author: By the Court.—Speir, J. Sedgwick, J.—[Concurring.]—I

text:
    SAMUEL P. KNAPP, Appellant, v. ULRICH SIMON, Impleaded, &c., Respondent.

      Agent—liability for failure to disclose principal—rights against principal.—Statute of limitations.

    A broker employed by Ms principals to purchase for them, as such broker, from a specified person, a certain commodity, with no authority to purchase in his own name, and who, by reason of Ms failure to disclose his principals, is personally charged with and pays a judgment for the purchase-price thereof, has no rights against his principals, arising out of said transaction, except those gained upon principles of equity, giving him such claim as the vendor may have against said principals.
    Consequently, a release of all claims arising out of said sale, given by the vendor to one of said principals (Act of 1838, for relief of partners and joint debtors), prior to the commencement of the vendor’s action against said broker, furnishes to the party so released a good defense to a subsequent action brought by the broker against his principals, to recover the amount paid by him as above stated.
    Such action by the broker against Ms principals, should be brought within six years from the time the vendor’s claim accrued.—Speir, J.
    Before Sedgwick and Speik, JJ.

      Decided June 18, 1880.
    Appeal by plaintiff from judgment entered on verdict directed by the court.
    • The facts appear in the opinion.

      D. M. Porter, for appellant, urged :
    The plaintiff and defendants (because of the plaintiff’s failure to disclose tó Cobb who were his principals) were both liable to Cobb (Mason v. Cockcroft, 3 Duer, 366; Coleman v. Bank of Elmira, 53 N. Y. 394; Cobb v. Knapp, 71 Id. 348; Story on Agency, §§ 266, 267; Meeker v. Claghorn, 44 N. Y. 349). The superior court, in Cobb v. Knapp (10 J. & S. 99) held that payment of the $1,717.82 was properly credited, but that it did not affect Knapp’s liability. There is no proof that the plaintiff Knapp had any information of any alleged release, neither is it material whether he had or had not, because defendant Simon’s payment and paper only affected it to the extent of his liability, as Knapp was surety for the three members of the firm of C. A. Steen & Co. It cannot be disputed but that the recovery by Cobb against Knapp was against him upon a liability as principal; but the relation between the defendants in this action and Knapp, the plaintiff, was that the defendants were the principal debtors and Knapp was their surety, although a principal to Cobb. Again, the release expressly provides that it shall not release Donan and Steen, the other defendants herein ; and the statute under which the release was given (3 R. S. 5 ed. p. 66, § 28) provides that the other joint debtors shall not set up the discharge of one individual as a discharge of the others, unless it shall appear that all were intended to be discharged. Section 29 reads': “ Such compromise or composition of an individual of a firm with a creditor of such firm shall in nowise affect the right of the other copartners to call on the individual making such compromise, for his ratable portion of such co-partnership debt, the same as if this law had not been passed.” Consequently, inasmuch as Knapp, the plaintiff herein, has paid the debt owing by the other copartners, and was surety to the three, the release of the defendant Simon would be no bar under the statute, and, as to the plaintiff, is an act between third persons, and the plaintiff’s cause of action arose against the defendant Simon after the release was given (President, &c., of Mech. & Farm. Bk. v. Capron, 15 Johns. 467, note A). It must be here borne in mind, as has been said, that as between Cobb and the defendants, they were principal debtors to Cobb, and Knapp was also principal debtor to Cobb. The stipulation was no more obligatory than those in the case of Hnbbel v. Carpenter (1 Seld. 171), in which case the court says: “In such case the principal debtor, though no longer liable directly to the creditor, remains liable to refund to the surety the amount of the demand, in case it should be afterwards collected from him.” “ The surety will not be discharged by a release if the contract reserves all the rights of the creditor against the surety, for, in that case, the surety may pay immediately, and forthwith proceed against the principal, even though the creditor accept a composition” (Wagman v. Hoag, 14 Barb. 232). Under facts substantially similar to the facts in this case, the plaintiff was held entitled to recover back from the defendant the amount in an action for money paid, in Kearsley v. Cole (16 Mees. & Wels. 127). Judgment either ought to have been directed for the plaintiff or there was a conflict of testimony, and it was error in the court to refuse to submit the question to the jury as it did (Stone v. Flower, 47 N. Y. 566).

      Vanderpoel, Green & Cuming, attorneys, and H. W. Bookstaver and A. J. Vanderpoel, of counsel, for respondent, urged :
    I. The cause of action was barred by the statute of limitations. Section 380 of the Code provides : “ The following actions must be commenced within the following periods after the cause of action has accrued.” “§ 382. Within six years: 1. An action upon a contract, obligation or liability, express or implied, except a judgment or sealed instrument.” There can be no doubt but that the cause of action relied on in this case falls within this provision. Plaintiff’s right to recover in this action does not depend on the recovery of judgment in Cobb against Knapp, but upon the terms and conditions of the purchase and sale of the wheat made by Knapp on October 23, 1868. Ho new terms were made after that time. Cobb recovered of Knapp because, in making the purchase of him, he failed to state the fact that he was acting as a broker merely, and chose to deal with Cobb as principal. His position as principal was fixed by the agreement of October 23, 1868. This action was not commenced until April 1, 1878, nearly ten years after the cause of action accrued.
    II. The release executed by Cobb to Simon was an absolute bar to any recovery by the plaintiff in this action against Simon. Chapter 257, Laws of 1838, section 1, provides: “ Whenever any copartnership firm shall be dissolved by mutual consent or otherwise, it shall and may be lawful for any one or more of the individuals who was or were embraced in such copartnership firm, to make a separate composition or compromise with any one or all of the creditors of such copartnership firm, and such composition or compromise shall be a full and effectual discharge to the debtor or debtors making the same, and to them only, of and from all and every liability to the creditor or creditors with whom the same is made or incurred, by reason of his or their connection with such copartnership firm.” The firm of C. A. Steen & Co. was dissolved in October, 1868. The release was executed October 30, 1869, a year after the dissolution. Simon paid for it his full ratable portion of the copartnership debt and interest. Even his partners, had they been compelled to pay the remainder, could not have called on him for more (L. 1838, c. 257, § 4). Cobb’s action against the plaintiff was not commenced before October 28, 1873. Had the plaintiff notified Simon of the pendency of Cobb’s action against him, or called on him to defend it, he would have had a perfect defense, as far as he was concerned, and there could have been no recovery for his portion of the debt. But Simon was not notified of that action, nor called on to defend it. The plaintiff was guilty of negligence in defending that action as he did, and in not calling on his alleged principals to defend it, and must bear the consequences; he cannot charge them to the defendant Simon. In Barmon v. Leithaur (1 Abb. Ct. App. Dec. 99), the court says : “ They (the defendants) cannot, be held responsible for a judgment procured against the plaintiff by default, or his negligence, without their knowledge or consent. The fact that,such a judgment was obtained would not of itself render the defendants liable if they were previously exonerated. In order to make them responsible, the defendants should have been notified of the commencement of the action, and have been permitted to defend it, had they chosen to do so.” In this case, one of the defendants had testified as a witness for the defendant in the original action, the plaintiff in the action in which the court pronounces the opinion above quoted.
   By the Court.—Speir, J.

The action is brought by the plaintiff to recover, of the defendants, the value of certain wheat alleged to have been purchased of one Carlos Cobb for defendants, by plaintiff, as their broker, and for which Cobb had recovered certain judgments against plaintiff, and the costs of defending the action, on the alleged ground that he had failed to disclose to Cobb the defendants as his principals. The judgments were recovered against the plaintiff, although the defendants in this action were the principals in the transaction, and the plaintiff a mere broker and surety, under allegations and proof that plaintiff failed to disclose his, principals.

The answer sets up a number of defenses, among them a release executed by Cobb for a valuable consideration to the defendant Simon, whereby he was released from all demands arising out of the transaction set forth in the complaint. It also sets up the statute of limitations. The other defendants were not served, and are not in the action.

The case presents only questions of law to be determined by the court. At the close of the case, there were no questions of fact- to be considered by the jury. The non-payment of the price of the wheat was admitted by the defendant. Cobb recovered of Knapp because, in purchasing the wheat of him, he failed to state the fact that he was acting as a broker merely, and dealt with Cobb as principal. The plaintiff's right to recover here does not depend upon the recovery of judgment in Cobb against Knapp. It depends upon the terms and conditions of the purchase and sale of the wheat made by Knapp, the plaintiff, on October 23, 1868. This action was commenced on April 1, 1878, about ten years after the cause of action accrued. The case clearly comes within the statute. Besides, we are of the opinion that the release executed by Cobb to Simon was an absolute bar to any recovery by the plaintiff in this action against Simon.

Carlos Cobb had a suit pending against the defendants, C. A. Steen & Co., for this same wheat. The plaintiff, wishing to settle this suit, went with the defendant Simon to Cobb’s office, where it was settled, and a release, under the act of 1838, for the relief of partners and joint debtors, was executed and delivered by Cobb to Simon, upon his paying thirty-three and one-third cents on the dollar, of Cobb’s claim. The firm of C. A. Steen & Go. was dissolved in October; 1868. The release was executed a year after the dissolution, and for it Simon paid his full ratable portion of the partnership debt, and interest. The other defendants of the firm, who are not in this suit, do not appear to be in any way connected with the plaintiff’s liability to Cobb, which entitles them to any consideration in determining the rights of the parties in this action. The liability was personal to the plaintiff ; the settlement of Cobb’s suit against C. A. Steen & Go. was procured at the instance of the plaintiff, and the release then executed to the defendant Simon is a bar to this action.

