of the Code of Civil Procedure. From the clerk’s taxation the parties appealed to the justice at special term, who disallowed certain items, and thereupon the costs were again taxed by the clerk. Plaintiff then -moved that the judgment be modified or corrected by reducing it to the amount of costs as last taxed; and from the orders denying the motions, and the orders of the general term affirming the first mentioned orders, this appeal is taken.

By § 3262 of the Code of Civil Procedure it is provided that all costs, except interlocutory costs and such as may be awarded in special proceedings, must be taxed by the clerk. Section 3264 authorizes the court in its discretion, upon application of a party interested, to direct a retaxation of costs at any time, and § 3265 allows the court to review a taxation or relaxation of costs upon a motion for a new taxation. The section last cited gives an order made upon a motion for a neiu taxation, which allows or disallows any item objected to before the taxing officer, the effect of a new taxation. A relaxation of costs either affirms, modifies or ■corrects the taxation had. A new taxation necessarily implies that the former taxation is vacated or annulled. Murdock v. Adams, 10 Hun, 566. The new taxation supersedes a former taxation.

In Hewitt v. City Mills, 49 St. Rep., 335, the court of appeals held that a judgment entered for the costs of the action which were taxed without notice is not affected by a subsequent relaxation of the costs, except that any sum which was disallowed upon such retaxation must be credited upon the execution, or other mandate, issued to enforce the judgment as directed by § 3264 of the Code of Civil Procedure; and that the time within which an appeal from the judgment must be taken cannot be extended by a relaxation of the costs whether they be reduced or not. The judgment remains as it was entered.

What the effect of a new taxation of the costs pursuant to the provisions of § 3265 of the Code of Civil Procedure is upon a judgment previously entered, is a question which cannot arise on this appeal, since the record doos not disclose that a motion therefor was made, or that a new taxation was directed, or the former taxation set aside.

We have not failed to observe appellant’s contention that unless the judgment is reduced he will be compelled to give security for more than is due should he wish to appeal therefrom. But the right of appeal is at all times subject to legislative discretion. Ryan v. Waule, 63 N. Y., 57; Matter of Palmer, 40 id., 561. Hence if appellant desires to avail himself of the remedy he must assume the burdens which it imposes.

The orders appealed from are affirmed, with the costs of one appeal;

Pbyob, J., concurs.


author: Daly, Ch. J.

text:
    Henry Recka, Resp't, v. The Ocean Steamship Co. of Savannah, App'lt.

      (New York Common Pleas, General Term,

      Filed May 1, 1893.)

    Master and servant—Negligence—Assumption of risk.
    Plaintiff, a longshoreman, was employed by defendant to pile cotton bales in tiers on the dock by means of hoisting appratus, and while so doing was injured by the fall of a bale. It was claimed that this was caused by defects in the hooks, which were too straight in the body. When he first saw them the plaintiff said they were no good, but the foreman told him to go on with the work. Plaintiff hooked the bales, gave directions when to hoist and wuere to place the bales. Half the time they slipped, and plaintiff re-hooked them, when they were properly lifted. "Held, that a non-suit should have been granted; that plaintiff, having with full knowledge of the defects voluntarily continued the work, took the risks resulting from the use of the hooks, and was not excused by the direction of the foreman.
    Appeal from a judgment in favor of plaintiff, entered upon a verdict for $1,193.98, and from an order denying defendant’s motion for a new trial. The action was brought to recover damages for personal injuries alleged to have been sustained through the negligence of defendant while plaintiff was engaged in his duty as defendant’s servant.

      Hoadly, Lauterbach & Johnson (W. N. Cohen, of counsel), for appl’t; Herbert T. Ketcham, for resp’t.
   Daly, Ch. J.

The plaintiff was a longshoreman employed by defendant, and at the time of the accident was engaged in the work of piling cotton bales in tiers on the dock. The cotton was brought on hand trucks to the pile at which the plaintiff was standing, and his duty was to hook the bales with hooks attached to the hoisting tackle by which they were lifted to the position required. He had been employed all day until five o’clock and had helped to tier several hundred bales. About that hour he hooked one of the bales, called to the men engaged in hoisting to go ahead, and then drew back and looked up. As the bale went up it slipped out of the hooks, and, before the plaintiff could get from under, as he attempted to do, fell upon him, and caused the injuries for which he sues.

To explain why this bale which he had hooked should slip out of the hooks and fall, he testified that the hooks were too straight in the body, and when the rope or sling pulled on the edges to which it was fastened to close the hooks, it pressed the body of the hooks against the edge of the bale, and that threw out the points and released the bale. The complaint alleged that the defendant negligently supplied hooks which were so straight in their length between the rope and the part thereof which was turned at an angle to said length, and which were so short between said angle and the ends thereof, that the same could not be securely fastened to the said bales.

It appeared from the testimony of the plaintiff that as soon as he saw the hooks that morning he thought they were “ no good,” and told the foreman so, but the latter told him to go on with his work. He went on working with the hooks all day up to the time of the accident. During that time they missed and slipped so many times when he attached them to the bales of cotton that he could not count them; he lost perhaps nearly half the bales he hooked by the hooks slipping when they were attached to the bale and the attempt was made to hoist, so that the bale was not lifted by the hooks, and he had to hook it again. When the bale -was in the air he drew a little back, a step, a bit, and watched the bale taken in.

Upon these facts the plaintiff claimed that the accident was caused by the negligence of his master in furnishing implements to work with which were not reasonably safe, and that he himself was free from any negligence contributing to the injury. The learned trial judge thought that a question of fact on both issues was presented for the jury, and denied a motion to dismiss the complaint made at the close of the plaintiff’s case, and at the close of the whole evidence, and the case being submitted to the jury, they found for the plaintiff. It seems clear that the motion to dismiss the complaint should have been granted.

If the hooks were defective in shape, and therefore insufficient and improper for the plaintiff to use, the defect was known to the plaintiff and thoroughly understood and appreciated by him, and he, therefore, voluntarily took the risk resulting from their use. Where implements used in the master’s business are of a certain kind or condition and the servant knows it, he voluntarily takes the risk resulting from their use. Sweeney v. Berlin & Jones Envelope Co., 101 N. Y., 520. The hazard or risk which attaches to the use of the implement was one of the risks -which the plaintiff assumed in entering upon the service in which lie was engaged ; for such hazard or risk was apparent to ordinary observation, and so were the consequences which might result from the use of the defective implements, and no particular skill, judgment or experience was needed to appreciate such consequences.

