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    Henry Sanford, Resp’t, v. Isaac B. Moss, App’lt.

      (Supreme Court, General Term, Fifth Department,

      Filed April 13, 1892.)

    Bills and notes—Seed contract—Bona fide holder.
    In an action on a note given on the purchase of seed rye at a high price, it appeared that defendant was induced to make the purchase by the assurance oí a friend, who was agent of the vendor company, that it would sell from his crop twice as much for the same price, and that it was a great chance to make money. This agreement was not carried out, and it was claimed that false representations were made as to the responsibility of the company. Held, that although it was doubtful if the representation's had any influence in inducing defendant to buy and give the notes, yet they were sufficient to put the plaintiff to proof that he was a bona fide holder of the note for value, and that upon the evidence given to that effect the case was one for the determination of the jury.
    Appeal from a judgment of the supreme court, entered in the Niagara county clerk’s office on the 10th day of September, 1891, against the defendant, Isaac B. Moss, for $429.41 damages and costs; and from an order denying the defendant’s motion for a new trial upon the minutes.

      Burrell & Parker, for app’lt; Richard Crowley, for resp’t.
   Lewis, J.

The promissory notes upon which the judgment in this action was obtained were given by the defendant in payment for twenty bushels of seed rye, at the price of fifteen dollars a bushel, pursuant to an agreement entered into between the defendant and the Pennsylvania Seed Company, Limited, by the terms of which the seed company was to furnish to the defendant the rye, at the price named, and the defendant was to sow the rye. The seed company agreed to sell for the defendant, from the crop.raised from the seed rye the following year, forty bushels at fifteen dollars a bushel, the seed company reserving to itself, as commission for selling, five dollars a bushel.

The defendant is a farmer residing in Niagara county ; he is sixty-five years of age, and owns a farm of 370 acres in that county. He knew the rye lie was agreeing to buy an pay fifteen dollars a bushel for was not worth to exceed sixty-five to seventy-five cents a bushel. He testified that Mr. Seeley, the agent of the seed company, explained to him the plan of operation the company proposed to pursue in selling grain; it apparently involved cheating some one eventually, but Seeley, whom defendant testified he had known for a number of years, and had done business with him, assured him it was a great chance to make money, that it was all right, and made such strong protestations of friendship for the defendant that he allayed any apprehension the defendant may have had that he might be the victim; and so he entered into the agreement.

He testified that he fully understood the terms of the contract and gave the promissory notes, one payable to H. Seeley or bearer, and the other to W. J. Curtiss or bearer. Unlike many transactions in grain, the twenty bushels of rye were actually delivered to the defendant. He sowed the rye the same year, but the seed company failed to carry out the agreement by selling the rye for the defendant the next year.

The defendant’s evidence tended to show that the seed company’s agent made false representations as to the responsibility and standing of the seed company. It is quite doubtful if the false representations had any influence in inducing the defendant to enter into the contract and give the notes. They were, however, of sufficient importance to put the burden upon the plaintiff of proving, in order to recover, that he was a bona fide purchaser of the notes, for value, before maturity.

The plaintiff gave evidence tending to show that he purchased the notes before they were due, and paid full value for them, and that he had no knowledge or information when he purchased them that they were obtained by fraudulent means, but supposed them to be genuine notes.

The questions of fact were submitted to the jury under a change of the court quite as favorable to the defendant as the evidence justified, and the jury upon evidence sufficient to sustain their verdict found for the plaintiff.

We have examined the defendant’s exceptions, and find nothing in them calling for a reversal of the judgment.

The judgment and order appealed from, should be affirmed.

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


source: Caselaw Access Project

author: Lewis, J.

license: Public Domain

text:
    Bridget McDonald, Adm’rx, Resp’t, v. The New York Central & Hudson River Railroad Co., App’lt.

      (Supreme Court, General Term, Fifth Department,

      Filed April 13, 1892.)

    2TEGLIGEÍTCE—RAILROAD—FELLOW SERVANTS.
    Plaintiff’s intestate, a flagman, was killed by coming in collision with an engine which was running without any headlight except a lantern. The engine was inspected at Syracuse and found in good order, but at Rochester the engineer found the headlight out of order and proceeded as stated, instead of taking the engine to the shop for repairs. The rules of the company required engineers to look after their engines to see that they were in proper order for use, and if found out of order to take them to the proper place for repair. Held, that the supervision required of the engineer pertained to Ms duty as an operative simply, and in performing ■it he was acting as a co-employee of the deceased, and that defendant was. not liable for his act in proceeding with the engine in that condition.
    Appeal by the defendant from an order denying its motion for a new trial made upon the minutes. This case was tried at the Monroe circuit, in June, 1891, and the plaintiff had a verdict.
    The action was brought to recover damages for the death of the plaintiff’s intestate, Thomas McDonald, who was killed, while in the discharge of his duties as a flagman in the defendant’s employ at the first highway crossing west of Chili station, on the evening of December 9, 1891, by coming in collision with an engine of defendant’s running westerly in the night time without a lighted headlight. The engine was running without a train.

      Albert H. Harris, for app’lt; George F. Yeoman, for resp’t.
   Lewis, J.

We assume, in disposing of this appeal, that McDonald’s death was caused by the running of the engine without a headlight and that he was free from negligence contributory to-, his death. The question to be considered is, whether the deceased came to his death by the negligence of the defendant, or by the negligence of a co-employee only.

Mr. Brown, as one of defendant’s engineers, was required on the afternoon of the day of the accident to run an engine from the round house in the city of Syracuse, to the city of Buffalo. His fireman was Thomas Freeney. They left Syracuse at 2.30 that afternoon ; when they arrived at Rochester it was dark, and they there discovered that the headlight glass of the engine was out of order and the light was not burning. The glass was unbroken ; the bottom of it was in position, but the top was tilted back four-inches, which let in the air and extinguished the headlight. The engineer could not repair it, so he caused to be placed on the front of the engine a signal light about the size of an ordinary track lantern, and proceeded westwardly towards Buffalo, without any headlight except the lantern, and in passing over the crossing where McDonald was stationed ran against him, causing his death.

It was shown upon the trial that the defendant had in its employ at the round house in Syracuse, where this engine was-kept, a Mr. Wilke, whose business it was and had been for many years to inspect the headlights of the engines and see that they were kept in repair. This engine was shown to. have been in the-round' house at Syracuse the day of the accident until it was taken by the defendant’s engineer, as stated. The evidence tended to show that the hfeadlight was inspected by defendant’s inspector before it left Syracuse that day, and that it was in good condition.

The defendant had shops at Syracuse and Rochester, with facilities for repairing the headlights of their engines. There was. evidence tending to show that the defendant required its engineers, when using engines, to look after them to see that, they were in proper order for use, and in case they were found to be-out of order to take the engines at once to the proper place for repairs and report the defects. The rules of the company provided that a train running after sunset should display its headlight. The rules also provided that conductors and engine men must take every precaution for the protection of their train, and in all cases of doubt or uncertainty to take the safe course and run no risks.

The trial justice charged the jury, “that it appeared from all the evidence in the case that the engineer was charged with the duty of inspecting the engine and seeing that it was in proper condition and that it was for them to say whether the failure of the inspector, who, for the purposes of taking care of the engine, stood in the place of the company itself; whether his failure, after he had discovered that there was a defect in the headlight, to bring it to the notice of the people whose duty it was to mend it, and to see that the proper thing should be done with it, was negligence on the part of the company.” The defendant’s counsel duly excepted to this portion of the charge of the court, and asked the court to charge the jury that in leaving Bochester and running to the crossing in question with the headlight óf the engine out of order, the engineer acted as a fellow servant of McDonald, and not as the defendant. The court declined so to charge and the defendant excepted. The court did charge, that there was no negligence in the inspection of the headlight at Syracuse, and that there was no evidence of any defect in the headlight when it left Syracuse. So we have the question presented, was the act of the engineer in proceeding with the defective headlight the negligence of the defendant, or the negligence of a co-employee of the deceased?

It is obviously the duty of every person engaged in the use of any kind of machinery to keep a constant supervision over it, to see that it does not get out of order. The evidence shows that the repairing of this headlight could only be done at a shop furnished with proper facilities. It was the engineer’s duty when he found the headlight out of order to run the engine into the shop at Bochester for repairs. The engineer, the fireman and the deceased, so far as the ordinary duties they were required to perform, were unquestionably fellow servants.

It.is conceded that when Brown was performing an act necessary to the management and movement of his engine he was a co-employee of the deceased.

But it is contended that when he was looking at the engine to see if it was in condition to be safely used, he was an inspector and stood in the place of the company.

