author: By the Court.-Speir, J.

text:
    FRANCIS P. OSBORN, et al., Plaintiffs and Respondents, v. GEORGE F. GANTZ, et al., Defendants and Appellants.
    Before Freedman, Van Voest and Speie, JJ.

      Decided October 31, 1874.
    The elementary doctrine in regard to sales is “that where no time is ■agreed upon for payment, it is to be considered as a cash sale, and the payment and delivery are immediate and concurrent acts, and the vendor may refuse to deliver without payment, and if payment be not made immediately upon delivery, the contract becomes void, and the vendor may reclaim his property.”
    In the case at bar, by the contract of sale, the defendants were to give their gold-note at ninety days for the price of the goods. The goods were delivered, and the gold-note demanded and refused, and the vendor, the plaintiff, brought this action to recover the property sold.

      Btid, that the delivery of the goods sold, and the gold-note that was to be given for payment, were concurrent acts, and the plaintiff retained a lien upon the goods delivered until payment was made by the gold-note; the same rule as in a cash sale prevails.
    T.be delivery in such case was conditional, unless it appears that the condition was waived. It is not necessary that any qualification or condition of delivery that would arise from the contract, and attach to such delivery, should be declared in express tei'ras by the vendor, . at the time of delivery.
    The question may be determined, from the contract, and the intent of the parties, and the delivery will be held to be conditional, if it can be so inferred from the acts of the parties and circumstances of the case (Furniss x. Hone, 8 Wend. 256; Smith v. Devine, 6 Pick. 266).
    In the case at bar, the learned judge, in the court below, submitted to the jury the question of the intent of the parties, the character r4 the delivery, and the waiver of immediate payment.
    The sale having.been by sample, the question as to whether that the bulk of the.article sold was equal to the sample, was very properly submitted to the jury.
    The court may refuse to charge the jury as requested by a party, for the reason that he had embraced within his charge already made, all the subjects contained in the requests.

      The action was for claim and delivery of fifteen casks cream-tartar, thirteen of which were taken by the sheriff, and delivered to the plaintiffs; the other two had been used by defendants in their business. Verdict was rendered for the plaintiffs. From this judgment the defendants appeal.
    On October 1, 1872, the plaintiffs contracted to sell, and the defendants agreed to buy fifteen casks. “ Sellers make pure cream of tartar, as per sample, at thirty-three and a half cents per pound, payable by gold-note at ninety days. The fifteen casks were received by defendants on or before October H. On the brd oi that month, and again on the 9th, the defendants complained that the weight was short. These causes of complaint were removed by the plaintiffs correcting the weight on the 9th of that month. On the 14th of the same month the defendants complained of the quality. The plaintiffs meanwhile had sent three bills of merchandise demanding their gold-note, which was refused.

      Butler, Stillman & Hubbard, for appellants.

      Thos. H. Hubbard, of counsel.

      A. I. Perry, for respondents.
   By the Court.-Speir, J.

The appellants claim, in the first place, that the delivery of the goods was by the contract and the evidence unconditional, and that even though the vendors had a right to demand the gold-note at the time of the delivery of the goods, they were bound to declare their intention, and insist upon that right. That in this case the delivery was absolute, and, by the sellers’ silence, raised a legal presumption that the condition was waived, and hence the presumption became a conclusion of law. The elementary doctrine regarding sales, is, that where no time is agreed on for payment it is understood to be a cash sale, and the payment and delivery are immediate and concurrent acts, and the vendor may refuse to deliver without payment, and if payment be not immediately made, the contract becomes void. There is no doubt that, upon a contract to sell goods, where no credit is stipulated for, the-ven dor has a lien ; so that if the goods be actually delivered to the vendee, and upon demand then made he refuses to pay, the property -is not changed, and the vendee may lawfully take the goods as his own, because the delivery was conditional. In the contract before us, there is no stipulation for credit; the delivery of the goods and the gold-note are clearly concurrent acts, and the plaintiffs retained their lien until payment by the gold-note was made upon demand for it, for the delivery will be taken to be conditional unless the condition was waived by the plaintiffs. But the appellants claim that an absolute delivery, unexplained, raises a legal presumption that the condition was waived. It is not necessary that the qualification or condition intended to be annexed to the delivery should, at the time, be declared by the vendors in express terms. The question must be determined by the intent of the parties, and the delivery will be conditional if't can be so inferred by their acts and the circumstances of the case (Fuiniss v. Hone, 8 Wend. 256; Smith v. Devine, 6 Pick. 266, Parker, Ch. J.). The evidence in this case, relating to the conduct of the parties in carrying out the contract of sale, furnishes a legal presumption that the conditional delivery was not waived. It appears that on October 1, 1872, the plaintiffs sent to the defendants a bill containing an order for five casks of cream of tartar contracted for, ■ informing them the balance awaited defendants’ order in Beaver-street. The bill contained the terms—gold-note at ninety days to their own order—and gave the weight in pounds, at thirty-three and one-half cents, gold, and the amount for the gold-note. On or before 3rd of same October, the defendants acknowledged the receipt of the fifteen casks, and informed the plaintiffs that every cask was two pounds short, gross weight, and asked them to “call and see.” The plaintiffs then immediately sent a second bill, to which, on the 9th 'of same October, the defendants reply, by note, that both bills rendered are wrong; that the weighmaster had made mistakes. The plaintiffs then sent a third bill, which the defendants admitted was correct. It is in evidence that each bill contained the same terms stated to be in the first, “gold-note at ninety days to your own order,” and the price per pound, and the amount for which the note was to be given. The plaintiffs continued to make demand for the note until the last demand was made and refused, when the action was brought. The first cause of complaint—the weight—was removed on October 9. The next cause—the quality—appears on the 14th ; five days after' the first was adjusted. Chemical tests were applied to only four casks. Cask No. 212 was tested on October 12, 1872, and given to defendants on that day. Casks No. 90, 91, 92, were tested on October 16 or 17, and given to the defendants on the 17th—the same day Ihe suit was commenced. It is plain that the amount for which this gold-note was to be given could not be ascertained until the weights were adjusted, and the delivery was for the convenience of ascertaining the amount of the note. Chitty on Contr. (8th Am. ed. 344, note), lays down the rule that where payment and delivery are expected to be simultaneous, and payment is omitted, evaded, or refused by the vendee, after delivery, the vendor may immediately reclaim the goods (Chapman v. Lathrop, 6 Cow. 113). In Massachusetts, it is held that replevin lies for goods unlawfully detained, although there may not have been a tortious taking. The actual delivery of the goods does not, of itself, transfer the ownership in them ; to perfect the title of the vendee, there must be a consummation of the contract of salé (Marston v. Baldwin, 17 Mass. 605). And it was further held that, in case of a conditional sale of goods, when the condition is not performed by the vendee, the vendor may establish his property in the goods without showing the contract rescinded, and without returning a partial payment made by the vendee. In Herring v. Hoppock, (15 N. Y. 409), it was held that where property was delivered to a vendee, in a conditional sale, and the condition was not performed, the vendee had no interest in the property which could be the subject of a levy and sale on execution. In view of the law and evidence in the case, I think the learned judge very properly left the question of intent, whether the delivery was conditional, and also the question of waiver, to the jury. The defendants claim that the sale was by sample", and that the warranty was that the bulk of the goods should correspond in purity with the sample. The evidence does not disclose with any certainty the precise result arrived at by the experiments made-by the chemical witnesses. From an attentive examination of the testimony, I infer that the quality of the cream of tartar was. based upon the cask 212 only, and that the test was made as late as October 14, 1872, and communicated to the plaintiffs when they commenced action. The samples by which the sale was made were tested in January, 1874, shortly before the trial. It is not clear that any test or examination as to whether or not the contents of the casks were equal in any respects as to quality to the samples, until the time of trial; however the facts may be, the questions raised were disposed of by the judge in his charge to the jury. He told them that when a sale is made by sa-mple, it is a warranty that the bulk of the article should be equal to the sample, and if the plaintiffs expressly warranted that the quality of the cream of tartar sold be equal to the sample by which the sale was made, the sale-note of the broker is in effect a warranty that the quality of the goods should conform to the sample, and that it was for the jury to pass upon it whether the evidence discloses that the bulk of the goods was not as pure as the sample in reference to which they were sold. The charge presented the questions raised to the jury most favorably to the defendants. There are many cogent reasons why the plaintiffs, after, by their contract of sale, making the receipt of the gold-note concurrent with the delivery of the goods intended to, and did make the delivery conditional, and that when the defendants failed to respond to the several demands made for the gold-note, and the delay was likely to lead to a waiver of the condition, they should have repossessed themselves of their property, thereby avoiding a legal controversy which would be terminated after great delay and much expense, while the vendees would have the beneficial use of the goods which had not been paid for. This intention, in my judgment, was made manifest by their prompt action in ascertaining the weight of the cream of tartar, in restating in each bill rendered the same terms for “gold-note at ninety days,” and their several demands for the note. The defendants had two of these casks powdered and nsed in their business when the 'suit was commenced, and although it is in evidence that the testing of the quality took a very short time, and could instantly be done, nearly two weeks passed before the plaintiffs had notice that the article was impure and not like the samples. I do not discover any error in the rulings of the court upon the motions to dismiss the complaint, or in the exceptions taken. The court refused to charge the jury as requested, for the reason that he had embraced in his charge all the subjects contained in the requests, and substantially all the questions raised by the evidence.

Judgment affirmed, with costs.

