author: By, the Court.—Jokes, J.

text:
    ANDREW COATES, Plaintiff and Appellant, v. FREDERICK K. GODDARD, et al., Defendant and Respondent.
    Extba Allowance.
    1. Actions in which the court has power to grant an extra allowance.

    A. In all actions which are difficult or extraordinary, when a defense has been interposed or a trial had.
    S. Basis of. Can be granted only on a money basis, upon which a percentage can be calculated.
    3. Offer, after defense interposed, to allow judgment, and acceptance thereof. The court has power, notwithstanding such offer and acceptance, to grant an extra allowance.
    4. Trademark has not, in itself, as distinct from the value of the article of which it is the trademark, any money value which can constitute a money basis on which to compute an extra allowance.
    5. Costs. Extra allowance, when granted, forms part of.
    Before Barbour, Ch. J., McCunn and Jones, JJ.

      Decided December 31, 1871.
    Appeal from order.
    This action was brought to obtain an injunction against defendants restraining them from infringing a certain trademark, claimed by plaintiff to have been adopted by him for the designation of spool linen thread manufactured by him ; also to obtain an accounting of the inferior thread having on it the simulated trademark which remained in the defendants’ hands, and of the profits made by the defendants on the sale of inferior thread bearing the simulated label, and for the profits of which they have deprived plaintiff by sales of said inferior thread bearing said simulated label; also to obtain a receiver of said inferior thread on hand, to the end that it might be destroyed ; and also to recover five thousand dollars as damages sustained by the plaintiff by reason of the sale of said inferior thread bearing simulated labels.
    The defendants answered the complaint. After answer, they served on plaintiff’s attorneys the following offer:—
    “ The defendants hereby offer to allow judgment to be taken against them in this action, restraining and enjoining them, their agents, workmen, clerks, cart-men and servants, and each and every one of them, from getting up, using or disposing of the labels, engravings or impressions, or any or either of them, set forth in the complaint as simulated ;• of any labels, engravings or impressions, simulating those used by the plaintiff ; or from getting up, selling, or otherwise disposing of any thread or other articles marked on spools, packages, or otherwise, with any of said labels, engravings or impressions, and also for the costs of this action.
    “Dated September 28th, 1870.
    “MAN & PARSONS,
    ‘‘ Defendants' Attorneys

    The plaintiff’s attorney accepted the offer. Thereafter a motion was made by the plaintiff’s attorney, at special term, for an extra allowance, under section 309 of the Code. The motion was denied. From the order of denial this appeal is taken.

      Varnum & Turney, appellant’s attorneys.

