text:
    James Chambers and Henry A. Heiser v. Frederick Grantzon.
    1. To authorize the master of a vessel, being in a foreign-port, to make a sale of her which will be valid and vest a title in the purchaser, there must be such a necessity for the sale, in view of the expenditure necessary to put the^ship in a condition to bring home her cargo, and the means of making needful repairs, that no person of prudent and sound mind could doubt that a sale is the only way of preserving for the owners, or insurers, any part of her value.
    2. It is not enough that the master acted in good faith, if a necessity for the sale be not shown.
    3. Where there is conflicting evidence upon that question, and it is withdrawn from the jury, and a verdict taken subject to the opinion of the court, at general term, a new trial will he ordered.
    4. It is irregular to take a verdict, subject to the opinion of the court at general term, where the case presents questions of fact, to be ascertained from contradictory or uncertain evidence.
    (Before Woodruff, Moncrief and Robertson, J. J.)
    Heard October 4,
    decided December 8, 1860.
    This is an action to recover the schooner Elizabeth (or Emily), from the possession of the defendant!
    The defense alleged the schooner to be the property of Charles William Maxwell Heddle, of Sierra Leone, in Africa, and that the defendant was appointed master of said vessel, by said Heddle as such owner, and as sucR master thereof the defendant was in possession of said schooner. He also alleged that the real parties in interest in the action, were the Atlas Mutual Insurance Company.
    The issues were tried on the 10th and 11th of October, 1859, before Mr. Justice Slosson and a jury.
    It appeared in evidence, that the plaintiffs, in the fall of the year 1854, were the owners of the schooner, then valued at about $8,000, and sent her with a valuable cargo (worth about $13,000), on a trading voyage to the coast of Africa, under the charge of one Captain Stanhope. On her arrival at Sierra Leone, in November, 1854, the captain had several surveys of the vessel and cargo; the surveyors recommended a sale of the vessel, and on the 12th day of January, 1855, the vessel and apart of the cargo was sold, the residue of the cargo being disposed of on the first of February, 1855. The gross amount of the first sale was £2,335 3s. 9d., the expenses £385 12s., leaving a net balance of £1,949 11s. 9d. Charles W. M. Heddle, (under whom the defendant held possession) became the purchaser of the schooner at such sale. Testimony was also adduced showing, or tending to show, the condition of the vessel on her arrival at Sierra Leone, and also at the time of sale, a portion of which evidence was in conflict with the statements, or the correctness of the views and recommendation contained in the report made by the surveyors. It also, appeared that vessels could be repaired at Sierra Leone. The actual cost of repairs made upon the schooner, with which she left Sierra Leone and' reached the port of New York, was £1'75. When the evidence on the part of the plaintiff was closed on the trial, the counsel for the defendant moved to dismiss the complaint, whereupon the court overruled the motion to dismiss, and directed a verdict for the plaintiff, subject to the opinion of the court on ques- • tions of law, with liberty to turn the case into a bill of exceptions, to be heard first at the general term of the court, with liberty for the general term to order a non-suit. To which ruling the defendant excepted.
    The court further announced, “ that the only question for the jury to pass upon would be that of the value of the vessel,” and charged the jury thereupon.
    The jury found a verdict for plaintiff for the recovery of the vessel, and found the value of the vessel to be $1,200 ; and the court directed the entry of the verdict, subject to the opinion of the court upon a case to be made, with liberty to turn the same into a bill of exceptions, and that the case be first heard at the general term.
    A motion was made at the same (trial) term, October 20, 1859, before the same justice, upon the minutes of the trial, to set aside the verdict and for a new trial, on the ground that the verdict rendered is against the weight of evidence and the damages excessive; and after counsel for the respective parties were heard and due deliberations had, the motion was denied with costs.
    The case now comes to the general term, in pursuance of the aforesaid order and direction, for judgment upon the verdict under the direction given at the trial.

      William Tracy, for Plaintiffs.

      E. C. Benedict, for Defendant.
   By the Court. Moncrief, J.

—A material, • if not the pnly or most important question arising upon the issue and the evidence adduced on the trial of this action, was whether the sale of the schooner by the captain, and its purchase on behalf of the defendant, were made under circumstances which, in fact and judgment of law, would warrant such sale and carry a title to such purchaser.

All the cases admit that it is not sufficient that the sale was bona fide and intended for the benefit of all concerned; it must have been necessary. (Parson's Mer. Law, 375.)

In Somes v. Sugrue, (4 Car. & Payne, 276,) it was said : Undoubtedly the word “ necessity” is not to be confined to-, or so strictly taken as it is in its ordinary acceptation. There can, in such a case, be neither a legal necessity nor a physical necessity, and therefore it must mean a moral necessity; and the question will be whether the circumstances were such that a person of prudent and sound mind could have no doubt as to the course he ought to pursue. The point principally for consideration will be, the expenditure necessary to put the ship into a condition to bring home her cargo, the means of performing the repairs, and the comparison between these two things and the subject matter which was at stake; and it must not be a mere cast, not a matter of doubt in the mind, whether the expense would or would not have exceeded the value; but it must be so preponderating an excess of expense that no reasonable man could doubt as to the propriety of selling, under the cirpumstances, instead of repairing. (Rogers v. Murray, 3 Bosw. 357.)

The master can sell the ship only in cases of extreme and urgent necessity; that is, only when it seems in all reason impossible to save her, and a saléis the only way of preserving for the owners or insurers, any part of her value. Actual necessity, not the pretence of its existence by the master, must exist. (Pars. Mer. Law, 375, 376 ; 4 Wend. 52.) Such a necessity (the captain acting morally), creates an exception, and will excuse his departure from, the original duty cast upon him of navigating and bringing home his vessel. (Abbott on Ship., 4th ed. 243.) In the case of the ship Lady Banks, Cannan v. Meaburn, (1 Bing. 243,) it was submitted to the jury to find :

1st. Whether the master appeared to have acted, according to the best of his judgment.

2d. Whether the sale was conducted fairly and honestly.

3d. Whether there was a necessity for the sale of the ship.

In 8th Taunten, 155, the jury found that the master had acted throughout the whole transaction fairly and bona fide for the benefit of all concerned, and that the sale ‘was honestly, fairly and properly conducted, and directed with a view to the interests of all parties concerned. The court called upon counsel to point out how it appeared by the special verdict that the sale was necessary, and after hearing some observations from him to show that the necessity was to be inferred from the finding of the jury, expressed a clear opinion that the necessity did not appear, and awarded a venire de novo for the purpose of tryingwhether it existed or not.

The general term of this court, in Brower v. Orser, (2 Bosw. 357,) held it was irregular to take a verdict subject to the opinion of the court at general .term, when there are facts to be settled upon contradictory or doubtful testimony, and that the general term has no right of itself, to deduce facts •from evidence in order to found a judgment. (3 Bosw. 360 ; 16 N. Y. R. 602, 608.)

• If then the finding of facts, before alluded to, was material, and none appears in the' case, and the case in that respect was withdrawn from the jury, it follows that a new trial must be granted.

In the view taken, it is unnecessary to discuss the other questions raised at the argument.

A new trial ordered with costs to abide the event.


source: Caselaw Access Project

author:
Hoffman, J.
      Bosworth, Ch. J. Robertson, J.

license: Public Domain

text:
    Addison Alger, Plaintiff and Appellant v. Julia Raymond, Administratrix, and Spencer Gregory, Administrator of James Raymond, dec’d, Defendants and Respondents.
    1. Where, in an action brought against M. and R., to recover of them, as joint contractors, with the plaintiff, the value of materials furnished and work done hy him in erecting a building, it appears that the work was done and materials furnished under a written contract to which the plaintiff and M. were alone parties, R. cannot be held liable, even though it appear that the building was erected on his land; and that he performed some acts of supervision and endorsed M.’s notes, which were used in making payments on account.
    2. To justify a recovery against him, the evidence must at least justify the conclusion of fact that the contract was made for the joint benefit and account of M. and R., and for their mutual risk and profit, there not having been any communication between R. and the plaintiff.
    3. Where the facts formally found by a referee authorize the judgment he orders, it will not he reversed merely because his report does not formally dispose of all the issues, where there is no evidence in the case which warrants a finding of any of the issues not formally passed upon, in favor of the appellant.
    4. A creditor's uniting with one of two joint debtors in his petition for a discharge under the two-third act, and a discharge of such debtor, releases the other debtor from liability. (Per Hoffman, J.)
    (Before Boswoeth, Oh. J., and Hoffman and Robeetson, J. J.)
    Heard December 3,
    decided December 23, 1860.
    This is an appeal by the plaintiff from a judgment entered in favor of the defendants upon the report of a referee.
    The action was originally commenced against Alvah Mann and James Raymond; and the plaintiff, by his complaint, claimed to recover of the defendants jointly for work hy him done’, and materials furnished toward the erection of the Broadway theatre in the city of New York. The claim was to recover what the work and materials were reasonably worth.

    The defendant, James Raymond, appeared, and put in his answer, by which he denied any joint or individual liability, and, among other things, alleged that the work was done and the materials were furnished by the plaintiff, for, and on the sole account of the defendant, Mann, “ and under, and in pursuance of a written contract in that behalf made between the said plaintiff and the said Alvah Mann.”