Freedman and Van Vorst, JJ., concurred.


source: Caselaw Access Project

author: By the Court.—Speir, J.

license: Public Domain

text:
    ARTHUR B. GRAVES, Plaintiff and Respondent, v. FRANK H. LOVELL (Impleaded, &c.), Defendant and Appellant.
    Before Freedman, Van Vorst, and Speir, JJ.
    Construction and effect of the statute of 1850, p. 384, eh. 173, that provides that “No corporation shall hereafter interpose the defense of usury in any action.”
    In the case at bar, The Solar Manufacturing Company made the promissory note, which is the subject of the action, payable to its own order, and indorsed the same, and procured the indorsement of the defendant and others, and then procured the same to be discounted, by the plaintiff, at a usurious rate of interest. The proceeds of the note were paid to the company. The defendant indorsed the note for the accommodation of, and for the purpose of helping the company, of which he was a stockholder and trustee.
    Held, That the defendant was a party, and privy to the transaction, and the defense of usury is not available by him. '
    The following- decisions referred to and commented upon in the opinion.
    Assignees and representatives of the corporation are within the spirit of the act, and can not avail themselves of this defense (Curtis ®. Leavitt, 15 N. T. 396). The defense of usury is unavailing to the guarantees of a note given by a corporation for the loan of money (Rosa ?>. Butterfield, 33 K 7. 665). Case of a contract where the statute did not apply,—reviewed (Strong ». New York Laundry Co., 87 Sufr Gt. 379).
    Appeal from a judgment.

      The action was brought to recover a promissory note for five thousand dollars, dated January 30, 1871, payable one year from date, made by the Solar Chemical Manufacturing Company, payable to its own order, and indorsed by the company and the defendant. The case was tried before a judge and a jury, and judgment for six thousand and forty dollars and forty-two cents, was entered on a verdict for the plaintiff. The defendant appeals from the judgment.

      Goodrich & Wheeler, and Wm. W. Goodrich, of counsel, for appellant.

      Man & Parsons, and John E. Parsons, for respondent.
   By the Court.—Speir, J.

The main question presented in this case for examination is, can the defense of usury be made available to the defendant.

The defendants, the Solar Chemical Manufacturing Company, made the note in suit payable to their own order. It was indorsed by the company, and by the defendant, with other persons, discounted by the plaintiff at an usurious rate of interest, and the proceeds paid over to the company. The defendant indorsed the note for the purpose of helping the company in which he was a stockholder, and acted as one of the trustees. These facts being undisputed, the question of usury turns wholly upon the legal construction and effect of the statute of 1850, page 334, chap. 172. “No corporation shall hereafter interpose the defense of usury in any action.”

The language of this act has been liberally construed by the courts in - order to carry out the policy the legislature had in view in order to avoid the practical absurdity arising from the different positions of a corpo ration becoming plaintiff or defendant. Hence, it has been held that assignees and representatives of corporations, although not named, are within the spirit of the act, and are therefore, within its terms, and they are not permitted to avail themselves of a defense from which the corporations are excluded (Curtis v. Leavitt, 15 N. Y. 296).

It has also been held that it necessarily takes from the corporation the right to assert the usury in any way, defensively, and in any way to vacate or set aside a contract, as well by affirmative action, as by way of defense to an action on the contract. In a word, it takes from the corporation the objection of usury (Butterworth v. O’Brien, 23 N. Y. 275; Merchants’ Exchange Bank v. Commercial Warehouse Co., 49 Id. 635).

The case at bar comes within the decision of Rose v. Butterfield, 33 N. Y. 665. That case decides that the defense of usury was unavailing to the corporation on the loan of money, and also to the guarantors of the note, upon the ground that the note made by the corporation, they had agreed to pay more than the legal rate of interest, and by virtue of this statute, it was made lawful so to do, but also, that although the guarantors had stipulated to pay only seven per cent, on the note, they were liable on the contract of guaranty. The guarantors are privies to the note made by the makers, and are therefore in the same position. In the case decided by the general term in this court (Strong v. N. Y. Laundry Manufacturing Company, 37 Sup'r Ct. 279), most of the cases are reviewed, and then it was held that the statute did not' apply to a contract unless it be such that, were it not for the statute itself, the defense of usury could be interposed. It must be a contract made by the corporation, usurious by itself, and which the corporation or parties privy to the usury by which it is infected, can not avail except by the interposition of the statute, either by defense or attack.

In the, case last referred to, the contract was a note made by the corporation having no legal inception or validity until it was discounted at an usurious rate, and was not, therefore, by itself infected with the taint of usury. The indorser, by patting his name on the paper, and discounting it at an usurious rate, gave vitality to the note by entering into a transaction which in no way affected the corporation.

In the case before us, the note was made and indorsed by the company, and the defendant discounted it at an usurious rate, and the proceeds were received by the company, upon the credit of the company and other indorsers. The note itself was usurious, and the makers and indorsers were parties and privies to the transaction. All the authorities, I think, are to the effect that, in such a case, the defense of usury is not available to the defendant. I think, therefore, the court properly decided the question of usury,’ and also the release, by the plaintiff, of E. S. Dickinson & Co. The appellant complains that the court erred gravely in charging the jury that all the witnesses who testified (except Mather) were interested. The court said, in explanation : “They are all liable in one way or another, in some aspects of the case.” I can see no objection to the statement, especially as illustrated in the connection.

It was not error for the court to refuse to charge the jury that if Latlirop erred, in one point, they had a right to disbelieve him in another. He did charge that, if the indorsement of Mr. Lathrop was altered, as claimed, the defendant was not liable. Where there is a conflict of evidence, and the facts fairly submitted to the jury for their decision, a statement of the legal proposition, as to the result of that decision, covered the whole case, and was as favorable to one side as the other. On a careful perusal of the other objections and exceptions taken to the charge and to the evidence, I think there is no cause for complaint.

Judgment must be affirmed, with costs.

Freedmar and Van Vorst, JJ., concurred.


author: Freedman, J.

text:
    AUGUSTIN DALY v. FANNY MORANT SMITH and CHARLES SMITH
    1. PERSONAL SERVICES.—CONTRACT FOR—MANAGERS AND ACTORS.
    1. Bbeaoh, bestbaintng by injunction.
    1. An action lies by the employer against his employee, who contracts to render his p?rsonal services to the employer, and during the time of such employment not to render them to any other person, to prevent the employee from rendering his services to any other person, when by so doing irreparable damage will be caused to the employer.

      Semble, the action will lie, although the contract does not contain the negative clause. w‘

      a. Glasses of cases not in conflict toith above proposition,

    1. Those holding that relief by injunction, can not be granted when the bill prays solely for a specific performance which can not be enforced by judicial sentence.
    2. Those holding that where the bill prays for the specific performance of the positive part, and as incidental relief for prohibition of the violation of the negative part of the contract, the prohibition can not be granted unless the court pursues the power of enforcing the positive part.
    3. Those in which the injunction was denied for want of equity in the bill, are not in conflict. " *

      b. Decisions overruled :

    Kemble v. Kean, 6 Simons, 333; Kimberly i. Jennings, Id. 340.

      c. Decisions not in conflict with the proposition :

    De Rivasinati v. Oosetti, 4 Paige, 264; Hamblin v. Dinneford, 2 Edw. Oh. 5s:9; Sanquirico v. Benedetti, 1 Barb. 315; • Fredericks v. Mayer, 13 Dow. Pr. 566; S. 0., 1 Bosw. 227; Butler v. Galette, 21 How. Pr. 227; DePol v. Sohlke, 7 Bob. 280.
    2. Ibbepabable damages.

      a. Where a manager of a theater in the city of New York makes a contract for a dramatic season, with one who is a distinguished actress, and a great artistic acquisition, both in name and dramatic service, to any theater, and it was understood between the parties that such contract was made, because the manager desired (1) to secure her dramatic service, (2) her name (3) to prevent her acting elsewhere in the city without his permission, and obtaining eclat for -v rival theater, and the manager had publicly announced her as member of his company, there the engagement by the actress to play during such season at another theater in the city of Hew York, a rival to the plaintiff, and tire public announcement of her appearance there, presents a case of irreparable damage.

    ALTHOUGH
    the actress may be pecuniarily able to respond to any damages that might he recovered at law.
    3. Defenses to application fob an injunction, what abb not.
    1. Closing the previous season, for which she was engaged, four weeks earlier than the time specified in the contract, whereby the actress did not receive a benefit from which she expected to realize five hundred dollars, but for which she subsequently accepted one hundred and fifty dollars, and her inability to obtain compensation for said four weeks, constitutes no defense.

      Appearance on the stage; the not permitting her during the previous season to appear on the stage on" a sufficient number of occasions, and the easting her when she was permitted to appear in parts entirely subordinate to the line of business to which she was entitled, constitutes no defense (Fetehtcr «. Montgomery, S3 Beavan, 22, distinguished).
    '3. An allegation in general terms that the manager’s intentions in inducing the contract (of which the actress was not aware at the time) were not to produce the actress, but to prevent her appearance on the stage, and thus- to injure her professional standing and reputation, without stating any particulars, facts or circumstances tending to establish a motive for such a course, is wholly insufficient to raise a defense, especially, when other facts in the case tend to disprove the allegation.

      4. Besteaint of tbade.

      a. Contract in this case held, not to be void, as being in restraint of trade.
    IV. Inequitable.

      a. Prohibition running from date of contract instead of commencement of season, held not to be inequitable, the actress being a shrewd lady of great business capacity.
    II. JUKISDICTIOH.
    1. Stipulation by parties can not give,
    BUT
    where there is otherwise jurisdiction to restrain by injunction, the parties in a proper case may agree on the terms of restraint.

      Before Freedman, J., at special term, September, 1874.
    Motion for injunction.

      A. Oakey Hall, for the motion.

      William D. Booth, opposed.
   Freedman, J.

This is a motion on the part of the plaintiff for the continuance, during the .pendency of the action, of an injunction, heretofore granted, preliminarily restraining the defendant, Fanny Morant Smith, from performing as an actress upon the stage of the Union Square Theater.