      F. J. Fithian, of counsel, submitted thus:
    I. This action is within the spirit and meaning of section 309 of the Code. Subdivision 2 of that section provides that “ In difficult and extraordinary cases, where a defense has been interposed, .... the court may also, in its discretion, make a further allowance to any party, not exceeding five per cent, upon the amount of the recovery or claim, or subject matter involved. The il subject matter ” involved in this action is the right to the uninterrupted enjoyment, by the plaintiff, of his trademarks, and to protection against ‘the fraudulent imitation of them by the defendants (People v. Albany & Vermont R. R., 16 Abb. Pr. 465). The claim is twofold, viz : 1. For a perpetual injunction restraining the fraudulent use of such trademarks by the defendants. 2. For damages in five thousand dollars sustained by the plaintiff. The claim for damages is merely second-' ary. The only damages which can be recovered in an action of this character are the profits of which the owner of the trademark has been deprived by means of the fraudulent imitation of it, and these are usually comparatively small, and always difficult of proof (Gruilhon v. Lindo, 9 Bosw. 603). For the great damage in the injury of the value of the trademark itself, by reason of the. fraudulent imitation of it, the law> affords no remedy except by injunction.
    II. Proof is admissible on the motion for an extra . allowance of the value of the “ subject matter involvedP This value, as appears by the affidavit of the plaintiff’s agent, is not less than twenty thousand dollars. In People v. Albany & Vermont R. R. Co. (16 Abb. Pr. 465), before referred to, it was held that where an action is brought to obtain an injunction, the value of the property sought to be affected by the injunction will furnish the amount by which the percentage can be given, and that such value can be proved by affidavits on the motion for an allowance (Coleman v. Cheney, 7 Robt. 578, recognizes the same principle).
    III. The acceptance by plaintiff of the defendants’ offer of judgment, under section 385 of the Code,' did not deprive Mm of his right to an extra allowance. The term “costs” in section 385, is general in its signification, and includes not only the specific allowances given by sections 307 and 308 of the Code, but also the allowances in the discretion of the court, authorized by section 309. Title 10 of the Code, which includes all the provisions respecting costs, is entitled “ Of the costs in civil actions.” Section 303 of this chapter abolishes the fee bill as it existed prior to the Code, and provides that there may be “allowed to the prevailing party certain sums by way of indemnity for‘his expenses in the action, which allowances áre, in this act, termed costs.” Sections 304 and 305 of the same chapter provide that “costs shall be allowed” to the prevailing party in the cases mentioned in these sections. Section 307, giving certain specific allowances by way of costs, says, “ when allowed, costs shall be as follows” Section 308 of the same chapter provides that “in addition to these allowances, there shall be allowed to the plaintiff in actions of partition, foreclosure, for the adjudication of a will and determination of claims to real property,” certain fixed percentages. Section 309, subdivision 2, which is applicable to the present action, provides that “the court may also, in its discretion, make a,further allowance to any party,” &c. If the term “ costs,” in section 385, means merely the specific allowances given by section 307, a defendant in a foreclosure or partition case could deprive the plaintiff of the benefit of an extra allowance, under section 309, by serving an offer to permit judgment “for the relief demanded in the complaint, with costs.” In Wing v. Erie R. R. Co. (1 Hilt. 235), it was held that where a judgment was rendered for an amount fixed by stipulation, the plaintiff was entitled to costs, although they were not mentioned in the stipulation. In New York Fire & Marine Ins. Co. v. Burrell (9 How. Pr. 398), an extra allowance was given in a foreclosure suit, where a tender had been made before judgment of the amount due, with interest and costs to the time of the tender,—Clerks, J., holding that the additional allowance was not in the nature' of costs ’incurred subsequent to the tender, but that it is a compensation to the plaintiff for the expense and trouble incurred from the commencement of the action through all its stages (see also Bartow v. Cleveland, 7 Abb. Pr. 343). So, in Thurston v. Marsh (14 How. Pr. 572), Roosevelt, J., says: “the Code permits a defendant to serve an offer of judgment for a specific sum with costs. On such judgment the percentage may be added and the costs thus completed.” Brown v. Safeguard Ins. Co., 7 Abb. Pr. 345. In an action in which an attachment was issued, the parties agreed, before the cause was at issue, upon a settlement, by the terms of which the plaintiff was to discontinue on the payment of his costs by the defendants. Davies, J., held that the costs to be paid included a full allowance under sections 308 and 309 of the Code. Gelpeek v. Leather Cloth Co., 12 Abb. Pr. 361, note. This action, in which an attachment had been issued, was settled before judgment, upon an agreement to pay debt and costs. The court held, unanimously, that the plaintiff was entitled to the allowance prescribed by section 308, in addition to the regular costs. Davison v. Waring, 9 How. Pr. 254. An offer of judgment was made and accepted, and plaintiff applied for an extra allowance, which was refused by Harris, J., on the ground that there “ was no pretense that the proceedings were attended with any more than ordinary labor or difficulty.” The following cases were all decided upon the ground that in actions where attachments have been issued, the allowance under section 308 can be granted only where there has been a recovery (Brace v. Beatty, 7 Abb. Pr. 445). The court say: “ Extra allowances are given for the entire services in conducting the cause to judgment, which cannot be divided in awarding the extra allowance” (Pratt v. Conkey, 15 How. Pr. 27; Bostwick v. Tioga R. R. Co., 17 Id. 456). After issue joined the parties settled, the defendants agreeing to pay a certain sum, and costs and disbursements of the action. An extra allowance was granted, but upon appeal the order was reversed, on the ground that no recovery had been had in the action.
    Messrs. Man & Parsons, attorneys, and John E. Parsons, of counsel for respondents, urged thus:—

      First. The word “costs,” as used in section 385, means the bare taxable costs allowed by section 307. There can be no doubt of this; were it otherwise, the defendant would never know what he was offering. The object of section 385 is to provide a means whereby plaintiff and defendant may compromise by agreeing upon some certain amount for which one is willing to allow, and the other to take judgment; to provide some means whereby defendant may reduce plaintiff’s claim to the correct amount without going to trial, and having full costs recovered against him, besides an allowance, no matter how small may be plaintiff’s recovery. By accepting the offer, plaintiff makes a contract with defendant for recovery of a certain amount. The amount is not certain, if a motion has to be made to fix it. All the cases on the subject hold that the offer must be unconditional, and leave nothing to be ascertained or determined before entry of judgment. This rule, of course, binds plaintiff as well as defendant (see Pinkney v. Childs, 7 Bosw. 660; 15 Abb. Pr. 137, note;.