The judgment should be affirmed, with costs.

Sedgwick, J.—[Concurring.]—I

I am of opinion that the plaintiff could not maintain any action against the defendant after his release by Cobb, and that at no time could he obtain any other relief, in kind or quantity," than Cobb could have properly obtained. The reason of this is a position, fundamental to all contracts. The duties of the parties to this action were such as arose from their voluntary agreement. The defendant’s firm had employed the plaintiff as their "broker, to buy of Cobb. This authorized the plaintiff to do that thing, and if he had done it, he would not have incurred any liability to Cobb. If he be at liberty to insist now, that the judgment in Cobb against him is not res adjudícala, as to the facts of his sale to Cobb, and that he did sell, disclosing his principal, then the legal consequence of such a fact must have full effect, and it must be held that, he paid the purchase-price to Cobb, without being legally liable to pay It. On the other hand, if he did not disclose his principal, this omission was not at the request, express or implied, of the defendant. The pleading does not allege that there was any request; there is no evidence that there was. The plaintiff incurred the liability voluntarily, without defendant’s requesting it, * and therefore without his being responsible for its consequences. The defendant’s liability must be confined to such consequences as would follow the exercise of the authority given by him to the plaintiff. If the .authority had been followed, the defendants would have become liable to Cobb, with no liability to plaintiff, excepting for brokerage and expenses. This liability to Cobb would have had, as an incident, the possibility of the single defendant, now here, being discharged from, it, under the joint debtors act. It cannot possibly be held, in my judgment, that a departure from the instructions can deprive the defendant of such an advantage, and which existed in this case.

It would seem to be involved in these views that the defendants were not connected at all with the plaintiff’s liability to Cobb, and therefore they were not liable to plaintiff, as if he were their surety. If the plaintiff upon paying Cobb, in discharging the liability, gained any right against the defendants, it would be gained upon principles of equity, that would give to-him, under the circumstances, such claim as Cobb might have against the defendants, and in this case Cobb had none against the defendant in this appeal. Nor would the plaintiff become possessed of the other defendant’s right to contribution against this defendant. This is-true, for the further reason that the other defendants-cannot claim a contribution to themselves for what they have not paid.' Probably, under no circumstances, could they claim anything, in excess of what the present defendant has paid Cobb.

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


source: Caselaw Access Project

author: By the Coubt.—Sedg-wiok,

license: Public Domain

text:
    WILLIAM H. DICKINSON, Respondent, v. JOHN DEVLIN, Appellant.
    I. Contingent compensation measured by a proportionate part of the fruits resulting from the services to be compensated for.
    1. PERSONAL LIABILITY OF EMPLOYER, WHEN.
    1. When he actually receives the fruits.
    2. When one (other than the employer), acting under a power of attorney from the employer, given with the consent of the-employee, actually receives such fruits.

      (a) This, although such, person retains in his hands the-proportionate part of the fruits which was payable to the employee for his compensation, and does not pay it over to the employer or employee.
    3. ACTION TO ENFORCE PERSONAL LIABILITY.
    1. Complaint in.

      (a) A complaint, which sets out the original agreement for compensation, the performance of service under it, and that the fruits resulting from the services had been received by one whom the defendant, with the knowledge and consent of the plaintiff, has authorized to receive the same, and. that neither such person nor defendant has paid to plaintiff the proportionate part of such fruits payable to him, States a good, cause of action.

    Upon such a state of facts, the defendant had the-power and was bound to see that the person who received the money paid to the plaintiff his proportion thereof, or to demand it from such person and pay it himself.
    1. Surplusage.

      (a) Further allegations as to the disposition made by such person of the fund received by him, as to a demand made on him by the plaintiff for a part of the-fund, and a refusal by him to pay on the ground of a direction given to him by defendant not to pay,, as to a notification given to such person by defendant not to pay, and as to defendant’s claiming the whole fund, and denying the right of the plaintiff to any portion thereof, may all he treated as surplusage.

    1. Effect of so treating them.
    1. Under a general denial plaintiff is not put to proof of them.
    3. Under a general denial, an affirmative defense cannot be interposed.
    3. AFFIRMATIVE DEFENSES.
    1. Accord and satisfaction, agreement in nature of.

      (a) E. €1. An agreement between employer and employee, that the employee’s personal liability should be discharged by the transfer by the employer to the employee of the employer’s right to the fund in the third person’s-hands, to the extent of the employee’s proportionate part thereof, is an affirmative defense, and must be pleaded.
    2. Payment by stjch third person to the employee is an affirmative defense, and must be pleaded.
    Before Curtis, Ck. J., Sedgwick and Freedman, JJ.

      Decided June 18, 1880.
    The complaint alleged, in substance, that defendant employed plaintiff, an attorney-at-law, to sue for and collect a certain claim held by him against the United States government, upon a contingent fee of one-half of all sums thereafter recovered for, or paid back to, him, the defendant, his representatives or assigns, on account of the claim referred ; that under this agreement plaintiff rendered services and expended money, and through attorneys employed by him caused a suit to be brought in the court of claims, in which judgment was recovered against the United States for $10,000; that subsequently to the recovery of said judgment, and on December 31, 1877, the defendant authorized Charles D. Gilmore, in writing, as required by the regulations of the United States Treasury Department to collect the amount of the judgment from the United States, and pursuant to such authority the said sum of $10,000 was paid to said Gilmore on said day, in satisfaction of said judgment.
    The complaint then proceeded as follows :
    “That on said December 31, 1877, said Gilmore paid the defendant, John Devlin, $5,000 out of said $10,000 collected, and retained in his possession $5,000; that plaintiff has demanded of said Gilmore $2,500 of said $5,000 so retained by him, but said Gilmore refused to pay the same or any part thereof, alleging, as a reason, that said Devlin has notified and directed him not to pay any portion of said $5,000 so retained by him to this plaintiff; and plaintiff alleges and ■charges that defendant has so notified said Gilmore not to pay this plaintiff any portion of said money, .and that said Devlin claims the whole of said $5,000 so retained by said Gilmore, and denies the right of plaintiff to any portion thereof; that defendant is indebted to the plaintiff, upon this account, in the sum of $2,500 and interest, since December 31, 1877.”
    The answer was a general denial.
    The issues came on for trial before the court and jury, and the trial resulted in á verdict for the plaintiff for the full amount claimed, given under the direction of the court.
    From the judgment entered on the verdict, defendant appealed.
    The facts sufficiently appear in the opinion.

      A. H. Dailey, attorney, and of counsel, for appellant.

      Wm. H. Dickinson, attorney, in person, and S. Jones, of counsel, for respondent.
   By the Coubt.—Sedg-wiok,

In this case the learned j udge directed a verdict for- plaintiff. It cannot be doubted that the testimony, given by the defendant himself, showed without dispute that the plaintiff was entitled to receive for his services, alleged in the complaint,'. $2,500, the amount ha claimed. The only question on the facts was whether plaintiff’s claim was a personal indebtedness of the defendant or whether it was a claim to a fund held by one Gilmore. If it were the former, there was the further question whether the complaint alleged it, as the cause of action.

The facts were as follows : the defendant had employed, in a form not necessary to describe, the plaintiff, to collect a claim against the United States, and agreed, in consideration of plaintiff’s services, to give him “one-half of all sums which may be recovered for or paid to me, my representatives or assigns, on account of the claim referred to.” The plaintiff then employed certain attorneys in Washington to prosecute the claim before the court of claims. The prosecution was successful, and ended in a warrant being drawn in the treasury department for $10,000, to the order of the defendant. The warrant could not be obtained without special authority from defendant, and for this purpose-the defendant, with the knowledge, and consent of the plaintiff, gave a firm, a member of which was one of the attorneys employed by plaintiff, a power of attorney to receive and indorse the warrant and to-receive its amount. It would appear at this point, that tíre plaintiff, having agreed that his attorneys, should equally share with him his one half of the recovery, there was an agreement made in reference to-the distribution of the proceeds of the warrant. The-defendant testifies : “ Dickinson authorized me to give Gfilmore a power of attorney, on condition that I would sign an agreement to give said Dickinson $2,500. The power and the agreement were executed; Gfilmore went to the treasury department and came back with the money; I received as per agreement $5,000, $2,500-was for Dickinson and $2,500 for Gfilmore.” On this statement it is clear to me that the plaintiff’s right to payment had become perfect and that the defendant received the money, when Gfilmore, his personal representative, collected the warrant, and that it was a personal obligation by the defendant to pay the plaintiff. His legal relation to Gfilmore was such that he had the power and was bound to see that Gfilmore paid to the plaintiff, or to demand the money from Gfilmore and pay it himself. Of course it is perceived that the facts suggest that one way of discharging the personal obligation would be to make a competent agreement that such obligation should be discharged by a transfer to the plaintiff of his right to the fund in the hands of ■Gilmore, to the extent of $2,500. Such a discharge would be in the nature of an accord and satisfaction. But the facts do not show such an accord.