The acts of manipulating the engine levers and looking at the engine may be performed simultaneously, and yet the respondent contends that when doing one of the acts Brown stood as a representative of the company, and in doing the other he was acting as an engineer simply. In keeping an oversight over the engine, the engineer was, we think, simply performing a duty incumbent upon him as an engineer, a duty incident to his position as an engineer, and when he determined to proceed with the defective engine, it was the act of a co-employee of the deceased, and not the act of the principal.

The engineer was not required to repair the headlight; had he run the engine into the repair shop and reported its condition to the company he would have fully discharged his duty. If an employer, who carefully examines a machine and, finding it in good condition, directs his servants to use it, enjoining upon one of them the duty of watchfulness to see that it does not get out of repair, is to be held liable for an injury to one of the servants, caused by the failure of the one required to keep watch to perform his duty in that regard, the doctrine that employers are not to be held liable for the negligent acts of co-employees would be practically exploded.

“ A rule of a railroad company providing that conductors will be held responsible for the proper adjustment of switches used by their trains, does not make the conductor the representative of the company so as to make his negligence that of the company, in respect to injuries sustained by other employees.” Miller v. Southern Pacific R. Co. (Oregon), 43 Alb. Law J., 354; Reynolds v. Kneeland, 44 St. Rep., 458.

"We have examined the authorities referred to by the learned trial justice and the counsel for the respondent, but they fail in our judgment to sustain the verdict in this case.

Fuller v. Jewett, 80 N. Y., 46, was a case of an injury to an engineer, caused by the explosion of a locomotive boiler. The explosion was caused by the weakness of the boiler, resulting from defective stay-bolts and a defective outer sheeting. The engine, after it had been in use for ten years, was taken to the shop' of the company for general repairs, and the master mechanic in charge of the shop gave directions for its thorough overhauling. The repairs were made by mechanics in the employ of the company. The company was held liable for the negligence of these mechanics in repairing the boiler upon the ground that it had delegated to them the entire charge of making the repairs, and in doing so they stood in the place of the principal.

The case of Crispin v. Babbitt, 81 N. Y., 516, fails to sustain the contention of the respondent.

The defendant having in its employ at Syracuse an expert tó whom it had confided the duty of examining and repairing its locomotive headlights, and he having fully discharged his duty in the premises, the defendant was not liable to the plaintiff for the negligence of the engineer. The supervision of the engine required of the engineer Brown pertained to his duty as an operative simply, and in performing it he was acting as a co-employee of the deceased.

"We find ourselves unable to agree with the learned trial court’s views of the liability of the defendant upon the evidence.

The order appealed from should be reversed, and a new trial granted, costs to abide the event.

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


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    Stillman E. Pratt, Adm'r, Resp’t, v. The Lake Shore & Michigan Southern Railway Co., App’lt.

      (Supreme Court, General Term, Fifth Department,

      Filed April 13, 1892.)

    Master and servant—Railroad pr ¡.reman—Negligence.
    Plaintiffs intestate, a brakeman m defendant’s employ, was thrown from the car and killed by the breaking of a defective brake which he was attempting to set. Four of the spokes of the brake wheel were broken where they had joined the rim, and the ends were rusty. In an action for his death, the defendant introduced in evidence an agreement signed by him, providing that before exposing himself in working with or being on its cars, engines, machinery or tools, he should examine the condition of them to ascertain their condition and soundness, and also that he should take sufficient time to make the examination, and refuse to obey any order which would expose him to danger. Held, that such agreement only required the deceased to be attentive and vigilant in the discharge of his duties, to discover defects in the machinery, and to refrain from using machinery if he learned it was in a defective condition, and was no defense to the corporation, as it appeared that the defect in question could only be discovered by an expert, and that the questions of negligence were properly left to the jury.
    Appeal from a judgment entered in the Erie county cleric’s . office in favor of the plaintiff, upon the verdict of a jury, and from an order denying the motion for a new trial.

      James F. QlucJc, for app’lt; Tracy 0. Becker, for resp’t.
   Lewis, J.

The deceased was employed by the defendant as a brakeman, and, on the 10th day of June, 1890, it became necessary for him, in discharging his duties as a brakeman, to set a brake upon one of the cars of the defendant, and in so doing it broke, he was precipitated from the car to the ground, and was killed by the train of cars passing over him. It was found upon examination that the brake was defective, in that four of the six spokes which connected the hub and rim of the wheel of the brake were broken off where their ends had joined the rim. The ends thus broken were rusty, showing that they had been broken for a long time. Of the two sound spokes broken off when the deceased attempted to set the brake the broken ends were bright, showing that they were freshly broken. The defective condition of the brake caused the accident. There was abundant evidence tending to establish that the defendant was guilty of negligence in failing to ascertain by a proper inspection the defective condition of the brake. The defendant’s negligence became a question of fact for the jury.

The defendant introduced in evidence an agreement signed by the deceased on the 18th day of December, 1884, which provided that having been employed by the defendant, he acknowledged the receipt of printed rules and regulations of the company. The agreement further stated, “ I do hereby agree in consideration of paying me the wages stipulated, that I will, so long as I remain in the service, faithfully respect and obey all said orders, roles and regulations and all others which may be adopted and of which I may have notice ; and I do further agree that I will for myself, ;in all cases, before exposing myself in working or in being on the tracks or grounds of the company or in working wifh or being in any manner on or with its cars, engines, machinery or tools, examine for my own safety the condition of all machinery, tools, tracks, cars, engines or whatever I may undertake to work upon or with, before I make use of or expose myself to or with the same, so as to ascertain so far as I reasonably can their condition and soundness. * * * The object of this agreement being first, to protect me from suffering personal injury from any cause ; that while the company will be responsible to me for any fault or neglect of its own or of its board, of directors or general officers, which are the proximate cause of the injury, yet it will not be responsible to me for the consequences of my own fault or neglect. * * * It being expressly agreed on the part of the company that it is my right and duty under all circumstances to take sufficient time before exposing myself and to make such examination as I have here agreed to; and to refuse to obey any order which would expose me to danger.”

It is the contention of the defendant that the deceased was guilty of negligence himself in not having discovered the defective condition of the brake before using it. There was evidence "showing that the defendant employed experts whose special duty it was to examine the machinery, tools, etc., used by the defendant The deceased was a brakeman simply. There was no evidence in the case that he was an expert in the examination of machinery. It is quite clear that it would not have been practicable for the deceased to have performed the duty of an expert examiner before using the machinery of the cars he,was required to use in the discharge of his duties. The cars composing the trains he was required to work on were frequently changed in making up trains. The exigencies of the business prevented that deliberation which would obviously be necessary to "a proper examination of the machinery. He was required to be attentive and vigilant in the discharge of his duties, to discover defects in the machinery, and to refrain from using machinery if he learned it was in a defective condition; and that we think was the extent of the requirements of the agreement.

The evidence tended to show that it required an expert to have discovered the defects in this brake. The question of the deceased’s negligence was properly submitted to the jury.

We fail to find any reason for the reversal of the judgment.

The judgment and order appealed from affirmed.

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


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    In the Matter of the Petition of Charles E. Morris, Ex’r, to sell or mortgage real estate.

      (Supreme Court, General Term, Fifth Department,

      Filed April 13, 1892.)

    Decedent's estates—Sale of beal estate.
    Testator by his will gave to his widow the use for life of all his real and personal estate “ after deducting therefrom the sums necessary to keep such real estate in proper repair and to pay the assessments and liens thereon.” With the exception of his residence his real estate consisted of vacant lots upon which the assessments and taxes were trifling, but subsequently they were largely assessed for improvements to such an extent that if the sums necessary to pay them were retained the widow would not be able to live in the manner to which she was accustomed. Meld, that the testator had in mind the ordinary assessments to which his property had been subject, and not such extraordinary assessments as have been imposed, and that a case was presented where the executor should be allowed to mortgage or sell part of the property to meet such expenses.
    (Maoombbr, J., dissents.)
    Appeal by Ralph Morris and others, infants, by their guardian ad litem, Henry W. Conklin, and by Jeannette Morris and another from an order made and entered in Monroe county, ¡November 9, 1891, granting leave to the petitioner to mortgage or sell certain lands for the payment of assessments thereon.

      Henry W. Conklin, guardian, for app’lts; George F. Hanforth, for resp’t
   Lewis, J.

George H. Thompson, of Rochester, died on the 26th day of June, 1884, possessed of various parcels of real estate in the city of Rochester, some of which were improved and productive. There were three lots owned by Mr. Thompson and known as lots 87, 45 and 55, and are represented upon a map attached to the case as outlying farms or pasture lands. These lots are located in the outskirts of the city of Rochester. They are vacant, unimproved, and are yielding no revenue. The annual taxes upon these vacant lots, down to the time of the death of Mr. Thompson, were comparatively small, not exceeding in the aggregate $20.50.