    To the answer the plaintiff put in a reply, admitting that the work, labor and materials were furnished and provided by the plaintiff in pursuance of the written contract, but alleging that he was induced to enter into the contract by the fraudulent representation of Mann, that he alone was interested in the erection of the building, whereas both defendants were jointly interested therein, and also alleging that Mann, without sufficient cause, refused to permit .the plaintiff to proceed with his contract, and finish the same in pursuance of the terms thereof.
    While the action was pending on the issues so framed, the defendant Raymond died, and the action was continued against his personal representatives by supplemental complaint filed for that purpose in pursuance of an order of this court, made on the 24th day of ■ July, 1855. The plaintiff, by his supplemental complaint, among other things, alleged that in 1851, while the action was pending, he united with Mann in a petition for the discharge of him. the said Mann, from his debts under the two-third act, and that Mann was afterwards discharged under that act.
    The action was referred to Thomas Nelson, Esq., as sole referee, who found and reported, -
    11 That the work done and materials furnished, for the value of which a recovery is sought in this action, were done and furnished under a written contract made between the plaintiff and one Alvah Mann, which contract was not produced before the referee, nor its contents or terms proved on the trial.” To which the plaintiff excepted.

      “ That the work in question was not finished by the plaintiff, and there is no evidence that the plaintiff was improperly prevented from completing it, or that he was improperly discharged.”
    To which the plaintiff excepted.
    “And as conclusion of law the said referee decided that there was an entire failure of proof by the plaintiff, and that he could not recover on a quantum meruit, or otherwise, without the production of the contract or proof of its terms, and directed judgment to be entered in favor of defendants, dismissing the plaintiff’s complaint.”
    To which the plaintiff excepted.
    Judgment having been entered upon the report, the plaintiff appealed from it to the general term.

      James W. Gerard, for Appellant.
    I. The contract between the plaintiff and defendant Mann, was rescinded by the act of Mann, who had put it out of the plaintiff’s power to complete it, and the plaintiff had a perfect right, by law, to recover the amount owing him, in an action, for the value of his labor and materials, that is, the value without reference to contract price.
    1st. There is no doubt that the contract was rescinded —its completion by plaintiff was prohibited.
    II. The first action was maintainable against Mann and Raymond, on the ground that they were the parties for whose benefit the labor was done and the materials furnished, whether they were technical partners or not.
    III. The labor and materials were done and furnished in their presence, with their knowledge and privity, and therefore, by implication, at their request.
    IV. Raymond was a principal with Mann, either as partner or sole principal, in erecting the building, and therefore, on the discovery of that fact, he could be made liable for the labor and materials.
    V. Mann, by pretending to be principal and suppressing the name and interest of Raymond, perpetrated a fraud upon the plaintiff, which vitiated the contract, (even if it had not been rescinded,) whereby the contract, and the acts of the plaintiff under the same, could have no effect to suspend or take away the liability of Raymond for the labor and materials.
    yi. The non-suit was wrong, by reason of the issues of fact formed by the pleadings, to-wit:
    1st. The joint interest or partnership of Mann and Raymond,. and
    2d. The fraud by which the plaintiff was induced to bestow his labor, and furnish his materials, upon the credit of Mann; the plaintiff having produced evidence which tended to establish both issues againstthe defendants.

      Charles Jones, for Respondent.
    I. The joint undertaking on the part of Alvah Mann and James Raymond, alleged in the pleadings, was not proved, nor is there any evidence of the retainer or employment of the plaintiff by Raymond.
    1st. The work and materials were furnished under a written contract between the plaintiff and Alvah Mann, and Mann alone retained and employed the plaintiff, when he undertook to do the work and furnish the materials.. This of itself disproves the allegation of a joint undertaking or joint request.
    2d. No partnership between Mann and Raymond was proved. ít was not shown that they were jointly interested in the land or building, or that the theatre was erected for the purpose of a business to be carried on by them, or in which they were to be interested as partners, or otherwise.
    3d. Even if Mann and Raymond were jointly concerned in building the theatre, the promise of Mann would not bind Raymond, there being no agreement between them ultimately to share in the profit and loss. (Porter v. McClure, 15 Wend. 187.)

      Nor does the law merchant respecting dormant partners extend to speculations in land. (Pitts v. Waugh, 4 Mass. 424 ; Smith v. Burnham, 3 Sum. 470.)
    4th. The fact that Raymond made himself responsible to others for work and materials, does not help the plaintiff. This is consistent with his, Raymond, being guarantor or loaning his credit, and does not establish a partnership, or even a community of interest, as between him and Mann. All the money was paid by Mann, and Raymond was indorser only of the notes.

    II. The plaintiff wholly failed to prove the allegations of his reply. It does not appear by the evidence that Mann made the false 'representations alleged, or that the plaintiff fully performed the work.
    III. The defendants, representatives of Raymond, stand in the relation of sureties merely—Mann being primarily liable as principal, as was also his estate. The act of the plaintiff in uniting in the petition for the discharge of Mann under the “ two-third act,” under which the latter was discharged, operated' as a release of the defendant’s and Raymond’s estate.
    The judgment should be affirmed.
   Hoffman, J.

—The plaintiff stated his cause of action in his complaint, to be an employment by the defendants, ' to perform the mason and carpenter’s work of the Broadway theatre; that he did the work; that it was worth 128,664; that he had received about $10,000, and that the balance was due to him.

It is clear upon the proofs, that the original employment was by Mann, under a written contract made with him solely, and was given to him alone. There is no evidence of any direct contract between the plaintiff and Raymond; none of any engagement between them ; none of Raymond’s knowledge of this contract; none that the plaintiff, when he began the work, or at any period of its progress, looked to Raymond for payment or security.

The plaintiff in his reply, admits that he made the contract with Mann as stated in the answer, but alleges that he made it under false representation by Mann, that he alone was interested, and changes his ground of action, . and seeks to make Raymond responsible on the theory that both defendants were, at the time of the contract, jointly interested in the erection of the building, and in the work and the materials furnished by the plaintiff in pursuance of the contract, but of which interest he was ignorant until some time thereafter ; that the work was done, and the materials furnished for their joint benefit.

Raymond was the owner of the. ground on which the theatre' was built. Presumptively, the title to the building itself was in him. His declarations as to being the owner, are proven. His intervention in the purchasing of lumber, his supervision and direction as to the plans and work, are shown in the testimony. His and Mann’s joint notes were to have been given to Collyer. His indorsements were given. In short, there is much evidence to prove some joint concern and interest between Mann and Raymond in the theatre.

The referee has not passed upon this evidence. He finds that there was a contract, that it was not produced, nor its contents proved. That the plaintiff could not recover without the production of the contract, or proof of its terms.

Biit had the referee found the facts as the evidence warrants, there would have been found either some unknown, undefined community of interest between Mánn and Raymond in the theatre, or the sole ownership in Raymond. The former would not have been sufficient to make Raymond liable, under the decision in Porter v. McClure, (15 Wend. 187 ;) the latter is not proceded upon as a ground of action, and naked ownership, without contract, recognition, or proven agency, would not be enough.

The contract is shown to have been diligently sought-for by the plaintiff, and’-not found. The papers of Mann appear to have come to Houghton’s hands, and no copy of the agreement has been found.

The contents of the contract are stated to a great extent by the witness Trimble. He says the compensation was between $15,000 and $20,000. The plaintiff admits in his complaint, that he has been paid $10,000.

The reply, as before observed, admitted the making of the contract with Mann, and proceeds upon the joint interest, and consequent joint liability, of Raymond with Mann; it then sets forth, that after the plaintiff had performed the labor and furnished the materials, Mann, without any sufficient cause, refused to permit him to proceed with the contract, and finish the same in pursuance of the terms thereof. He therefore committed a breach thereof, and the plaintiff is therefore entitled to recover the value of the work and labor, &c., without reference to the contract, and as though .the same had not been made.

In respect to this, the referee finds, “ that the work in question was not finished by the plaintiff, and there is no evidence that the plaintiff was improperly prevented from completing it, or that he was improperly discharged.”

In respect to the first clause of this finding, it is no doubt literally true, upon Trimble’s evidence, although only some little things were left to be done. As to the last, we agree with the referee. There was some trouble, and the plaintiff was told to go out of the building, and never show his face there again.

The plaintiff seeks to make Raymond responsible for a wrongful act of Mann, in preventing the due execution of a contract, and thereby giving him a right to resort to an action for value, independently of the contract. He has proved that a difficulty arose between him and Mann, and that the latter sent him from the premises. It seems to me he has wholly failed in supporting his allegation.

It deserves notice, that the work of the plaintiff was completed about September, 1847, and he does not sue until March, 1851.

I think, that upon the case made, the plaintiff has not made out a sufficient ground for abandoning the contract, and going upon a quantum meruit, as against Mann. Therefore he must fail as against Raymond, conceding they were jointly liable ; and certainly he has not made out a ground of action on the contract.

I think the referee is right, on this ground, in his decision.

There is another point in the case not noticed in the findings, but of importance.

The supplemental complaint of July, 1855, states, that on or about the day of 1851, the plaintiff, pursuant to the statute in such case provided, united with Mann in a petition for the discharge of the said Mann, from his debts, in accordance with act 3, title 1, ch. 5, of part 2 of the Revised Statutes, commonly known as the “two-third act," and upon such petition, the said Mann was duly discharged from his debts, including the cause of action of the plaintiff set forth in the original complaint.

This being put in issue by the answer of the present defendants, was proven by the plaintiff, the discharge being granted the 18th of September, 1851. The action was commenced March 13, 1851. Mann made no defense, and died insolvent, in July, 1855. Raymond answered in April, 1851, and died March, 1854. On the 24t,h July, 1855, an order was issued continuing the action against the representatives of Raymond, the present defendants, under the supplemental complaint.

The union of the plaintiff, with Mann, in procuring the discharge, was equivalent to a release by him, of Mann, from this liability; and it seems to me operated to discharge Raymond from a liability which the plaintiff insists was a joint one. (Parsons on Con. vol. 1, 23, 24, and cases in notes.)