. The first agreement and the second agreement were that the defendant would pay and would give. It may . be true that their agreement was such, that the plaintiff, if he chose and was able, had the right to require that the amount due to him should be reserved out of the recovery, before payment to the defendant, but bis right was not gone if he allowed the defendant to receive the recovery. He could then assert the personal obligation to pay. If the facts showed such an accord and satisfaction, or, as the defendant’s counsel claimed, a payment actually by Gilmore to plaintiff, it was an affirmative defense, which must be pleaded to avail. The answer was, however, a general denial.

It stands in this way, then, that there was an agreement that the defendant should pay to plaintiff one-half of any recovery by defendant, and. the defendant did recover and receive$10,000. The defendant, before the receipt by him of this amount, by his attorney, Gilmore, recognized and acted upon a subordinate agreement that the plaintiff had made with the attorneys employed by him, and consented that they should be paid out of the amount to be collected by Gilmore, $2,50.0, and promised to give the plaintiff out of the same proceeds $2,500. This promise he has failed to keep, and there is no proof that the plaintiff ever agreed to look to Gilmore for the $2,500. The same state of facts shows that the first promise to pay one-half of the proceeds has been broken.

As to whether this cause of action was stated by the complaint, there would have been no doubt if the plaintiff had contented himself with pleading the first agreement, and not obscuring the matter with a further indefinite set of, allegations that, fortunately for him, did not set up a defense for the defendant, but was calculated to suggest that the first contract had been merged in a subsequent agreement. On the whole, the matters subsequently stated as to the manner in which Gilmore disposed of the money received upon the warrant should be rejected as surplusage.

The views above expressed cover the ground to • which the exceptions in the case extend, and there is no necessity of detailing those exceptions.

The judgment should be affirmed, with costs.

Curtis, Ch. J., and Freedman, J., concurred.


author: By the Court.—Freedman, J.

text:
    WILLIAM B. CANFIELD, et al, Respondents, v. THE BALTIMORE & OHIO R. R. CO., Appellant.

      Judge's charge—error in, when not cured by subsequent cha/rge.—Gortmwn carrier.—Burden of proof.

    Where the court erroneously charges the jury, as matter of law, that a certain material fact is as contended by plaintiff, such error is not cured by a subsequent charge, made upon request of defendant’s counsel, to the effect that the burden of proof is on plaintiff to show the said fact to be as claimed by him, and that on the evidence in the case it is a question for the jury whether it is so or not, and if they believe such to be the fact, they will find, &e.,—the original charge in that regard not having been withdrawn.
    In an action against a common carrier for loss of goods, alleged to have occurred by the negligence of the carrier, the burden of proof as to the delivery of the goods is on the plaintiff.
    Before Curtis, Ch. J., Sedgwick and Freedman, JJ.

      Decided June 18, 1880.
    Appeal from a judgment entered on a verdict in favor of the plaintiffs, and from an. order denying defendant’ s motion for a new trial, The facts appear in the opinion.

      Hutchins & Platt, attorneys, and Austin G. Fox and Waldo Hutchins, of counsel, for appellant, among other things, urged :
    The misdirection in regard to the presumption of law as to the delivery of the goods requires a reversal of the judgment. I. An erroneous instruction in regard to a presumption of law is cause for a new trial (Hilliard on New Trials [2 ed.], 306, § 62; 1 Best on Evid. [Wood’s Am. ed.] § 304; Hollister v. Johnson, 4 Id. 639 ; Glover v. Duhle, 19 Mo. 360; Holliday v. Atkinson, 5 B. & C. 501; Graves v. Colwell, 90 Ill. 612, 618).
    II. The error in the misinstruction was not cured by any subsequent instruction. 1. The court did not withdraw or modify the misinstrnction. It laid down the erroneous rule in explicit terms, adding that, “ the case, being considered a very close one, the court had some hesitation in coming to that conclusion.” The next sentence is “They have, however, said that the evidence justified the finding that they were delivered to the defendants.” Here is no qualification or withdrawal of the erroneous rule which the court of appeals was represented as laying down with hesitation. The jury were instructed that the court came to the conclusion, and whether with hesitation or not, is of no importance. But the next sentence shows how the court understood its instructions: “The defendants took the goods into their possession.” Again, the court left it to the jury to determine whether the goods were “stolen while in the possession of the defendants, the Baltimore & Ohio Railroad Company, or while in the store No. 15 Maiden Bane,” excluding an inquiry into the question whether the goods were stolen while in the possession of the plaintiffs’ carman on the way from De Wolff’s store to the defendant’s station. 2. The error was not cured by the charge of the eighth proposition submitted by the defendants. The court charged there that the burden of proof was on the plaintiffs to show “ that the missing goods were in the box when it was delivered to the defendants at Washington.” But under the instruction of the court, when the plaintiffs had proved that the goods were in the box when it left the store, and that there were no suspicious circumstances attending its transportation to the defendant’s station, the plaintiffs’ had sustained the burden, and the law stepped in with the presumption that the goods were delivered. 3. The error in question was not cured by the charge of the court on the first or second proposition submitted by plaintiffs. The court charged that on the evidence it was a question of fact for the jury whether the missing goods were delivered to the defendants at Washington, but the previous instruction remained that when the plaintiffs had proved certain facts, they could rely on the presumption of law that the goods were delivered. The whole charge is to be read together, and at the end of each proposition charged on the subject, this erroneous construction can be read: “but the court of appeals has said that there being no suspicious circumstances attending those goods on their way from De Wolff’s to the depot, the presumption of law is that the goods were delivered.” 4. Assuming, but not conceding, that the plaintiffs’ view of the subsequent instructions is correct, and that such instructions were contradictory of the one in question, still the error was not cured. It-has been shown already that there was no contradiction, and that there was no withdrawal of the misinstruction. Where the court lays down two contradictory rules for the guidance of the jury, one of which is correct and the other is erroneous, there is error, for it is impossible to say which rule the jury followed. (Chidester
      v. Cons. People’s Ditch Co., 53 Cal. 56 ; Imhoff v. Ch., M. & St. P. R. R. Co., 20 Wis. 344, 347; Adams v. Capron, 21 Md. 186, 206; B. & O. R. R. Co. v. Blocher, 27 Md. 277, 286; Southern R. R. Co. v. Kendrick, 40 Miss. 374, 388; Vanslyck v. Mills, 34 Iowa, 375 ; Catawissa R. R. Co. v. Armstrong, 49 Penn St. 186, 193). 5. The only way in which the court could obviate the error was to withdraw the erroneous charge in such explicit terms that the jury could not possibly be misled (Chapman v. White, 55 N. Y. 579 ; Allis v. Leonard, 58 Id. 288). If the misdirection may have influenced the verdict, a new trial will be ordered (Greene v. White, 37 N. Y. 405; Beaver v. Taylor, 1 Wall, 637, 644).

      Estes & Barnard, attorneys, and Benjamin Estes, of counsel, for respondent.
   By the Court.—Freedman, J.

The action' was brought to recover the value of certain jewelry and silver plate which the plaintiffs alleged they delivered to the defendant in a box, at Washington, D. C., to be carried to New York, but which, through the defendant’s alleged negligence, were abstracted from the box while in the custody of the defendant.

Upon the trial it was admitted that on May 13, 1872, at Washington, the defendant received from the plaintiffs, for transportation to New York, eighteen boxes and one barrel, and that these packages arrived in New York and were delivered to the plaintiffs’ consignees, Sackett, Davis & Co. The- contested questions of fact were : 1. Whether the missing goods were contained in one of the boxes at the time of their delivery to the defendant for transportation; and, 2, if they were, whether they were abstracted therefrom before the duty of the defendant for their safe-keeping had ended. Upon both these questions the burden of proof was upon the plaintiffs.

A former verdict in favor of the plaintiffs was set aside by the court of appeals (75 N. Y. 144), on the ground of error in the charge, and for the further reason that, although there was sufficient evidence to authorize the jury to find that the missing goods were delivered to the defendant at Washington, the whole evidence, in the absence of proof showing what care was taken by plaintiffs’ consignees of the box alleged to have contained the goods, after its arrival in New York, was as consistent with the loss of the goods after delivery to plaintiffs’ consignees at New York, as with their loss while in the defendant’s custody.

Upon the last trial, the plaintiffs sought to obviate the defect in the proof by showing not only that all the packages were safely carried from the landing place in New York to the store of Sackett, Davis & Co., and that within a few days thereafter the goods in controversy were found missing from one of the boxes, of which immediate notice was given to the defendant, but also, that, while at said store, all the boxes were kept and guarded in such a way that the missing goods could not well have been abstracted there. Upon an examination of the evidence bearing upon this point, which is quite voluminous, I think sufficient care was shown to carry the case to the jury.