It is claimed, however, that the 'plaintiff is relieved from responsibility by the order of the foreman to go on and use the hooks, when he complained that they were “ no good.” The just and fair rule which protects a servant who perforins by his master’s express orders acts which are not inevitably or immediately dangerous, Hawley v. Northern C. Ry. Co., 82 N. Y., 370; or in obedience to such orders uses an implement obviously defective, but an appreciation of the consequences which might result from its use requires skill, or judgment not possessed by an ordinary observer, Davidson v. Cornell, supra, are not applicable to this case; for the danger from the use of the hooks was not only apparent, but threatening and imminent. The plaintiff saw that the hooks slipped nearly half the time he adjusted them to a bale of cotton, and ordinary intelligence could appreciate the consequences of their slipping when the bale was suspended in the air. The fact that the hooks were insufficient was obvious and the resultant peril plain at a glance, and the plaintiff having voluntarily remained in a position where he must be injured if the accident, which was imminent, occurred, he took the risk of such defect. Shaw v. Sheldon, 103 N. Y., 667; 3 St. Rep., 679.

But the orders of the foreman did not necessarily require the plaintiff to expose himself to danger. In the first place, the management of the hooks twas wholly in the plaintiff’s hands. They could be adjusted to the bale so as to lift it safely. The plaintiff had done it hundreds of times that day. Half of the times it slipped off and did not lift the bale, and he then readjusted it and it performed the required function. I am satisfied from the facts that the hooks were efficient when, properly handled, and the plaintiff was responsible for the manner of using them and cannot recover for the consequences of his own carelessness in that respect. In the next place, the plaintiff was not required by the orders of the foreman to stand under the bale when it ascended. The excuse is made that he was crowded by the trucks bringing the cotton and returning. The truckmen placed the trucks where he required them for hooking, and the evidence does not show that he could not give directions to the truckmen which would have left him room to move out of danger. The bale was not lifted until he gave the order, and it would seem that he had the time and opportunity to place_ himself out of danger. Ho orders of the foreman coerced him in this regard, and he is not shielded from responsibility on account of being required to use the hooks.

The judgment should be reversed and a new trial granted, with costs to abide event.

Bischoff and Pryor, JJ., concur.


text:
    The Manhattan Life Insurance Co, Resp't, v. Charles A. Gosford, App'lt.

      (New York Common Pleas. General Term.

      Filed May 1, 1893.)

    1. Summary proceedings — Termination of lease on notice in case OF DISSATISFACTION WITH TENANT.
    A lease for one year provided that if the landlord should at any time deem the tenancy undesirable, the tenant should vacate after two months notice, in writing, left on the promises, but no rent should "be paid for said two months. Held, that this did not create a condition subsequent for which the landlord could re-enter, but operated to limit the duration of the lease and summary proceedings are maintainable after such notice to recover possession on the ground that the tenant continues in possession after expiration of the term.
    3. Samis.
    In such a case the landlord is not bound to assign any ground for deeming the continuance of the tenancy undesirable.
    Appeal írorn a final order in favor of the landlord made in summary proceedings to recover tiie possession of land, pursuant to the provisions of § 2231 of the Code of Civil Procedure, which were instituted in the district court in the city of New York for the second judicial district.

      Artemus H. Holmes, for resp’t; John A. Foley, for app’lt.
   Bischoff, J.

The lease was of a room designated as the “North Sub-Basement Office of the Building Numbers Sixty-four and Sixty-six Broadway, extending through to and being Number Nineteen, New street, known as the Globe Building, in the City of New York,” and was originally for one year commencing May 1, 1891, to May 1, 1892, but bjr mutual agreement extended for one further year. Among other things it provided “that if the landlord shall, at any time, deem the tenancy undesirable, then the tenant will vacate the premises and render up peaceable possession thereof to the landlord after two months notice in writing to be left in or upori said pi'emises, but for the two months covered by said notice the tenant snail not be required to pay any rent.” On December 1, 1892, the landlord caused the following notice to be served on the tenant: “DearSir: The Manhattan Life Insurance Company, your landlord, and owner of premises Nos. 64 and 66 Broadway, and No. 19 New street, part of which you occupy as tenant, hereby requests you to render np peaceable possession thereof on the first day of February, 1893, pursuant to the terms of your lease. Yery truly yours, Henry B. Stokes, President.” The tenant failed to vacate the promises upon expiration of the time limited in the notice, and thereupon the landlord instituted proceedings to recover possession upon the ground that the tenant continued in possession after expiration of the term without its consent.

The provision in the lease for notice by the landlord operated to limit the duration of the tenant’s estate. It did not create a condition subsequent, for the tenant’s breach of which the landlord could re-enter and thus recover his former estate. The case at bar is, therefore, clearly distinguishable from Cramer v. Amberg, 16 Civ. Pro., 447, etc., cited by appellant’s counsel. In that case the genei’al term of this court held that the breach of a condition subsequent by the tenant does not of itself operate to determine the demised estate ; that such a result is attainable only by the landlord’s re-entry for breach of the condition ; that without such re-entry the term cannot be said to have expired; and hence, that for breach of a condition subsequent summary proceedings to recover possession of the demised premises under the provisions of § 2231 of the Code of Civil Procedure cannot be maintained on the ground that the tenant continues in possession after expiration of the term.

Here, however, the lease is in effect that it shall endure for one year unless sooner determined by service of the landlord’s notice in writing, in which event the term demised shall expire upon the lapse of two months from the time of service of the notice. In such a case no condition is violated, but the term expires of its own limitation upon the happening of the event provided for. Re-entry is not required to reinvest the landlord with the right to immediate possession, and summary proceedings to recover it are maintainable. Miller v. Levi, 44 N. Y., 489.

The landlord’s authorization of the notice of its president to the tenant to surrender the premises is sufficiently shown by the adoption of the notice for the purposes of these proceedings, and its reference to the provisions of the lease apprised the tenant that the landlord no longer desired to continue the tenancy. Nor urns the landlord bound to assign any ground for deeming the continuance of the tenancy undesirable. The lease did not circumscribe the landlord’s discretion in that respect by requiring that it should proceed from sufficient grounds, and why it deemed the continuance of the tenancy undesirable is, therefore, immaterial. Werner v. Bergman, 42 Am., 152.

The order should be affirmed, with costs.

Booicstayer, J., concurs.


author: Fitzsimons, J.

text:
    Nathaniel Waterbury, App'lt, v. Michael Egan, Resp't.

      (City Court of New York, General Term,

      Filed April 14, 1893.)