      Second. It has been repeatedly held that in equitable actions, like the present, no allowance in addition to costs could be had. As, for instance, in actions to' compel specific performance of contracts to' sell real estate, to set aside fraudulent transfers of property, for an accounting as to rents and profits, &c. (8 How. Pr. 31; 12 Id. 170 ; 13 Id. 297).

      Third. There is another ground upon which an allowance in such cases should be denied. An allowance is not a matter of common law right, where the law is to be stretched to favor a party. On the contrary, the statute is to be strictly construed, as this court in especial has ‘always construed the provisions' of the Code, taking care that the law is not so relaxed as to suffer abuses to creep in. Here we have entitled ourselves to the protection of the court by confessing, and allowing judgment to be taken against us. We have prevented further litigation by such confession, and stand in a meritorious position.

      Fourth. There is in this case .no basis for the computation of any amount. The amount of allowance is to be computed, 1st. Upon the recovery; 2nd. Upon the claim ; or, 3rd. Upon the subject matter involved. Here there was—1st. Ho recovery of any-amount upon which to compute; 2nd. The allowance upon the claim can only be made to" the defendant, not to plaintiff (Wilkinson v. Tiffany, 4 Abb. Pr. 98). As to the third basis for allowance, the Subject matter here involved is the amount of defendants’ - profits, and the damages plaintiff would recover if he had proceeded to trial, and had an accounting and an assessment of damages, and it has nothing whatever to do with the value to plaintiff of their trademark. As to the value of defendants’ profits, plaintiff does not show and cannot show what they are ; and the court will not inquire further than is shown by the papers before it, because this would be a reopening of the case, which defendant has avoided by allowing judgment to be taken against him. (see Coleman v. Chauncey, 9 Robt. 578, where the subject is very fully discussed by Judge J ores). Plaintiff seems to claim by his moving papers that the value of his trademark is the subject matter of the action. We do not claim his trademark nor try to prevent his using it, so he cannot be said to have recovered it in any proper sense of the word. It is evident that our infringement of the trademark and our profits and his damage are the subject matter, and these he has waived by acceptance of our offer.

      Fifth. The plaintiff, after acceptance of our offer to allow judgment, under which he recovers no judgment, for property, or for money as damages, or profits, nothing but an injunction, is not entitled to an allowance in addition to costs.
   By, the Court.—Jokes, J.

The order below is sought to be supported on two grounds.

1st. That the court has no power to make an allowance under the circumstances of the case.

2nd. That if it has the power, then it rests in the discretion of the judge to whom the application is made, whether he will exercise it or not, and that such discretion was,properly exercised by the judge below.

To maintain the first ground it is urged:

a. That in equitable actions like the present no allowance can be had.
5. That the acceptance of the offer makes a contract between plaintiff and defendant for the recovery of a sum certain; and that the amount of an allowance being uncertain and requiring to be determined by the court on motion, is not covered by the terms of the contract.
c. That there is no basis on which to compute the allowance.

To establish the first reason the case of Osburn v. Betts, decided March, 1853 (8 How. Pr. 31); Weeks v. Southwick, decided July, 1855 (12 Id. 170), and Buchanan v. Morrell, decided December, 1856 (13 Id. 296), are cited.

These cases were all decided under the statutory provisions as they existed in 1852, which had not been altered up to January, 1857 (see Code of 1852, § 308). These provisions were that :

1st. In actions for the recovery of money or of real or personal property after a trial had, the court might, in difficult and extraordinary cases, make an allowance.
2nd. That an allowance might be made in any case where the prosecution or defense had been unreasonably or unfairly conducted.
3rd. That an allowance might be made in certain specified actions and proceedings, and in actions where a warrant of attachment had been issued, without regard to the character of the case, as being difficult or extraordinary, or that of the prosecution or defense as having been unreasonably or unfairly conducted.