Mr. Thompson left a will, section one of which is as follows :

“ I give to my wife, Carrie L. Thompson, the use, during the term of her natural life, of all of my real and personal estate, after deducting therefrom the sums necessary to keep such real estate in proper repair and to pay the assessments and liens thereon.”

The will then makes provision for an adopted son and an adopted daughter, and makes the appellants residuary legatees. He left no natural children. He appointed Charles B. Morris executor of his will and a trustee for the purpose of carrying its provisions into effect, giving him power to take charge of the real estate during the life of the testator’s wife, and directed that the net rents and profits therefrom should be paid by the trustee to his widow. He was residing, at the time of his death, with his family, consisting of his wife and adopted son, in a dwelling house located upon large grounds on one of the most valuable residence streets in the city of Rochester. He had been accustomed to live in a liberal manner, maintaining a somewhat expensive establishment, keeping a coachman and horses. It is apparent from his will that he desired and expected his widow to continue to occupy the homestead which she owned, and live substantially in the same style and manner they had been living. By a codicil to his will he bequeathed to her a span of horses, single and double carriage, with the necessary harness, robes, blankets, etc. Since the death of Mr. Thompson the residence district of the city of Rochester has extended rapidly towards the three vacant lots mentioned. A large number of dwelling houses have been erected in their immediate vicinity, and the lots are obviously increasing in value.

The city recently authorized and directed extensive improvements, consisting of the opening and improvement of streets through and adjacent to these lots, the building of sewers and .sidewalks, and assessments have been made upon the lots to pay for these improvements, amounting in the aggregate, including interest and expenses, to the sum of eight or nine thousand dollars. The trustee, Mr. Morris, not having funds with which to pay these assessments, presented a petition to the court, asking for an order authorizing him to mortgage these lots or authorizing him to sell such parts thereof as might be necessary for the purpose of raising the necessary funds to pay these assessments, and the order appealed from was made authorizing the trustee to execute a separate mortgage on each of the lots for a sum sufficient to pay and discharge the assessments upon the lots respectively, together with the interest, fees and expenses, or, if he should be unable to obtain the money by mortgaging the lots, the order authorized him to sell at public or private sale enough of each of the lots to raise a sum sufficient to make such payments. The appellants opposed the granting of the order. It was made to appear to the special term justice that the income from the estate was barely sufficient to provide for the support of the widow and adopted son in the manner they had been accustomed to live prior to the death of Mr. Thompson, after deducting therefrom the ordinary taxes and -assessments thereon, with the necessary repairs and expenses. If .a sufficient amount should be reserved from the income of the estate to pay these extraordinary expenses, there would not be sufficient left to maintain Mrs. Thompson and her adopted son in the occupation of the premises the testator desired her to occupy, unless a very radical change should be made in their style of living. It appeared upon the hearing of the motion that the lots had already been sold by the city for the non-payment of some of these assessments, and unless the assessments are paid the lots will be lost to the estate. In providing in his will for the payment of taxes and assessments upon his estate out of the income therefrom, we think the testator had in mind the ordinary assessments to which his property had been theretofore subjected, and not to such extraordinary assessments as have been made by the improvement of these lote. Had these assessments been imposed during the life of Mr. Thompson, he obviously would have raised the money by mortgaging or selling some part of his property. .

It is not at all probable that he would have so changed his style of living and thereby reduced his expenses so as to have -saved a sufficient amount out of the rents and income of his property to pay these assessments; and we are at liberty to give such n construction to his will as to carry out what we believe to have been his intention. It is apparent that these lots are rapidly increasing in value. These improvements we assume have added to their value a sum equal to the amount of the assessments. The improvements are of a character proper and necessary to prepare the lots for residence purposes. The improvements inure to the benefit of the appellants as residuary legatees, .but add nothing to the present income of the estate. An emergency has arisen not contemplated nor provided for by the testator in his will. Funds are required to preserve the estate. It was made to appear to the court that it was necessary and for the benefit of the estate to raise by mortgage thereon, or by a sale thereof, funds for the purpose of preserving or improving such estate, as provided by the act of 1886.

We think the facts presented justified the granting of the order, and it should be affirmed, with costs to the respondent and to the guardian ad litem of the infants, payable by the trustee out of the moneys raised by the mortgaging or sale of the land.

Dwight, P. J., concurs; Macomber, J., dissents.


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    Charles Carter, Resp’t, v. Nicholas Meisch, App’lt.

      (Supreme Court, General Term, Fifth Department,

      Filed April 13, 1892.)

    1. Deed—Champerty.
    A deed cannot be held void on the ground that another was occupying-the premises under an adverse and hostile title, where such occupation was not under any title but under an agreement for a reconveyance to the occupant.
    3. Ejectment—Fraudulent conveyance.
    Defendant conveyed certain real' estate to his wife through a third person under an agreement that she would reconvey to him when he got through some trouble. The wife died before reconveying and her sisters conveyed to plaintiff without consideration. It appeared that at the time of the conveyance to his wife defendant was apprehensive of a prosecution for purchasing stolen goods which he had bought without knowing them to be stolen; but no prosecution was instituted and he had no creditors. Held, that no such fraud on defendant’s part was shown as would preclude him from relief under his equitable title to a reconveyance as against plaintiff.
    Appeal from a judgment entered, upon the report of a referee, in the clerk’s office of the county of Monroe, in favor of the plaintiff, and against the defendant, in an action of ejectment.

      T. M. French, for app’lt; Wm. É. Werner, for resp’t.
   Lewis, J.

The defendant on the 5th day of February, 1886, was the owner in fee of the premises described in the complaint. On that day he conveyed them to one John Theiss; and Theiss the same day conveyed to Mrs. Meisch. The conveyance of this property was through Mr. Theiss as trustee to the defendant’s wife, and was pursuant to an agreement made between the defendant and his wife that she would take the title, and would, upon request, reconvey the same to the defendant when he should get through some trouble he was having. Shortly thereafter Mrs. Meisch died intestate, without having conveyed the property to the defendant She left two sisters, Caroline Carter and Mary Senke, her only heirs at law. Caroline Carter thereafter conveyed her interest in the premises to her sister Mary Senke, and Mary on the 13th day of February, 1888, executed and" delivered to her husband a deed of the premises. There was no consideration whatever for any of these conveyances. At the time of the two conveyances last mentioned the defendant Meisch was in the actual, visible and hostile possession of the premises, and had been in such possession from the time of the death of his wife, claiming an equitable title thereto by virtue of the oral agreement made with his wife mentioned.

The plaintiff, after obtaining his deed, brought this action, and the defendant interposed the defenses, that he was the equitable owner of the premises, and entitled to' a conveyance thereof; that he was in possession of the premises, claiming the same under a title hostile to the plaintiff's title at the time of the conveyance to the plaintiff

Defendant’s contention that plaintiff's deed was void because at the time it was delivered he was occupying the premises under an adverse and hostile title to the grantors, cannot be sustained, for he was not holding under any title, but under an agreement with his grantee that she would reconvev the premises to him.

The referee found for the plaintiff, placing his decision upon the ground, that prior to the conveyance from Meisch to his wife, through said trustee, Meisch had been charged by the public prosecuting authorities with having received stolen property -contrary to law, and was liable to prosecution therefor under the statute in such case made and provided. He found as a fact that neither at the time of such conveyance, nor since, had Meisch any creditors, except such as were or might become creditors by reason of his having received stolen property as aforesaid.

He found as conclusions of law that the plaintiff was the owner in fee of the premises, and entitled to the immediate possession, that the agreement made between the defendant Meisch and his wife for a reconveyance of the premises was null and void, and • that Meisch was not entitled to a specific performance of the same.

The evidence clearly established that the defendant conveyed the property to his wife, through a trustee, under an agreement which entitled him in equity to a reconveyance, unless he is to be deprived of relief because of fraud in the transaction.