    1. Sale—Defense—Oleomabgabinb.
    In an action for goods sold, an answer setting up that the goods sold were oleomargarine, which was an article designed to take the place of butter and was so offered by plaintiff and so sold to defendant as an article of food, contrary to law, and the contract for the sale of the same was illegal and void, does not set up a legal defense. The plaintiff had a right to 'manufacture and sell an article designed to take the place of butter as an article of food, and any legislation to the contrary is unconstitutional.
    2. Same.
    To bring the article within the statute it must affirmatively appear that it actually imitated and resembled butter, and that such resemblance was caused by the use of ingredients not necessary or essential to the article itself.
    3. Same—Iktebstate commebce.
    No law of the state can "interfere with the sale of the commodity in question in the original package when brought from another state. To do so would conflict with and contravene § 8 of art. 1 of the federal constitution.
    Appeal from judgment in favor of defendant, entered upon verdict directed by the court.

      Cromwell G. Macy, for app’lt; J. Woolsey Shepard, for resp’t.
   Fitzsimons, J.

The complaint herein states that the plaintiff sold to defendant goods of the value of $150, and demands judgment for that amount. The defendant’s answer is as follows:

First. That defendant has no knowledge or information sufficient to form a belief as to the delivery of the goods and merchandise mentioned in the complaint.

Second. For a second distinct and separate defense to plaintiff’s alleged cause of action, defendant alleges that the dealing in and sale of the merchandise mentioned in the complaint and bill of particulars herein, to wit, oleomargarine, which was manufactured of an oleagenous substance or substances of a compound of some other than that produced from unadulterated milk, or of cream from the same, and was an article designed to take the place of butter, and was so offered by plaintiff, and so sold to defendant as an article of food, contrary to law, the same being the merchandise described in the complaint, and the contract for the sale of same was illegal and void at the time of said sale.

And defendant further avers that, at the time of the alleged sale of the merchandise mentioned in the complaint, the sale of same was specifically prohibited by the laws of the state of New York, and the sale of same made a crime.

Wherefore, defendant demands judgment that the complaint be dismissed, with costs.

The answer of the defendant presents no legal defense. The plaintiff had a right to manufacture or sell an article designed to take the place of butter as an article of food; any legislation to the contrary is unconstitutional. People v. Arensberg, 103 N. Y., 388; 3 St. Rep., 621.

The issue herein does not charge the plaintiff with selling an article imitating or resembling butter, which is an unlawful act, People v. Arensberg, 105 N. Y., 123; 6 St. Rep., 789; it simply charges him with selling an article designed to take the place of butter, which is not unlawful. Therefore, under the issue drawn herein, all the testimony introduced by defendant, and properly objected to by plaintiff, was irrelevant and improper, and should have been excluded; it was error to admit the same, and with said testimony out of the case there is nothing either in the pleadings or the testimony showing that defendant had a legal defense herein, and the motion made by plaintiff’s counsel for judgment upon the pleadings should have been granted. It was error'to deny the same.

For argument's sake, however, grant that the answer is sufficient. That the plaintiff is therein charged with having sold an article imitating or resembling butter contrary to the statute, chap. 183, Laws 1885, the same beiñg the goods, the value of which is sued for herein, yet there is not scintilla of testimony in the whole case even tending to show that the goods mentioned in the complaint resembled or imitated butter, or were represented by plaintiff or any other person to be butter. There is some testimony showing that plaintiff related to defendant the ingredients of oleomargarine, and that such goods had to be finished off and titivated to make them marketable and resemble natural butter; but it is not shown that that was said of the goods in question, and even if such a statement was made by plaintiff, the sale because of such statement would not be an unlawful act, but conceiving the goods sold it must appear affirmatively as a matter of fact that the commodity sold actually imitated and resembled butter and that such resemblance was caused by the use of ingredients not necessary or essential to the article itself. 103 N. Y., 388; 3 St. Rep., 621. As there is no such testimony in the case it was error for the trial justice to direct a verdict in favor of defendant; on the contrary, because of the nature the act just referred to it would have been but proper and right, upon the pleadings and testimony to have directed a verdict in favor of the plaintiff.

Further, the undisputed testimony in the case shows that the oleomargarine in question was imported from Indiana, U. S., into this city, consigned to plaintiff, who sold the same in the ordinary form in the original package in which it came, having thereon a IT. S. revenue stamp, and that plaintiff had a U. S. license for the sale thereof; under these circumstances in any event no law of the state could interfere with the sale of the commodity in question. To do so would be to conflict with, and contravene § 8, of article 1, of the Constitution of the United States, which vests in congress the right “ to regulate commerce with the foreign nations and among the several states, and with the Indian tribes.”

Interstate commerce, which consists in the transportation, purchase, sale and exchange of commodities, is national in its character and must be governed by a uniform system. So long as congress does not pass any law to regulate it or allowing the state so to do, it thereby indicates its will that such commerce shall be free and untrammled, and any state law to the contrary is unconstitutional. Leisy v. Hardin, 135 U. S., 100, and 44 Fed. Rep., 276.

If oleomargarine introduced disease, infectious or otherwise, into this state, it could not be the subject of commerce, 135 U. S., 100, and the constitutional provision above referred to could not be invoked in its favor. But there is nothing to show that such is the case except the argument of respondent’s counsel. The act of 1885 appears to have been enacted not for the purpose of protecting the inhabitants of the state against disease caused by the use of oleo, but for the purpose of preventing them from being misled and imposed upon. So that any person selling them oleo, which resembled butter when they asked for and supposed that they were really purchasing dairy butter might be punished for the deception practiced.

For these reasons it seems to us clear that the defendant had not legal defense to the action at bar, and that judgment upon both the pleadings and all the testimony should have been rendered for plaintiff. It was error to direct a verdict for the defendant. 0

The judgment is reversed and judgment is rendered for plaintiff for the amount claimed, with interest and costs and costs of appeal.

McG-owx and Yax Wyck, JJ., concur.


author: Van Wyck, J.

text:
    Adam Martin, App'lt, v. Frank Pollatchek, Resp't.

      (City Court of New York, General Term.

      Filed April 14, 1893.)

    Money had—Sale of bonds on instalment plan.
    In an action for money had and received by a firm to plaintiff’s use, brought against one who had agreed to pay the debts of the firm, it appeared that said money had been paid by plaintiff to said firm upon certificates for the purchase of bonds on the instalment plan; that of the twenty instalments he had paid seven. No fraud or mistake was alleged, but plaintiff was permitted to testify that he was told they were lotteries- and to keep the ceriificates and he would get his money back. Reid, that he was property nonsuited.
    Appeal by plaintiff: from judgment in favor of defendant, entered upon a nonsuit.