The papers on which the motion is based, show, among other things, that on February 11, 1874, a contract in writing was entered into between the plaintiff and Fanny Morant Smith, by which the latter covenanted and agreed, among other things, to act, to the best of her ability, in theatrical performances, on the stage of plaintiff’s theater, during the seasons of 1874, 1875 and 1876, all such parts and characters as the plaintiff might direct, and that she would not-act at any other theater or place in the city of bTxrw-Ybrk, from the day of the date of said contract until the determination thereof, without the written consent of the plaintiff. The plaintiff then avers a breach of said contract on her part, by accepting an engagement to play during the ensuing season of the Union Square Theater, and allowing her appearance at that place to be publicly advertised, and after setting forth various alleged equities, which it is claimed, on his part, entitle him to an injunction, and which will be noticed hereafter, he prays that she may be enjoined from continuing the breach. The sole object of the action, in which her husband has been joined as a party defendant, is to have her thus restrained by the decree of this court, and it is clear, therefore, that unless an action for that purpose alone can be maintained, the court is without jurisdiction to restrain her during the pendency thereof.

The very first question to be considered, therefore, is whether the action will lie as brought. It is conceded, by both sides, that the action could not be maintained for the strict performance of the whole contract, if it had been brought in that form, and that in such case there would be no power in the court to compel, either by order or final decree, the defendant to act.

The question, whether or not a court of equity will interfere by injunction to prevent a breach of a contract for personal services, or whether the complainant must look to his damages at law as his sole redress, has been frequently, and on several occasions quite elaborately, discussed both in England and in this country. On a cursory reading the authorities may seem somewhat conflicting, but a careful perusal of them in the light of the facts before the court on the several occasions, can leave no doubt as to the existence of the power.

Some of the cases cited by the learned counsel for the defendant, with the view of showing the non-existence of the power, are cades in which the complainants prayed solely for the specific performance of a contract whose performance could not be enforced by judicial sentence. In others in which the complainants prayed for specific performance of the positive part and, as incidental relief, for prohibition of the violation of the negative part, of the contract, it was held that, unless the court had the power of enforcing the positive part, it would not.prohibit the violation of the negative terms. Still others, and herein are included some in which not specific performance, but the restraint of the violation of a negative clause, was the object, were determined against the complainants for want of equity in the bill. All these are not in point on the question now under consideration.

There are really but two cases, and they arose in England, in which, though in each the decision might more appropriately have been placed upon other grounds, and especially on the ground of want of equity, the existence of the power was unqualifiedly denied.

The first is Kemble v. Kean (6 Sim. 333), in which the complainant sought to compel the specific performance of the unfulfilled part of a contract of a very indefinite character, as to time and manner of service, which had been partially completed, but whose completion had been interrupted about eighteeen months previous to the filing of the bill, by the sickness of the defendant, and the amicable arrangement of the parties. In this case Vice-Chancellor Shad well laid down the broad doctrine that, except in cases of partnership, where the agreement is mainly and substantially of an active nature, and is so undetermined that it is impossible to have performance of it in a court of equity, and it is only guarded by a negative provision, the court of equity will leave the parties altogether to a court of law, and will not give partial relief by enforcing only the negative stipulation.

The second is Kimberly v. Jennings (6 Sim. 340), in which the rule laid down in the first case was applied by the same learned judge to a case in which the complainants sought an injunction only against the violation of a covenant not to engage in a business similar to that of the plaintiff’s for the term of six: years. This covenant was contained in a contract made by the defendant with the complainants to the effect that for the period of time named he would faithfully serve the complainants in the capacities of a clerk, traveler and book-keeper.

But in Dietrichsen v. Cabburn (2 Phillips Ch. 52), the doctrine of Vice-Chancellor Shadwell was repudiated. In this cáse the action was founded on an agreement in writing, whereby the defendant had undertaken for twenty-one years to employ the plaintiff as his wholesale agent, for the sale of oil, and to supply him with such quantities as he should order at forty pounds per cent, discount upon the current retail price, and that he would not, during that period, supply or sell any of the oil to any other person, for the purpose of selling it again, at a larger discount than twenty-five pounds per cent, upon such retail price. In reversing the decision of the Vice-Chancellor, who had evidently followed Vice-Chancellor Shadwell’s doctrine, the Lord Chancellor said:

“ The equitable jurisdiction to restrain by injunction an act, which the defendant, by contract or duty, was bound to abstain from, can not be confined to cases in which the court has jurisdiction over the acts of the plaintiff; for if that were so, it could not interfere to restrain the violation of contracts by tenants, or of duty by agents, as in the case of Yovatt v. Winyard (1 J. & W. 394), and Green v. Folgham (1 Sim. & St. 398), or by an attorney, as in Cholmondeley v. Clinton (19 Ves. 261), in none of which cases was there anything to be done by the plaintiff which equity could enforce. Such, also, are cases of injunctions sought by tenants against their landlords, as Rankin v. Huskisson (4 Sim. 13), where there was a negative agreement; and Squire v. Campbell (1 My. & Cr. 459), where one was attempted to»be raised by the exhibition of a, plan. In none of these was there any equity to be administered against the plaintiffs, and yet the jurisdiction was assumed. . ". .
“ Similar to these are cases of injunction, to protect legal rights, as patents, copyrights, services to mills and others. ...
“ It being clear that the court will interfere to restrain a departure from the contract of partnership, cases of partnership afford additional instances of the fact that the conrt is not confined to cases in which it has jurisdiction over the whole contract.....
“If the bill states a right or title in the plaintiff to the benefit of the negative agreement of the defendant, or of his abstaining from the contemplated act, it is not, as I conceive, material, whether the right be at law or under an agreement which can not be otherwise brought under the jurisdiction of a court of equity.” . . .

In the still later case of Lumley v. Wagner (1 De Gex, MacN. & G. Ch. 604), decided in 1852, in which the plaintiff prayed) that the defendant Johanna Wagner, who had contracted to sing and perform at his theater, and not to use her talents at any other, might be restrained from singing or performing at another theater in violation of her contract. The Lord Chancellor re-examined the jurisdictional question involved at great length, upon both principle and authority, discussing and reviewing many cases, and he concluded by saying that he wished it to be distinctly-understood that he entertained no doubt whatever, that the point of law had been properly decided in the court below, where the jurisdiction had been assumed and exercised. He also entered into a minute examination of the facts of the case, and upheld the injunction on the merits as well as on the point of law raised. In the course of his remarks, he expressly overruled Kemblo v. Kean, and Kimberley v. Jennings.

The criticism of Lumley v. Wagner, in which Lord Selborhe, L.C. indulged in Wolverhampton & Walsall Railway Co. v. London & Northwestern R. R. Co. (decided in 1873, and reported in 16 L. R. Equity Oases, 433), is not an indication that the existence of the power contended for will ever be questioned by the courts of England, hereafter. In that case, the complainants sought by means of an injunction to indirectly compel the defendants to use a certain railway line as they had agreed. The defendants insisted that as the bill sought to restrain the breach of a particular clause of an agreement of which as a whole, the court will not enforce specific performance, and there being no negative stipulation in the agreement, capable of being isolated, so as to form a distinct contract, as in Lumley v. Wagner, the court could not interfere, but should leave the parties to their remedy at law. It was in reply to this claim which involved a concession of the existence of the jurisdiction in case of the presence of a negative clause, that Lord Selborne, assuming that in Lumley D. Wagner, the Lord Chancellor had placed his decision solely upon the presence of the negative clause, made the remark thatjn that case the jurisdiction of the court had been enlarged on a highly artificial and technical ground, and that it was the safer and the better rule, to look in all such cases to the substance and not to the form. “If,” said he, “ the substance of the agreement is such that it would be violated by doing the thing sought to be prevented, then the question will arise whether this is the court to come to for a remedy. If it is, I can not think that ought to depend on the use of a negative rather than an affirmative form of expression. If, on the other hand, the substance of the thing is such, that the remedy ought to be sought elsewhere, then I do not think that the forum ought to be changed by the use of a negative rather than an affirmative.” Acting upon the rule thuslaid down, and coming to the conclusion that the complainants liad a substantial equity, Lord Selborne assumed jurisdiction, though there was no negative clause, and overruled defendant’s demurrer to the complaint.

The same rule was applied in Montague v. Flockton, decided in 1873, and reported in 16 L. R. Equity Cases, 189. On a motion on behalf of the plaintiff, the lessee and manager of the Globe Theater in London, for an injunction to restrain the defendant from acting, or causing his name to be advertised as about to act, at any place other than the plaintiff’s theater, fori period of nine months, for which the defendant had. agreed to perform for the plaintiff, but which agreement contained no stipulation not to perform elsewhere,. Sir R. Malius, V. C., looked at the substance and not to the mere form of the agreement, and construing it to amount to an engagement on the part of the defendant to perform for the plaintiff exclusively during the period named, he granted the injunction as prayed for. Referring to the case of Lumley v. Wagner, he said: “It happened that that contract (viz.: in Lumley -o. Wagner) did contain a negative stipulation, and, finding it there, Lord St. Leonards relied upon it; but I am satisfied that if it had not been there, he would .have come to the same conclusion, and granted the injunction, on the ground that Mdlle. Wagner, having agreed to perform at Mr. Lumley’s theater, could not at the same time be permitted to perform at Mr. Gye’s. But however that may be, it is comparatively unimportant, because the subsequent authorities have completely settled this point.”

The authorities so far considered show conclusively that in England, at least, the jurisdiction of courts of equity over suits like the one at bar, is now too firinly established to be again shaken.

Nor has such jurisdiction been seriously questioned in this State.