The finding that the conveyance from the defendant to his wife, through the trustee, was void because it was made with the corrupt and fraudulent purpose and motive of placing the property beyond the reach of the creditors of Meisch, is not, we think, sustained by the evidence. There is evidence which tends to show that he was induced to make the conveyance because of an apprehension of a criminal prosecution, arising out of a purchase by him of some property which there was a rumor had been stolen. There was no satisfactory evidence that any property had in fact been stolen; all the evidence which it can be claimed tended to show that property purchased by defendant had been stolen was the following: Mr. Rau testified that Mrs. and Mr. Meisch and Mr. Theiss called upon him, and Mr. Theiss stated: ‘‘Mr. Meisch here is in some trouble, and I advised him to convey the property to his wife.” I asked Mr. Meisch whether it was so; he said “Yes, I am in some trouble, but I don’t like to convey my property to my wife;” his wife said, “ What of that; I don’t want to keep your property you know very well; I have not helped to earn it, and when the trouble is over I will reconvev the property to you.” Meisch said he didn’t like to convey, but after some hesitation he said ■“ Go on with it.” Eau prepared the deeds. Mr. Theiss testified that Mrs. Meisch said to him, “ Mr. Meisch is a little in trouble, and wants to deed his property over to me, and then he should, have it back ; when the trouble is over, I will give it back to him.” Theiss testified that he didn’t know what the trouble was; that Meisch simply said he was in trouble, and his wife said the same. Robert Reichert testified that he heard Mrs. Meisch say to her husband, “You had better put that house over to me before you lose it; ” he refused; she said, “ You had better do it, and when you get over your trouble, I will give it back. I knew that Mr. Meisch had been in trouble over some brass; it took place in the spring of the year three or four years ago.”

The defendant testified, “ The trouble I was in, that was the subject of those conversations,was for five years in state prison; it was for receiving stolen property, but I did not know it to be stolen; I paid for the property claimed to have been stolen.” If this evidence be true, he had committed no crime.

There is not a suggestion in the evidence that any proceedings had in fact been instituted against him by a public prosecutor, or that any one had ever made any pecuniary claim against the defendant on account of any stolen property, or that he had ever thought that such a claim might or could exist. He seems to have acceded to the suggestions of his wife, and conveyed the property, because of some apprehension that he might be prosecuted criminally, and suffer imprisonment, and in that event it might be better that his wife hold the title. The record fails to show that there was any substantial basis for his apprehension; it fails to show that he made the conveyance with any view of defrauding creditors; for it does not appear that he had any. The defendant being in possession of the premises, with a strong equitable claim to a conveyance thereof, should not be ousted unless it is established that he parted with his title under circumstances which prevent the court from giving him relief.

The rule of law when creditors attack a conveyance is, that fraud is to be found and not presumed. The facts must naturally and logically indicate fraud and must be of a character to warrant the inference. It is not enough that they are ambiguous and just as consistent with innocence as with guilt; if they are, the proof of fraud is wanting. Shultz v. Hoagland, 85 N. Y., 467.

A fraud cannot be perpetrated unless some one is in a situation to be defrauded.

Concededly, the plaintiff’s grantor was not defrauded, for she knew or was informed of all the facts known 'to the defendant, and, as we have seen, was instrumental in inducing him to convey the property to her. The plaintiff has no better title than Mrs. Meisch had, for neither he nor his grantors paid any consideration for the conveyance to him. The facts found by the referee entitled the defendant to the relief demanded in his answer but for this question of fraud in the conveyance of the premises to his wife, and yet no such issue was raised by the pleadings. The _ complaint was in the ordinary form of complaints in actions-of ejectment. The defendant’s answer set up his equitable claim to the property under- the paroi agreement mentioned, and demanded an affirmative judgment that the plaintiff convey the premises to him.

The plaintiff’s reply admitted some of the allegations of defendant’s answer, denied other allegations, set upon equitable interest in. the property arising out of the payment by him of incumbrances, assessments, taxes and repairs upon the property, but he does not-set up the question of fraud. Dot having interposed that defense, he should not be allowed the benefit of it when attempting to eject the defendant from the possession of property to which he is equitably entitled; he should be held to strict rules of pleading.

In Haigh v. Kaye, L. R. 7 Ch. App. Cas., 469, the defendant, was sued for a reconveyance of premises held by him in trust; he relied upon the statute of frauds and claimed the estate as his own discharged from any trust. The court in deciding the case said: “If a defendant means to say that he claims to hold the property given to him for an immoral purpose, in violation of all honor and honesty, he must say so in plain terms, and must put forward his own scoundrelism if he means to reap the-benefit of it.”

This rule should be applied in this case, notwithstanding that the evidence relied upon by the referee as establishing the fraud came from witnesses called by the defendant.

We place our decision, however, on the ground that the evidence fails to show that there were any creditors of the defendant to be defrauded by the conveyance to Mrs. Meisch, and it fails to show that the conveyance was made with a fraudulent intent. The plaintiff’s complaint should have been dismissed.

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

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


text:
    John H. Richards, Resp’t, v. Samuel H. Day, Ex’r, App’lt.

      (Supreme Court, General Term, Fifth Department,

      Filed April 13, 1892.)

    Evidence—Parol to vaky bond.
    In an action against an estate the executor set up as a counterclaim a. bond executed by plaintiff and wife to the deceased_ conditioned to pay the deceased during her lifetime the interest, and claimed that there was a certain sum due thereon. Plaintiff's reply set up that the bond was delivered in consideration of an agreement that testatrix was to release the maker from making payments on the bond after her death whether all the payments of interest had been paid or not. It did not allege fraud or mistake, nor ask for a reformation of the bond. Held, that paroi evidence of the alleged agreement was inadmissible, as it tended to contradict the-condition of the bond.
    Appeal from so much and such part of the judgment herein entered in Monroe county, on the 23rd day of March, 1891, as dismissed the counterclaim of the defendant, and granted judgment as to such counterclaim in favor of the plaintiff.

      Gassius G. Davy, for app’lt; George F. Yeoman, for resp’t.
   Lewis, J.

The plaintiff in his complaint alleged that Elizabeth. Davis, deceased, became indebted to him in the sum of $260, for services rendered to her. The defendant interposed an answer denying the indebtedness, and setting up as a counterclaim to the plaintiff’s cause of action a bond executed by the plaintiff and his wife Helen J. Richards, to the deceased, dated the 22nd day of December, 1880, conditioned to pay to the deceased, during her lifetime, the interest annually upon the sum of $8,500, and that there was due and unpaid upon the said bond, at the time of the decease of the said Elizabeth Davis, the sum of $701.63, and demanded judgment against the plaintiff for that sum, with interest.

The plaintiff, by his reply, denied the execution and delivery of the bond^ and alleged that it had been fully paid and discharged. And for a third defense, the plaintiff alleged that the .Said bond was signed and delivered to defendant’s testatrix by plaintiff’s wife, Helen J. Richards, in consideration of an agreement between them that the testatrix was to release said Helen J. Richards from, making any further payments on said bond after the death of the testatrix, whether all the yearly payments of interest thereon had been paid or not

The defendant produced the bond at the trial, and gave evidence tending to show that the amount claimed in his answer was due and unpaid thereon. ■

The plaintiff was allowed to give paroi evidence, under the objection of the defendant that the evidence was immaterial, incompetent and tending to vary the contract, that the testatrix gave to each of her children, including the wife of the plaintiff, $3,500, upon condition that they should each give to the deceased a bond, conditioned to pay to the deceased, during her lifetime, annually, the interest upon the bond, if the deceased needed the interest for her support; and that in case, at the time of the death of the deceased, any of the payments should not have been made, the maker of the bond should not be liable to pay the same after her decease; that the parties appeared before a justice of the peace to have the bond prepared, and stated to him the terms of the contract, and requested him to prepare the bond; and the justice not being able then to prepare it, at his suggestion, the plaintiff and his wife signed their names to a blank bond, the justice agreeing to fill it out thereafter. That the bond set out in the defendant’s answer was prepared by the justice, and delivered to the deceased, and the annual payments of interest were made thereon for the years 1881 to 1886, inclusive. The plaintiff’s wife died in 1885, and the plaintiff made the payment of interest upon the bond for the year 1886.

At the close of the evidence the defendant’s counsel asked the court to direct a verdict in favor of the defendant for the amount due on the bond; the request was denied; and thereupon the plaintiff’s counsel asked the court to direct a non-suit in reference to the .counterclaim of the defendant, which motion was granted, and the defendant excepted.

It is not claimed in the plaintiff’s reply that the bond was procured by fraud; nor is there any allegation that it was executed under any mutual mistake of the parties; it was simply alleged that it was signed and delivered in consideration of an oral agreement between the parties that the testatrix was to release the maker, Helen J. Richards, from making any further payments on the bond after the death of the testatrix, whether all the yearly payments of' interest had been made thereon or not. There was-no demand for a reformation of the bond.

We do not think, under the state of the pleadings, that paroi. evidence was admissible to contradict the bond. If it did not express the true agreement, the plaintiff should have interposed a reply asking for its reformation. The testimony introduced' tqshow that the bond did not in fact express the agreement, is not. very satisfactory; it comes from a son of the deceased. He testified as to conversations in the presence of the deceased prior to-the drawing of the bond. It appears from the testimony of the plaintiff that he made a payment of interest upon the bond in the year 1886, making the endorsement thereon” himself, and that, when he was shown the bond after the death of the deceased he made no objections to its terms.