      A. I. Sire, for app’lt; O. B. Gould, for resp’t.
   Van Wyck, J.

The plaintiff sues defendant, who agreed to-pay all the lawful debts of the firm of Schreiber, Pollatehek & Son, and alleges that such “ firm received from plaintiff seventy dollars to the use of plaintiff.’’ One-half of this sum, to wit, thirty-five dollars, was made up of seven payments of five dollara each, under one agreement, and the other half under another and similar agreement, and all that is said of the one applies to the other. The plaintiff, on trial, offered and had marked in evidence an agreement or certificate No. 2699, signed by said firm, and by them delivered to him when he made the first payment of five dollars in June, and which provided among other things, that “ On payment of five dollars as a first instalment, and of further twenty monthly instalments of five dollars each, payable at our office, on the first day of -each month, we agree to deliver to bearer the following five original bonds, to wit: ” and this agreement further provides that “ By accepting this certificate, the buyer signifies his consent to the conditions therein contained, and cannot thereafter rescind his agreement thereunder.”

The proof shows that he paid six other instalments of five dollars each in the next succeeding six months, and that upon each of such payments he received from the firm a receipt as fol'ows: “ Received from Adam Martin, five dollars as second payment on certificate No. 2699.” And so on as to the third, fourth, fifth, sixth and seventh instalment.paid by him. This action is to recover these seven payments as mpney received by said firm to the use of plaintiff, and there is no allegation of fraud or mistake.

However, the plaintiff was allowed, against defendant’s objec-' tion, to introduce evidence of the sayings of the firm when this agreement No. 2699 and the other similar one was delivered to-plaintiff, as follows: “He said that I should keep them and pay him five dollars on each, and I said ‘What for? ’ and he said that they were lotteries, and that if I paid five dollars apiece, I should get"my money back. I told him tlrnt I did not want them, and he said ‘ You be sure and keep them, and you will be sure of your money.’ ” The plaintiff took them in June, and then paid the first instalment, aud continued to pay the montlily instalments for six months thereafter, keeping the agreements of sale meantime and producing them on trial. It is conceded by plaintiff that these bonds sold on this instalment plan are authorized by the decisions of the court of appeals.

The plaintiff was properly nonsuited at trial, and the judgment is affirmed, with coste.

McGow-n and Fitzsimons, JJ., concur.


text:
    Ephraim C. Gates et al., Resp'ts, v. Ellen Williams, App'lt.

      (City Court of New York, General Term,

      Filed April 14, 1893.)

    1. Bills and notes—Irregular indorsement.
    In an action upon a promissory note by the payees against one who» indorsed it prior to its delivery, the complaint alleged that it was delivered to them so indorsed to pay for building materials furnished by plaintiffs to defendant, but the only testimony on that question was a conversation with defendant’s husband in which plaintiffs agreed to deliver the materials if they could charge it to her, and the husband said she agreed to it, but no ratification by her was shown, and both she and her husband denied any authority on his part to act for her, or that she agreed to have the materials charged to .her. Held, that the complaint should have been dismissed.
    2. Same.
    The presumption that a person making such an indorsement intended to become liable only as second indorser and not liable to the payee, is not overcome by proof that he indorsed to give the payee credit with the bank of discount.
    Appeal by defendant from judgment entered on verdict directed against her.

      G. W. Stephens, for resp’ts ; Jas. A. Deering, for app’lt.
   Van Wyck, J.

Messrs. Gates & Co., the plaintiffs, sue Mrs. Williams, the defendant, upon a note made by Fritz & Hafner to the order of Gates & Co., and indorsed by her before delivery to them, and their complaint recognizes that from the instrument . itself the presumption of law'is that she intended to become liable simply as a second indorser, Coulter v. Richmond, 59 N. Y., 481, for it is further Alleged therein that this note was made and in dorsed and delivered to.them as so indorsed for the purpose of paying for building materials furnished by them to her. Except for this latter allegation, the complaint would have been demurrable ; hence the plaintiffs’ cause was maintainable only upon proof thereof. And upon this theory the case was tried, but they failed to prove by legal evidence that they bad furnished the-materials to her, or upon her credit, for their only proof upon this question was that of their Mr. Barnard, who testified: “I told him, (her husband), I was willing to supply the lumber if we could charge it to Mrs. Williams * * * and he said she agreed to it” and continuing, he testified : “ I can’t swear to anything about his wife any more than what he told me.” This evidence was taken against defendant’s objection, and allowed upon the statement of plaintiff’s attorney, “We will show that she-ratified it.” However, the proof does not.show that she ratified it, nor does it show any authority by her husband to act for her. At the close of plaintiffs’ case the defendant was entitled to anon-suit, and her motion to dismiss then made should have been granted instead of denied. The defendant’s proof in no way closes these gaps in plaintiffs’ proof as to ratification by her and authority by her husband, for they both testify that he had no such authority, and that she had never agreed to have the lumber charged to her. The defendant’s motion to dismiss on the merits at the close of the case should have been granted.

The plaintiffs insist, however, that although their complaint did not allege that Mrs. Williams indorsed the note under an agreement to give the makers credit with the payees, these plaintiffs, still that the proof shows that she indorsed it under such an agreement. But such is not the proof, for Mr. Robinson, plaintiffs’ collector, who conducted the negotiations as to this indorsement, testifies, “ I don’t know what -was said to Mrs. Williams when she signed this note; I represented to her husband that we wanted to get money on the note at a bank; I wanted to get it in the right shape, so it could be negotiated.” And Mr. Fritz, who really induced Mrs. Williams to indorse the note, testifies : “ I can repeat my exact words in asking Mrs. Williams to indorse this note; I told Mrs. Williams that Grates & Co. wanted to raise money on the note, and they couldn’t do it with my name; and I asked her if she wouldn’t be kind enough to indorse that note so they can have it discounted, and she did so.” It is in proof that the note was discounted by a bank for plaintiffs (the payees) and protested for non-payment, and subsequently taken up and now held by plaintiffs. This proof does not show that Mrs. Williams indorsed the note for the purpose of giving the makers credit with the payees, but rather that she indorsed it to give the payees credit with the- bank of discount, and certainly does not overcome the well settled presumption of law, that a person making such an indorsement intended to become liable only as a second indorser, and that on the face of the paper, without explanation, she is tobe regarded as second indorser, and, of course, not liable upon the note to the payee, who is supposed to be the first indorser. Judgment reversed and new trial granted, with costs to appellant to abide the event.

McG-'owit and Fitzsimons, JJ., concur.


text:
    Lippman Tannebaum, Resp't, v. Max Marsellus et at., App'lts.

      (City Court of New York, General Term,

      Filed April 14, 1893.)

    1. Pleading—Léate to amend.
    Leave to amend an answer after the time therefor has expired is usually granted, unless the amendment seeks to interpose some unconscionable defense; but a counterclaim cannot be so considered.
    3. Same—Counterclaim—Principal and agent.
    In an action by an undisclosed principal for goods sold by his agent, am amendment of the answer sufficiently broad to allow proof of that fact, and counterclaiming for a debt due from the agent, should be allowed.