In De Rivafinoli v. Corsetti (4 Paige, 264), the contract was that the defendant should sing for the complainant in the capacity of primo basso, in any city of the "United States, for the term of eight months from November 1, 1833, for the sum of one thousand one hundred and ninety-two dollars, payable in sixteen half-monthly payments, each payment to be made in advance, at the commencement of the half-month for which the same was to be paid, and that he would not sing in any other theater without the permission of the plaintiff; for the performance of which agreement each party bound himself to the other under the penalty of a fine of one-third of the salary of the defendant; which fine was to be paid by the party in default without objection or exception. The bill, which was filed before November 1, 1833, charged the defendant with having made engagements to sing for other parties in New York and Havana on days on which, by his agreement, he was bound to render service to the complainant, and that he was about to leave the State in fraud and violation of the rights of the complainant. The bill prayed that the defendant be compelled to perform his part of the contract, that he be restrained from leaving the State, for general relief, and for a ne exeat. The Chancellor discharged the writ of ne exeat granted by the injunction master, for the reasons, that from the terms of the agreement, as stated in the bill, it was evident that there could be no breach thereof until the first of November following, when the engagement of the defendant was to commence, that even at that time the complainant would not be entitled to defendant’s services before payment or tender of a half-month’s salary in advance, and that consequently at the time of the filing of the bill the complainant had no right of action against the defendant, either at law or in equity.

In Hamblin v. Dinneford (2 Edw. Ch. 529), the defendant Ingersoll, who, among other things, pleaded infancy, had agreed to perform for the plaintiff, as a comedian, for three years, in the city of New York, or any other city in the United States or Canada, for a small salary, and not to perform otherwise during the said term. The Vice-Chancellor treated the bill as a bill in the nature of one for a specific performance. “It seeks,” he says, “by its prayer to compel performance at the theater embraced by the agreement.” He then showed that the court could make no such decree or order; that the only relief it could give would be to restrain the actor from performing elsewhere than at plaintiff’s theater, but that this would leave the positive part of the agreement untouched. He finally came to the conclusion that it was a mere matter between employer and employed, and that the parties should be left to law. • The injunction was dissolved without. prejudice to the rights of all parties at law. As the bill contained no averment of irreparable damage or other allegations which would have entitled the plaintiff to equitable relief, the disposition that was made of the case, was eminently proper. And in making it, the Vice Chancellor conceded that there may be some special exception to the general rule that matters of personal services are matters for law, and that there are cases where a party is restrained in breaches of covenant.

In Sanquirico v. Benedetti (1 Barb. 315), the bill prayed for specific performance, for an injunction, and a ne exeat. It averred simply that the defendant was about to" make other engagements and was about to leave the State, in violation of his agreement not. to do so. It seems to have been wholly destitute of equity, and the complainant was remitted to his remedy at law, with the intimation that, although there may be cases in which a court of equity will decree specific performance of a contract for personal services, his case was not one of that, character.

Fredericks v. Mayer (13 How. Pr. 566, decided in 1857, in this court), was an action to compel the services of an artist in photography, to enjoin him (tor such purpose), from serving the defendant Gurney, and for damages. Upon a review of the authorities, Mr. Justice Hoffman came to the opinion, that services which involve the exercise of powers of the mind, which in many cases, as of writers and performers, are purely and largely intellectual, may form a class in which the court will interfere ; such services being generally individual and peculiar. But he denied the motion for an injunction, upon the ground that under the peculiar circumstances of the case, the defendant Gurney had acquired an equal right to the services of the artist with the plaintiffs. This decision was affirmed by the general term, for the reasons assigned below, the court expressly declining to pass upon the question of jurisdiction (1 Bosw. 227).

Butler v. Galletti, (21 How. Pr. 465), was determined upon the agreement alone, which was simply an engagement to dance at plaintiff’s theater, or where he should prescribe. There were no negative or restrictive clauses. In denying the motion for an injunction, Mr. JusticeHoffmam said: “lam unwilling to hold, and clo not think I am bound by the cases to hold, that where there are clear and absolute negative stipulations on the part of a party, upon a subject involving in part the exercise of intellectual qualities, and a special case of the impossibility or great difficulty of measuring damages, is presented, that the jurisdiction to forbid the violation of such covenants, does not exist. But the present case is far from being one of such character, and falls within the authorities of our own State, in which an injunction has been refused.”

And in the recent case of De Pol v. Sohlke (7 Rob. 280), Mr. Justice Jomes assumed throughout that the right to issue an injunction to prevent the breach of a covenant to render personal services, on the ground that the performance of the act would produce irreparable damages, could not well be questioned. But he denied the motion for an injunction on the ground that the plaintiffs did not. then have, and were not likely to have for some time to come, an establishment in active operation, that, therefore, no custom could, for the time being, be withdrawn from them, and that consequently, no damages were resulting, or could be anticipated to result, for some time to come, from the act which, plaintiffs sought to enjoin.

So, upon principle, can I conceive of no reason why contracts for theatrical performances should stand upon a different footing than other contracts involving the exercise of intellectual faculties ; why actors and actresses should by the law of contracts, be treated as a specially privileged class, or why theatrical managers who have to rely upon their contracts with performers of attractive talents to carry on the business of their theaters, should, with the large capital necessarily involved in their business, be left completely at the mercy of their performers. On the contrary, I am of the opinion that actors and actresses, like all other persons, should be held to a true and faithful performance of their engagements, and that whenever the court has not proper jurisdiction to enforce the whole engagement, it should, like in all other cases, operate to bind their consciences, at least as far as they can be bound, to a true and faithful performance. As pointed out by Judge J. F. Daly, in Hayes v. Willio (11 Abb. Pr. N. S. 167), and his remarks upon this point are entitled to respect, notwithstanding the fact that his decision has been j'eversed upon another point, the resort to actions at law for damages for a sudden desertion of the performers in the middle of their season, will, in most cases fail to afford adequate compensation ; and it is not always that the manager is deprived of his means of carrying on his business, but that his performers, by carrying their services to other establishments, deprive him of the fruits of his diligence and enterprise, increase the rivalry against him, and cause him irreparable injury. If, therefore, such a manager comes to a court of equity and makes proof of these facts and circumstances, showing, also, that the contract upon which he relies is a reasonable one, that he is.in no wise to blame for its breach by the defendant, and that he has no adequate remedy at law, upon what principle of justice or of common sense is he to be told that he must, nevertheless, seek his remedy at law, and take the chance by proving his damages by legal evidence before a jury. Of what benefit would even a verdict be to him in case the defendant is wholly insolvent 1 Is it not an old and fairly settled principle of equity jurisprudence, that just because there is in such a case no adequate remedy at law, it is the office and the duty of equity to step in to prevent a failure of justice ? In the language of Lord Chancellor St. Leonards, a judge would desert Ms duty who did not act up to what his predecessors have handed down as the rule for his guidance in the administration of such an equity.

Suffice it, therefore, to say, that upon principle as well as upon authority, I am fully persuaded that this court does possess the power and jurisdiction which has been invoked by the plaintiff. At the same time, I am well aware that there is no branch of equitable jurisdiction which requires more discretion in the exercise of it, than the one that has been here considered. It remains, therefore, to be seen whether the plaintiff shall have the benefit of it on the merits of his case.

The plaintiff shows that the defendant, Fanny Morant Smith, is a distinguished actress and a great i artistic acquisition, both in name and dramatic service, to any theater; that, therefore, for several seasons past he considered it important to secure her professional services for his theater, and did secure them, that the last contract for such seasons expired in the month of June last; that before the expiration of that contract, to wit, on the 11th of February last, the new contract was entered into under which the present controversy has arisen; that the last named contract covers the seasons of 1874, 1875 and 1876, each season to commence on or about September 1 of each respective year, and to terminate on or'about June 15 of the following year, and that by it Fanny Morant Smith, in consideration of a weekly salary of one hundred and thirty dollars, to be paid to her during the first season, and a like salary of one hundred and thirty-five dollars to be paid to her during the second and third seasons, payment to be made on Monday, at noon, of each week, bound herself to act, to the best of her ability, in the performances to be given during the said seasons, all such parts and characters as the plaintiff might direct, and to conform to and faithfully obey certain rules of plaintiff’s theater, referred to in, and made part of said contract, and not to act at any other theater in the city of New York, from the date of said contract until the determination thereof, without the written consent of the plaintiff. The contract also shows that each week is to include such rehearsals as may be ordered by the plaintiff, without any extra payment therefor. The plaintiff further shows that he made such contract, as the defendant Fanny Morant Smith well understood at the time, because of Ms desire, first to secure her dramatic service, secondly her name, and thirdly to prevent her acting elsewhere in New York without his permission, and obtaining eclat for a rival theater; that the latter is always an essential reason with managers, and is well understood by every actor and actress, as it was understood by the defendant; that relying on said contract, he announced her in all the daily papers in the city Of New York, and widely throughout the United States, as a member of his company for this year’s season, to commence August 25; that a rehearsal for the performance to be given on that day was ordered for Saturday, August 15, that she was notified to attend the same, but that she refused ; that he has substantially selected and prepared those plays which are to be presented up to the close of the said season, and in doing so has relied on her services, and has managerially distributed and prepared many parts for her to perform therein ; but that in violation of her contract and against, plaintiff’s express prohibition, she entered into an engagement to play during the ensuing season at the Union Square Theater, a rival to plaintiff’^ theater, and that with her consent she is publicly announced to appear there. And finally, the plaintiff shows that it will be impossible to replace her by any other artist at this date, inasmuch as engagements are made in the spring ; that he will therefore be irreparably damaged and injured in his business, not only by for manee at the rival establishment, and that a com-. putation of the damage thus resulting to him in loss of receipts and otherwise will be utterly impossible in action at law.