Upon the question, however, whether the missing goods were contained in one of the boxes at the time of their delivery to the defendant for transportation, the jury were instructed that upon the evidence adduced the presumption of law was that they had been thus delivered, and that under the ruling of the court of appeals the evidence was sufficient to justify them so to find. In this the learned judge below erred. The evidence was substantially the same as upon the trial which was reviewed by the court of appeals, and all that that court decided with regard to it was, that it permitted the jury to find a delivery. This conclusion was reached with some hesitation. But the court did not hold that upon a re-trial the jury should be deprived' of the privilege of considering the weight and credibility of the evidence. Under this ruling the question of delivery should have been submitted as an open one, and the jury should have been left free to determine it upon their own view of the true weight to be given to the evidence which bore upon it. True, the learned judge below, upon the conclusion of the charge, in response to specific requests, added that the burden of proof was on the plaintiffs to show both that the missing goods were in the box when it was delivered to the defendant at Washington, and that they were not in the box when the box was delivered to Church, the carman, at New York ; and also, that on the evidence in the case it was a question of fact for the jury whether the missing goods were delivered to the Baltimore & Ohio Railroad at Washington, and if they believed such to be the fact, that they should'find that they were so delivered. But these additional instructions did not cure the error alluded to. They did not withdraw or modify the prior erroneous statement as to the presumption of law and the sufficiency of the evidence, as matter of law, to establish the fact, and the jury were thus left under the impression that after all the plaintiffs had sufficiently established the delivery of the missing goods.

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

Curtis, Ch. J., and Sedgwick, J., concurred.


author: By the Court.—Freedmah, J.

text:
    JOHN B. PARKER v. JOHN J. BRADLEY.

      Sheriff—not excused by service on him of attachment against party issuing execution, from obligation to malee return.

    The sheriff is not relieved from his obligation to make return of his proceedings upon an execution against the property of defendant, by the fact that prior to the return day thereof he was served with a warrant of attachment against the plaintiff, granted upon the application of defendant as plaintiff in another action. If he neglects to return the execution, he is liable to be proceeded against by attachment, and it is no defense that he has not been ruled or notified to make a return. Return can be made according to the facts, and if a sufficient excuse for not paying the money is presented, under the principles of Wehle v. Conner (69 N. Y. 646) and Dunlop v. Paterson Eire Ins. Co. (74 N. Y. 145), the court will not compel the sheriff to pay over. The court in this case held that as the sheriff had not been ruled or notified to make return, the order directing attachment against him should be modified by the addition of theVords: “unless within ten days a return of it (the execution) shall be made according to the command thereof.”
    Before Curtis, Oh. J., Sedgwick and Freedmak, JJ.

      Decided June 18, 1880.
    Appeal from order directing that attachment issue against the late sheriff of the city and county of New York.

      Yanderpoel, Green & Owning, attorneys, and ATmon Goodwin, of counsel, for the sheriff, appellant, urged:
    I. The motion is in form to compel a return of the execution, but is, in fact, to compel the sheriff to pay over the $3,500 held by him, and it was argued below upon this theory. The sheriff made no objection then, and does not now, to the return of the execution, in accordance with the facts. The opinion of the judge below shows that this was the point in dispute. “The money in the hands of the sheriff, collected on the execution against the defendant, belongs to the plaintiff, and cannot be attached while in the sheriff’s hands in a suit brought by the defendant against the plaintiff.” The decision of the court below was erroneous. The whole question has been recently litigated at great length in this court, and finally passed upon in the court of appeals, in the case of Wehle v. Conner (69 N. Y. 546). In that case the court held, that where a sheriff, having an execution in his hands, receives an attachment against the judgment creditor, and by virtue thereof levies upon the judgment debt, the attachment becomes a lien upon the judgment and execution, and all moneys collected upon the executions are liable to be applied toward the payment of any judgment recovered in the action wherein the attachment was issued; and, until the attachment is vacated, or the lien thereof in some manner discharged, it must be regarded as a valid process ; and the sheriff has no right to pay over to the judgment creditor moneys collected on the execution. That case is on all fours with the present, except that in Wehle v. Conner the sheriff had levied upon property ; and it did not appear whether the money, i. e., the proceeds of the property, had actually come into Ms hands. On the re-trial before Mr. Justice Freedman, it appeared that part of the money had come into the sheriff’s hands ; and the court held that the attachment applied equally to that. Freedman, J., says: “If he had not only made a levy, but had collected the full amount of the executions, the cash in his hands would be bound by the attachment.” Appeal was taken by the plaintiff to the general term of this court, and the decision of Mr. Justice Freedman affirmed (Wehle v. Conner, MS. opinion).
    II. So far as the motion was merely to compel the return of the execution, it was irregular, and should have been denied. We believe that under rule 6 (Gren’l Rules), it has been the uniform practice for the court to require ten days’ notice before ruling the sheriff to return process, and especially so unless some special reason is shown why the rule should be departed from. The only reason given in the plaintiff’s affidavit for shortening the time, was that “ the assignee desired the immediate payment of said money by the sheriff.” The court will not compel the sheriff to return process where there is good reason for retaining it. Until the settlement of the conflicting claims of the parties, the sheriff is bound to retain his process, and apply the money in accordance with the rights of the parties, as finally established.

      Charles Id. Black, for respondent, urged :
    I. The attachment delivered to the sheriff in the suit of Bradley against Parker, in the supreme court, did not dispense with the duty required from the sheriff—to return the execution and indorse his return of satisfaction thereon as required by the statute. If he had any doubt as to the proper disposition of the money, he could have brought it into court, which can control the application of the funds (Wehle v. Conner, 63 N. Y. 258, 260 ; 69 Id. 546, 549 ; Dunlop v. Paterson Fire Ins. Co., 74 Id. 145, 152, 153).
    II. The sheriff, having neglected to return the execution, can be proceeded against by attachment or by suit, at the election of the creditor, Nor is it any answer for him to say he had not been ruled to return the execution (Burk v. Campbell, 15 Johns. 456; Stevens v. Rowe, 3 Den. 327, 330 ; 2 R. S. 440, 535; Code Civ. Pro., § 14).
    III. It does not appear that the sheriff has made a levy under the warrant, as required by the statute, and without such levy no lien could be created (Code Civ. Pro., § 649).
    IV. The money collected by the sheriff on the execution issued against the defendant cannot be attached while in the sheriff’s hands, in a suit brought by the defendant against the plaintiff. (Drake on Attachments, § 543 ; Hoag v. Hoag, 55 N. H. 172 ; Blaisdell v. Ladd, 14 Id. 129 ; Belknap n. Gibbons, 13 Met. 471).
    V. The plaintiff having assigned the cause of action to Stratton, in trust for Mrs. Parker, November 15, 1877, and he having assigned the judgment to Watts upon a like trust, the sheriff had no right, as against this assignee, to hold the money he collected under the execution in this case to satisfy a claim against the plaintiff (Baker v. Kenworthy, 41 N. Y. 215 ; Wehle v. Conner, 69 Id. 546, 550).
    VI. The money which the sheriff has collected under the execution in this case is not a chose in action and not the subject of garnishment, but personal property, capable of manual delivery, and can only be reached' by him, if at all, by levy (Code Civ. Pro., § 649, sub. 2). If the plaintiff had not assigned the cause of action, the money, being still in the hands of the sheriff, would not belong to the plaintiff, and the^ sheriff could not levy on it under an attachment against him until it was paid over (Baker v. Kenworthy, swpra, 215, 216).
    VII. The money collected on the execution in this case went into the hands of the sheriff from the plaintiff in the attachment suit (the defendant here). The rule is that when “the money in the hands of the officer of the law did not go there directly from the debtor in the attachment, but from some other and original and independent source, over which the attachment debtor had no control as an owner,” it is not the subject of an- attachment (Dunlop v. Paterson Fire Ins. Co., 74 N. Y. 145, 151).
    VIII. The statute requires the sheriff, in executing an attachment, to take personal property capable of manual delivery into Ms actual custody. The sheriff had obtained possession of this money under an execution issued out of this court, and that possession could not be interfered with by process from another court (Dunlop v. Paterson Fire Ins. Co., 74 N. Y. 145, 148, 149, 151; Shinn v. Zimmerman, 3 Zab. 150).
   By the Court.—Freedmah, J.

This is an appeal from an order directing an attachment to issue against Bernard Reilly, the late sheriff of the city and county of New York, for neglecting to return an execution against the property of the defendant as required by the writ. On June 11, 1879, the plaintiff recovered a judgment against the defendant for the sum of $4,832.64, arid on June 12, an execution was issued thereon to said sheriff. He collected the entire amount, and on September 23, 1879, he paid over to the plaintiff the sum of $1,332,64, on account. The balance he claims to hold under a warrant of attachment issued to him out of the supreme court on or about June 26, 1879, in an action wherein the defendant, John J. Bradley, was plaintiff and the present plaintiff, John B. Parker, was defendant. The warrant commanded' Mm to attach and safely keep the property of the said, Parker, or sufficient thereof to satisfy the claim of Bradley, amounting to $2,000, with some three years’ interest thereon, besides the costs and expenses of said action. It is conceded that the said warrant of attachment still remains in full force and effect. There is no proof, however, of what the sheriff did under it.

These facts do not constitute a sufficient excuse for omitting to make a return. The statute requires the sheriff to execute the execution according to the command thereof and make return thereon of Ms proceedings under Ms hand. The attachment delivered to him did not relieve Mm of that duty (Wehle v. Conner, 63 N. Y. 258 ; affirming S. C., 40 Super. Ct. 24).