      Appeal from order denying motion for leave to serve amended answer setting up a counterclaim.

      Franklin Bien, for resp’t; Wm. L. Clark, for app’lt.
   Van Wyck, J.

Two days after the expiration of the time within which had the right to amend as of course he applied for leave to serve a proposed amended answer, setting up a counterclaim, and was denied such permission by the order appealed from. Such applications, as a„ general rule, are usually ■granted, unless the amendment seeks to interpose some unconscionable defense; bufa counterclaim, recognized by the law, cannot be so considered. No reason was assigned for denying defendant's application, and none is suggested by respondent’s counsel, •except that it is simply matter of evidence, and not of pleading,” and this is not sound in view of the fact that the amended plea is amply broad enough to allow proof of just such facts as were recognized as a valid counterclaim in Hogan v. Schorb, 24 Wend., 458, which simply followed the rule as laid down in Rabone v. Williams, 7 T. R., 360, by Lord Mansfield, that “ Where a factor dealing for a principal, but concealing the principal, delivers goods in his own name, the person contracting with him has a right to consider him to all intents and purposes as the principal; and though the real principal may appear and bring an action upon that contract against the purchaser of the goods, yet that purchaser may set off any claim he may have against the factor in answer to the demand of the principal. This has been long settled.” The Hogan case is followed in Pratt v. Collins, 20 Hun, 126, and approved in Bliss v. Bliss, 7 Bosw., 339. The rules of pleading counterclaims as laid down by the Code do not in any way change the above rule of law. The defendant should have been permitted to interpose the amended answer upon payment of ten dollars, and the order denying his application is reversed, and permission is given him to serve same within six days, upon payment of ten dollars to plaintiff’s attorney.

Fitzsimons, J., concurs.


author: McGown, J.

text:
    George Hannon, App'lt, v. John Moore, Resp't.

      (City Court of New York, General Term,

      Filed April 14, 1893.)

    Master and servant—Employment.
    In an action for wrongful discharge, the complaint alleged that plaintiff was employed for a year, while the testimony showed that plaintiff was employed by the foreman at first, and that on plaintiff’s becoming dissatisfied and threatening to leave the foreman, by authority of the superintendent, told him he was emnloyed for a year. On his being laid off he inquired of defendant and claimed to have been employed for a year, and was informed that the discharge was temporary, as times were dull and he would be the first one sent for, and on his remonstrating, was told to get out of the place. Held, that a nonsuit was error; that plaintiff claimed employment through the superintendent of defendant, and the fact that he was superintendent carried with it the implication that he had authority to hire men by the year or otherwise, and was sufficient to authorize the submission to the jury of the question as to his authority to employ plaintiff.

      Appeal from a judgment dismissing a complaint of the plaintiff,, and in favor of the defendant, and against the plaintiff for the sum of $69.62 costs.

      Johnson & Johnson, for app’lt; Henry W. Unger, for resp’t.
   McGown, J.

The plaintiff in his complaint alleges: First. That on or about the 1st day of April, 1891, the defendant entered into an agreement with him whereby defendant employed him as a first class mechanic or workman in his saddlery and harness business, for the term of one year from April 1, 1891, for which services defendant agreed- to furnish to the plaintiff all the work he could do, and to pay him therefor at stipulated prices at a certain fixed scale, which was mutually-agreed upon, for each piece of work done by plaintiff.

Second. That plaintiff performed his agreement on his part, but. that defendant has not, performed said agreement, in that he has-not furnished plaintiff all the work he could do from on or about September 12, 1891; that he has not paid plaintiff since September 12, 1891, although the same has been duly demanded, and although plaintiff has been always ready and willing, and has tendered his services to the defendant, to his damage in the sum of $500:

The defendant, in his answer, denies each and every allegation of the complaint.

The plaintiff testified that he applied at defendant’s place of business in Warren street for work in March, 1891, and saw defendant’s superintendent, Cyrus Beasley; that he worked for defendant until he was offered coach harness, and was working by the piece then ; that when he applied for work he saw the superintendent, who called the foreman, Mr. Acker, who stated that he, the superintendent, would not undertake to hire him himself, not being a harness maker ; that Acker, the foreman, asked him-(plaintiff) where he had worked, and what quality of work he could do; that Acker, the foreman, told him that he (plaintiff)' was the man he wanted; and to go to work: that he worked there three weeks or a month, when he heard it was not going to-be a permanent job; that he got an offer for a permanent job, and that the foreman (Acker),' bad given him two sets of harness-to make; that he told Acker that he would not take it, because he heard that this job was not to be permanent, but that if he (plaintiff) could get a permanent job, then he would stay; that he (Acker), said : “ Wait a little, and I will go down and see about it;” that Acker went down stairs, and came back and said: “ That is all1 right, you are employed'here for a year; ” that he worked up to the first or second week in September following; that this conversation between himself and Acker, the foreman, was in the first week in April; that in the second week in September, Acker (the foreman) told him that some of the people had been laid off, and when he (plaintiff) had his job done, that he (plaintiff) was laid off also, and that there was no more work for him; that he (plaintiff) then went down and saw the defendant himself, and said to him: “ How is this, Mr. Moore, you are breaking your contract with me; I have been hired for a year here, but I am •discharged; ” that defendant then said : This is only temporary, things are very dull and you will be the very 'first one I will send ■for; ” that his average earnings per week while he worked for defendant amounted to from fifteen dollars to twenty-one dollars per week; that when he protested with defendant about the contract, defendant said: “ I won’t be contradicted, you get out of the place.”

Levi J. Acker, a witness on the part of the plaintiff, testified, that in the month of March, 1891, he was foreman of. the defendant ; that he had authority to employ men ; that he employed the plaintiff for a year.

On cross-examination, he testified that he was never, in any way, shape or form, authorized for the defendant to engage anybody for the defendant for the year, except through the superintendant, Mr. Beasley; through whom he promised plaintiff work for the year round.

That plaintiff was going to leave the firm, and told him' that he was going to get work for a year with another firm; and that “ he went and saw Mr. Beasley (the superintendent) and told him ; and that he (Beasley) said, if the man suits you, you can tell him he can have work for the year round. He said to me, that he could have work for the year round; and I told him (plaintiff) afterwards, that he would have work there for the year round.

Plaintiff having rested, defendant’s counsel moved to dismiss •on the following grounds:

“ Defendant’s counsel: I move for a dismissal of the complaint upon the ground:

“First. That no employment of the plaintiff as recited in the complaint has been shown. The evidence of the plaintiff distinctly shows that he was to be employed if he were found suitable.