None of these allegations have been denied, or attempted to be denied, by the defendant,. Fanny Morant Smith, except the allegation that the plaintiff has selected parts for her, and in respect to that, she only avers generally, that she has no .knowledge, and does not believe the fact to be as stated by the plaintiff, which can not be held to amount to a denial, especially as she admits to have been summoned to a rehearsal, and to have refused not only to attend, but even to look at the role assigned to her. Nor has the force of any of the said allegations of the plaintiff been weakened by any allegation on her part, unless it be by the allegations that she notified the plaintiff some time after the execution of the contract, of her intention and desire to cancel the same, and that she is pecuniarily able, to the extent of twenty thousand dollars, in real estate, to respond in any damages he may recover against her at law. Upon the whole case, as made by the plaintiff, the facts thus averred by her, even if true, are quite unimportant. So, when the contract is scrutinized in its entirety, and with due regard to its nature and the situation, and the prior dealings of the parties, nothing can be found in it which conid be construed into a ¡ hardship upon her. Even the fact that the prohibition runs from the date of the contract, and not from the commencement of the regular season of 1874-1875, is not an unreasonable circumstance in' this case, however unreasonable and inequitable it might be in others. It has been conceded by both sides, that the defendant, Fanny Morant Smith, is not only a great actress, but that she is also a shrewd lady of great business capacity, and mature age and judgment, and it is therefore safe to assume that, in the light of her past experience with the plaintiff, she made the best bargain for herself that could be got under the circumstances. Nor does she claim that the contract is void on grounds of public policy, as being in restraint of trade. On the contrary, the learned counsel who represents her, admits that such is not the fact.

The plaintiff has, therefore, made a case as strong as Lumley v. Wagner, in all respects, and in some respects even stronger, and he is entitled to his injunction, unless the defendant, Fanny Morant Smith, establishes an affirmative defense.

As such, she alleges, in the first place, that the season of 1873-1874, for which she was also engaged, as already shown, was summarily and unexpectedly closed on June 3, 1874, which v as about four weeks earlier than the time specified in the contract for that season ; that at such close she had not received a benefit to which she was entitled, and from which she. expected to realize at least five hundred dollars; that she subsequently accepted one hundred and fifty dollars in lieu thereof, but that she was unable to get any compensation for the said four weeks. As the contract here referred to is not before me, I am unable to say whether her claim for that period is well or ill founded. But at most it is only a claim for a stipulated salary, for which she has not only her action, but an adequate remedy, at law, and having failed in her subsequent contract to reserve to herself the option not to perform for the plaintiff as long as there should be arrears under the old contract, she is not in a position to defeat plaintiff's present equities by such claim. For being reduced to writing, the contract for the season 1874-1875, must be taken to be the repository, and evidence of the final intention and understanding of the parties, which, in the absence of uncertainty, or ambiguity, can not be altered by parol evidence.

For a second defense she alleges, in substance, that under the former contract she was not permitted to appear upon the stage on a sufficient number of occasions during the season ; that, when permitted, she was, as a rule, and in violation of promises previously made, cast in parts entirely subordinate to the line of business to which she was entitled ; that at the time of the execution of her last contract, namely, in February last, she was not aware of plaintiff’s real intentions towards her, and that she signed the contract in ignorance of such intentions, but that since that time she was made aware that it was the policy of the plaintiff, in inducing her to enter into said contract, not to produce her, but to prevent her appearance on the stage, and thus to injure her professional standing and reputation. These charges she makes in general terms. But as particulars have been omitted, and as in the absence of particulars, and of facts and circumstances tending to establish a motive on the part of the plaintiff for such a course, it is impossible to believe that they have any foundation ; in fact, it seems safe to assume that they owe their origin to an afterthought, and that that was produced by a desire on her part to find some excuse for breaking her engagement. This theory is borne out by her subsequent conduct. Wuen preparatory to the first performance to be given under the new contract, the plaintiff sent his prompter to hand her the part assigned to her, she, upon her own showing, not only refused to receive tlie roll of moer.. containing it, but refused even to looSTUt it. This certainly was not the way to test plaintiff’s suspected sincerfiy. How then can she be permitted to say, in opposition to the sworn declaration of the plaintiff to the effect that he is and always was ready and willing to perform all the conditions of the contract on his part, and that up to this time he has relied upon it that she would perform her part, and in opposition to the conceded fact that he called upon her to play at the opening performance,—that the plaintiff would not treat her in the future as she ought to be treated ? This part of her claim is too preposterous to raise an equity in hér behalf. And as for the insufficient consideration of her talents, which she alleges to have received during the preceding season that, it seems to me, if it had any foundation in fact and not in her fancy merely, would be pertinent only so far as to show that in this she had an excellent reason for insisting that the new contract should contain a stipulation sufficient to protect her in that respect for the future. Surely she might have provided by contract for the number of nights, and the days of the week or month, in which she was to appear without fail, the plays in which to perform, and the characters she wanted to represent. But she either saw fit not to demand these conditions, or she has waived them, and it is herein where her case may be distinguished upon more than one point from that of Fechter v. Montgomery (33 Beavan, 22), upon which she so much relies. In that case the contract, so far as it purported to be such, was highly uncertain, and contained words to the effect that no advantage would be taken of the confidence reposed by the actor in the manager. The question then arose, what that confidence was, and it turned out that the actor, who possessed great ability but mere provincial renown, desirous of acting in Shakespeare’s plays before London audiences, had made pecuniary sacrifices to obtain a contract for immediate appéarance in such plays, and that that was the real bargain between the parties. It was for these reasons that the master of the rolls held, and very properly held, that the uncertain writing should be construed with regard to the surrounding circumstances, and that when thus construed, the fact that the manager, in consequence of the unusually long and successful run of another play, kept the actor waiting and idle for about five months, constituted, though the salary was paid, a breach of the contract on the part of the manager, which precluded him from the remedy by injunction. It was the manager who had committed the first breach. But in the case at bar no such equity is shown to exist in favor of the defendant, either under the expired or the present contract, and while the proof is positive that there was no breach of the present contract on the part of the plaintiff, there is also a failure of proof to establish a breach under the .former in respect to the question last considered. Of the terms of such former contract the defendant has given no evidence whatever, and under the present one, which is very carefully drawn, and is wholly free from uncertainty or ambiguity upon this point, all questions relating to the selection of plays and distribution" of roles ware not only left to the discretion of the manager absolutely, but the defendant, Fanny Morant Smith, expressly stipulated therein to refuse no part which may be allotted to her, and that in case of refusal the penalty should consist in the forfeiture of part of her salary or in her discharge, at the option of the plaintiff.

Upon full consideration of all the questions arising in this case, as presented by the affidavits of the parties, I am entirely satisfied, not only, that the plaintitf has made out a case which calls strongly for the interposition of the equity powers of this court, but also that the defendant. Fanny Morant Smith has no defense on the merits. This brings me to the last question involved. The parties evidently foresaw that differences might arise between them during the life of the contract, and so careful were they, that they provided even for ^he contingency which has arisen in this case. The contract says, that if the defendant, Fanny Morant Smith should refuse to fulfill her part, and should attempt to perform at any other theater before the termination of her agreement with the plaintiff, the plaintiff may., by legal processor otherwise, restrain her from so performing, on payment to her during such restraint of a sum equal to one-quarter of the salary to be paid to her under the contract in lieu of the said, or any other salary under the agreement during the period covered. I refrained from noticing this clause at an earlier stage, because parties can not confer jurisdiction by stipulation. But as the jurisdiction exists, as I have already shown, wholly irrespective of the clause, it was competent for ihe parties to agree upon the terms of restraint in a proper case, and as this is a proper case for an injunction, irrespective of said clause, I have no inclination to interfere with the arrangement which the parties saw fit to make. The plaintiff evidently considered that, though in case of disagreement, he could not compel the defendant, Fanny Morant- Smith to act, it was worth about thirty-three dollars a week to him to keep her from constituting an attraction for a rival establishment, and she, having agreed to it, has no cause of complaint, for her restraint is not predicated by the court upon the existence of the clause. By the terms of the contract, restraint and payment are mutually dependent on each other, and the restraint is not to extend beyond the limits of the city of New York, and a contract to this effect is therefore presented, which the court can completely and effectually enforce. No previous payment or tendér is necessary to the maintenance of the action.

The motion of the plaintiff for the continuance of the injunction.during the pendency of the action, is therefore granted, with ten dollars costs, but on condition that the plaintiff pay to the defendant, Fanny Morant Smith, during such continuance, one-quarter of the salary to which site would be entitled under the contract in case of performance, such payment to be made to her, or her order, as she may direct, in weekly installments, payable on Monday of each week, and that he also pay to her or her order, forthwith, such sum as may have accrued since the granting of the preliminary injunction contained in the order to show cause herein.


author: Monell, Ch. J.

text:
    SPECIAL TERM.
    JAMES CASSIDY and another v. ACHILLES BEGODEN.
    Before Monell, Oh. J., at February special term,1874.
    I. PAROL EVIDENCE ADMISSIBLE ALTHOUGH THERE IS A WRITING, WHEN
    1. Where the contract is first concluded by parol, and a paper (e. g. a bill of sale) is afterwards drawn up, not as containing the terms of the contract, but as a mere memorandum or bill of parcels, parol evidence is admissible to show the actual terms of the contract.
    2. Sale by sample. Where a broker made a sale of cotton by sample, and made an entry of the sale which contained no warranty and delivered a copy to the parties,

      Eeld,

    that parol evidence of the custom of the trade, that the sale was by sample, was admissible to establish a warranty (Boor-man v. Jenkins, 13 Wend. 566).
    IT. REFORMATION OF CONTRACT IN EQUITY.
    1. Action for unnecessary, in cases, where the above principle applies, as the terms of the contract may be proved by parol in an action at law.
    2. Mutual mistake' of fact. An action to reform on this ground will not be sustained where it appears that there was a mere understand ing of one of the parties that he was dealing in view of a custom.