He can make a return according to the facts. If by them an excuse for not paying over the money is presented, within the principles decided in Wehle v. Conner (69 N. Y. 546) and Dunlop v. Paterson Fire Ins. Co. (74 Id. 145), the court will not compel him to pay over; for whenever a claim is made against a sheriff for money in his hands, and there is any doubt as to who is entitled to it, it is usual for the court, for the protection of the officer, to refuse to compel him to decide the controversy at Iris own risk (Mills v. Davis, 53 N. Y. 349). The question, therefore, of the sheriff’s liability to pay over, and if he be liable, whether payment should be ordered summarily, should be reserved until after the coming in of the return.

The sheriff having neglected to return the execution according to the command thereof, was liable to be-proceeded against by attachment, and it was no answer for him to say that he had not been ruled or notified to make a return (Burke v. Campbell, 15 Johns. 456 Corning v. Southland, 3 Hill, 552).

But the fact that he had not been ruled or notified, taken in connection with-the other facts relied on by Tiim as an excuse, demanded that before the actual issue of the attachment an opportunity should bo afforded to him to make a return. The order directing-that an attachment issue against the said sheriff for not returning the execution, should therefore be modified by adding at the end thereof the words, unless, within ten days a return of it shall be made according to the command thereofand as thus modified the order should be affirmed, without costs on tho appeal.

Curtis, Ch. J., and Sedgwick, J., concurred.


author: “Sedgwick, J. By the Court.—Freedman, J.

text:
    MORRIS A. TYNG, Respondent, v. THE THEOLOGICAL SEMINARY OF THE PROTESTANT EPISCOPAL CHURCH IN THE DIOCESE OF OHIO, Appellant.
    I. Hieing.
    1. CONTRACT OF FOR AN INDEFINITE OR UNDESORIBED TIME.

      (a) General rule as to its period oe continuance.
    1. From year to year, commencing from the time when the contract takes effect.
    1. Inflexibility of the rule that the year commences when the contract takes effect. The rule is not inflexible. Éach particular case must depend on its own circumstances.

      (a) Modifications.
    1. Although a tenancy begins in the middle of a quarter, yet if by agreement the rent is payable on the quarter days, or payments are in fact so made, then, the year for its continuance will, according to the circumstances, date from the previous or succeeding quarter year.
    3. Although the contract may take effect immediately on its being made, yet, if the nature of the service to be performed under it is such that the performance of it regularly commences at a certain period of the year and ends at a certain period, no services being performed between the last named period and the recurring first named period in the next year (which circumstances are well known to botli parties) the date of the commencement of the yea/r for the running' of the contract as one from yea/r to year under the general rule will be the first named period, the time intervening between the making of the contract and such first named period forms no part of such year.
    (5) Contract, how determined.
    1. A reasonable notice ending with the year should be given.
    1. Instances.

      1. In the case first above put under the head of “modifications,” it should be for the end of a year commencing at the previous or succeeding quarter day, according to circumstances.
    3. In the case second above put, under the head of modifications, it may be for the end of a year commencing at the period when the performance of the service regularly commences.
    1. Reasonable notice.
    1. Question of law for the court
    1. When the facts claimed to constitute it a/re undisputed.

      (a) Thus where the original contract for an indefinite term was for the employment by a corporation of a professor at a certain salary, composed in part of money and in part of the occupation of a house, and the contract by implication of law was determinable by a notice given for October 1, a notice given on July 11 preceding, of a resolution passed July 9, vacating the chair held by the professor, with an offer to pay the money salary up to the following October 1, and permit the use of the house until that time, and the professor received the salary, and occupied the house up to that time, when he voluntarily removed from the house, and for years after made no further claim; the professor having in the June previous to the July in which the resolution was passed been informed by a committee appointed at a meeting of the board of
    trustees, at which a quorum was not present, that the board did not feel justified in employing him for another year,
    HELD,

      as matter of law, a reasonable and sufficient notice.

      ' ■2: CONTRACT FOR A DEFINITE TIME.
    (a) A contract was made in April, 1870, by a corporate body, a seminary, to take effect July 1, 1870, for the services of a professor, without specifying the time of its duration. On July 9r 1873 (the professor, in the preceding June, having been informed by a committee appointed at a meeting of the board of trustees, at which a quorum was not present, that the board did not feel justified in employing him for the next year), the chair of the professor was vacated by resolution of the board of trustees, of which the professor had notice July 13. In the month of June, of each year, there was an annual meeting of the board of trustees, at which, as plaintiff well knew, provision was made for carrying on the work of the scholastic year next ensuing, and at which it was customary, as plaintiff also well knew, to select the professors who were to perform duty during the coming . year, and to fix their salaries; and it further appeared that it was not until after the completion of these arrangements that the salaries thus fixed as so-called annual salaries commenced to run from July 1 of each year.

      Held,

    that it might be a question whether the first contract was not one for a definite term, to wit, the next ensuing scholastic year, and whether the continuance of the professorship at the annual meetings in June, 1871, and June, 1872, were not new independent contracts for a definite term, to wit, the scholasyear next ensuing each of said annual meetings; if so, whether any action was necessary on the part of the trustees to determine the contract of employment, and if any action was necessary, whether the action had in June and July, 1873, did not of themselves have such effect.
    H. Master and Servant. Professorships.
    IH. Landlord and Tenant.
    1. Application of above principles in whole or in part to contracts of hiring in those relations.
    Before Curtis, Oh. J., Sedgwick and Freedman, JJ.

      Decided June 18, 1880.
    The complaint alleges in substance that defendant engaged the services of plaintiff as a professor in its seminary, and employed him as such for one year from July 1, 1873, to July 1, 1874, and agreed to pay him for his services at the rate of $1,300 per annum, and the occupation of a certain house; that he entered on his employment and performed the duties thereof until July 10, 1873, when he was discharged ; the defendant, during the whole of the period from July 10, 1873, to July 1, 1874, refusing to allow him to perform the duties of his employment or to pay him therefor, to his damage of $975, with interest thereon.
    It appears in the case that he had been paid an amount which would cover the salary at the stipulated .rate up to October 1, 1873 ; and had occupied the house up to that time, and that this $975 covers, at the stipulated rate, services to be performed from October 1, 1873, to July 1,1874.
    There have been two trials of the action. On the first trial a verdict for the plaintiff was directed.
    A motion for a new trial was made before the judge who presided at the trial. The motion was granted.
    The facts stated in the opinion delivered on granting the motion appeared on the trial, of course in much greater detail; thus the evidence showed, in detail, that there was but one regular meeting of the board of trustees held in each year, and that that meeting was held in the latter part of June; that at this meeting provision was made for carrying on the work of the scholastic year next ensuing, and it was customary then to select the professors who were to perform duty during the coming year, and to fix their salaries ; all of which was well known to plaintiff.
    It also appeared that the defendant’s fiscal year, so to speak, was from July to July, the accounts kept with the professors and the resolutions adopted by the board of trustees being made out on the basis of, and referring to, yearly salaries running from July h. o
    It also appeared that plaintiff’s professorship was specially endowed ; that previous to June, 1873, attempts had been made to close the school, which had invariably failed, all of which plaintiff knew; and plaintiff did not believe that the proposition to close the school, made in June, 1873, would or could be carried into effect.
    . It also appeared that on July 10, 1873, the boards of trustees of almost all the seminaries and colleges-in the land had adjourned after completing their arrangements for the ensuing year ; that plaintiff found it impossible, after so late a notice of July 10, to obtain similar employment elsewhere, and that he had been invited from New York to Ohio, with his family, in the reasonable expectation of permanence.
    The opinion delivered on the motion for a new trial, was as follows :
   “Sedgwick, J.

These facts were proved. The

defendants’ minutes have the following memorandum, viz. : March 8, 1870, ‘Bishop Mcllvaine nominates Rev. Morris A. Tyng to the Griswold professorship, which was unanimously confirmed on the motion of Dr. Burr.’

“ There was a yearly salary paid at irregular times. There is no evidence as to the rate of compensation or the times when it was to be paid, sufficient to show the intention of the parties, in respect of the intended duration of the employment.

“ Certain officers cf the defendant, who notified the plaintiff of his appointment, said to him, when he was in Ohio (although there was no evidence that they had any authority to make or modify the contract on behalf of the defendant), that ‘ they wished me to come out and take possession at the opening of the spring term in April, but I declined to do that, but agreed to come out and to take possession to date from the commencement- on July 1.’ He again testifies: ‘It was stated distinctly at that time, that I would not accept under any condition except that the appointment should date from July 1.’ And again : ‘ It was agreed that the period of my connection with the seminary should date from July 1,’ and also, ‘that I would accept the appointment to date from July 1.’

“ The practice of the seminary was, on one of the first days of October, persons presented themselves for admission and were examined. The course of instruction then began. There was a new term that began on April 1, and continued until the last days of June, when there was the examination for graduation and the commencement exercises. The vacation followed to October 1. Through the vacation the professors did no service for the seminary.

“The practice was, that the trustees, at the annual meeting, held in June, made all the arrangements for the year to come. The meeting that was to be held in June, 1873, fell through for want of a quorum, and a new meeting was called for July 8.