“Second. There is nothing in the evidence to show that even if ■such a contract was made, that it was made, by the authority of the defendant.

“ The Court: I grant the motion to dismiss the complaint upon the grounds that there is no evidence of a contract between the plaintiff and defendant, as testified to by the foreman, Mr. Acker; and, further, upon the evidence of the plaintiff himself, which shows that this employment was made through a servant of Mr. Moore, the plaintiff contending that this servant who made the contract had the right to make it for one year. There is no evidence tending to show that the person who made the contract had ■a right to make it for a period of one year, and as the contract was made through an agent, the familiar principle of law is applicable to this case, namely, that the authority of the agent must be shown, of' which there is no evidence in this case. Therefore, I dismiss the complaint.

“ Plaintiff’s counsel excepts.”

The trial justice, in granting defendant’s motion to dismiss, fully and clearly stated the grounds upon which he granted the motion, and it will not be necessary for the purposes of the appeal herein to review any other questions except those raised by the Opinion of the trial justice, and stated by him as his reasons for granting the motion.

It was error on the part of the trial justice in dismissing the complaint, and we think he should have allowed the plaintiff to go to the jury upon the evidence produced by him.

In Ernst v. Hudson River R. R. Co., 35 N. Y., at page 25, Porter, J., says: “In determining the propriety of a nonsuit, we are legally bound to assume the truth of the facts which the testimony of the plaintiff legitimately conduced to prove, though their correctness was controverted by the defendant’s witnesses. It is the appropriate province of a jury to deduce inferences of fact and to weigh doubtful or conflicting evidence.”

Plaintiff claims employment through Mr. Beasley, the superintendent, and not through Acker, the foreman. There is no dispute as to the fact of Beasley being the superintendent of defendant; and the fact that he was the superintendent carried with it the necessary implication, throwing the burden upon the defendant to disprove the same, that he had authority in the premises to hire men by the year, or otherwise, as he saw fit, and this circumstance was sufficient to authorize the submission to the jury of the question as to the authority of the superintendent to employ the plaintiff. See Manning v. Hogan, 78 N. Y., 616.

When plaintiff, as testified to by him, said to the defendant:

“ How is this, Mr. Moore, you are breaking your contract with me; I have been hired for a year here, but Í am discharged," he (defendant) said: “ This is only temporary, things are very dull, and you will be the very first we will send forand when ' plaintiff protested with defendant about the contract, defendant said: “I won’t be contradicted; you get out of the place.” Defendant did not deny the employment or claim that his superintendent, Beasley, had no authority to make such contract of employment, and it might fairly have been claimed that the omission of the defendant to deny or disclaim any such authority was very strong evidence of its existence, and, taken in connection with other circumstances of the case, it would have amply sufficed for the finding by the jury of the existence of such authority. See Warburton v. Camp, 112 N. Y., 684; 21 St. Rep., 853.

The plaintiff on the evidence presented by him had made out a prima facie case, and one which he was entitled to have a jury pass upon.

A similar question arose, and was passed upon by the general term of the supreme court, third department, in Cox v. Albany Brewing Co., 24 St. Rep., 942.

Cox, the plaintiff, claimed damages for breach of contract for plaintiff’s personal services for one year. He served ten -weeks and one day, and was then discharged, being paid up in full for the term of his actual services.

Cox, the plaintiff, went to defendant’s brewery and into the office of the defendant, and found one William Gray there behind the counter alone, apparently in charge. Gray asked him to come to work on Monday following. Rowe, the defendant’s superintedent, came in, and also asked him to come. Plaintiff went there Monday. morning, and Gray asked him to go to the malt house and work there a week, and help the maltster show the green hands how to work the malt. Cox at first refused to work at the malt house, and left the office. Gray followed him out, and said: “ Cox, if you will come down to the malt house for two or three days, and help Farrell show the green hands how to do the work, I will guarantee you a year’s work at two dollars per day.’’ Cox said: “I will work until Saturday night, and come back Monday."’ He then went to the malt house and worked there until Saturday night, came back on Monday morning following, when Gray directed him to go to the shipping room, which he did, and worked there under the direction of defendant’s superintendent for nine weeks and one day.

Gray then directed him to go to the office and get his pay, and he did so. He then went on the following morning to apply for work and said to Gray: “ How is it that you hired me for a year?” And Gray told him to get out of the office and not come any more, and added: “I suppose you mean to take suit against me.”

Landon, J., in his opinion says: “ The plaintiff was non-suited. He is, therefore, entitled to the most favorable inferences of which the testimony admits. He dealt with the person whom the defendant permitted to be its representative in its dealings with the plaintiff, from and including the time of his employment * * *

and with and including his payment and discharge. As between the parties, Gray was the ostensible agent of defendant, and clothed with all the power he assumed to exercise. Besides, there is no intimation in the evidence that his real power was not as ample as his ostensible. The jury might have found that the defendant did employ the plaintiff for one year at two dollars a day.”

The judgment was reversed.

Learned, P. J., and Ingalls, J., concurred.

The case came up again before the court on the appeal from a judgment in the plaintiff’s favor on the new trial ordered. See 31 St. Rep., 666.

Maynard, J., in his opinion, at page 667 : “It is well settled and elementary rule of law, that a special agent, with limited powers, cannot bind the principal where he acts outside of the scope of his authority ; but that rule is subject to this qualification, that when an agent is intrusted to do a particular kind of business he becomes, as between the principal and parties dealing with him, the general agent for the transaction of that business; and his acts, as between his principal and strangers, in that particular line, will bind the principal although he violates some private instructions given by his principal, not known to the public. See also Schmerenbeck v. Funke, 45 St. Rep., 30; Benesch v. John Hancock Mt. Life Ins. Co., 16 Daly, 394; 34 St. Rep., 16; Fuld v. Burr Brewing Co., 45 id., 650, common pleas, general term.

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

Yan Wyck, J., concurs.


text:
    James Flanagan, Ex'r., Resp't, v. Patrick Fox, App'lt.

      (City Court of New York, General Term,

      Filed April 14, 1893.)

    Vendor and purchaser—Title—Approval by guarantee company— Evidence.
    A contract for the sale of land provided that the vendor should deliver & full covenant warranty deed, free and clear of all incumbrances and that he should give and the vendee accept a title such as the Title Guarantee & Trust Co. will approve. The title company refused to approve the title and the contract was not carried out. In an action to recover the amount paid on signing the contract no proof of a tender of the balance of the money by defendant or a failure by defendant to deliver a deed was given. Held, that the approval called for by the contract was not intended to be a capricious or arbitrary one, and that it was error to exclude evidence as to what the company’s objections to the title were, as if it were admitted defendant would have a right to show that the title v as good and that there was no force in such objections.
    Appeal from a judgment entered upon the verdiet of the jury on the 7th day of February, 1893, in favor of the plaintiff for the sum of $723.21, and from an order denying a motion for a new trial.