I understand that the general term may look into the evidence, and act upon facts proven thereby, to sustain a referee's decision, although not found. The difficulty is, that the Court of Appeals may not do this, and must have the facts specially found. The thirty-eighth rule of the Supreme Court meets this case, as I understand it. I think the judgment should be affirmed.

Bosworth, Ch. J.

—The fact of a partnership between Mann and Raymond, in the theatre building, or in that and the land on which it stood, is neither found nor proved.

There is a difference between a joint interest and partnership. There may have been a joint interest; that is, Raymond may have owned the land, and have been under obligation to Mann to pay some part of the cos„t of the building, and still Mann?s contracts not affect Raymond; nor Mann’s acts be Raymond’s acts.

On the facts as found, the judgment is right; and I do not think the evidence warrants the finding of any facts which would make Raymond liable to the plaintiff, as a contractor with him, either solely, or jointly with^Mann.

Robertson, J.

—This was an action against two" persons for work and labor done for them jointly, in the erection of a building in the city of New York, on land belonging to one of them, called the Broadway theatre.

On the trial, it appeared that the building in question was erected under a contract, under seal, executed by one party alone. The loss of the instrument was proved, and .an attempt was made to prove its contents. The only witness examined as to them, was able to state part of the work to be done, but was unable to state the compensation within $5,000, or how it was to be paid, although it was payable in installments. He was able to state there was a time limited for its fulfillment, but was unable to state when it was, nor whether it was before the plaintiff quit work. The right of recovering for work done, on a general complaint, although there was a special contract, .depends upon the terms of such contract. If it specify a particular time and the work is not finished, the mechanic cannot recover for what he has done by that time; and it is not sufficient where work has been done under a contract to prove enough of its contents to show merely that the work, as done, corresponded with that specified. The party against whom the claim is made, is not to suffer from the defect of the evidence ; he is entitled to have the whole contents laid before the court to see if there be not some drawback on the plaintiff’s right to recover, as if the instrument itself were in court, to have the whole of it read. The failure of the plaintiff to prove the whole, should not be a detriment to the defendant. The case of Ladue v. Seymour, (24 Wend. 60,) is directly in point, and the reasoning of Justice Bronson, is unanswerable. It settles the question, that the proof of the existence of a written contract, is sufficient answer to an action upon a quantum merunit and valebant, for work and materials, and that the plaintiff is bound to prove all the contents of such contract to show that there Avas no obstacle to his- recovery therein.

The other objection, of the contract being under seal, and with only one of the parties _ sued, was equally fatal, although not noticed by the referee.

For these reasons, as well as those assigned by my brethren of the court, I concur in thinking the report of the referee should be affirmed.

Judgment affirmed.


author: By the Court. Hoffman, J.

text:
    The Bridgeport Fire and Marine Insurance Company, Plaintiffs and Appellants, v. Thomas Wilson et al., Defendants and Respondents.
    1. A bond (from the defendants to the plaintiffs) with a condition that if the plaintiffs shall pay a specific sum of money as therein designated, the defendants will “ indemnify and save harmless, the plaintiffs, from all actions and suits, both in law and in equity, and from all loss, cost, and damage, by reason of the payment of said sum of money as aforesaid,” is an indemnity against actual damage only.
    2. A suit against the plaintiffs by a third person to recover the same moneys and judgment therein, and payment thereof, no notice of the pendency of such suit having been given to the defendants, do not per se establish prima facie, a right of action, against the defendants, on such bond.
    3. A judgment, in such a case, only proves remipsam, as against the indemnitors. It is not even prima facie evidence against them, of the facts purportifig to be established by it.
    (Before Bosworth, Oh. J. and Hoeman and Robertson, J. J.)
    Heard December 11,
    decided December 29, 1860.

      Appeal by the plaintiffs, from a judgment against them, rendered on a trial had before Ch. J. Bosworth, and a jury, and from an order denying a new trial.
    The suit is upon a bond of indemnity, executed .to the plaintiffs by the defendants, Thomas Wilson, James E. Goll, and Henry P. Wilson, composing the firm of Wilson, Goll <5f Co., as principals, and by Henry Brewster, as surety.

    The plaintiffs, a Connecticut corporation, on the 31st of March, 1855, insured the goods of Wage Scott, of Buffalo, N. Y., against damage by fire. A loss occurred, which was adjusted at $603.45, though claimed to be greater. On the 18th of July, 1855, Wilson, Goll & Go., creditors of Wage & Scott, commenced suit by attachment, in Connecticut, ' to obtain application of this $603.45; proceeded to judgment and execution ; demanded payment to them of the $603.45, which was paid by the plaintiffs, upon the bond in suit being given to the plaintiffs. Since then, one Barnum, as assignee of Wage & Scott, sued the plaintiffs on said policy, in the Buffalo Superior Court, obtained a decision in his favor March If 1856, and judgment April 25, 1856, for $851.91 damages, and $93.19 costs, which the plaintiff's have paid. Thereupon the plaintiffs bring this suit to recover the money so paid, with interest. They did not notify the present defendants of that suit until after it had been tried and decided; and although informed that the assignment to Barnum was antedated to a day prior to the commencing of the suit in Connecticut, and was otherwise fraudulent, they did not set up any such defense, nor even the fact that they had paid the amount of the loss, as adjusted, to Wilson, Goll & Co., under and by force of their suit in Connecticut, and the proceedings had and judgment recovered therein. The chief justice, at the close of the evidence, dismissed the complaint. The facts, and the condition of the bond, are stated with particularity in the opinion of the court. From an order denying a motion for a new trial, and from the judgment subsequently entered, this appeal is taken.

      E. Seeley, for Appellant.
    I. The defendants knew of the pendency of the suit at Buffalo, before it was tried.
    II. The plaintiffs were not bound to give notice of its pendency. The language of the bond does not require it. (Douglass v. Howland, 24 Wend. 35; Birks v. Trippet, 1 Saund. 32 ; Ropelye v. Prince, 4 Hill, 119 ; Duffield v. Scott, 3 T. R. 374 ; Smith v. Compton, 3 Bar. & Ad. 407 ; Aberdeen v. Blackmar, 6 Hill, 324 ; Lee v. Clark, 1 Hill, 56 ; Westervelt v. Smith, 2 Duer, 449 ; Thomas v. Hubbell, 15 N. Y. R. 407.)
    III. With notice, the party is estopped from questioning the judgment; without notice, he is admitted to show there was a defense. The judgment, in the latter case, is prima facie evidence of the indemnitor’s liability. This is so, though the bond be regarded as a mere bond of indemnity.
    IY. This bond belongs to that class of cases where “the contract of indemnity is held to stipulate for the result of a litigation to which the indemnitor is not a party, and to make his liability depend upon the result.” (Thomas v. Hubbell, 15 N. Y. R. 407 ; Westervelt v. Smith, 2 Duer, 449 ; Chace v. Hinman, 8 Wend. 452 ; Warwick v. Richardson, 10 Mess & Welsby, 284.)
    The judgment should be reversed and a new trial granted.

      James W. Gerard, Jr., for Respondent.
    I. There was no notice of the suit in Buffalo, to Wilson, G-oll & Co., until after trial and judgment there.
    If notice had been given to Wilson, Goll & Co., and they had been present at the trial, they could have done nothing, inasmuch as the Bridgeport company had not set up their defenses.
    II. Consequently, there was no proof of the assignment of Wage & Scott to Barnurn, or of any fact whatever, contained in the Buffalo judgment; the judgment not being proof per se of the assignment, much less that it was made on the 9th of July, as against the present defendants, (strangers to it,) nor was it proof of any other facts contained therein. (Thomas v. Hubbell and others, 15 N. Y. Rep. 405 ; and also 18 Barb. 9, where all the cases are reviewed; Kettle v. Life, 6 Barb. 467 ; Clark v. Montgomery, 23 Barb. 464 ; Morris v. Lucas, 8 Blackford, 9 ; Burrill v. West, 2. New Hamp. 190 ; Lewis v. Knox, 2 Bibb. 453 ; King v. Norman, 4 C. B. 884, old series.)
    III. The Bridgeport Insurance company knew of the defense of Wilson, Goll & Co., and that they claimed the assignment to be fraudulent, and to have been antedated.

    And they should have interposed that as a defense, and also the attachment and payment to Wilson, Goll & Co., under the attachment, but they did not set up such defense of fraud in, and antedating' of the assignment, nor the attachment in Connecticut, and the payment under it, although they undertook the defense of the suit.
    The judgment should be affirmed.
   By the Court. Hoffman, J.

—The plaintiffs in this action, a Connecticut corporation, had, on the 31st of March, 1855, executed to the firm of Wage& Scott, of Buffalo, N. Y., a fire policy on goods, for the sum of $1,000. In May, 1855, the property insured, was damaged by fire, and the amount of the loss was adjusted at $603.45. The plaintiffs were ready to pay the. assured the amount as adjusted, when, on the 18th of July, 1855, Wilson, Goll & Co., merchants in New York city, and creditors of Wage fy Scott, brought an action by foreign attachment, against Wage & Scott, and caused the sum of money due to the latter from the plaintiffs, to be attached in that action, under the laws of Connecticut, thereby creating a lien on such sum of money. On the third Tuesday of October, 1855, Wilson, Goll & Co., recovered judgment in their action, and execution was immediately issued thereupon.

In November, 1855, demand being made of the plaintiffs that they should pay the $603.45, to the officer having the execution, payment was agreed to be made by the. present plaintiffs, on receiving a bond of indemnity, which is the subject of the present action.

That bond is dated at the city of New York, on the 9th of November, 1855, and is executed by the defendants, three of whom are members of the firm of Wilson, Goll & Co., and the other, Henry Brewster, executes it as a surety.