“On July 8, 1873, the trustees resolved to close the seminary, and expressing their entire respect for the character, learning and- teaching of the plaintiff, declared his professorship vacant. The trustees at the same time directed that an amount equal to the salary to October 1 should be paid the plaintiff, and that to that day he might use the house attached to his professorship. The reason for this action was, that only two students had attended the seminary through the year. Plaintiff received notice of this action of the trustees on or about July 8, 1873. The seminary was entirely closed by the trustees, and there was no duty thereafter to be done by the plaintiff. He received the money and used the house, as voted by the trustees, but has never waived any claim he may have to be paid further amounts for salary.

“His claim is, that there was an employment from year to year; that the contract was entire as to each, year; that, by the contract, these years began July 1, when the plaintiff took his seat; that it was not ended by notice before July 1, 1873, and, therefore, continued down to July 1, 1874, and that a notice, after July 1, 1873, could not bring the contract to a close before July 1, 1874.

“There was no proof of usage to aid the construction of the contract. The nature of the contract, however, was so far determined by law that it could not be affected by testimony (which was offered, but excluded) that it was the custom of the seminary in question to retain professors during good behavior ; we must mainly rely upon the implication in the situation of the parties, and in the facts to which the contract was to be applied.

‘‘ The general rule that a hiring in general, that is, for an indefinite or undescribed time, not expressed to be at will, was to be deemed a hiring for a year, arose from natural equity. ‘ If the hiring be general, without any particular time limited, the law construes it to be a hiring for a year, upon a principle of natural equity, that the servant shall serve and the master maintain him throughout all the evolutions of the respective seasons, as well when there is work to be done, as when there is not ’ (1 Bl. Comm. 15 Eng. ed. .p. 425).

“This general rule is to be applied tocases that have the same character .as those in respect of which it was originallymade, viz., domestic servants or servants in husbandry. It is applicable to cases like clerks, where there is nothing in the kind of service to give one day more significance than another, and it would be unjust to one side or the other to choose a space of •time less than a year for the duration of the contract. But evidently, while this justice is preserved, the rule has no regard for the particular day on which the space of time ends, beyond the demands of uniformity and certainty.

“ If this justice be preserved, and the circumstances clearly show that both sides know the employment was to do a certain thing, which might call for a time shorter or longer than a year by a few days, rather than for. devotion of time generally, to repeated instances of service, then, certainly it would be just to put an end to the contract by notice ending with the day of the completion of the thing to be done. In case where, as matter of fact, the time required for the completion of the service was about a year, and was required year after year, it would be just to make a renewal of the yearly service, subject to an ending of the same kind as the first yearly service, although it might not end on the same calendar date. The fact is that at the expiration of the first term there is by a continuance merely in employment, a tacit renovation of the original contract, to use the words of Lord Mansfield, in reference to a somewhat analogous subject (Right v. Darley, 2 T. R. 162), rather than a renewal of right as to the time the first contract endured.

All general rules have to be restrained by their fitness to the special instances, and this has been said specifically of the present general rule (Baxter v. Nurse, 6 Mann. & G. 935 ; 1 C. & R. 10 [1844]; Fancraw v. Oakford, 5 H. & N. 635 [I860]). This last case says that there is no inflexible rule that a general hiring ‘is a hiring for a year. Each particular case must depend upon its own circumstance.’ The same must be true in reference to the day when- the employment is to end. It is not an inflexible rule that such day is to be found by a calculation of the end of a year from the day of the employment.

“An illustration is found in cases of tenancy from year to year. The general presumption is of a year from the date of the commencement of the tenancy, but that is affected in cases where the tenancy begins in the middle of a quarter by the- agreement of the parties that rent is payable on the quarter days, on the fact of such payments, and according to the circumstances it will be held that for the purpose of fixing the time for notice to quit the year is to date from the-previous or the succeeding quarter day (Doe v. Johnson, 6 Esp. 10; Doe v. Stapleton, 3 C. & P. 275 ; Adams on Ejectment, Am. ed. of 1821, p. 135).

“In the present case both parties knew that the service called for was to be in the future regular, although the day of the beginning of the employment was July 1. The nature of a cqurse of instruction was that it should begin with the admission of the student in October, and be conducted by the same professor through a time when each day’s instruction would have its influence on the instruction of other days. It could not have been meant that such employment should end on April 15, say, of a succeeding year, if accident had called for the employment of a professor on that date of a former year.

“It would be against their common interests and their duty to students to make an agreement that contemplated a sudden departure of a professor in the middle of a term, or even of a year. The nature and necessity of the case imply more than the accidental date of the employment.

“I am of opinion that by the contract the plaintiff was employed from July 1 to October 1, 1870, so as to entitle him to the salary at that time, and then and thereafter from year to year, and that the employment could be ended by reasonable notice given for October 1. The resolution of July 8, communicated on the 10th, was substantially such a notice, and that the plaintiff’s claim for compensation was satisfied. by the payments made under the resolution.

“ For these reasons I was in error in directing a verdict for the plaintiff, which, however, was understood to be a formal direction, and the motion for a new trial should be granted ; the order to be entered nune pro tunc as of the term when the motion was made.”

On the second trial the same facts appeared as on the first, with this additional evidence: “Between the commencement in June and the instruction of classes, I had a great deal to do with reference to my professorship ; it was necessary, during that time, to make the formal arrangement of the studies and classes for the coming year: the arrangement as to how much time should be spent in the seminary in each department by each class, the hours of instruction, the choice of books, and the preparation of notes and memoranda for furnishing material for instruction for the year ; then also my own studies for the instruction of the year. ’ ’

On the second trial, defendant’s counsel, at the close of the evidence adduced on plaintiff’s behalf, moved to dismiss, the complaint on the ground that plaintiff had not proved a cause of action.

The motion was denied, and defendant’s counsel duly excepted.

Defendant’s counsel then, without offering further evidence, moved that the court direct a verdict for the defendants, and read from the opinion of Judge Sedgwick, in reference to the' granting of a new trial in this case.

The motion was denied, and defendant’s counsel duly excepted.

The court charged the jury, at the request of plaintiff’s counsel, “that the contract between plaintiff and defendants, subsequent to July 1, 1873, was a contract for the then current year at a salary of $1,300 per annum, and could , only be determined by defendants (plaintiff not assenting to a termination of it), by reasonable notice expiring with the then current year.”

Wash & Holt, attorneys, and 8. P. Wash, of counsel, for appellant, urged:

I. There was no evidence on the part of the defense; all the testimony was that of the plaintiff and his witnesses, which was not in any way attacked, and the case should not therefore have been left to the jury. The plaintiff was engaged as professor in 1870, the only evidence of the employment being the following entry in the minutes of the board of March 8 : “Bishop Mcllvaine nominated Rev. Morris A. Tyng to the Griswold professorship, which was unanimously confirmed on motion, of Dr. Burr.” This was the only record evidence of the original employment. Plaintiff entered upon his duties, and continued until July, 1873, when the professorship was vacated. His case required him to show an employment from year to year, dating the year from July 1. To do this, he proved the resolutions of the board, passed January 18, 1872, reducing the salaries of the professors, as follows : “From and after July 1, 1872, the yearly salaries to be paid by the board shall be as follows,” &c., and a resolution of June 10,1873, restoring the previous rate for the year then about ending. This, with the entries on the account books, showing that 'his salary dated from July 1, 1870, is the evidence bearing on the question of an annual employment to date from July 1. The plaintiff himself testified and introduced certain correspondence and conversations with Bishop Mcllvaine and others. The evidence of the discharge of the plaintiff by vacating his chair was the following: A meeting. of some members of the board, not a quorum, at which a committee of conference was appointed to confer with the plaintiff as to the advisability of his leaving the board free at their next meeting “to make new arrangements for the coming year,” plaintiff’s own account of his conference with the committee, and the final resolutions, passed July 9, vacating his professorship. These recited “ a suspension of the work of the seminary on account of the want of students.” Plaintiff’s position was, that, before this was done, on July 9, that is, before there had been a formal act of a full board, he had entered on the next year, and that a contract for that year had taken effect. There was no question of fact upon this evidence to submit to the jury. Either on the conceded facts plaintiff was employed for a year from July 1, 1873, or he was not. If he was, he could not be discharged by any notice, however reasonable; if he was not, there was no legal necessity for any notice. It seems clear, therefore, that the charge was based upon an erroneous view of the rights of the parties.

To which charge the defendants’ counsel then and there duly excepted.

The question whether such reasonable notice had been given was by the charge left to the jury to determine.

The plaintiff’s counsel requested the court to charge that: “If the jury found that the original agreement was that the plaintiff should report for duty on July 1, 1870, and that his salary should be paid from that date, and that he did so report for duty, and that his annual salary was reckoned and paid by defendants from that date, it is to be presumed, in the absence of express proof to the contrary, that the year for which plaintiff was first employed, began on that date, and that every subsequent annual renewal of the employment dated from the same day, i. e., July 1, in each year.”

The court so charged, “ if the jury believe that was the commencement of the year.”

To which charge the defendants’ counsel then and there duly excepted.

The jury rendered a verdict in favor of the plaintiff. A motion for a new trial on the judge’s minutes was made and denied, and an order to that effect entered. From the order denying the motion for a new trial, and the judgment entered upon the verdict, the present appeal was taken by the defendant.

II. Though the salary of the plaintiff was payable yearly, there was no contract from July 1 to July 1 in each year. It is quite clear that at the commencement in each year, any professor would have felt free to leave. If any annual contract can be implied from the facts, it is a contract for the scholastic year, which ended with the dispersion of the students in July, and commenced again in October (see opinion of Sedgwick, J.). If plaintiff was paid, as he was, for his entire service in 1872-3, no new year began until the opening of the seminary in October, 1873, and it did not then open.