    3. Implied contract can not be inserted in a writing as an express contract.

    Action to reform a written contract.
    Trial by the court without a jury.
    The plaintiffs alleged, that they purchased by sample a quantity of tea of the defendant; that the defendant represented and agreed that the tea should be like the sample shown, and of as good quality; that, thereupon, a written bill of sale, signed by the defendant, was delivered to the plaintiffs, which, however, contained no agreement or warranty, that the bulk of the tea should be like the sample, or of as good quality.
    The relief demanded was that the contract be reformed so as to contain a clause, to the effect that the tea was sold by sample, and was warranted to correspond with the sample.
    One of the plaintiff’s testified, “We saw the samples at the broker’s office, and bought the goods by sample ; the samples were shown to us, there were probably two pounds of tea, representing eight hundred half chests. The teas were in the bonded warehouse. We made an offer for the teas, based on the samples, and wanted to know what we could have them for. That is the custom of the trade. The broker wanted to know what we would give for the teas; we made an offer which was declined, and he named a price that would buy them ; we bought the teas.”
    On being asked “ What was said about the teas corresponding with the samples ? ” the plaintiff answered, “all I can say to that, the invariable custom of the trade, which they will admit there is no dispute about, the goods sold were to be equal to the sample, or else we had a right to reject them.” He further testified, substantially, that it was the custom of the trade, to sell such goods by sample ; and that he made the purchase upon an inspection of the sample only. In answer to a question by the defendant’s counsel, he testified that the broker did not say he guaranteed the tea's to be equal to the samples.
    Mr. Watson, the broker, stated, in his testimony, that no representation or warranty was made or agreed to be made. That the plaintiff looked at the samples and then made the purchase.

      Mr. Jacob F. Miller, for the plaintiffs.

      Mr. Henry J. Scudder, for the defendant.
   Monell, Ch. J.

The claim for relief in this case proceeds upon the assumption, that the written bill of sale contains the whole of the contract of sale and purchase, but which, through a mutual mistake of the parties, has omitted a representation or warranty, agreed upon,, previous to reducing the agreement to writing.

If, indeed the written paper is to be regarded as containing the whole contract of sale, then parol evidence would not be admissible, to show a warranty made orally, at the time of the sale. But where a contract is first concluded by parol, and a paper is afterwards drawn up, not as containing the terms of the contract, but as a mere memorandum or bill of parcels, parol evidence, it seems, is admissible to show the actual terms of the sale, and that there was a warranty, though it does not appear in the memorandum or receipt (Schuyler v. Russ, 2 Caines, 202; Boorman v. Jenkins, 12 Wend. 566 ; Hargous v. Stone, 5 N. Y. 73 ; Koop v. Handy, 41 Barb. 404; Boorman v. Jenkins, sup. is very much in point).

It was a sale of cotton. The broker exhibited samples. The purchaser made an offer which was accepted. The broker made an entry of the sale and delivered a copy to the parties. It contained no warranty. Parol evidence was allowed to show the custom of the trade, and that the sale was by sample, although the memorandum of the broker was silent on the subject.

According to the cases cited, it was unnecessary for the plaintifis to seek a reformation of the contract. They are authorized to prove the custom of the trade, and that the sale was by sample, in their action at law for the breach of the implied warranty.

But the plaintiffs have not brought themselves within the rules governing courts in awarding the reformation of written contracts.

They have failed to show any mutual mistake of fact. They doubtless purchased by sample, and in view of the custom of the trade. But there was no express agreement to that effect.; nor was there any express wa rranty. The mere understanding of one of the parties, that he was déaling in view of a custom, does not make it a mutual understanding ; nor is a mere implication of a different contract, growing out of a. custom, sufficient to authorize the court to reform the contract, by inserting in it, as an express warranty, what was before a mere warranty by implication, arising from a custom of trade.

The defendant must have judgment, as to so much of the plaintiffs’ cause of action, as demands a reformation of the contract of sale.

The defendant to have the costs of this trial, if he ultimately recovers costs in the action.


author: By the Court.—Monell, Ch. J.

text:
    ELIZABETH MOREY, Plaintiff and Respondent, v. THE METROPOLITAN GAS LIGHT COMPANY OF THE CITY OF NEW YORK, Defendant and Appellant.
    The right of the appellants (a gas company), under the act of 1859 (Sess. Laws of 1859, ch. 311, § 9), to shut off the gas from the premises of a person who is a customer, and has made the deposit required, depends wholly upon the fact, as to whether or not that person is in arrear for gas furnished by the company ; and that is a question of fact to be determined by evidence, and not by the will or conclusion of the company.
    But the right of the company to shut off the gas does not extend to arrears for gas created by former occupants of the premises.
    When loss of profits are claimed and to be estimated as damages, the rule of law confines such loss to the immediate cause or breach of the contract, or omission of duty. If it can not be traced directly to such breach, or omission, it is regarded as too remote, uncertain and unreliable, to form the basis of damages for which a recovery can be had (Lacour v. Mayor, 3 JDiur. 406; St. John e. Mayor, 6 Id. 315).

      Before Monell, Ch. J., and Sedgwick and Speib, JJ.

      Decided December 9, 1874.
    In the case at bar, it was held on appeal, that it appeared from the-evidence on the trial, that the loss of pro Sts was too remote, uncertain and unreliable, to form a basis for the damages, found by the verdict of the jury.
    Appeal from a judgment and from an order denying a motion for a new trial.
    The action was to recover damages for cutting off a supply of gas from the building and premises occupied by the plaintiff.
    The plaintiff took possession of the house on August 25, 1871, for the purpose of conducting the same as a boarding-house, and on the 28th of the same month applied to the defendants for a supply of gas. Gras was accordingly furnished and continued to be until October 7, when, a dispute arising about an unpaid bill, the defendants shut or cut off the gas.
    The action was commenced June 13, 1872, and for the intermediate period of about eight months, the jury gave the plaintiff, for the loss of profit in her business, a verdict of two thousand dollars.
    The defendants claimed, as sustaining their right to shut off the gas, that the plaintiff was liable for a former supply of gas. This was denied, and it was left to the jury to determine whether during the disputed time the plaintiff or her husband was in possession of the house.
    The defendants appealed.

      Beardslee & Cole, attorneys for appellants, and Mr. Hamilton Cole, of counsel.

      Johnson & Ward, attorneys for respondents, and Mr. George A. Martin, of counsel.
   By the Court.—Monell, Ch. J.

The right of the defendants under the act of 1859 {JSess. Laws of 1859, ch. 311, § 9), to shut off gas from the premises of a person who is in arrear, depends wholly upon whether he is in arrear, and that is a question to be determined by evidence, and not by the will of the gas company. If the plaintiff was in arrear for any gas consumed prior to her application, the company had the right to require its payment, and, on neglect, or refusal to pay, to stop the supply.

But the right to shut off gas does not extend to arrears created by former occupants.

There was sufficient conflict in the evidence as to the occupancy of the house, as bearing upon the plaintiff’s liability for the prior bill, to make it a proper question for the jury, where it was very correctly left.

There were no exceptions to the charge, and none of the exceptions to the requests to charge were well taken, and the denial of the motion to dismiss the complaint was also, we think, correct.

Upon the law of the case, therefore, the judgment should not be disturbed.

But the appeal from the order denying the motion for a new trial enables us to look at the evidence upon the question of damages.

The action is for a breach of a contract, and it is not entirely clear, that loss of profits can be recovered as damages in such an action (Finch v. Brown, 13 Wend. 601; Fitch v. Livingston, 4 Sandf. 492, 514; Walter v. Post, 6 Duer, 363, 373).

If the loss of profits was the immediate and natural consequence of the breach of the contract, it might be recovered in a special action on the case, but not in an action upon the contract.

The rule in any action, which allows the loss of profits to be estimated as damages, confines such loss to the immediate cause or breach. If they can not be traced directly to the breach of contract or duty, or are not the immediate result of the breach, then they are regarded .as too remote, uncertain and unreliable, to form the basis of damage (Lacour v. Mayor, 3 Duer, 406; St. John v. Mayor, 6 Id. 315).

The only evidence of damage was in the plaintiff’s testimony. She testified that at the time this gas was cut off she had eighteen or twenty boarders in her house. On an average they were paying her ten dollars a week. She made money other ways, kept a laundry, kept wine and beer, and anything they wanted to drink. Anything the families got was extra. She made, perhaps, one hundred dollars a month extra from the board. Her receipts per week were two hundred and twenty-five dollars to two hundred and twenty-seven dollars. More than half of that was for expenses. She had about one hundred and twenty-five dollars expenses, that left about one hundred dollars a week profit; but her own expenses, her living and that of her family included, and one hundred dollars, was clear of her expenses,—her rent and everything. The effect upon her business, of cutting off the gas, was, that her boarders said they could not remain without they had gas. She purchased a gas machine for two hundred dollars; the fixtures and putting up cost one hundred dollars more. She did not make it work ; the females were afraid of it; it was filled with gasoline, and there were children in the house. In the course of a month and a half or two months, her boarders all left her. Up to the time of the commencement of this action she tried to get boarders into her house, but did not get any. They asked her if she had all the modern improvements, gas. &c. She said she had gasoline ; but they were frightened, and would not stay in the house.. They would not use lamps. The company’s mains are within one hundred feet of the house in Fiftieth-street, and also in First-avenue. This suit was commenced June 13, 1872. The damage she sustained, up to the time this suit was commenced, was, that she lost everything. She lost her profit, her living, her rent. Her profits alone were from three ^thousand dollars to three thousand five hundred dollars. She lost her business.