The bond recites the action brought by the firm of Wilson, Goll & Co., on the 18th of July, 1855 ; service of an attested copy of the writ upon the plaintiffs, as trustees and debtors of the defendants in the writ; the judgment recovered in October, 1855 ; the execution dated the 8th of November, 1855 ; and an admission by the present plaintiffs, that they are indebted to Wage & Scott, in the sum of $603.45, and were so indebted at the time of the service of a copy of the writ.

The condition of the bond, is as follows

“ Now, the condition of this obligation is such, that if the said Bridgeport Eire and Marine Insurance company, shall pay to the officer to whom said execution is directed, and who, by virtue thereof, shall make demand of said insurance company, of the goods and effects in their hands, of said Wage & Scott, said sum of $603.45 ; and if we, the said obligors, shall indemnify and save harmless, the said insurance company, from all suits and actions, both in law and equity, and from all loss,'cost and damage by reason of the payment of said sum of money as aforesaid, then this obligation to be null and void, and otherwise to be and remain in full force and effect.”

On the llth of March, 1856, judgment was ordered in the Superior Court of Buffalo, in favor of Austin Barnum, as assignee of said Wage & Scott, of their claim and rights under the said policy and to the said loss, against the present plaintiffs, for the sum of $851.91. The cause was tried before a judge, a jury being waived, and judgment as aforesaid, was directed to be entered accordingly, which was done on the 25th of April.

The plaintiffs, in their complaint in this action, aver, that such suit in Buffalo, was commenced on the 29th of August, 1855, by Barnum, as assignee of Wage & Scott, of their claim and demand upon the policy ; that of such suit, the present defendants, who are members of the firm of Wilson/ Goll & Co., had notice; that they were to undertake the defense of such suit, and that it was the claim made in such suit which should have been recited in the bond now sued upon, and which it was meant to be indemnified against.

The fact of the commencement of Barnum’s action, in August, 1855, was put in issue ; and the plaintiffs here have failed to prove it. There is some slight evidence, as in Chatfield’s answer to the sixth interrogatory, tending to establish it. Even he qualifies this by saying, if not commenced, it was threatened. On the other side, it appears, that although the summons is dated the 2lth of August, 1855, the complaint was not sworn to until the 20th of November, 1855, and the answer therein was sworn to on the 12th March, 1856.

It is clear, upon the testimony, that the claim made by Barnum, as assignee, was known to the present plaintiffs before and at the time of executing the bond sued on; and Ives, (who drew it,) deposes that the company believed the claim of Barnum to be fraudulent. By the 28th of July, 1855, the firm of Wilson, Goll & Co., knew of the claim; that there was an assignment from Wage & Scott to Barnum, and stated their objections to its validity. In the spring of 1856, they conversed with an officer of the company (the plaintiffs) about the suit.

At sometime, but when is not proven, the agent of the company at Buffalo, had obtained a copy of the assignment to Barnum, and sent it to the company. The officers of the company, or one of them, suspected, as they or he stated, the assignment was antedated, or in some manner fraudulent. When such statement was made, or such information acquired, or its precise nature, is not shown by Brewster; but Ives fixes it about the time of the negotiation for payment to the defendants, and before the bond. There is no proof of the defendants’ actual knowledge of the pendency or progress of the suit by Barnum, or of any information as to it, before March, 1856. Then being informed of the decision, (.which is dated March IT, 1856,) they write various letters of complaint to officers of the company, and instructions for efforts to obtain a new trial.

The date of the jurat to the complaint of Barnum, and to the answer thereto, has been before stated, viz., the 20th of November, 1855, and the 12th of March, 1856. The complaint states the policy and loss, and an- assignment to Barnum, purporting to be dated the 9th of July, 1855. The answer denies that the goods suffered damage to four-fifths of their value; states that the defendants left the plaintiff to prove his alleged assignment, and avers that there was another policy upon the goods in another company,- made without their consent.

Two days after this answer, viz., on the 14th of March,-1856, the trial was had.

It is in evidence, that counsel was employed by the plaintiffs in this action, to defend the Barnum suit; and that their agent, Brewster, gave him - what information as to facts, he possessed.

The judge, on the trial of the present action, excluded evidence to the point that the agreement, when the money was paid and the bond sued on was given, was, that Wilson, . Goll & Co., were to take care of and defend the action by Barnum; or that the bond was given especially to indemnify against the Barnum claim. The evidence was rightly excluded.

It remains to be noticed, that in the letter of Wilson, Goll & Co., to Brewster, of the 31st of July, 1855, they inform him, that Wage & Scott had told one of them at Buffalo, on the 11th or 12th of that July, that they had not assigned, and should not assign their claim against the company. This letter the plaintiffs produce.

Thus, the case is presented, that without the defendants being under any express or necessary obligation to defend the Barnum action and relieve the plaintiffs from guarding against it, with the duty remaining upon the plaintiffs to defend that suit, and their actually recognizing that duty by. employing counsel, they did set up defenses which turned out to be either fictitious, or incapable of proof if honestly alleged; and they omitted to set up the defense of the attachment suit of Wilson, Goll & Co., and payment under it, and the suspected fraud in and antedating of the assignment.

It is not a question whether they might not in November, 1855, have fully apprised the defendants of all their information, and put them upon the task of a defense. The question is whether, in the case of an utter neglect pro-23 erly to defend, with means of a probably ample defense at their command,-when they had assumed and undertaken such defense, they may yet hold these parties responsible upon their bond of indemnity ?

It is insisted that the law makes them liable.

The Court of Appeals in Thomas v. Hubbell, (15 N. Y. Rep. 405,) advert to a class of cases in which “ an indemnitor is concluded by the result of a suit against the person whom he has undertaken to indemnify, upon the ground that such is the fair interpretation of the terms of the contract.” The case of Douglass v. Howland, (24 Wend. 35,) fully discusses this question, and shows “ that the cases which have applied it, are not departures from, or exceptions to, the general rule, that a judgment concludes only parties and privies, but do not fall within that rule at all; being dependent upon the principle that one may contract to be answerable to another upon such lawful conditions as he pleases.”

, “It is, however, well settled, where parties sustain the relation which existed between the parties to this suit, that the party entitled to be indemnified, may throw upon the indemnitors the burthen and risk of the primary litigation by giving them the opportunity of defending the original suit. It then becomes the defense of the indemnitors, and they are concluded by. its results, at least in the absence of fraud or collusion between the prosecuting party and. him whom they are bound to defend.”

“ Notice of the action against the sheriff, was given to Hubbell, the deputy sheriff, but not to the other parties, the obligors on the bond, his sureties. It was held that the judgment against the sheriff did not bind them.”

“ The condition of the bond to the sheriff in that case, was, that Hubbell should well and faithfully, in all things,

■ perform and execute the duties of deputy sheriff without fraud, deceit or oppression.” For his fault, the sheriff was subjected to a judgment. It was not enough to take the case out of the general rule which declares the effect of judgments as to strangers, that they conclusively prove rem ipsam, and nothing else.

The case of Westervelt v. Smith, (2 Duer, 449,) is mentioned as having been reviewed in the Court of Appeals, and put upon the ground that it fell within the class of cases in which one has stipulated to be bound by the event of a suit between strangers. In that case, Dunlap, the deputy sheriff, gave a bond, with sureties to Westervelt, to keep him harmless, touching the execution of writs, process, &c., and of and from all issues, fines, demands, damages, costs and charges whatever, hereafter to be produced, imposed, prosecuted, demanded, or demandable, of or against said Westervelt,- for or by reason of any neglect of said Dunlap, in executing wrongfully, or neglecting to execute the office of deputy sheriff for the county of New York. The action was against the surety.. Judgments against the sheriff, on account of a neglect of duty of the deputy, were given in evidence. Dunlap had been present at the trial. The court concluded that he had notice of the suits, and an opportunity to defend.

The judgments were determined to have been rightly admitted in evidence, and nothing appearing to impair their force, the plaintiff, the sheriff, had judgment. A great number of cases are examined. The great majority of them are of bonds by deputies, or subordinate officers, for the faithful discharge of official duties.

Whatever just ground may exist for distinguishing Westervelt v. Smith, from Thomas v. Hubbell, (as it must be assumed there does exist,) the principle now definitely settled is, that the court must find in the instrument of indemnity, a stipulation that the parties will be bound by a judgment which may be obtained against others, without their privity. That this must appear from express terms, is not requisite; but it must be plainly, if not necessarily infer-able from the instrument. Many cases have been, perhaps, arbitrarily decided, that in certain official instruments, it is to be inferred as of course.

I do not think that such a stipulation is to be found in the condition of the bond in question; but if it can be so, then the case may be determined upon another ground.

Mr. Justice Bosworth, in Westervelt v. Smith, says : “ Where a want of good faith, industry and sound discretion in the defense of the suit is not pretended, notice to the surety is practically an idle ceremony. When the principal has had notice of the suit, has actually assumed its defense, and it has been fully tried on its merits, with the, aid of all the information relative to the merits possessed by the party whose conduct is the subject of controversy, it cannot be presumed that another trial, when defended by the surety, could be attended with any different result.” Applying these rules to the facts here, it is certain"that the plaintiffs have failed to give any proof of notice of the action; and on the facts of the case, Barnum ought not to have recovered. But if this is not a clear result from proven facts, yet it is most certain, that a defence which would probably have been successful, has been wilfully, or through gross negligence, omitted to be taken.

It appears to me quite clear, that the judgment should be affirmed with costs.