The plaintiff called as a witness Chauncey Brainard, who testified to a conversation with the deceased, in which the deceased stated that she had given her money to her children, and that they were to pay her the interest during her lifetime. Thereby negativing the claim of the plaintiff that the payments of interest which might be unpaid at the death of the obligee were not to be paid.

It was error in the trial court to admit the evidence to contradict the conditions of the bond; defendant established his counterclaim and was entitled to recover it of the plaintiff.

So much of the judgment as is appealed from should be reversed, and a new trial, granted, with costs to abide the event. Dwight, P. J., and Macomber, J., concur. •


text:
    Mary Birmingham, by Guardian, Resp’t, v. The Rochester City & Brighton Railroad Co., App’lt.

      (Supreme Court, General Term, Fifth Department,

      Filed April 13, 1892.)

    1. Carriers—Liability for injury to passenger.
    Plaintiff, while a passenger on one of defendant’s cars, was injured by the fall of some iron from an iron trough used to balance a lift bridge-constructed and owned by the state and forming part of the highway traversed by defendant’s road. " The iron fell because of the imperfect welding of a stirrup of the trough, which defect could have been easily discovered by the manufacturer if tests had been made. It also appeared that defendant had never inspected the bridge. Held, that the court properly held that the only question for the jury was the question of damages.
    $. Same—Damages.
    In an action for such damages where it appears that the injury rendered. plaintiff senseless for twenty-four hours; that her sight was affected; that for twenty months she had suffered from dizziness and headache; that she was sleepless nights and her ability to study affected, and that the effects of the injury might continue for a considerable time, a verdict for $3,500 cannot be held excessive.
    Appeal from a judgment entered upon a verdict at the Monroe circuit in June, 1891, and from an order denying defendant’s motion for a new trial on the minutes of the court.

      Charles J. Bissell, for app’lt; J & Q. Van Voorhies, for resp’t.
   Lewis, J.

The defendant is a common carrier of passengers operating a street railroad in the city of Rochester. .

One of its routes is along West Main street, and across the Brie canal, which is crossed by means of a lift bridge which is elevated by means of hydraulic power to allow canal boats to pass. This bridge was constructed and maintained by the state.

. On the 4th day of October, 1889, the plaintiff was a passenger on one of defendant’s cars upon West Main street, and while the car was crossing the aforesaid bridge she was injured by being struck upon the head and shoulders by a heavy piece of pig iron, which fell from the upper part of the bridge, passing through the roof of the car, the piece of iron weighing some eighty pounds; it fell with other pieces from an iron trough, which was suspended over the railroad track.

The pieces of iron, had been placed in the trough for the purpose of being used as balance-weights in elevating and lowering the bridge.

The trough was supported by stirrups attached to an iron cable, and the accident was caused by the giving way of an imperfect welding in one of these stirrups, which allowed one end of the trough to drop and the pig iron to slide out of the trough upon the car.

This case was before this court at a prior term, upon a motion for a new trial upon exceptions directed to be bear’d at the general term, in the first instance, after a non-suit of the plaintiff, and the facts of the case are fully and clearly stated in the opinion of Justice Dwight, reported in .the 59 Hun, 583; 37 St. Rep., 317.

A new trial was granted, and upon the retrial at the close of the evidence the court intimated that it would submit no question of fact to the jury except the question of damages.

.' The defendant’s counsel thereupon asked to have submitted to the jury the question as to whether the omission upon the part of the defendant, under the circumstances of the .case, to discover the defect in the bridge was negligence on the part of the defendant, and whether it was negligence for the defendant to continue to drive its cars across the bridge with such knowledge as it did have of the manner of its construction.

The court denied the defendant’s request, and decided that it would submit no questions of fact to the jury except the question of damages.

The defendant’s counsel duly excepted to the refusal of the court to submit the questions so requested, and excepted to the ruling of the court that it would submit no question of fact except the question of damages.

Plaintiff’s injuries were concededly attributable to a defective appliance, called upon the trial a stirrup or' saddle, which formed a part of the bridge over which the plaintiff was riding in the defendant’s car as a passenger at the time she received the injuries.

It was established upon the trial that the stirrup was imperfectly welded when it was made. It was proven that the defect could have been easily discovered by the manufacturer if he had subjected the stirrup to a well known test.

This evidence was wholly uncontroverted.

The bridge had been adopted and used by the defendant in its business as a means of transporting passengers.

It was decided by this court in 59 Hun, supra, “ that the defendant was chargeable with all of the defects of the structure, whether original or resulting from wear and tear, whether latent or patent, to the same extent as if it had been constructed by the defendant itself or owned and controlled by it”

“ That the carrier of passengers contracts not only for his own skill and care in the conduct of the business, but for the skill and care of all those who have made or furnished any of the instrumentalities or appliances by means of which the business is conducted.”

This branch of the plaintiff's case was so clearly and conclusively proven, and there being no evidence or circumstances which tended to disprove the defendant's negligence, had the question been submitted to the jury, that they could not reasonably have found for the defendant.

The record contains no evidence that the defendant ever inspected the bridge during the two years or more it used it prior to the accident

The court may withdraw a case from the jury altogether and direct a verdict for the plaintiff or defendant as the case may be when the undisputed evidence is so conclusive that the' court would be compelled to set aside a verdict returned in opposition to it. D., L. & W. R. R. Co. v. Converse, 139 U. S., 469; Dwight v. Germania Life Ins. Co., 103 N. Y., 343; 3 St. Rep., 115.

If it is proper to take all the questions of fact from the jury in a case where the evidence is uncontroverted, it is proper to refuse to submit a single question to them where it is established by the evidence beyond controversy; it was so held in the case of D., L. & W. R. R. Co. v. Converse, supra.

Had the questions that the defendant asked to have submitted to the jury been submitted and found in its favor, the result of the trial would have been the same, for the defendant’s negligence consisted not necessarily in its failure to inspect the bridge, but in its use with an original imperfection, which imperfection was the cause of the accident.

We agree with the ruling of the trial court that the only question for the jury was the question of damages.

The defendant contends that the verdict of thirty-five hundred dollars was excessive and that a new trial should be granted for that reason.

Plaintiff, when she received her injuries, was about fourteen years of age.

She was so severely injured that she was carried home senseless ; her mother testifies that she did not recover her senses for twenty-four hours, and only partially then; that she complained of soreness in her shoulder, in her back; that her face was red and badly cut; that she remained in bed for two weeks; that her sight was affected; that she was nervous and sleepless; that before the accident she was healthy and slept well and was not nervous.

Plaintiff "testified that she suffered much pain; that she had ever since the accident (a period of twenty months), suffered from dizziness and headache; that she was sleepless nights; that her ability to study had been affected; that she could not study at night; that at times she was not able to see and had not been able to go to school steadily since her injury.

The" physician who attended her testified that she suffered at first from nervousness, that her appetite was not good and that she lacked nutrition and was pale and weak, and that the effects of the injury might continue for a considerable time, but he could not say that the injuries would be permanent.

The amount awarded the plaintiff was in our judgment large.

The question of damages was one peculiarly for the determination of the jury.

The jury in this case were aided in determining the extent of plaintiff’s injuries by seeing her at the trial.

The trial justice, after hearing the testimony and seeing the plaintiff, decided that the verdict was not excessive. We do not, therefore, feel justified in disturbing the verdict on the ground that it is excessive.

It follows that the judgment and order appealed from should be affirmed.

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


text:
    Robert Davison, App’lt, v. Henry C. Luckman, Resp’t.

      (Supreme Court, General Term, Fifth Department,

      Filed April 13, 1892.)

    Justice’s coubt—Evidence.
    Where it appears that substantial justice has been done, the judgment of a justice’s court should be sustained, notwithstanding immaterial or improper evidence may have been admitted, unless it is apparent that the incompetent evidence probably affected the result.
    Appeal from the judgment of the Niagara county court, entered in the office of the clerk of Niagara county, August 1,1891, reversing the judgment of a justice of the peace in favor of. the plaintiff.

      George D. Judson, for app’lt; ¿K K Fillcins, for resp’t
   Lewis, J.