      J. Baldwin Hand, for resp’t; Philip O'Sullivan (John W. Konvalinka of counsel), for app’lt.
   McGown, J.

The plaintiff seeks to recover damages for a breach of contract on the part of the defendant.

On the-day of June, 1892, the above named defendant, as vendor, entered into a contract in writing (Plaintiff’s Exhibit A.), with Catharine Flanagan (now deceased), as vendee, in and by which the defendant agreed to sell to the said Catharine Flanagan a lot of land in the city of New York for the sum of $6,000, $500 to be paid on the signing of the contract (which was then paid), $3,500 on delivery of the deed, and the remaining sum of $2,000 by the execution of a purchase money mortgage by the said Catharine Flanagan; the defendant to deliver a full covenant warrantee deed, properly executed and acknowledged, for the conveyance and assuring to the said Catharine Flanagan the absolute fee of said premises free and clear of all incumbrances, etc. “ The vendor shall give, and the vendee shall accept a title such as the Title Guarantee & Trust Company will approve.” The deed to be delivered at the office of the said company on or before July 15, 1892. The stipulation in the contract to apply to and bind the heirs, executors, administrators and assigns of the respective parties. The contract was executed by the said defendant, and by the said Catharine Flanagan.

The plaintiff herein and the defendant met at the offices of the company on the 15th day of July, the day named in the contract as the time for the performance. The said company had not completed its examination; and some objections having been raised to the defendant’s title, by mutual agreement the time for the performance of the contract was extended to the following Tuesday, at which time the title company declined to approve of the title, and the contract was not carried out. The said company claimed of the plaintiff the sum of eighty dollars for its services in examining the title, and the plaintiff paid it, the company, forty dollars in settlement of the claim.

Plaintiff thereupon commenced this action to recover the said sum of $500 paid on the execution of the contract, the sum of forty dollars paid to the company for examining the title, and the further sum of fifty dollars, alleged to have been paid to his attorney herein, for examining the title.

The parties hereto testified, in substance, to their being ready and willing to perform the contract, while it appears from the evidence herein that the defendant did not tender to the plaintiff a deed properly executed and acknowledged, and that the plaintiff did not tender to the defendant the sum of $3,500, the second payment on the contract

By reference to the statements made by the counsel for the plaintiff during the course of the trial, and to the rulings of the trial justice in excluding testimony offered by the defendant, and to his charge to the jury, it clearly appears, we think, that the case was tried and disposed of upon the erroneous theory that in order to recover it was only necessary for him to prove that the said title company did not and would not approve the defendant’s title.

It appears from the testimony of the witness John H. Post, a representative of the said company, that the company did not approve of the title; and on cross-examination by defendant’s counsel was handed a paper and the witness asked:

“ Q. Look and see if that is a report you made to Mr. Fox of the objections of the title company to that title ? A. I recognize that as a memorandum prepared in the office. I am not able to say that it was handed to Mr. Fox; I don’t know.
“ Q- Are the objections set forth in that paper the objections that the title company had to that title ?
“Plaintiff’s counsel objects as irrelevant, immaterial and incompetent.
“ The Court (to plaintiff’s counsel), Do I understand you, that the basis upon which you claim is that it does not make any ■difference whether there was a good or bad title, so long as they do not deliver a deed guaranteed by the company? ’’
“Plaintiff’s counsel; Yes sir.
“ The Court: Excluded on that statement. Defendant excepts.”

Upon the examination of the defendant by his counsel, the defendant was handed the same paper, which he stated was a memorandum of the objections which he got from the said company sometime in July, and which was then offered in evidence by defendant’s counsel.

“ The Court: Is it your contention that the word ‘ approve means 1 guarantee ’ ?

“ Plaintiff’s counsel: Ro sir, that is not my ‘ contention.’

“Received in evidence and marked defendant’s exhibit 1. Plaintiff’s counsel excepts.”

And after further direct examination of the defendant:

“ The Court: I reverse the ruling as to this paper marked defendant’s exhibit 1, sustain the objections of plaintiff’s counsel, and exclude the paper.
“Defendant excepts.
“ Paper referred to marked for identification 1.
“Defendant's counsel: Now I will make an offer to prove that the title to this property is absolutely.good, and it is a market-' able title, and that there is no claim, force or foundation in the objections raised by the Title Guarantee & Trust Company.
“ Plaintiff’s counsel: I object to the evidence being put in.
“ The Court: Do you object to the offer ?
“ Plaintiff’s counsel: No, sir.
“ Objection sustained. Defendant excepts."

We think it was error on the part of the trial justice in excluding evidence as to what the real objections were, if any, the company had for not approving of the title. Had such evidence been admitted the defendant would have had the right to introduce evidence to show that there was no force or merit in the objections; that the action of the company in refusing to approve the title was arbitrary and unwarranted by the facts, and that the objections were not good or legal.

The contract between the parties (plaintiff's exhibit A) did not require that the company should guarantee or insure, but only that it should approve the title. Before the plaintiff could recover, it was necessary for him to show ability and readiness to perform on his part. He testifies : “ I have $3,500 in this pocketbook (referring to July 15th). I have money with me to pay you if this thing is all right.”

It does not appear that he either exhibited or tendered that amount to the defendant. In order to bring the defendant in default, the plaintiff should have made a legal tender of the amount to the defendant and demanded a deed such as the contract called for. It was the duty of the defendant to tender to plaintiff such a deed as the contract called for.

The plaintiff testified that defendant had never tendered a deed. Defendant was not allowed to prove his readiness to comply with the contract, and was asked by his counsel:

“ Q. Please look at the paper I now hand you and state what they are?”
“ Plaintiff’s counsel: I object to his stating what they are. Objection sustained. Defendant excepts.
“ Q. Well, please look at this paper. Were you or were you not ready to deliver this paper, properly executed, at the time of closing of that title?
“ Plaintiff’s counsel objects. Objection sustained. Defendant excepts.”

The trial justice, as before stated, evidently held, that to entitle the plaintiff to a verdict it was only necessary for him to show that the Title Company did not and would not approve defendant’s title ; as in his charge to the jury he said: “I charge you that the plaintiff is entitled £o recover the sum of §500 and interest. * * * Now, you must ñnd a verdict for the plaintiff for $500 and interest from the 10th day of June, 1892. It is for you to say upon the evidence whether the plaintiff incurred reasonably the expense of the searching of the title of $40, and whether he paid the Title Guarantee & Trust Company that sum,” thus virtually directing the jury to ñnd a verdict for the plaintiff for at least the sum of $500 and interest, the amount paid on executing the contract, to which charge defendant excepted.