Ordered accordingly.


author: By the Court. Bosworth, Ch. J. Robertson, J.

text:
    William, H. Pollard, Plaintiff and Respondent v. The New York and New Haven Railroad Company, Defendants and Appellants.
    1. In an action to recover damages on an allegation, and where the plaintiff testifies that, while standing in a railroad car belonging to defendants, being a passenger therein,-another of defendants’ cars was negligently, and so violently propelled against it, that plaintiff was suddenly flung headlong through the car, and injured—it is not error in the judge to refuse to charge, that if the jury believe that the injury was not caused by the car in which the plaintiff stood being collided against, >r as testified to by him,” then he is not entitled to recover, even though the defendants have given evidence, ‘1 from experience and the laws of motion,” tending to show that such a collision would throw a person backward instead of forward; there being evidence, otherwise uncontradicted, that the plaintiff, was in fact thrown forward by the collision and injured.
    2. An instruction, that if the jury believe it impossible that the injury could have been occasioned in the manner stated by the plantiff, he could not recover; but that it was not essential to his right to recover, that the injury should have occurred precisely as he alleged — it was enough that he was thrown down and injured by the collision, by the negligence of the company, without fault on his part, is, in substance, correct, and a full, and just response to the requested instruction.
    3. It is not error to refuse to charge, that the plaintiff could not recover, if the jury believe that the rule of the company was that the passengers who purchased tickets and took the train at 26th street, (the place where plaintiff bought his ticket and took the cars,) should take seats in the cars which went from there; and that this was generally known to passengers from there; that there was room for him in the car which went from there, and that he might have taken a seat in such car, and that instead of taking such car, he went into the car (which had come from Canal street) where he says he was standing when he was thrown down; even though the defendants have given evidence of such a rule and practice, the plaintiff having testified, without contradiction, that “ he found the car starting from 26th street to be full, and could get no seat, and there was no other car there,” and it being conceded that such rule was neither printed nor communicated to the public.
    (Before Bosworth, Oh. J., and Hoffman and Robertson, J. J.)
    Heard December 3.
    decided December 29, 1860.
    This case comes before the court on an appeal by the defendants from a judgment in favor of the plaintiff, entered on a verdict rendered on a trial had before Mr. Justice Slosson, and a jury, on the 28th of October, 1851.
    The appeal presents only questions of law, and these arise on exceptions taken at the trial, to the refusal of the judge to charge in conformity with two several requests then made by the defendants.
    The action is brought to recover damages for an injury to the plaintiff, caused by the defendants uniting two cars of the morning train from New York to New Haven, on the 28th of March, 1854, so negligently and violently, that the plaintiff, who was, at the time, in one of these two cars as a passenger, and standing up, was thrown down, and received the injuries complained of.
    The plaintiff testified, in describing the cause of the injury, that he was at the rear door of the hindmost of several cars connected together, and to a locomotive, standing on the track,, in the Fourth avenue, between 26th and 32d streets, and forming part of that morning’s train ; that “there was no seat in it vacant that he could see; that, whilst standing at the rear door looking for a seat, he was suddenly flung headlong through the car; but before he entirely fell, his leg partly caught in the end of a seat, and that he was thrown from the rear door of the car to the stove, which was in the middle.” “ That the accident was occasioned by another car (coming up in the rear) colliding against the car in which he was, with great violence, so that it rebounded eight or ten feet.”

      Charles G. Sesson, gave evidence “ showing .that he was in the same car in which the plaintiff had entered, at the time of the injury, and corroborated the plaintiff’s evidence, as to his being thrown from the door to the middle of the car, * * that there were no empty seats; that the car, when the plaintiff entered, was standing perfectly still upon the track, and was-struck so violently by another car being driven up behind, and colliding with the car in which he and the plaintiff were, that he noticed that persons in the car were pitched forward, and that a person standing up, must evidently have been thrown down.”

      John Halliday, testified that he was driving for defendants, “the car immediately behind that which collided against the car the plaintiff was in; saw the" colliding car coming back, and it coupled with his, and it did not approach so fast but that it coupled easily with his.”
    The defendants gave evidence “tending to show from experience, and by the laws of motion, that the plaintiff could not have been thrown forward and injured in the manner he claims to have been, by a car being propelled against the rear part of the car in which he was standing.” The case also states that “ evidence was given on both sides as to the manner of driving up the car, or coupling, or attaching it to the other as bearing on the fact of the injury, and the question of defendants’ negligence, and thereupon, the counsel for the defendants, asked the judge to" charge the jury, First. That if they believed from the evidence, that the injury to the plaintiff was not caused by the car which was coming up, being propelled against the car in which he was standing, as testified by him, then he is not entitled to recover.”
    The judge charged the jury: “ That if they believed it to be impossible from the evidence, that the injury to Pollard could have been occasioned in the manner stated by him, then he could not recover in this action.
    “ That if the injury in fact, occurred as stated by Pollard, the company would be liable, unless they believed that his negligence contributed to the injury.
    “ That in order to recover, he must prove the negligence alleged.
    “ That improper driving of the car which came up behind that in which the plaintiff stood, or want of care in connecting the cars, would be negligence, such as would render the company responsible, if thereby the injury was caused; the plaintiff being free from blame.
    “ That it was not necessary, to entitle the plaintiff to recover, that the injury should have occurred precisely as he alleged in his testimony; if the jury believed from the evidence, that it happened without any default on his part, and from negligence on the part of the company.”
    No exception was taken, in terms or form, to any part of the charge as made.
    The case states that the judge refused, under the evidence, to charge the proposition contained in said request, to which refusal, the defendants’ counsel then and there excepted.
    The defendants also gave evidence tending to show that by the practice and rules of the dafendants, which regulations were not printed or communicated to the public, persons who took passage from that depot, were always provided with a car or cars at that station on a side track at that street; and that a porter was always in attendance there, and was so at this time, to notify such passengers, that they should take passage in such car or cars, and not in those which came up from Canal street, which were usually filled with passengers.
    The defendants also requested the judge to charge, Second. “ That if the jury believe from the evidence, that the rule of the company was, that the passengers who purchased tickets, and took the train at 26th street, should take seats in the car or cars which went from there; and that this was generally known to passengers from there; that there was room for him in the car which went from there to receive such passengers, and that he might have taken a seat in such car ; and that instead of taking such car, he went into the car where he says he was standing at the time he was thrown.down, then he is not entitled to recover.”
    The judge refused to charge as thus" requested, and the defendants excepted.
    The plaintiff had testified, without contradiction, that, “he found this car to be full, and could get no seat, and there was no other car there.”

      Wm. Curtis JVoyes, for Appellant.

      James T. Brady, for Respondant.
   By the Court. Bosworth, Ch. J.

—No motion was made for a new trial, on the ground that the verdict is against evidence.

There is no ground for doubting that while the plaintiff was standing in one of the defendants’ cars, another of defendants’ cars was driven or propelled against it so violently that the plaintiff, by reason of such collision of the two cars, was thrown down and injured. He swears to this general fact. Sesson corroborates it. Halliday corroborates the testimony of the plaintiff as to the fact of the colliding car rebounding, or having a backward motion given to it by reason of the violent or forcible contact, of that car with the one in which the plaintiff was. If, then, the plaintiff was free from any negligence contributing to his injury, and was injured by the violent manner in which the two cars came in contact, and if this violent contact resulted from the negligence of the defendants, the plaintiff’s right to recover would seem to be clear.

The charge itself was not excepted to. And, unless some instruction which the defendants requested should be given to the jury, was erroneously refused, no error was committed which can be reviewed on an appeal from the judgment alone.

What is the theory on which the defendants’ first request seems to have been made? The plaintiff had testified' “ that the accident was occasioned by another car colliding against the car in which he was, with great violence,” * * * whereby “ he was suddenly flung headlong through the car; * * *. he was thrown from the rear door of the car to the stove, which was in the middle.”

The defendants then “ gave evidence tending to show, from experience, and by the laws of motion, that the plaintiff could not have been thrown forward, and injured in the manner he claims to have been, by a c.ar being propelled against the rear of the car in which he was standing.”

The defendants then made their request for an instruction to the jury, “that if they believed from the evidence that the injury to the plaintiff was not caused by the car which was coming up being propelled against the car in which he was standing, as testified by him, then he is not entitled to recover.”

■ This request seems to be made upon the theory that if the evidence satisfied the jury that the colliding car, by being propelled against that in which the plaintiff ' stood, did not throw the plaintiff from the rear of the car forward, then he could not recover. That inasmuch as he had testified that effect upon himself, to have been caused by such a colliding of another car with the rear part of the one in which he stood; and as this effect (as the defendants insisted) could not be produced by such a cause, then the cause ^of the injury was unproved, and there could be no recovery.

In answer to this view of the case, it may be urged that, although the evidence of the defendants, “ from experience,” and relating “to the laws of motion,” tended to show that a car, by being propelled violently against the rear car in which the plaintiff stood, would not throw him forward and injure him, yet the plaintiff had sworn that he was so injured; and a passenger in the same car testified to the same fact; and that the persons seated in the same car “were pitched forward.”

There was evidence, then, on the part of the plaintiff that he was thrown forward and injured, and that persons seated in the same car were pitched forward.

On this evidence, their being nothing to impeach the integrity of the plaintiff ’s witnesses, or the accuracy of their testimony, except so far as it was affected by the defendants’ evidence, “from experience,” and in relation to “ the laws of motion,” the judge told the jury “ that if they believed it to be impossible, from the, evidence, that the injury to Pollard could have been occasioned in the manner stated by him, then he could not recover.”

If it could so occur, it is quite clear that there was no evidence (which is contained in' the case) tending to show it did not so occur, except that given by the defendants tending to show it was impossible that it could have so occurred.

By the charge as made, the question first presented to the mind of the jury was, could the injury have so occurred ?