This action was brought by the plaintiff against the defendant in a justice’s court of Niagara county, to recover thirty-five dollars claimed to have been loaned by plaintiff to defendant. It resulted in a judgment for the plaintiff. The Niagara county court, upon an appeal, reversed the judgment of the justice because of the admission of improper evidence. The plaintiff claimed to have loaned the defendant on or about the 1st of October, 1887, the sum of thirty-five dollars ; that he was induced to make the loan because of representations made by the defendant that he was the owner of real and personal property of a considerable amount and that the representations thus made were false and fraudulent. The defendant was a saloon-keeper. On the day of the alleged loaning of the money the plaintiff had been drinking somewhat at defendant’s saloon. The plaintiff testified that he had in his possession sixty dollars in money, proceeds of the sale of some apples, and that having exhibited his money at the saloon, the defendant requested him to loan him some money to pay a bill that he owed. And that after considerable solicitation on the part of the defendant, he did loan him the sum mentioned. That the defendant neglected and refused to pay.

The plaintiff produced three witnesses, including himself, who gave testimony tending to show the loan of money to the defendant ; they all testified that the defendant made the alleged representations as to his financial condition. Two of the plaintiff’s witnesses testified to admissions made by the defendant that he had borrowed money of the plaintiff on the occasion mentioned. The defendant testified that he did not borrow the money and denied making the representations. He called two other witnesses who testified that they were present on the day the money was claimed to have been loaned, and that they did not see the plaintiff loan him any money. And he gave further evidence tending to show that the plaintiff stated, the day after the alleged loan, that he did not know to whom he loaned the money. The defendant testified that he did not own at the time mentioned any real estate, and that he made a general assignment for the benefit of his creditors in December, 1888.

The weight of evidence was quite clearly with the plaintiff as to the loaning of the money and the making of the representations. The judgment of the justice was reversed by the county court because of the admission of the evidence of plaintiff’s attorney, Cfeorge D. Judson, who testified that he was the correspondent of B. Gr. Dun & Co.’s Mercantile Agency, and that early in July, 1887, he called upon the defendant and inquired of him as to his financial standing, and that the defendant stated that he was worth $10,000, consisting of the store and premises where he was then doing business, and in securities consisting of mortgages and notes. He further testified to like statements made by the defendant some two months after the alleged loaning of money by the plaintiff to the defendant. The county court, we think, correctly field that this evidence was incompetent and should not have been admitted; but whether its admission was of sufficient importance to justify a reversal of the justice’s judgment is very doubtful.

As we have seen, the plaintiff, by competent legal evidence, proved very satisfactorily the loaning of the money and the untruthful representations of the defendant’s financial condition. Three witnesses testified to the statements of the defendant as to his financial condition. Two of them were disinterested witnesses. The making of the declarations was denied by the defendant only. If the objectionable evidence be eliminated from the case, there is ample and sufficient evidence left to justify the judgment rendered by the justice. Justices of the peace are, as a rule, uninformed as to the rules of evidence. In reviewing their judgments liberal rules should be applied. If it appear to the appellate court that substantial justice has been done, their judgments should be sustained, notwithstanding immaterial or improper evidence may have been admitted, unless it is apparent that the incompetent evidence probably affected the result In reviewing the judgments of justices’ courts, “it is the duty of the appellate court to render judgment according to the justice of the case, without regard to technical errors or defects which do not affect the merits.” Section 3063 of the Code of Civil Procedure; Lockwood v. Lockwood, 38 St. Rep., 600.

We think the learned county judge gave undue weight and importance to the testimony of Mr. Judson. It did not in any respect tend to strengthen the plaintiff’s case as to the loaning of the money. If the defendant borrowed the money, there was ample competent evidence to prove beyond any reasonable doubt the making of the false representations, and that the loan was induced thereby.

The judgment of the county court should be reversed, and the judgment of the justice affirmed, with costs against the respondent of the county court and of this court.

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


author: Finch, J.

text:
    John Glenn, App’lt, v. David J. Garth et al., Resp’ts.

      (Court of Appeals,

      Filed June 7, 1892.)

    1. Stocks—Tbanseeb without authobity to broker's name—Ratification—Estoppel.
    A'though one who authorizes and permits a transfer to himself of shares of stock upon the books of a corporation must be held to be a stockholder, whether in truth the real owner or not, when the rights of corporate creditors are involved, yet it does not amount to an equitable estoppel in a case where no creditor relied upon or even knew of or could have been deceived by the false appearance.
    2. Same.
    Before the question of estoppel can arise, there must be shown to exist some act of the party, done by him or with his assent, creating the alleged apparent relation. If the act done, the false appearance created, is the act not of the party but of some third person, such party is in no manner bound or affected by it unless he either originally authorized it or subsequently ratified it.
    3. Same.
    A direction by defendants, New York brokers, to their agent in Baltimore to buy stock, in pursuance of their contract with F. to carry it for him on a margin, would not carry with it an implied authority in the-vendors or assignors to make a transfer upon the books of the company to such brokers.
    4. Same—Ratification.
    Such act could only become that of. the brokers by their subsequent ratification, and the forwarding of blank assignments by the brokers, at the same time repudiating the transfer and directing a retransfer, would not amount to such ratification.
    Motion for reargument.

      John Howard and Burton N. Harrison, for motion; W. W. MacFarland andTPro. C. Clopton, opposed.

       See 44 St. Rep., 80.

   Finch, J.

This is a motion for a reargument, made long after the entry of judgment on the remittitur and when we have lost jurisdiction of the case; suggesting no point overlooked; citing no new and pertinent authority, but stoutly and vigorously insisting that the court has gone astray, and that its decision is unsound. We are expected to ask for a return of the remittitur and seek in that manner to retrace our steps and correct an error alleged to be dangerous. Ordinarily, no- more than this would need to be said to justify a denial of the motion; but the case itself is both important and peculiar, and the conviction of the unsuccessful counsel is so sincere and profound that we feel willing to venture a new attempt to locate correctly the mistake which one or the other of us has made.

It is insisted that we have violated the rule that one who authorizes and permits a transfer to himself of shares of stock upon the books of a corporation must be held to be a stockholder, whether in truth the real owner or hot, when the rights of corporate creditors are involved, and is equitably estopped from denying the apparent relation. I admit the rule, and have nowhere doubted or denied it, although I am unwilling to agree that it logically rests upon or amounts to an equitable estoppel in a case where no creditor relied upon, or even knew, or could have been deceived by the false appearance. But waiving that criticism for present purposes, and assenting to the rule as presenting a possible case of equitable estoppel, we still say, as was declared in the opinion, that there is no question of estoppel in the controversy. That question is not reached, because before it can be reached there must be shown to exist some act of the party, done by him or with his assent, creating the alleged- apparent relation. That fact must be established before any question of estoppel can arise. If the act done, the false appearance created, is the act, not of the party, but of some third person, such party is in no manner bound or affected by it unless he either originally authorized it or subsequently ratified it. Only by the one process or the other can it become his act, and until he can be held responsible for it there can be no question of estoppel; and there is not a case cited on the original argument or on the brief now presented in.which the rule of estoppel was applied which failed to show that necessary and conscious and voluntary act of the party estopped.

Now what we decided in this case, and all that we decided, was

that there was no such act on the part of the defendants, and how the determination of that effect of the evidence can shake the foundations of the commercial law does not readily suggest itself to our minds. The pith of the controversy lies at this point alone. The defendants did not originally authorize the transfer of the shares to them upon the books of the company. There was no dispute in the evidence about that. The act was done without their antecedent knowledge or authority. They never so intended, their whole course of business was to the contrary, and the very contract which induced the purchase involved an. ownership other than their own. They did direct the purchase of the stock in pursuance of their contract with Ficklin to carry it for him on a margin, and it is now broadly intimated that sucli direction carried with it an implied authority in the vendors or assignors to make a transfer upon the books of the company. There at least is a doctrine upon which commercial interests, if not the commercial law, may look with some degree of terror. The authority for it to which we are referred is Webster v. Upton, 91 U. S., 71. That appears to have been a case of the direct purchase of shares from a stockholder of record by one desiring and intending to become himself the owner. In such a case, where the purchase might be reasonably deemed one for investment, it may be, as the court declared, that there is implied authority in the vendor to make the transfer on the books of the company, but no such implication can attend the dealing of broker with broker. Each knows that the other is merely a middleman or agent for third persons, for that is their customary and constant attitude. The broker buying neither knows nor cares who the real seller will prove to be, and the broker selling neither knows nor cares who is to be the real buyer. Each understands that the other is only the intermediate channel or agency of transfer, and an absolute ownership on either side would seldom be suspected. To say of such a case that the broker selling is authorized by implication to treat the broker buying, not merely in some, but in all respects as the ultimate owner by making a transfer to him on the corporate books, instead of sending certificates assigned in blank, after the customary method, would be to introduce into the broker’s business an element of incalculable danger. It would be ruinous to the stock exchanges and perilous to their dealers. Who would loan money upon "stock collateral or carry stocks for customers upon a margin if the broker-vendor could at once, on a mere order to buy, make the broker vendee a stockholder and load upon him ruinous responsibilities'(

If the latter is so at the mercy of the former there might bo purchases for investment, but none, except at enormous peril, for that vast volume of transactions which proceed without and do not contemplate such transfers. The whole course of the broker’s business, as disclosed by the evidence, forbids the existence of any such implied authority. The defendants, therefore, were put upon the books of the company as shareholders without their knowledge, authority or consent, and contrary to their purpose and intention. The act was not theirs, and could only become theirs by a subsequent ratification, and hence it was that we said before and now repeat that the question involved is not one of estoppel, but solely and only one of ratification.