She was making one hundred dollars a week in Fiftieth-street. The details of her receipts, outside of the ten dollars a week which she charged for board, were, perhaps, thirty dollars to forty dollars a month, for washing,—that was her profit after she paid her laundress ; then the beer, dinners, and extras. She did not receive the same every week for the beer. She had got more for the beer,—perhaps fifty dollars or sixty dollars a month.

In St. John v. Mayor (supra), the court says: “The plaintiff showed the actual receipts of his hotel for a year or more, previous to the obstruction complained of, the actual daily receipts during the continuance of the obstruction, and again, the actual daily receipts for some months after the obstruction was removed.”

The plaintiff, in this case, laid no such foundation. She had not long enough conducted the business to make her then profits a test for all the future time she was deprived of the use of gas. She furnished but one instance of the loss of boarders because there was no gas in the house. They may have left for other reasons; and she might, as she did attempt, procure other light.

She had no such fixed and permanent business, continuing for a sufficiently long period, to make it a safe reliance for the future. It was hypothetical and problematical, and not such evidence as warranted the jury in believing that her business would have continued in the same flourishing condition had the defendants continued the supply of gas.

The learned judge sufficiently cautioned the jury when he said to them : “You can not give any damage that did not flow directly from such wrongful action. That one boarder left on account of insufficient light, is no proof that others left for the same reason. Nor does it follow that they would have remained, even- if the gas had not been removed. They might have become dissatisfied with the landlady, and have left for that or some other reason ; ’ ’ and it' can not be believed that the jury, under the charge, and upon such evidence, had they been influenced by just and proper views of their duty, would have assessed the damages at the precise sum demanded in the complaint.

The judgment and order must be reversed, and a' new trial ordered. But as the error was of the jury, it must be on payment of costs of the trial.

Sedgwick and Speir, JJ., concurred.


text:
    WILLIAM R. WOODIN, Assignee, &c., Plaintiff and Respondent, v. JONATHAN A. FRAZEE, et al., Defendants and Appellants.
    Assignee in Bankruptcy.
    His rights and interest in the property and choses of action of the bankrupt are no greater than that of the bankrupt. All defenses available in action by the bankrupt, are equally available as against the assignee.
    Negotiable Checks.
    The law relating to the same reviewed.
    1. Effect of non-presentinent, or delay therein.
    Does not excuse payment, although if the drawer suffers damages by the laches of the drawee, or holder, such damages.may defeat a recovery to their extent, yet, if no damages arise, the drawer’s liability continue until barred by the statute of limitations.
    Before Monell, Ch. J., and Sedgwick and Speir, JJ.

      Decided December 9, 1874.
    2. Effect of a stoppage of a payment by the drawer.
    It excuses a subsequent presentment by the holder at the place of payment, and the holder may sue without presentment.
    3. Their surrender or cancelment before action, for, or a recovery
    in an action of, the original debt.
    Although not a condition- precedent to an action for the original debt, they must be surrendered, or offered for surrender on the trial, or before a recovery can be had upon the original debt; for, being negotiable instruments, they may have passed into the hands of a Iona fide holder for a valuable consideration, who could recover upon them as against the drawer.
    Appeal from a judgment of a referee.
    The action was to recover the price of merchandise consigned by one Vosburg, to the defendants, for sale.
    The plaintiff claimed to recover as the assignee in bankruptcy of Vosburg.
    The facts are sufficiently stated in the following findings of the referee:
    “ That on the 12th day of February, 1873, the defendants gave to Perry Vosburg, on account of the amount claimed by plaintiff, their check drawn to his order for two thousand dollars, dated February 24, 1873, on the Fifth National Bank of the city of New York.
    “ That the defendants mailed to said Vosburg, on the 19th day of February, 1873, in a letter directed to him at his residence at Pine Plains, Duchess county, New York, their other check drawn to his order for fifteen hundred and forty-two dollars and twenty-seven cents, dated February 19, 1873, on the said bank, and paid the postage thereon.
    “That in or about the month of February, 1873, several warrants of attachment against the property of said Yosburg were issued out of the supreme court of the state of New York, and placed in the hands of the sheriff of the city and county of New York, and were thereupon served upon defendants, and the funds in their hands due said Yosburg, were attached thereunder, and payment thereof demanded by said sheriff. That executions against the property of said Yosburg were issued to said sheriff, upon judgments recovered in four of said attachment suits, and which had been recovered in April, 1873, and were thereupon served upon defendants, and payment of their said debt due to Yosburg demanded by said sheriff.
    “That on February 2J, 1873, the defendants, by the advice of their counsel, stopped the payments at their said bank, of the said two checks, and the same-have never been paid, but that they have ever since-kept sufficient funds in said bank to meet the same. That the defendants have never heard from said checks- or either of them since.
    “That the said Yosburg disappeared about February 20, 1873, and has not been heard of by any of the-parties to this action since, and that since that time his whereabouts and doings have been entirely unknown to either of said parties.
    “That the payment of said checks was stopped by defendants, to give them an opportunity to ascertain whether they were held by Yosburg, or by third parties holding them for value.
    “That the defendants are and always have been able, ready and willing to pay the said checks to whoever is entitled to the money thereon, and that saicL checks were given in good faith.”
    The referee further found:

      “That in the months of January and February, 1873, said Vosburg consigned to the defendants certain merchandise, to sell and dispose of, for and on account of Vosburg.
    “That the defendants sold the same, and that the proceeds now remaining in their hands, after deducting all commissions and offsets to which they are entitled, amount to the sum of four thousand two hundred and eleven dollars and seventy-seven cents.
    “That on or about the 7th day of June, 1873, said Vosburg was, upon a petition filed against him in the district court of the United States for the southern district of New York, on the 13th day of May, 1873, declared and adjudged bankrupt; and thereafter the plaintiff herein was, by order of said court, on the 25th day of August, 1873, appointed the assignee in bankruptcy of said Vosburg.
    “And that said sums have been demanded of the defendants, and payment refused.”
    The referee directed judgment for the plaintiff for the above amount.
    The defendants appealed.

      W. M. Powell, for appellants.

      F. G. Salmon, and George G. Titus, for respondent.
   By the Court.—Monell, Ch. J.

The rights and interest, which the assignee in bankruptcy acquired in the property and choses in action of the bankrupt, were no greater than the bankrupt himself had at the time of the adjudication in bankruptcy ; and hence any defenses which could have been made, as against the bankrupt, are available in an action by the assignee.

It appears that property of Vosburg, the bankrupt, was sold for his account by the defendants. That thereafter they delivered to him one check, post-dated, for two thousand dollars, and deposited in the post-office another check for fifteen hundred and forty-two dollars and twenty-seven cents, inclosed, and directed to Yosburg, at his residence. These checks were payable to Yosburg’s order. Before they were presented at the bank the defendants, hearing that Yosburg had absconded, stopped their payment. It does not appear that the checks have ever been presented for payment, and more than a year had elapsed since they were drawn.

Under these circumstances, have the defendants the right to resist the payment of the original debt, and to insist upon a surrender of, or protection from, the checks now outstanding ?

The checks were not of themselves payment of the debt; and no question necessarily arises as to the effect of their non-payment by direction of the defendants, upon the original debt, for which they were drawn. But it is a question, whether the defendants are bound to pay the original debt, without a return of their checks.

Notwithstanding the stoppage of payment, the defendants remain liable upon the checks. They were drawn upon a good and sufficient consideration, and, in the hands of a bona fide purchaser, are a valid security.

Laches in presenting the checks for payment does not discharge the drawer’s liability upon them. Upon presentation and dishonor at any time, a right of action accrues to the holder. The only effect of non-presentation is to affect the question of interest or of loss sustained by the failure of the drawee, and, possibly, to throw the burden upon the holder of showing himself to be a bona fide holder.

Therefore, while these checks are outstanding, the defendants have the right to claim that pro tempore they are to go towards payment of the original debt, or that, until surrendered, they operate as a suspension of the right to sue for the original debt.

The surrender of the checks is not a condition precedent to bringing an action for the original debt, but they must at least be offered to be delivered up at the trial (Dayton v. Trull, 23 Wend. 345; Nicholas v. Michael, 23 N. Y. 264; Bradford v. Fox, 38 Id. 289).

The error, I think, of the learned referee is in giving an effect to the stoppage of payment of the checks, and the delay in presenting them, which the law does not require.

The effect of stopping payment of a check is to excuse presentment, and the holder can probably at any time, without presentment, sue the drawee. Nor dot's mere delay in presenting excuse payment, the only effect of laches being, that if the drawer suffers damages by the non-presentment of a check, as in the case of the failure of the bank on which it is drawn, it will to that extent defeat a recovery. But the liability of the drawer, if there is no damage, continues, without presentment, until barred by the statute of limitations.

That such is the drawer’s liability is well supported by authority (Conway v. Warren, 3 Johns. Cas. 259, and note at p. 265; Murray v. Judah, 6 Cow. 484; Little v. Phoenix Bank, 2 Hill, 425; Harbeck v. Craft, 4 Duer, 129). In Little v. Phoenix Bank, the court say, “The drawer of a check is not exempted from liability for want of strict diligence on the part of the holder, where the condition of the drawee has not in the meantime changed.” That case was affirmed in the court of errors (7 Hill, 359), without, however, expressing any opinion upon the difference among the supreme court judges (as stated in 2 Hill, 425), as to the duty of the holder of a check to make presentment within a reasonable time. Still the decision below was sustained on the ground that the drawer had sustained damage, not disturbing, therefore, the distinction which arises from the fact of damage, and which alone affects the drawer’s liability, and leaving the case in 2 Iiill unreversed. And the principle of that case has since been recognized in several cases (East River Bank v. Gredney, 4 E. D. Smith, 582 ; Hazelton v. Colburn, 1 Rolt. 345).