III. Assuming that the previous year ended on July 1, 1873, and that no formal action of the board was taken before July 9, the mere lapse of the nine intermediate days without service rendered to, and accepted by, the corporation, cannot create a contract for another year. It is not like a holding over of a tenant. A contract cannot be forced upon a party, especially upon a corporation, and when it is said that a contract is implied, it is meant that the evidence shows that both parties understood that a contract had been agreed to. This cannot be said in the present case. Plaintiff testified that the first duty of instruction he performed was in October, 1870 ; “I did no duty as instructor after the commencement in June, 1873.” No contract can be implied for another year from this state of facts,

IV. The evidence of the correspondence and conversations of plaintiff with Bishops Mcllvaine and Bedell was erroneously received. This evidence was commented on in the charge as “illustrating” the contract. There was no evidence that these persons had a right to bind the corporation. The contract "which was sought to be proved by the conversation, that is a contract made in March, 1870, for an engagement for a year, to begin in the succeeding July, would not have been valid unless in writing, and the' contract in fact made was shown by the records of the board.

Y. The verdict was also against the weight of evidence, and a new trial should be granted.

O. P. Buell, attorney, and of counsel, for respondent, urged :

I. As to exceptions to the refusal of the justice on the trial to dismiss the complaint, or to direct a verdict for the defendant. The two exceptions present the same question. 1. The case was properly submitted to the jury, upon the question whether the defendant gave the plaintiff reasonable notice of its election to terminate the employment. In all cases where different inferences may fairly be drawn from the testimony by different minds, the question of reasonable notice—like reasonable time, reasonable care and diligence, and other kindred questions, falls within the legitimate province of the jury. In Railroad Co. v. Stout, the rule is thus stated: “ Whether the facts be disputed or undisputed, if different minds may honestly draw different conclusions from them, the case is properly left to the jury” (17 Wall. 657). And by Selden, J., in Bernhard v. Rens. & Sar. R. Co., thus : “If there are inferences to be drawn from the proof, which are not certain and incontrovertible, they are for the jury” (1 Abb. Ct. of App. Dec. 134). In Taylor v. Brydeh, Kent, Ch. J., says : “ The question of reasonable notice is a compound of law and fact to be submitted to a jury” (and see cases cited in opinion, 8 Johns. 173, 177; see also Brink v. Hanover Ins. Co., Ct. of Appeals, March, 1880, 9 Reporter, 518 ; 3 Kent Comm. 67; Farmers’ Loan & Trust Co. v. Hunt, 16 Barb. 514; Whitbeck v. Holland, 45 N. Y. 13, 18, Grover, J. ; Wakeman v. Gowdy, 10 Bosw. 213 ; Bartlett v. Robinson, 39 N. Y. 187; Thnrber v. Harlem, &c. R. Co., 60 Id. 321, 331, Allen, J.; Viner v. N. Y. Steamship Co., 50 Id. 23).

II. Even though it be assumed that the contract ran from October 1, in each year (and not from July 1), still the question remains, was a notice served on plaintiff on July 10, for October 1, following, a reasonable notice under the circumstances proved in the case ? Plaintiff proved, for instance, that at such time (July 10) the boards of trustees of almost all the seminaries and colleges in the land had adjourned, after completing their arrangements for the ensuing year. And plaintiff found it impossible, therefore, after so late a notice, to obtain similar employment elsewhere. Moreover, he had been invited from New York to Ohio, with his family, on the reasonable expectation of permanent employment. Defendant offered no evidence to mitigate these facts.

III. The conference in June was not notice. The committee which waited upon plaintiff in that month, was authorized simply to obtain his views, as to the “advisability” of leaving defendant’s trustees free to make new arrangements, i. e., for closing the seminary. He declined to accede to the proposition, and expressed himself emphatically against this policy. He therefore had every reason to believe, and he did believe, the matter would end there. His professorship was specially endowed, and a perversion of its funds, as proposed, to other objects, would be a breach of trust. He knew that similar attempts, in former years, to close the school, had invariably failed. The inference from these proved facts was, at all events, for the jury to draw.

IY. The case was properly submitted to the jury to determine upon all the evidence, what was the contract between the parties. (1) The contract was not in writing. The resolution of defendant’s board of trustees of March 8, 1870, merely “confirmed” Bishop Mcllvaine’s nomination of plaintiff as professor. The nature and terms of the contract could only be inferred from facts aliunde. The question, therefore, what was the contract, became a question for the jury (First Nat. Bank of Springfield v. Dana, 6 W. D. 208 ; S. C., in Court of Appeals, 9 W. D. 822 ; and see cases cited, supra, under Point I.) (2) The opinion of Judge Sedgwick renders unnecessary a further discussion of the legal presumptions as to contracts of hiring. His discussion of the subject is full and complete. To the accuracy of the legal principles he enunciates, we fully accede. A general hiring is presumed (in the absence of modifying circumstances) to be for a year ; and when the relation is continued after the expiration of the first year, this hiring is thereby construed to be from year to year, terminable by either party upon reasonable notice, having reference to the expiration of the current year (Bleeker v. Johnson, 51 How. Pr. 380; Beeston v. Collyer, 12 J. B. Moore, 552; G. & B. S. M. Co. v. Bulkley, 48 Ill. 189, 192; Laughran v. Smith, 75 N. Y. 205, 209, 210). But, as remarked by Judge Sedgwick, “ there is no inflexible rule.” And, as stated by Pollock, B., in Fairman v. Oakford (5 H. & N. 635), quoted in Judge Sedgwick’s opinion: “Each particular case must depend upon its own circumstances and the inference from these circumstances he held to be a matter for the jury (Bank v. Dana, supra; White v. Hoyt, 73 N. Y. 505; 2 Parsons on Cont. 5 ed. 492, note 5, and cases cited).

V. Counsel "for appellant is obliged to contend (in support of these “Exceptions”), that there is no evidence from which a jury could intelligently and honestly infer that the contract existing July 10, 1873, was a contract for one year from the 1st of that month: He insists that the court should have taken the case away from the jury, and decided as matter of law, that the current yearly contract would have expired on October 1, 1873. (1) It will not be disputed, we suppose, that the date of the commencement of the first year’s employment determines the date of every succeeding annual renewal of the employment (Authorities cited under Point IV., supra; opinion of Judge Sedgwick, and cases cited by him). (2) How, about the only fact relied upon by appellant, as indicating that the annual employment dated from October 1, is that the students came together for instruction, after the summer vacation, on the first Thursday in October —some day from the 1st to the 7th of October. The day of the opening of the fall term, it is undisputed, was a' matter within the exclusive control, from time to time, of the trustees. An omission of proof on the first trial led Judge Sedgwick to remark as follows : ‘1 Through she vacation the professors did no service in the seminary.” This omission, thus called to our attention, we have supplied on the present trial, and have shown that important services were rendered by the professors during the vacation. (2) On the other hand, the evidence is, we submit, abundant and conclusive, that July 1, and not October 1, was the date of the original year’s employment, and of every successive “ annual renewal of such employment. 1st. It was so expressly agreed to between plaintiff and defendant’s chief executive officers—their president and vice-president. Plaintiff’s testimony on this point is explicit and direct. He is not impeached nor contradicted, although it was open to defendant to call Bishop Bedell as their witness, had they been able to contradict the plaintiff. As the general and chief executive officers of the defendant corporation, Bishops Mcllvaine and Bedell were authorized, in furtherance of the ordinary and legitimate purposes of the corporation, under the resolution of March 8, 1870, to close with plaintiff upon the terms and details of the contract thus authorized (McCarty v. Selingroove, &c. R. Co., 87 Penn. St. 332; Fayles v. National Ins. Co., 49 Mo. 380 ; A. & A. on Corp. § 231). Their authority to bind the corporation “ may be implied from facts and circumstances (A. & A. on Oorp. § 283). But the uncontroverted evidence in the case shows that the acts of its chief executive officers in the premises, were fully ratified and affirmed by defendant’s board of trustees (Id. § 284; 2 Kent Comm. 291, 292). 2d. Plaintiff reported for duty at the annual commencement in 1870, and took part at a faculty meeting. He was thereafter subject to defendant’s orders. 3d. Plaintiff was, at the outset, employed at an “ annual” salary, to wit: $1,300 a year, and a house. This is the undisputed testimony, and the express allegation in defendant’s answer. 4th. All the resolutions of the board, and all their accounts with plaintiff, show that their business year—their year for the employment of professors and the payment of their salaries—began July 1 (2 Kent. Comm., supra). 5th. There was but one regular meeting of the board during the year, to wit: just before the commencement, in the latter part of June, when all the arrangements for the ensuing year were made.

VI. As to the exceptions to the judge’s charge. The exception at fol. 120 is not well taken. The employment could only be terminated by reasonable notice, expiring with the then current ,year, whenever that year expired (Judge Sedgwick’s opinion, and cases cited by him; Decker v. Hazell, 26 How. Pr. 528 ; Loughran v. Smith, 75 N. Y. 205, 209, 210).