Proceeding to that inquiry we held that there was no such ratification. We need not here repeat the argument. We did not then and do not now underrate the difficulty which grew out of the imprudent mode of redress which the defendants adopted. Its form furnished ground for some technical reasoning quite plausible and not without elements of strength. We sought to take fairly its full measure and weight. The act done was an act of repudiation. The unauthorized certificates were returned at once to the agent who violated his duty with a refusal to accept the situation. Similar notice was sent to Ficklin. But the defendants knew that the formal legal title had been put in them and could not easily be got out of them without their own formal assignment, and that they attached as a mode of enabling McKim to undo the mistake as they had demanded that he should. It is upon that act and that alone that the whole case of the plaintiff rests. An act intended for a repudiation is claimed to be conclusively one of ratification. We gave the reasons why we thought the substance of the transaction should prevail over its form and the real truth over the false appearance. And that view we think is justified even as against creditors when we take into consideration the real equities of the situation. Ho creditor in the present case has been at' all misled by the w.rongful entry of defendants’ name on the books of the company.

Hot one is shown to have seen that entry or heard of it, to have changed his position in the least degree on account of it, or to have been misled to his injury by it to the value of a.single farthing. Ho servant of the company worked an hour in reliance upon that registry, and no railroad carried a pound of freight more because of it. Every debt contracted would have been contracted had the wrong entry never appeared upon the books. To manufacture an equity out of such material to shut out the truth ■is little short of nonsense. If we can speak of such a situation as constituting an estoppel at all, it must be on the ground of a presumed or constructive reliance by the creditors upon the existence of a body of stockholders generally liable to make up the capital and not upon the presence among them of some particular individual. But if the defendants did not become stockholders their assignors remained such, and some of them have already had to pay, and the real right of the creditors is outside of the" question between the disputants, and is in no sense invaded by a fair and just determination of that question. It is impossible to discover what equity they have to insist that one who did not consent to the entry should be substituted for one who did or to fasten upon the former the liability of the latter. The creditors may indeed justly insist that one who has permitted himself to be registered as a stockholder and taken the benefit of that act shall not be allowed to escape its burdens, for that is the rule which I have steadily admitted and which the- federal court in the case cited puts not upon the ground of an estoppel, but upon the theory that the capital or the liability for it is a trust fund which neither the company nor its members can divert from the security of its creditors; but the latter have no shadow •of an equity to insist that one whose name was put upon the roll without his consent and against his will shall not prove the truth until they show that they trusted to that very false appearance and were misled by it, and that the apparent shareholder was in some manner responsible for it. In this case the creditors have no such equity to prevent the exact truth of the transaction from being proved and having its due effect.

I think we may reach the same result from another direction. In Seymour v. Sturyess, 26 N. Y., 134, we held that the liability of a shareholder to the company for calls made on account of unpaid stock could only be enforced by an action in the nature of ,assumpsit, and necessarily rested upon a promise to pay, express or implied; that such promise must be proved by competent evidence, and equally whether the rights of creditors were involved or not. Indeed it was explicitly declared, which is the point I have been seeking to elucidate, that such creditors claiming through the company have no greater right than belongs to it. Now in this case no express promise to pay the calls was made or is pretended. The plaintiff’s action necessarily rests upon some implied promise. But what is an implied promise ? It is a fiction which the law raises to express the equity of a situation. It is the law’s judgment of what on the facts is just and right between the parties. It is a promise which, though not made, ought to have been made. Where the shareholder consciously accepts that relation he ought to bear its burdens as well as enjoy its benefits, and it is easy to imply a promise to perform that duty. But where he does not accept the relation, where it was put upon him by another without authority and against his will, where instead •of accepting its benefits he repudiated them at serious loss, where his mind and that of the company never met in any contractual relation, where it was not Ins duty to pay and he explicitly refused to take what was offered, all foundation for an implied promise is gone. The facts do not admit of it, for the law does not raise a fiction to accomplish a wrong. And thus again we come to the proposition that the real truth must be ascertained, and when ascertained must control. And that real truth is that the defendants repudiated and did not ratify the unauthorized act of McKim. The whole force of a ratification lies in conscious and intended assent with full knowledge of the facts. If there is no such intent and no such volition, but a contrary intent and an opposite purpose, there is no ratification. The absence of any such intent and the presence of a different one is clearly disclosed by the facts.

Of course, the question discussed is vital to the controversy. Under the law both of this state and of Virginia one may be, as we said in the former opinion, a holder of stock without being in the full sense of the term a stockholder. Our statute of 1848 as to manufacturing corporations, chapter 140, § 16, and that of 1850 as to railroads, recognized that a person may hold shares as collateral without being liable to assessment; and it rests upon the obvious ground that the pledgor in whose name the stock is registered remains the general owner notwithstanding the pledge, and the company cannot treat him otherwise, nor practically claim -that both pledgor and pledgee are at the same time stockholders-of the same stock. The pledgor remains liable; the pledgee never becomes so. The statute of Virginia (Code of 1860, chap. 57, § 25), makes those and only those stockholders “ as it respects the company” whose names are registered on its books as such; and that enactment, thus requiring an acceptance and recognition of the stockholder by the corporation, shows that it is a contract relation which is contemplated and involves an actual assent on both sides. The seeming intimation ventured on behalf of the appellant, that the effect of that act is to make one conclusively a stockholder whose name was registered whether he knew and assented or not, is too plainly unendurable to require serious discussion. No one can be made a stockholder without his consent express or implied. And so there is no view of the subject which can dispense with proof of that assent by the defendants as a vital and necessary element of the plaintiff’s case.

"We'have said that there is no proof of such assent. The appellant’s counsel, however, insist that there is some proof of it, and enough to raise a controverted question of fact upon which the verdict directed by the court is as conclusive upon us as would be the verdict of a jury. That we are quite sure is a mistake. "We discover no such proof. To find any it would be necessary to separate some single fact from its surroundings and pervert the just inference to be drawn from it.

Neither party asked to go to the jury. Both assumed that the material facts were undisputed. The defendants upon them raised a, question of law by a motion for a nonsuit, which was denied and an exception taken. Judgment was suspended and the exceptions ordered to be heard at the general term. The plaintiff was required to go there for his judgment and get it by defeating the exceptions. He made the case himself with that notice and peril before him, and it i's not to be presumed that he omitted anything essential. The judgment of the general term determined that assent to the stockholder’s relation was necessary to be proved but that there was no evidence to prove it, but on the contrary proof of express dissent. In that view we concurred and decided not a question of fact but one of law.

Much more might be said as a commentary upon the plaintiff’s brief, but the cause of action sued-upon is already about a quarter of a century old, and will grow still more venerable if we do not somewhere end the discussion.

The motion should be denied, with costs.

All concur.


author: Earl, Oh.

text:
    Mary G. Morris, Resp’t, v. Alfred G. Sickly, Impl’d, App’lt.

      (Court of Appeals,

      Filed June 7, 1892.)

    Will—Legacy—When a charge upon real estate.
    Testatrix, after providing for payment of debts, etc., gave legacies of $1,800 to plaintiff and $200 to her niece, and by a residuary clause disposed of her remaining estate both real and personal. Her entire estate was at that time personal and of the value of about $2,500, but in the year following she invested $2,000 of it in real estate, and at the time of her death, ten year-s after, her personal estate amounted to only $500. She had lived for seven years prior to the execution of her will with plaintiff and her husband and had paid them but $100 per year for board. Held, that testatrix did not intend to make said legacies a charge upon her real estate.
    (O'Brien and Maynard, JJ., dissent.)
    Appeal from a judgment of the supreme court, general term, fifth department, affirming a judgment entered on the findings and decision of special term.

      iS. Hubbard, for app’lt; L. 0. Heed, for resp’t

       Reversing 88 St. Rep., 741.

   Earl, Oh.