The defendants do not deny their liability to pay for the consigned goods, and, as it appears, are ready and willing to pay, either upon a presentment or surrender of their checks. But until a presentment or surrender of their checks, upon which, as we have seen, their liability continues, they ought not to be compelled to pay the debt, which the checks were intended to pay. They were negotiable instruments, and may have passed, for a valuable and sufficient consideration, into the hands of a bona fide holder, who could at any time recover upon them.

It is clear, I think, that Vosburg could not, under the facts, have had a recovery without surrendering, at least at the trial, the checks he had received for the debt. And the assignee in bankruptcy has no better fight.

There may be a doubt as to the sufficiency of the proof of the receipt of the smaller check. It was sent by mail, and it does not appear that Vosburg actually received it. But as there must be a new trial, there will be an opportunity to supply the deficiency in the evidence, in that respect, if it shall be necessary to do so.

There are other questions arising under the attachments and subsequent ■ proceedings, which, were the proper parties before the court, might present some difficulty in the way of the assignee’s recovery in any event. But as neither the creditors or the sheriff make any claim, it is reduced to a question of defense to the action, which we will not consider here.

But, for the other reason, we think there should be a new trial.

Judgment reversed; order of reference vacated; new trial ordered, with costs to the appellants, to abide the event.

Sedgwick and Speib, JJ., concurred.


author: Monell, Ch. J. Speir, J.

text:
    WILLIAM H. GARDNER, Plaintiff and Appellant, v. JAMES GORDON BENNETT, Defendant and Respondent.
    Negligence. Where work is being done under contract, if there is any negligence, the contractors, or persons employed by them, are alone responsible.
    The immediate employer of the servant or agent, through whose negligence the injury was caused, is responsible.
    This principle, established so firmly in Blake ®. Ferris (5 JV. T. 48), again confirmed.
    The employment of a superintendent, by the party -who contracts for the work being done, to see that it was properly done, and in accordance with the contract, does not give him control of the work, nor affect his liability, nor take the case from the principle settled in Blake e. Ferris {supra); Kelly «. Mayor (11 N. T. 433).
    Contemporaneous declarations of the nature and extent of the injury, made by the party injured, at or about the time of its occurrence, are admissible. Their exclusion, in the case at bar, would have been error, if the testimony could have aided in fixing the defendant’s liability.
    A deposition taken de dene esse can not be read on the trial, unless it is also shown that the witness can not be procured, on the trial. Proof that the witness resided out of the State at the time it was taken, is. not enough to meet the requirement of the statute. Inquiry should have been made, at the time of the trial, at the usual stopping-place of the witness in the city (Bronner v. Frauenthal, 37 JY. Y. 166).
    Before Monell, Oh. J., and Sedgwick and Speir, JJ.

      Decided December 9, 1874.
    Appeal from á judgment dismissing -the coinplaint.
    The complaint alleged “that the defendant was the owner, and had the possession and.control of the premises on the northwesterly corner of Nassau and Fulton-streets, in the city of New York, with the appurtenances thereto belonging, on which premises he was then erecting a building. That the defendant guarded said premises so negligently, while he was putting up such building, leaving the public sidewalks along and in front of the building open, and without having put or kept up any notice or warning of danger to the-public, and he and his servants conducted themselves so negligently in the erection of said building, that, on the 15th day of November, 1872, while this plaintiff was carefully passing along the sidewalk on Nassau-street, in front of said building, as he lawfully had a right to do, and in the pursuit of his business, a large- and heavy piece of brick was thrown, or fell, from the said building, where the defendant, or his said servants were at work in the putting up of said building, down upon this plaintiff’s head, without any fault or negligence on his part. That, by means of these premises, the plaintiff was severely and dangerously cut and. bruised about the head, injured, and became sick.”
    The answer was a general denial.
    On the trial, it was shown that the plaintiff, while-passing down Nassau-street, ■ and upon the sidewalk in-front of the building owned by, and in process of erection for the defendant, was struck upon the head and injured by a brick, which, presumedly, fell from some part of the building. There was not upon the sidewalk any barricades or guards to obstruct and prevent the passage along the sidewalk, nor any notice to warn passengers of any danger.
    The defendant put in evidence several contracts for work and materials, which covered all the work for the the construction of the building.
    There was proof that the defendant employed a “ superintendent” to superintend the execution of the contracts, who had the general management of the business and was at the building more or less every day.
    It did not appear from what part of the building, or by what instrumentality the brick was dislodged.
    There was a separate contract for the mason work, and all the contract provided that the work was to be done under the direction of a superintendent to be selected by the defendant, whose certificate that the work was done in accordance with the contract, was a condition precedent to payment.
    Upon the defendant’s motion, the court dismissed the complaint.
    The plaintiff appealed.

      Mr. D. S. Riddle, for appellant.

      Mr. John Townshend, for respondent.
   Monell, Ch. J.

I do not discover that this case can be taken out of the principle so firmly settled by Blake v. Ferris (5 N. Y. 48). The work was done under contract, and if there was any negligence, it was of the contractors, or of persons employed by them or some of them.

Therefore, the immediate employer of the servant or agent, through whose negligence the injury occurred, is responsible.

The injury was caused by a brick falling from the building. It was dislodged and fell, or was propelled, by some agency, or through some negligence of the persons engaged in the construction of the building. Such persons were the servants of one or other of the contractors.

That there were several contractors, instead of one, is of no consequence. The rule is founded on the power which the superior has a right to exercise over his subordinates; and it is immaterial whether such power is given to one or more contractors. The subordinates are equally removed from the owner.

There was no proof whatever that the defendant exercised any control over the building, or over the workmen employed in its construction. He employed a superintendent, as he had a right to, to see that the work was properly done, and in accordance with the contract. But such employment gave him no control over the work, nor could it affect his liability (Kelly v. Mayor, 11 N. Y. 432).

A question was somewhat discussed in the opinion in Blake v. Ferris, that where an injury is caused by the negligence or misconduct of a person while transacting any business connected with the improvement, use or enjoyment of real property, the owner of the property is liable, whether the wrong-doer is the owner’s servant, or was executing an independent employment. And it is only upon some such principle, that this action could be maintained. The principle determined in City of Buffalo v. Holloway (7 N. Y. 493), and Storrs v. City of Syracuse (17 Id. 104), and Creed v. Hartman (29 Id. 591), was that any use of the sti’eet for private purposes, was a public nuisance; and the owner or person, who caused an excavation to be made in a public street, was liable, whether done under contract or otherwise; provided the excavation was the direct and immediate cause of the injury.

But the question discussed in Blake v. Ferris, received no favor with the court, and was regarded as wholly unsound.

If there was, or could be any doubt, that the injury was caused in the manner already indicated, it might, with some force be urged, that an owner who causes the erection of a building, upon any of the crowded thoroughfares of the city, owed some duty to the persons who are lawfully using the public streets in front of such erections ; and should be required to place such barriers as would obstruct the passage, and serve as a notice of danger.

But the defendant made no use of the public street, and the injury proceeded from the building which was upon the defendant’s land. There is no connection whatever between the cause of the injury and any neglect of the owner to protect the sidewalk. A barrier or notice might have prevented casualty, but its absence did not cause it.

The complaint was properly dismissed.

The exception to the ruling excluding the declarations of the plaintiff made shortly after the accident, was well taken, and the exclusion of the evidence would have been error, if the testimony could have aided in fixing the defendant’s liability. Contemporaneous declarations of the nature and extent of the injury, in connection with other evidence, are admissible (Werely v. Persons, 28 N. Y. 344). But as the declaration related solely to the injury, and not to the cause of it, (for the latter purpose it would have been inadmissible) it could not have changed the result.

The exclusion of the deposition of Steele was proper. A sufficient foundation had not been laid. It was not shown (2 Rev. Stat. 392, § 7) that the attendance of the witness could no* be procured. The statement in the deposition that the witness resided out of the State, when it was taken, was not enough. Inquiry-should have been made at the time of the trial at his usual stopping place in the city (Bronner v. Frauenthal, 37 N. Y. 166). Besides the deposition, if read, would not have aided the plaintiff in avoiding the final result.

The judgment should be affirmed.

Speir, J.

On the trial it appeared that the building was all done under contracts made prior to the accident complained of, and that during the time the work was going on the defendant had no control over the premises.

The appellant contends that notwithstanding these contracts, the defendant retained and exercised control over the premises, and that the Justice erred in dismissing the complaint.

A man about to erect a building for himself, may, if he pleases, superintend and. manage the whole from its commencement to its completion, employ men, give directions to any part of the work which his men would be bound to follow, and thus make himself the master in fact of all the persons employed; but he is not bound to do so, and he may not know how to do it. He may, therefore, let out by contract the building of his house to some persons who will undertake to furnish all the material, and complete the building in a specified manner, and for a stipulated compensation. This last is what the defendant did by his five several contracts. These contracts in terms and in spirit do not constitute the contractors, the agents or servants of the owner, nor do they authorize them to pledge the responsibility of the owner for the conduct of servants, and render him liable for all the injuries to third persons which might be occasioned by their negligence or misconduct in doing any act in the construction of the building (Blake v. Ferris, 5 N. Y. 48 ; Pack v. Mayor, 8 Id. 22).

Because the defendant’s attorney went to the building almost daily to see how the work was progressing, and to ascertain if it was being generally satisfactorily done, and as fast as was required by the contracts, therefore it is claimed that the defendant retained and" exercised control over the premises, and that the contractors were subordinate to that control. All this was provided for by the contracts, but it did not make the owner master of the contractors’ servants.

After the complaint had been dismissed by the learned judge on motion of defendant’s counsel, the plaintiff’s counsel asked the court to submit certain questions of fact to the jury, which was declined.

This application was too late after the complaint had been dismissed; even were it in time, there was nothing to-submit to the jury.

The judgment should be affirmed, with costs.