In this connection the judge further charged, “ That if the injury in fact occurred as stated by Pollard, the company would be liable, unless the jury believed that his negligence contributed to the injury; that in order to recover, he must prove against the company the negligence alleged.” * * “ That it was not necessary, to entitle the plaintiff to recover, that the injury should have occurred precisely as he alleged in his testimony, if the jury believed, from the evidence, that it happened without any default on his part, and from negligence on the part of the company.”

We understand the sentence last quoted, as an instruction , that although the jury may believe that the first and natural effect of propelling a car violently against the rear of that in which the plaintiff stood, would be to give him a backward instead of a forward motion, yet if they believe the actual effect of the collision was to throw him forward and injure him without fault on his part, the plaintiff was entitled to recover.

We think it was not, and could not have been understood by the jury as an instruction that they might find for the plaintiff, on the theory that his injury may have been produced by some other negligence of the defendants’ than their negligently and violently propelling a car against the rear of that in which the plaintiff stood.

" No cause of injury was suggested or could have been considered by the jury, except the negligent and forcible concussion of the two cars belonging to the defendants.

In this view of the charge, it means, and we think must have been understood to mean, that in order to find for the plaintiff, they must be satisfied by the evidence that the plaintiff, without fault or negligence on his part, was thrown down and injured by the defendants’ negligently and forcibly propelling one of their cars against the rear of that in which the plaintiff was standing. And if satisfied that he was so injured, he could recover, notwithstanding the first motion given to his person by the collision may have been backward instead of forward.

In this connection it may not be immaterial to notice that the case states that “ evidence was given on both sides as to the manner of driving up the car or coupling or attaching it to the other, as bearing on the fact of the injury, and the question of defendants’ negligence.”

What this evidence was, or what it justly tended to prove, is not stated in the case.

It may have been sufficient of itself to warrant the charge as made, and to uphold the verdict of the jury.

In any view of the case, the defendants were not entitled to an instruction in the terms of the first request, unaccompanied by the other views submitted to the jury in connection with it. The charge as made, submitted that proposition to the jury, with the qualifications or explanations accmpanying it, and the defendants are not entitled to a new trial by reason of the refusal of the judge to submit the case to the jury in the precise form asked for by the first request to charge.

There is no objection that the cause of the injury, stated in the complaint, is in any respect variant from that which the evidence established.

Whether the first and natural effect of the collision was to throw the plaintiff forward, or whether, according to the laws of motion, it would first throw him backward, until the sudden rebounding of the cars, from the closer proximity into which they had been forced, overcame the motion in that direction, and then suddenly threw him forward, is not a matter of much practical moment, so long as it is free from doubt that the plaintiff, without fault on his part, was suddenly and violently thrown forward by the collision, and injured.

As to the second request to charge, it may be said, that in the series of facts embraced in it, and which it was thereby asked that the jury might be permitted to determine in favor of the defendants, there is one (viz: “that there was room for him in the car which went from there [26th street,] to receive such passengers, and that he might have taken a seat in such car,”) as to which there was no evidence tending to prove that such supposed fact was true. On the contrary,'the plaintiff swears that “he found this car to be full and could get no seat, and there was no other car there.”

There is not a particle of evidence in conflict with this testimony of the plaintiff.

All the evidence given by the defendants bearing upon this matter, was “ evidence tending to show that by the practice and rules of the defendants, which regulations were not printed or communicated to the public, persons who took, passage from that depot were always provided with a car or cars at that station, on a side track, at that street; and that a person was always in attendance there, and was so at this time, to notify <such passengers that they should take passage in such car or cars, and not in those-which came up from Canal street, which were usually filled with passengers from thence.”

This evidence has no tendency to rebut the positive testimony of the plaintiff, that on the morning in question, there was but one car at 26th street, and that this was full, and he could not get a seat in it.

And the jury would not be warranted in finding, that there was more than one car there on the morning of the injury, or that the plaintiff could get a seat in that car; the judge therefore, rightfully refused, “ under the evidence” to submit such a question of fact to the jury.

A rule of the company, that “ passengers who purchased tickets, and took the train from 26th street, should take seats in the car or cars which went from there,” a jury would have no right to find, was known to the plaintiff, or “was generally known to passengers from there;” when the only evidence on the question of their having knowledge of the rule, is, that it was neither printed nor communicated to the public.

No passenger would be required to infer, that he was not permitted to ride in any car in the train, from the mere fact, that there was uniformly one car started from 26th street, and sometimes two. There is no evidence that the porter in attendance told the plaintiff, or any one else, that passengers taking the train at 26th street, were required or expected to take a seat in the car starting from that street, rather than in some other car in'the train.

We think, therefore, that the judge was right, in refusing “ under the evidence,” to charge as secondly requested. •

On the present appeal, the question, whether the damages are excessive, is not before us, and was not argued. The appeal brings before us for review, two exceptions taken at the trial, and nothing else.

We think the exceptions are untenable, and the judgment must be affirmed.

Robertson, J.

—The complaint in this action alleges that the plaintiff, while in a car of the defendants for the purpose of being carried by them to New Haven, -yas violently thrown from the hind part of such car, towards the front part thereof, in consequence of a collision of another car against that in which the plaintiff was, through the carelessness of the defendants and their servants. It also alleges that the colliding car was driven and propelled against that in which the plaintiff was.

The testimony of the plaintiff and another witness, sustained the allegations of the complaint, both as to the mode of injury to the plaintiff by his being thrown forward, and, its cause by the collision of another car, and even the. remote origin of it by the driving of the colliding car against the other. A witness who was driving a third car in the rear of, and towards the colliding car, being examined for the defendants, testified to the retreat of such colliding car towards him and its low rate of speed; other testimony was also given of the mode of driving up and coupling the cars, as bearing on the fact of the injury, and the negligence; evidence was also furnished,” to show by experience and from the laws of motion, that the plaintiff could not have been thrown forward and injuredin the manner he claims to have been” by the .propulsion of a car against the rear of that in which he stood.

The defendants’ counsel requested the judge to charge the jury, that the plaintiff could not recover, if the injury to him was not caused by the car which was coming up, against that in which he stood, as testified to actual instructions given to the jury, were, that the plaintiff could not recover, if they, from the evidence, believed it to-be impossible that the injury to him could have been occasioned in the manner stated by him, but that it was not necessary to entitle him to recover, that the injury should have occurred precisely as alleged in his testimony, provided it happened without fault on his part, and from negligence on the part of the defendants; upon such a charge, the jury must be assumed to have found that it was possible that the injury could have been occasioned in the manner stated by the plaintiff, and also to have based such verdict upon the belief that the injury arose solely from the defendants’ negligence, although it did not occur precisely as alleged in the plaintiff’s testimony. being propelled by him. The

If such request to charge was substantially as contended in the argument, that if the propulsion of the car coming up against that in which the plaintiff was as testified to by him, did not cause the injury to him, he could not recover; then the latter part of the charge was" undoubtedly intended to meet this request, by instructing the jury, that it was not necessary that the injury should have occurred precisely as testified to by the plaintiff; and this presents the questions, whether the precise mode of inflicting the injury as alleged in the complaint, or sworn to by the party injured, on the trial, ■ must be found by the jury, and whether the complaiht in this case, did limit the plaintiff to any such precise mode. The sole ground of liability is the defendants’ negligence without fault on the part of the plaintiff, and the latter was not bound to have traced the injury back; through a succession of causes and effects, until he reached the primary one of negligence, describing minutely, every one of those causes and effects, so as to be compelled to sustain them afterwards, precisely by evidence. It would be sufficient in' this case, for the plaintiff to have alleged and proved that by some shock given to the car, in which he was, in consequence of the careless management of that or other cars, he was thrown forward and injured, and he might perhaps have omitted to describe even the physical immediate cause of his being thrown forward. But the complaint in this case does attribute the plaintiffs’ being thrown forward to a collision of cars; and although it alleges a driving of another one against that in which the plaintiff was, it does not confine the causes of such collision to such driving; such allegation of propulsion may be stricken out of the complaint without affecting the context. If, therefore, the plaintiff sustained injury by being thrown forward by a collision of cars, in consequence of careless mismanagement on the part of the defendants’ agents, it was immaterial whether such collision was produced by the careless backing of the car in which the plaintiff was, or the driving of another against it, to which latter, he ascribed the action of the shock upon his person, or in any other way; the request to charge was therefore too broad.

Another request to charge was made in reference to the plaintiff’s negligence. Evidence was given of rules and practice of the defendants, not communicated to the public, that persons who took passage from the depot where plaintiff took his, were always provided with a car on a side track from where it ran on to the main track, where the plaintiff received his injury, and that a person was always in attendance to notify passengers to take passage in such cars, and not in those which came from a lower station, such as that in which the plaintiff was injured, and which were generally filled with passengers. The plaintiff’s testimony showed that in this case there was only one car standing on the side track, and that was full, and he could get no seat; that he went into the cars on the main track, but found them full, and was looking for a seat in the'car in which he was injured, at the time of the injury. It- was also proved that the plaintiff was in the habit of taking passage in the defendants’ trains at the place where he took it on this occasion.. The defendants requested the judge to charge the jury that the plaintiff could not recover if the defendants’ rule was that passengers talcing passage at the depot in question should take seats in the cars that went from there, and this was generally known to the passengers from there, and there was room for him in the car which went from there, and he might have taken a seat in such car.

There are two insurmountable objections to the legality of the instruction prayed for:

1st. There was no evidence that there was any notice to the plaintiff, or any means taken of communicating to the public the rules alleged; indeed, the stationing of a porter to give individual notice would seem to indicate that the defendants did not rely on any publication of such rules.

2d. The plaintiff testified positively that "the only car on the side track was filled with passengers, and there was no contradiction of his testimony.