VII. The proposition excepted to at fol. 121 is a mere corollary from the preceding one. Moreover, the qualification added by the learned justice practically reduced it to nothing.

VIII. The proposition excepted to at folio 122 is unquestionably sound. The justice was careful that the jury should not mistake its proper application (Costigan v. Mohawk & Hudson R. R. Co., 3 Den. 609 Vail v. Jersey Little Falls Co., 32 Bard. 564; Nations v. Cudd, 22 Tex. 550 ; Cook v. Sherwood, 3 Fost. & Fin. 729 ; Whittle v. Frankland, 2 Best & Smith, 49).

IX. The defendant has had a fair trial, and the judgment and order appealed from should be affirmed,, with costs.

By the Court.—Freedman, J.

The respondent, in his points, acknowledges that, so far as this case is concerned, the opinion delivered by Judge Sedgwick on a former occasion is a full and complete discussion, of the legal presumptions as to contracts of hiring, and that the accuracy of the legal principles enunciated by him is fully acceded to. The respondent’s contention is, that, notwithstanding all that was said, the question of reasonable notice was not, at the last trial, determinable as one of law, but was properly left to the jury as one of fact, and that therefore the verdict cannot be disturbed. In this I think the respondent and the learned judge, who presided at the last trial were mistaken.

Upon plaintiff’s own showing it appeared that the actual work of each year commenced in the month of October; that in the month of June of each year there was an annual meeting of the board of trustees, at which, as plaintiff well knew, provision was made for carrying on the work of the scholastic year next ensuing, and. at which it was customary, as plaintiff also well knew, to select the professors who were to perform duty during the coming year, and to fix their salaries ; and that it was not until after the completion of these arrangements that the salaries thus fixed as so called annual salaries commenced to run from July 1 of each year.

It further appeared that at the meeting of the board •called for June 10,1873, a quorum did not attend, but that a committee was appointed to confer with the plaintiff ; that by said committee the plaintiff was informed that as there were no students, the board did not feel justified in employing him for the next year; and that finally, at a meeting of the full board, held'July 9, 1873, a resolution was adopted vacating the chair held Iby the plaintiff, of which the plaintiff had notice on the 10th or 11th of July.

Upon this uncontroverted state of facts it may be a question -whether there was a legal necessity for any notice; but upon the assumption that there was, the notice given, coupled as it was with a tender of the use, of the house then occupied by the plaintiff until the following October 1, and an offer to pay him up to the day last named at the rate at which he had been paid, which terms the plaintiff subsequently accepted, was sufficient. Plaintiff himself seems to have so regarded it, for with the exception of an additional small sum then claimed by him for some repairs and improvements on the house, which was allowed to him, he neither then, nor for years thereafter, made any further claim, but voluntarily removed from the said house.

Defendants’ motion for the dismissal of the complaint should therefore have been granted.

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

Curtis, Oh. J., and Sedgwick, J., concurred.


text:
    HENRY J. SMITH, Appellant, v. JAMES G. TIGHE, et al., Respondent.

      Assignment for benefit of creditors—effect thereon of discharge in bankruptcy.

    Where an assignee for benefit of creditors has received assets, it is no defense to an action for an accounting, brought against him by the creditors, to allege that, since the execution of said assignment, the assignor has been discharged in bankruptcy from the debts thereby secured, under proceedings instituted after the assignment. The beneficiaries under the trust created by the assignment, i. e., the creditors, have a vested interest in the assigned property, and its proceeds, to the extent of their respective claims.
    Before Curtis, Ch. J., and Freedman, J.

      Decided June 18, 1880.
    Appeal from judgment and order overruling demurrer.
    The facts appear in the opinion of the court.

      M. Compton, for appellant.

      J. C. Tighe, respondent, in person.
   By the Court.—Freedman, J.

This is an appeal from a judgment and an order,entered at special term, overruling the demurrer interposed by the plaintiff to that part of the answer of the defendant Tighe, which sets up as a defense the discharge of the defendant, Thompson, under the United States Bankrupt Act. The action was brought in 1872, by the plaintiff, on behalf of himself and all other creditors of the defendant Thompson, on December 1, 1865, who might in due time come in; and its object is to compel an accounting by the defendant Tighe, as the assignee of Thompson, for the benefit of credi tors.

The most material allegations of the complaint are, in substance, that on December 1 and 2, 1865, under the laws of this State, Thompson executed an assignment for the benefit of his creditors to Tighe ; that by the terms of the assignment, Tighe was directed to sell the assigned property and convert it into money, and with the proceeds thereof to pay in full the debts and liabilities existing against Thompson on December 1, 1865, provided there should be sufficient funds for that purpose, and in case there should not be sufficient funds, then to apply the proceeds pro rata to the payment of such debts and liabilities, in proportion to their respective amounts ; and in case of a surplus remaining after the payment of such debts and liabilities, to return the same to the assignor; that the notes described in the complaint, amounting together to over $7,000, were legal debts and liabilities, existing against Thompson at the dare of the assignment; that Tighe took possession of the assigned property under said assignment, and converted the same into money ; that he realized therefrom the sum of $90,569.94, and that out of this he paid dividends to creditors, amounting in the aggregate to only $8,415.71, of which $334.72 only were paid on account of the notes set forth in the complaint.

To this complaint Tighe interposed, among other things, the defense in bar, that, on July 6,1871, Thompson applied for, and on December 9, 1871, obtained a discharge in bankruptcy, and a copy of said discharge is set forth in full.

To this defense the plaintiff demurred, on the ground that it was no defense as to the defendant Tighe.

In my opinion the demurrer was well taken and should have been sustained on the merits.

Except in a few instances specifically enumerated, but which have no application to the case at bar, the bankrupt act, while it was in force, preserved the rights of creditors by mortgage, pledge or other lien upon the property of the bankrupt, whether created by his act or by operation, of law, and the assignee in bankruptcy took the property subject to such mortgages, pledges or other liens (Jerome v. McCarter, 94 U. S. [4 Otto] 734; Yeatman v. Savings Institution, 95 U. S. [5 Otto] 764). And the same courts remained open to the creditors for the enforcement of such vested rights, that were open to them before (Eyster v. Gaff, 91 U. S. [1 Otto] 521).

An assignment for the benefit of creditors, made by an insolvent debtor under the laws of a State, in good faith, without intent to defeat the object, impair or impede the operation, or evade any of the provisions of the bankrupt act, and which transferred all his property without preferences, was not in violation of the spirit and intent of the bankrupt act and consequently was not void per se (Thrasher v. Bentley, 59 N. Y. 649 ; Haas v. O’ Brien, 66 Id. 597; Mayer v. Hellman, 91 U. S. [1 Otto] 496). To remove all doubt upon this point, Congress, by chapter 234, passed July 26,1876, expressly enacted that no voluntary assignment by a debtor of all his property, made in good faith for the benefit of all his creditors, ratably and without creating any preference, and valid according to the law of the State where made, should of itself be a bar to the discharge of such debtor.

In the case at bar as presented by the pleadings it is manifest that Thompson, by the assignment, divested himself absolutely of the assigned property, except as to surplus, and the assigned property became in equity the property of his creditors. Tighe, though the legal title became vested in him for the purposes of the execution of the trust, was constituted only the legal agent for the disposition of the property according to the terms and for the purposes of the assignment, and as such he is accountable to the beneficiaries under the trust. In a suit to compel such an accounting it can be no answer for him to say that, since the assignment, the assignor has been discharged under the bankrupt act from the indebtedness to secure which the assignment was made. If the claim now advanced by Tighe in that respect were sound, if the beneficiaries under the trust have not a vested interest in the assigned property and the proceeds thereof, what is to become of the property and its proceeds % Certain it is that neither the property nor the proceeds went into the hands of the assignee in bankruptcy. This being so, can it be then that Tighe can keep the proceeds and appropriate them to his own use, or do they revert back to the assignor as a discharged bankrupt without an execution of the trust % The bare statement of the proposition carries with it its refutation. The only effect the discharge pleaded can have in this case, is to discharge Thompson from any balance of indebtedness that may remain after the application of the assigned property and its proceeds by Tighe to the purposes specified in the assignment. The case of the Ocean Bank v. Olcott (46 N. Y. 12), does not sustain the claim made here. In that case the creditors had no lien, but by action brought after the debtor’s discharge in bankruptcy they sought to establish one, under the statute of uses and trusts, against real property held by the debtor's wife, by insisting that said property had been paid for out of moneys ‘ belonging to the debtor, and that the title to it had been taken by, and in the name of, the wife, in fraud of creditors. The court held that the statute referred to does not give a specific lien upon the property, but an equitable right, to be enforced by suit in equity, after all available legal remedies are exhausted ; that the commencement of the equitable action and the filing of a Us pendens .are necessary to constitute alien; and .that, as it appeared, that, before the commencement of the action, the judgment or debt which constituted the foundation of it had been extinguished, and the relation of debtor and creditor terminated, and the discharge being conclusive upon the State courts, the action would not lie.

The foregoing considerations being decisive of the main question involved, it is unnecessary to consider whether the discharge relied upon was sufficiently well pleaded in point of form.

The judgment and order appealed from should be reversed with costs, and an order entered, awarding judgment to the plaintiff on the demurrer, with costs.

Curtis, Ch. J., concurred.