J.—On the 14th day of April, 1873, Margaret M. Gray executed her will, in which, after providing that her lawful debts and funeral expenses should be paid, and a suitable tombstone erected at her grave, she gave and bequeathed to her sister, Mary Morris, $1,800, and to her niece, Mary S. Gray, $200; and then she disposed of her residuary estate as follows: “ All the rest and residue and remainder of my estate, both real and personal, of which I may die seized and possessed, I give, devise and bequeath'-unto my brother, Sylvester Gray, of Groveland, my ■nephew, Alfred G. Sickly, of Groveland, and my sister, Elsie Sutfin, bf Van Burén county, Michigan, to be equally divided between them.”

She died on the 8th day of November, 1884, and her will was admitted to probate. At the time of the execution of the will she did not own any real property, but all her property was personal, of the value of about $2,500. After the execution of the will, on the 30th day of May, 1874, she purchased of the plaintiff and her husband certain real estate, for which she paid the sum of $2,000, and which she owned at the time of her death, and her personal property thereafter and at the time of her death amounted to only $500. For a period of seven years prior to the execution of the will she had resided in the family of the plaintiff and her husband, add she continued to reside there until her death. She was a maiden lady, and at the time of her death was about seventy-two years old. The only compensation she paid to the plaintiff and her husband for her board in their family was the sum of $100 per year. Two of the three residuary legatees died before the testatrix.

Upon these facts the plaintiff claims that her legacy of $1,800 was a charge upon the real estate owned by the testatrix at the time of her death ; and so the court below has held, and the real estate has been ordered by its judgment to be sold for the payment of the legacy.

The sole question for our determination is whether we can find in the language of the will, together with the circumstances surrounding and attending its execution, that the testatrix intended to make the legacy a charge upon real estate.

The rules of law as to the language and circumstances which will be held sufficient to charge a legacy upon the real estate left "by a decedent have been so frequently laid down and elucidated in this court that a further review of the authorities and a further discussion of the subject can serve no useful purpose, cannot render the law more certain nor aid in its administration. We will, therefore, now content ourselves with a brief announcement, of our views in this case.

It is now the settled law in this state that by the language contained in this will alone the legacy was not charged upon the real estate, Hoyt v. Hoyt, 85 N. Y, 146; Scott v. Stebbins, 91 id., 614; McCorn v. McCorn, 100 id., 513; Matter of the City of Rochester, 110 id, 159; 17 St. Rep., 146; Brill v. Wright, 112 N. Y., 129 ; 20 St. Rep., 305; Briggs v. Carroll, 117 N. Y., 288; 27 St. Rep., 468, and so it was held in this case in the court below.

But it was held in the cases cited that such language as is found in this will is not absolutely inconsistent with an intention to charge the real estate, and that for the purpose of ascertaining the intention of a testator extrinsic evidence properly bearing irpon that intention and by the rules of law allowed to explain the meaning of the language used, may be received in. evidence.

Considering the circumstances surrounding the testatrix at the time of the execution of this will, and construing the language by the aid and in the light of such circumstances, we are yet unable to find that she intended to charge real estate with the legacies, as she then owned no real estate and her personal property was. ample to pay the legacies; and this, too, seems to have been the opinion of the court below.

But the plaintiff’s counsel contends that we may look at the circumstances occurring and existing subsequently to the execution of the will for the purpose of ascertaining the intention of the testatrix, and in this contention he seems to have been sustained by the court below ; and by a consideration of the circumstances which we have above mentioned, which transpired after the execution of the will, it reached the conclusion that the legacy was charged upon the real estate.

Circumstances surrounding a testator at the time of the execution of his will may be given in evidence, so that the court may see the facts as he saw them, and thus arrive at his intention, where the language alone is of doubtful import. The matter to be determined in the construction of a will is what did the testator intend at the time of its execution ? And when that intention is ascertained, it must have effect, if not in conflict with any law.

Clearly circumstances occurring long after the execution of a will could not have been within the contemplation of the. testator, and could therefore throw no light upon the meaning of language which he then used. While a will is in some sense ambulatory as to the objects and subjects with which it deals, yet it is not ambulatory as to the meaning of the language used by the testator, and the intention and purpose which controlled the disposition of his property. That intention and purpose must be found to exist at the time of the execution of the will, and cannot be varied or changed by any after occurring events.

Therefore, as the language of this will, construed in the light of circumstances existing at the time of its execution, did not charge this legacy upon the real estate, circumstances occurring subsequent to its execution cannot be resorted to for the purpose1 of finding an intention to create the charge.

It is said by the counsel for the plaintiff that the case of Scott v. Stébbins sustained his contention. While there are some views expressed in the opinion in that case apparently in conflict with those expressed here, yet nothing was decided there which makes-it an authority for the plaintiff here.

We are, therefore, of opinion that this judgment should be reversed, and a new trial granted, costs to abide event.

All concur, except O’Brien and Maynard, JJ., dissenting.


author: O’Brien, J.

text:
    John H. Ashton et al., App’lts, v. The City of Rochester, Resp’t.

      (Court of Appeals,

      Filed June 7, 1892.)

    Municipal corporations—Estoppel.
    Under the charter of the city of Rochester the power of contracting for paving, etc., devolves upon what is known as the executive board, after the common council has authorized the work and designated the district upon which the assessment was to be laid. Feld, that a judgment in an action or proceeding against said board to compel them to act with respect to the awarding of the contract, in which it is decided that the board has-the power and it is their duty to proceed, estops the city.
    Motion for reargument.

      Geo. T. Parker and John Van Voorhis, for app’lts; Henry J, Sullivan, for resp’t.

       See 44 St. Rep., 526.

   O’Brien, J.

We have considered the points submitted in support of this motion and we are of the opinion that it should be denied. A former adjudication upon the question at issue is conclusive as a bar or as evidence. It is said that the proceedings resulting in the writ of mandamus were not pleaded, and, therefore, are not available to the defendant. The fact, however, is found by the trial court and it was not excepted to. Under such circumstances effect must be given to the finding. This court will assume that the evidence upon which the fact was based was received without objection and that the absence of a pleading was waived. If the finding had been excepted to, the plaintiffs could raise the point now that it was not sustained by evidence or pleading, but as no such exception appears they are in no position to attack it. Daniels v. Smith, 130 N. Y., 696; 42 St. Rep., 644. . But clearly one of the issues presented by the pleadings was the power of the executive board to pass the resolution and enter into .the contract. A former adjudication in which that point was determined was evidence for the defendant on that issue, and the judgment upon the application for a mandamus was such an adjudication. Culross v. Gibbons, 130 N. Y., 447; 42 St. Rep., 527.

The common council had no power to make the contract, but the executive board had. Therefore, in entering into such contracts the board represents the city in the same sense that the mayor and common council would represent it if the duty devolved upon them, and a judgment in an action or proceeding against the board to compel them to act with respect to the awarding of the contract, in which it is decided that the board has the power and it is their duty to proceed, estops the city. The board, in such matters, represents the city in the same way that the board of supervisors represents the county in auditing claims .against it under the direction of a judgment. It is true that this point was not argued, but the finding necessarily injected it into .the case.

Whether the plaintiffs were privies or not, depended upon the legal conclusion to be drawn from the finding of the court, and not from any designation given them in the stipulation. • That is satisfied when construed to mean that none of these plaintiffs were parties to the record or stand in the place of any person who was by succession or transfer.

The motion should be denied, with costs.

All concur.


author: Per Curiam.

text:
    Patrick Cudahy et al., App’lts, v. Clarke. D. Rhinehardt, Sheriff, Resp’t.

      (Court of Appeals,

      Filed June 7, 1892.)

    Appeal—Re-abutment.
    Counsel for defendants was advised on the argument that as the order of reversal did not show that it was made on the facts, it would be presumed that it was on the law only, but he made no application to postpone the ease to enable him to have the order amended, and after the appeal was decided against him and the order of the general term reversed, he made an application to that court for an amendment of its order by inserting therein a statement that the reversal was on the facts. Held, that a re-orgument would not be granted.
    Motion for reargument.

      C has. Putzel, for motion; Roe & Maclclin, opposed.

       See 44 St. Rep., 898.

   Per Curiam.

The counsel for the defendant was advised on the argument that as the order of reversal did not show that it was made on the facts, it would be presumed that the reversal was •on the law only and that to sustain the order it must appear that .some error of law was committed by the trial court.

' The counsel proceeded with the argument, making no application to postpone the case to enable him to have the order amended, .and it was not until after the appeal was decided against him and the order of the general term was reversed, that he made application to the general term for an amendment of its order by inserting therein a statement that the reversal was on the facts.

The application for a reargument upon the amended order ought not we think to be granted. The counsel took the risk of a decision against him on the order as it stood, with knowledge of the situation, and we think he should be concluded by Ms election to have the case decided on the questions of law in the record.

Motion denied, without costs.

All concur.