Without some evidence that such rule was in a way of being made known to the public and the plaintiff, notwithstanding he frequently went from that depot, and some other evidence to contradict the plaintiff’s testimony that there was no car on the side track .on this occasion, which-contained a vacant seat which the plaintiff could have obtained, besides the general practice of the defendants, the court was right in disregarding such last specified request.

These being the only errors complained of, the judgment should be affirmed with costs.

Judgment accordingly.


author: By the Court. Woodruff, J.

text:
    The St. Nicholas Insurance Company v. John W. Howe.
    1. The defendant subscribed for (80) shares of the plaintiffs’ capital stock, and afterwards, by his authority, other (66) shares were subscribed for in his name, and certificates for the whole (146) shares, were issued to him; and as security for payment of his note for §2,000, he assigned 46 shares, and delivered, with the assignment , a certificate for such shares, to a bank which became insolvent; and the receiver of such bank sued the defendant and obtained judgment for the sum due on the note, and subsequently sold the (46) shares, and applied the proceeds on the judgment; and the purchaser of the 46 shares applied to have them transferred on the plaintiffs' books to him, when it was discovered that (130) shares had already been transferred by the defendant in person, or by attorney; whereupen the plaintiffs transferred to the purchaser 16 shares, and paid to him for the remaining (30) shares, §301.25, the sum he paid therefor, and took a surrender of the certificate; and defendant subsequently, with knowledge of all the facts, promised to pay to the plaintiflh the said sum of $301.25; held, that-he was bound by said promise, and that an action would lie against him thereon, to recover the sum-so promised to be paid.
    2. That the facts, that the person who, by his authority, subscribed in his name, for the (46)-additional shares, and as his agent, sold and transferred them/was-the president of the plaintiffs, and at the time of being authorized to subscribe for the additional stock promised, that “ he would take care of it for the defendant,” did not affect his liability to the plaintiffs, under the facts proved in this case.
    3. Whatever such person did in subscribing for stock and transferring it in the defendant’s name, must be deemed to have been done by him as the defendant’s agent, and not as president of the plaintiffs, or their agent.
    4. The payment by the plaintiffs, of the $3 01.25, under the circumstances, was not voluntary merely. If not to be deemed as made at the defendant’s request, it was made for his benefit and in discharge of a liability on his part; and this was a sufficient consideration for his subsequent promise to repay the amount so paid. 1
    (Before Bosworth, Ch. J., and Woodeuit and White, J. J.)
    Heard November 7,
    decided December 29, 1860.
    Exceptions ordered at the trial, to be heard in the first instance, at general term.
    This action was brought to recover the sum of $301.25, and interest thereon, alleged to be due to the plaintiffs, on the following grounds, viz: one hundred and forty-six shares of the capital stock of the plaintiffs, stood in the tiame of the defendant. Certificates for the whole number in different parcels, had been issued to him, and the plaintiffs had his receipts therefor, signed by him. One of those certificates being for forty-six shares, was held by the Knickerbocker Bank, as security for the payment of the defendant’s note, under an assignment executed by him. The assignment and certificate were as follows :
    “ Exhibit C.

      “Power of attorney, with certificate annexed thereto.

    “ Know all men by these presents, that I, John W. Howe, for value received, have bargained, sold, assigned, and transferred, and by these presents do bargain, sell, assign, and transfer unto , forty-six shares of the St.
    Nicholas Insurance company’s capital stock, standing in my name on the books of the said insurance company, and do hereby constitute and appoint my true and
    lawful attorney irrevocable for me and in my name and stead, but to his use, to sell, assign, transfer, and set over, all or any part of the said stock, and for that purpose to make and execute all necessary acts of assignment and transfer, and one or more persons to substitute with like full power, hereby ratifying and confirming all that my said attorney or his substitute or substitutes, shall lawfully do by virtue hereof.
    “ In witness whereof, I have hereunto set my hand and seal the 14th day of August, one thousand eight hundred and fifty-two.
    “ JOHN W. HOWE, [l. s.]
    “ Sealed and delivered in ? the presence of $
    “ St. Nicholas Insurance Company, ? Of the city of New Tork. )
    “ No. *71. 48 shares.
    “ This certifies, that John W. Howe entitled to forty-six (46) shares of twenty-five dollars each, in the capital stock of the St. Nicholas Insurance company, transferable on the books' of said company only by the said John W. Howe, or his attorney, on surrender of this certificate.

      “ In witness whereof, the. president and secretary have hereto subscribed • their names this twenty-fourth day of August, 1852.
    “ H. HOPPER MOTT, Pres’t.

    “Chas. 0. Richardson, Secretary.”
    The Knickerbocker Bank became insolvent, a receiver was appointed; the receiver took possession of the pro-* perty, and among other, of the defendant’s note and the assignment of stock held as security, and -brought suit on the note, (which was originally for $2,000, but payments had been made thereon,) and recovered judgment for $690.52, besides costs.
    The receiver also sold the forty-six shares of stock, and delivered to the purchaser the certificate and assignment, and the latter presented the same to the plaintiffs and required them to allow a transfer on their books to his name. Upon examination, it appeared that transfers had already been made by the defendant in person, or by attorney, so that only sixteen shares stood in his name, (such transfers having, in fact, been made without a return of the certificate, for forty-six shares, which, as was known to the plaintiffs’ president, were held by the Knickerbocker Bank as security for the defendant’s note.) The whole amount of stock which, by the charter, the plaintiffs were at liberty to issue, having at that time been issued to bona fide holders, the plaintiffs consented to pay, and did pay to the purchaser, for the deficiency, (30 shares,) what he had paid therefor, $301.25, and he surrendered the certificate and re'ceived a transfer and certificate for the 16 shares, which, to that time, remained in the defendant’s name.
    The defendant was then called on by the plaintiffs to indemnify them. He at first denied that he had held so many shares as appeared to his credit, and that he had transferred so many as appeared to his debit; but after examination, his various receipts for certificates and his transfers by himself or attorney being seen, he promised the plaintiffs to pay to them the $301.25 which they had so paid. He also afterwards promised to give the plaintiffs his note therefor; but he having failed either to give his note or pay, this suit was brought to recover upon allegations of all the material facts thus detailed.
    The defendant insisted and gave testimony to show, that he consented, prior to the organization of the plaintiffs, to take 80 shares of stock only; but that M. H. Mott, who was active in organizing the company and procuring subscriptions, and who, after the organization, became the plaintiffs’ president, informed him after such organization, that “ he had taken the liberty of putting some more shares in his (the defendant’s) name;” and said, that “he would take care of it for the defendant;” to which the defendant replied, that “he had no objections, provided it was so arranged that he (defendant) should not be called upon io pay for any more stock.”, After this, Mott called on the defendant with some blank powers of attorney, and stated that he “ had a chance to work off the stock in such lots as he might have opportunity;” and being asked if it was for the surplus, (i. e., the shares exceeding the 80 shares,) he said yes, and the defendant then signed the powers of attorney ; and afterwards Mott told him he had sold some of the stock which had been put down to him, and asked him to signa “receipt” on the transfer book, which he did.
    The defendant testified, that he first signed an assignment with power and delivered it, with a certificate for the 80 shares he had taken to the Knickerbocker Bank, as security for his note for $2,000 ; and it was not distinctly shown by whose negotiation the assignment of the 46 shares was substituted ; but the certificate for 80 shares was surrendered, and a receipt signed by Howe for the 46 shares, Avas produced by the plaintiffs, and he executed the assignment thereof above set forth.
    The defendant testified, that he had only sold and transferred for his own account and benefit, 40 shares; so that it was to be inferred that the other transfers were made under the blank powers of attorney which he had given to Mott, by persons whose names were inserted therein by Mott.
    But on the settlement by the defendant of his indebtedness to the Knickerbocker Bank, the receiver credited him with the proceeds of the 46 shares, sold as above stated. The defendant accepted the credit, and paid the balance remaining due in satisfaction of the judgment against him.
    Mott was president of the plaintiffs from their organization until after the transfers in question were made, by which the defendant’s stock was reduced to 16 shares ; and the defendant was a director of the plaintiffs, and also of the Knickerbocker Bank.
    The plaintiffs are a corporation organized under the “ Act to provide for the incorporation of insurance companies,” passed April 10, 1849, Laws of 1849, chap. 308, page 441.
    The action was tried on the 1th of December, 1859, before Mr. Justice Pierrepont and a jury, and upon the facts in substance, above recited, and some others stated in the opinion of the court at general term, the judge, on the trial, decided that no cause of action had been proved by the plaintiffs, and ordered judgment of non-suit, to which the plaintiffs excepted; and he thereupon directed that the exceptions be heard, in the first instance, at the general term, and that judgment be in the meantime suspended.
    The defendants now moved for judgment in'pursuance of the order so made, and the plaintiffs, insisting that the ruling was erroneous, demanded a new trial.

      E. Ji. Doolittle, for the Plaintiffs.

      Charles Tracy, for the Defendant.
   By the Court. Woodruff, J.

—It is shown by receipts produced on the trial signed by the defendant himself, that he actually received certificates for one hundred and forty-six shares of the stock of the plaintiffs. His own testimony shows, that, although he relied upon the promise of M. H. Mott, that he “would take care of it for” him, i. e., would take care of the number of shares exceeding eighty, yet, that he did in truth consent to the subscription therefor by Mott in his name, or sanctioned it after it was done, and the same having been subscribed, certificates were issued by the plaintiffs, and the defendant received them.

In the evidence bearing upon this branch of the case, that is to say, the history of the defendant’s ownership of the one hundred and forty-six shares, there is nothing whatever, showing any fraud or misrepresentation to induce him to subscribe or take the stock.