The Title Guarantee Company was employed by the plaintiff to search the title of defendant, and it was his agent for that purpose, and he paid the company for its services. The contract provided for the delivery to the defendant of “a full covenant warrantee deed, properly executed and acknowledged,for the conveying and assuring to the vendee * * * the absolute fee of said premises free and clear of all incumbrances.”

The contract further provides that the vendor “ shall give and the vendee shall accept a title such as the Title Guarantee & Trust Company will approve.” It cannot be successfully claimed that by the force of this provision the plaintiff can lawfully demand that the defendant do more than by the previous terms of the contract he is bound to do. There is nothing left by the contract indefinite or uncertain as to what defendant should do. The stipulation that the title was to be approved by the title company is not to be a capricious one, or to be arbitrary. The defendant had a right to know what the objections were to his title, and a right to show that such objections were untenable, and that there was no merit therein. If defendant’s title to the property is good and marketable, that is all the plaintiff was entitled to, Vought v. Williams, 120 N. Y., 253; 30 St. Rep., 899, and all that the defendant was 'bound to give, and neither the plaintiff nor the title company can demand more than n performance in fact to the limit of their legal requirements of the covenant contained in the contract. The reservation to the plaintiff that the title was to be approved by the title company is no more in effect than that it shall be to the satisfaction of the company. That the requirements of the contract should be fulfilled. Such satisfaction is not an arbitrary or capricious one. It has its measure by which it can be fulfilled ; that which the law should say a contracting party ought in reason to be satisfied with, that the law will say he is satisfied with. See Brooklyn v. B. C. R. R. Co., 47 N. Y., 475.

In Folliard v. Wallace, 2 Johns., 395, there was an agreement to pay three months after one should be well satisfied that the title was good. The court, per Kent, Oh. J., said : “ Nor will it do for the defendant to say he is not satisfied with his title, without showing some lawful incumbrance or claim against it. A simple allegation of dissatisfaction without some good reason assigned for it might be a mere pretext, and cannot be regarded. If the defendant were at liberty to judge for himself when he was satisfied, it would totally destroy the obligation, and the agreement would be absolutely void. * * *

“ The law in this case will determine for the defendant that he ought to be satisfied.”

There is, as before stated, no proof in the plaintiff’s ease of any performance on the part of the plaintiff; no proof of failure on the part of the defendant; and the only attempt of any proof to show a cause of action is simply the disapproval of the title company, without showing or specifying any reason or defect impairing the marketibility of defendant’s title.

No reasons are given or shown by the plaintiff in this case why the title was not approved, or why the title was not perfect, or wherein it was defective, or for what reason, or on what grounds the title company refused to approve the same. See Thomas v. Fleury, 26 N. Y., 33; Bowery National Bank v. Mayor, 63 id., 336; Meisell v. Globe M. L. Ins. Co., 76 id., 115; Duplex Safety Boiler Co. v. Garden, 101 id., 387; 1 St. Rep., 51; Doll v. Noble, 116 N. Y., 230; 26 St. Rep., 629.

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

Fitzsmoiís,' J., concurs.


author: Per Curiam.

text:
    Albert Schreiber, Resp't, v. Auguste Schreiber, App'lt.

      (New York Superior Court, General Term,

      Filed May 1, 1893.)

    Divorce—Adultery.
    Evidence sufficient to prove the commission of adultery.
    Appeal by defendant from judgment or decree of divorce in favor of plaintiff.
    The following is the opinion of the court at equity term:
    McAdam, J.—Adultery is peculiarly a crime of darkness and secrecy ; parties are rarely surprised in it; and so it not only may, but ordinarily must, be established bv circumstantial evidence. 2 Bishop on M. & D., 4 ed., § 613. The circumstances disclosed here were these : The defendant, who lived separate from her husband, occupied the first floor of the tenement No. 220 East Twenty-first street, this city. There wei'e two large rooms, and four bedrooms. In September last the husband (who suspected his wife's infidelity), entered the house accompanied by two friends sit about midnight; broke in one of the doors. The noise alarmed the defendant and the co-respondent, who made an outcry, and two policemen ran into the room to discover the cause. Two beds were found, one in the kitchen, the other in the bedroom adjoining. The defendant- was found in her nightdress, and the co-respondent in his undershirt. The beds were examined by the four witnesses, who substantially agree that only one of the beds had been occupied, and that had two pillows, both of which had been mussed. The bedroom door was found open so that any one could enter from it into the kitchen, and viceversa. The defendant and the co-respondent in explanation testified that the latter 'was a lodger paying $3,.50 a week for the use of the bedroom and parlor ; that, though theré was no lock to the bedroom door, it had been tied with a rope to prevent egress to the kitchen. The first suspicious circumstance is that the rope was not found when the officers entered, nor has its disappearance been accounted for. Next it seems odd that this precaution should have been taken when the lodger might have been assigned to one of the front bedrooms, where no rope or other safeguard was needed. There were no-other lodgers. The parties have a sixteen-year-old daughter, but the defendant put her to board somewhere else. The daughter ought to have been kept at home instead of the lodger. Her presence would have allayed suspicion. Her absence and the close proximity of the lodger created it; instead of avoiding the appearance of evil, the defendant did the very thing calculated to provoke unfavorable criticism. What followed was the natural sequence. She had no right to place herself in such a perilous position. The disinterested police officers furnish such strong corroborative proof that the judicial mind is satisfied that the relations existing between the defendant and correspondent were of a criminal nature. Their appearance and manner upon the stand have much to do with this conclusion. The means afforded by a viva voce examination of judging of the credit due to witnesses, especially where .their statements conflict, are of incalculable advantage in the investigation of truth, but not unfrequently supply the only true test by which the real character of the witnesses can be appreciated. Stavkie on Ev., 9th Ed., 728. Courts must take such evidence as the nature of the case permits, circumstantial, direct or positive, and bring to bear upon it the experiences and observations of life, and thus weighing it with prudence and care give effect to its just preponderance. Moller v. Moller, 115 N.Y., 466; 26 St. Bep., 207; Auld v. Auld, 40 St. Bep., 904. Upon the entire evidence, carefully considered, the plaintiff is entitled to a decree for absolute divorce.

      Max Bayersdorfer, for app'lt; August P. Wagener, for resp’t.
   Per Curiam.

Judgment affirmed the of the court below.

Sedgwick, Ch. J. and Freedman, J., concur.