We have no hesitation in saying, therefore, that in this case, the defendant is to be treated (as between him and the plaintiffs) as the holder and owner of one hundred and forty- six shares of their capital 'stock. The fact that he had Mott's promise as to sixty-six shares, that he “would take care of it for him, does not, and cannot effect the plaintiffs. The language of the promise is itself vague and obscure ; it may mean that Mott would find a purchaser for it, or that he would procure some one to take it off his hands and pay for it, so that the defendant should not be required to do so. In some such sense as last stated, the defendant appears to have understood it. But it is obvious, that after the stock had been entered to the defendants’ name, and he had actually received the certificates therefor, he was (as against these plaintiffs, and as against Mott also,) entitled to hold it, and enjoy and exercise all the rights of a stockholder to the number of shares designated.

And in our judgment, it is equally certain, that he could not, as against these plaintiffs, have refused to pay the subscription price for the whole of the stock. Mott, in making the agreement referred to, was not the agent of the plaintiffs. He had no authority by virtue of his office of president to bind the plaintiffs, to an agreement, that a stockholder should not be required to pay for his stock. His promise was not in the plaintiffs’ name, nor ostensibly made on their behalf. It was in every aspect in form, in fact, and in law, Mott’s individual promise to take care of the stock for the defendant, and upon that, the defendant must be deemed to have relied in authorizing or ratifying the subscription for the sixty-six shares exceeding the subscription for eighty shares, which the agreement did not embrace.

Had Mott assumed to act on behalf of the plaintiffs, and had promised for them, that the defendant should not be required to pay for the stock, they would not have been bound; first, because he had no authority to make such a contract; second, such an agreement on behalf of the corporation, to reduce a subscription to its stock, would be a fraud upon bona fide subscribers, contrary to public policy, and a fraud upon the statue, authorizing the creation of such corporations. It could not be tolerated that, in organizing and taking subscriptions for stock in corporations, formed under the statute, the proposed officers, or the officers actually agreed upon or appointed, should be permitted to contract with subscribers for stock, that they shall not .be required to pay in the amount subscribed.

The defendant is then to be treated in reference to the question before the court, as any other holder of one hundred and forty-six shares would be, or as he would be if the promise of Mott to take care of a part of his stock had not been made.

Again, the transfers subsequently made of the stock so held by the defendant, are to be deemed made upon his responsibility. They were made by him in person, or by his duly constituted attorney. His attorney is his representative, and not the plaintiffs’ agent. If, in either of the transfers, Mott made the transfer, which does not distinctly appear, he was not in that, acting as president of the plaintiffs ; it was no part of the power or duty of the president as such, to transfer the shares held by the shareholders, and any authority to him from a shareholder to make a transfer, was a private matter between the latter and the president, as a merely private individual. And such attorney, though at the time holding the office of president, acts upon his private responsibility to the stockholder who gives him the authority. The corporation have no concern in or responsibility for the act of the president, in the exercise of such an authority.

If, therefore, the defendant thought proper to confide in Mott, so far as to give to him powers of attorney, or other general authority to control or sell, or transfer his stock, he made him his private agent, and he must look to him for indemnity for any transfer made in violation of any agreement with Mott, or not in conformity with the intention of the defendant. The transfers of stock which were made must, therefore, be treated (as between the plaintiffs and the defendant) as they would be, if made by the defendant in his own proper person.

In this view of these questions, which are in some part preliminary to the main question, how does the case appear ?

The defendant had received from the .plaintiffs on the 5th of August, 1852, a certificate for eighty shares of stock which belonged to him, and stood in his name upon the .plaintiffs’ books. He hypothecated those eighty shares (by delivery of the certificate with an assignment of the stock therein mentioned, and a power of attorney authorizing the transfer thereof) with the Knickerbocker Bank as security for two thousand dollars loaned to him upon the credit of his note so secured. He thereafter, on the 24th of August, 1852, received from the plaintiffs one certificate for twenty shares for B. F. Howe, (to whom he had transferred them,) and another for forty-six shares in his own name; these last two being the exact number of sixty-six shares which he claims Mott was to take care of, and the three making up the whole of his stock, viz: one hundred and forty-six shares.

By whose hands the certificate for the forty-six shares came to the possession of the Knickerbocker Bank, it is not distinctly shown; but it does appear that the defendant received it from the plaintiffs, and that it was delivered to the Knickerbocker Bank, with an assignment coupled with a power of attorney to transfer the shares signed by the defendant, and that the bank surrendered the certificate for eighty shares theretofore held. The language of the defendant, after speaking of forty shares sold to his brother and Coleman, viz: “ the other forty shares were left with the bank as collateral security for my note,” sufficiently indicates that he was cognizant of this substitution, though he was perhaps mistaken in describing the last certificate as for forty, when it was for forty-six shares.

It thus appears that on and after the 24th of August, 1852, the defendant held one hundred and twenty-six shares of stock, and that forty-six of those shares were hypothecated with the Knickerbocker Bank as security for the defendant’s note. Afterwards, -and without surrendering the certificate for forty-six shares, the defendant transferred (in person or by attorney) one hundred and ten shares, and the question first arising is, whether that transfer destroyed the title of the Knickerbocker Bank to thirty of the forty-six shares for which they held a certificate ?

Without considering that precise question, it will, perhaps, be sufficient to consider whether the defendant was, after the transfer of- the one hundred and ten shares, under any responsibility in respect of the deficiency thus created.

On this subject, two propositions are, we think, clear: First. His transfer was a violation of the rights of the Knickerbocker Bank. Although (the transfer being made by his attorney) if he did not knowingly consent to it, he was guilty of no intentional wrong" the transfer was a fraud upon the bank, and he was bound to make them good. In equity, they had against him a clear title to have those shares, and to compel him to remove all impediments to their appropriation to the purpose for which they were held, or to pay them the full value thereof. And, Second. He was under the like obligation to return the certificate for forty-six shares to the plaintiffs, or at least to indemify them against any claim under the same by reason of his own previous assignment thereof to the bank. The plaintiffs might, perhaps, so far waive the return of the certificate and permit a transfer as to give to the transferee receiving a transfer and certificate in good faith, in his own name, a valid title as against them to the number of shares so transferred; but if so, that would not waive a claim upon the defendant either to return the outstanding certificate or indemnify them against it.

It follows that the defendant, after the transfer by which his stock was reduced to sixteen shares, was under a clear liability to the Knickerbocker Bank to the extent of the value of the thirty shares, and to the plaintiffs to indemnify them against any claim on account thereof.

We think, moreover, that inasmuch as the president, Mott, and the defendant, a director, were both fully aware that the stock had been hypothecated with the Knickerbocker Bank, where the transfer was made which reduced his shares' to sixteen, it was by no means clear that the plaintiffs could have protected themselves against the demand of the bank, or its receiver or assignee, to recognize their title and permit a transfer thereof; or if, by reason of the transfer already made in fraud of the rights of the bank an actual recognition of the title of the bank, was impossible, because it would increase the number of shares beyond the number of actual shares of its capital, then it is not clear that the plaintiffs were not bound to indemnify the bank or its assignee.

Be this as it may, the plaintiffs consented to give such indemnity by refunding to the purchaser the sum he paid for the thirty shares. That sum had been applied in discharge of the conceded indebtedness of the defendant to the Knickerbocker Bank, and the defendant sanctioned that application, and so indirectly received to his own use the precise amount which the plaintiffs had paid.

The claim, therefore, which the purchaser made upon the plaintiffs for the thirty shares under and by virtue of the defendant’s assignment and power, may properly be treated as a request by the defendant addressed to the plaintiffs to deliver to such purchaser thirty shares of stock, and the payment of its value (under the circumstances) as an equivalent, as the payment of so much money to his use. Had not the plaintiffs acceded to such request, the purchaser would have had recourse to the defendant, and it is not for the latter to object that the plaintiffs did not engage in a litigation with such purchaser before doing what the defendant’s assignment and power of attorney, as against him, authorized them to do.

But, in our judgment, the subsequent promise of the defendant, which was clearly proved, to repay the money, removes all doubt on the subject. The defendant was liable to that very amount to the bank or to the purchaser, and the payment by the plaintiffs operated to discharge him to that extent. It was paid by the plaintiffs, and. on notice thereof, he agreed to refund the amount paid.

We think it was not a merely voluntary payment under the circumstances in which the plaintiffs were placed. That it may properly be deemed, as already suggested, a payment by his request. But especially, that it was a payment for his benefit in discharge of a plain liability which he was under to a corresponding amount, (the sum paid by the purchaser having been, with his assent, applied to his debt, and so he having unequivocally sanctioned the sale,) and that this was a good and sufficient consideration for his agreement to refund the amount paid. (See Stewart v. Eden, 2 Caines, 152 ; Comstock v. Smith, 7 J. R. 86 ; Hicks v. Burhans, 10 Id. 243; Beach v. Vandenburgh, Id. 360 ; Everts v. Adams, 12 Id. 352 ; Oatfield v. Waring, 14 Id. 191; Doty v. Wilson, Id. 381; Gourley v. Allen, 5 Cow. 644 ; Forsyth v. Ganson, 5 Wend. 558 ; Addison on Conts. 19, 20 ; Story on Conts. § 473; Parsons on Mer. Law, 39, 40 ; Wing v. Mill, 1 Barn. & Ald. 104. See also Miller v. Watson, 4 Wend. 267; Russell v. Cook, 3 Hill, 504.)

For these reasons, we think that upon the facts proved the defendant was liable, and that the non-suit ordered at the trial was erroneous.

• A new trial should be ordered, with costs to abide the event of the suit.

Ordered accordingly.