Under these provisions, the court correctly held in the above cited authorities, that where a case did not fall within the second and third provisions the power to grant an allowance was expressly limited by the first provision to actions for the recovery of money or of real or personal property. On this doctrine the decisions in the cited cases rest.

The present statutory provisions are widely different. The two limitations contained in the first provision of the Code of 1852, to wit: that the action must be one for the recovery of money or of real or personal property, and that a trial must have been had—are removed ; and an extra allowance is authorized in all cases which are difficult and extraordinary, when a defense has been interposed and a trial had (Code, § 509, as amended in 1865). The foregoing cited cases have, therefore, no application.

As to the second reason: If it be true that the offer and its acceptance form a contract, it by no means follows that it is necessarily a contract for the recovery of a certain fixed amount. That depends on the construction to be given to the language of the offer.

The offer and acceptance are, however, proceedings in the cause, and are more analogous to a stipulation in a cause, which the court will enforce or relieve from on motion, than to a contract as such which can only be enforced or relieved from by an independent action. In mating a contract one may propose such terms as he pleases (provided he infringes not a positive prohibition of law), and the other may accept or not without subjecting himself to any penalty or forfeiture for not accepting; while in mating the offer the defendant is under certain restrictions, and the plaintiff, if the offer is properly made, is subject in a certain event to the incurring of a loss by reason of his non-acceptance.

This leads to an inquiry into the nature, object and scope of the provisions of the Code relating to an offer by the defendant and its acceptance by plaintiff.

That a defendant might in some cases be willing to concede that plaintiff was entitled to some, or a part, of the relief he asked, but be desirous of contesting his right to the rest, was too apparent to escape the attention of the codifiers. It was also apparent that the defendant, if successful in defeating the plaintiff as to the part of relief which he disputed, should not be subjected to the payment of the costs arising in that litigation because the plaintiff succeeded as to the relief which he was willing to concede, but that he should rather be himself paid the costs thereof ; while the plaintiff should be indemnified for the expenses of the litigation which produced the offer, if he was willing to accept it and end the suit.

To meet such cases the provision in question was framed and passed. It is clear that to be consistent with these reasons for the adoption of the provision the offer for a judgment as to parts of the relief sought, must be unconditional and unqualified, since the reason for allowing the offer is that the defendant is willing to concede the right of plaintiff to part of the relief sought, which reason fails if he clogs his offer with conditions or qualifications, for in that event he does not concede the right to relief except on the terms which he may choose to impose.

The language of the provision of the Code (excluding for the present the words “or to the effect”) is: “The defendant may . . . serve on the plaintiff an offer in writing to allow judgment to be taken against him for ¿he sum or property therein specified, with costs.” The language precludes the idea that any condition or qualification can be annexed. The only doubt that could arise is on the introduction of the words “to the effect.” These words have, however, in view of the reasons on which the provision is founded, been construed not to admit of the annexing of any condition or qualification, but simply to meet cases where the relief sought was something other than money or property, and to authorize, in these cases, an offer to allow judgment of a specified part of the relief sought, without any condition or qualification.

This is the effect and sole effect of.the case of Pinckney v. Childs (7 Bosw., 660), cited by the defendant. The language used in that case, “That section prescribes an unconditional, unqualified offer, upon which the clerk can enter judgment without further proof or inquiry,” when construed in connection with the whole context of the case, and bearing in mind that the whole amount of the costs for which judgment is to be entered under the Code is always to be fixed and determined by the clerk, sometimes requiring the determination by him of matters of fact, will be found to refer to that part of the offer which offers to allow judgment for a part of the relief demanded as being the plaintiff’s right arising out of the cause of action, and not to that part which offers indemnity for the expenses of the litigation, to wit, the costs.

Upon further reviewing the provision of the Code, it will be found that for the purpose of indemnifying the plaintiff for the expenses of the litigation, the defendant is required, in addition to offering judgment for a certain specified part of the relief demanded as being the plaintiff’s right arising out of the cause of action, to also offer judgment for the costs of the action. He is not permitted to offer judgment for a certain specified amount of costs ; but generally for the costs of the action. The offer, then, so far as relates to the costs, is required to be, and in fact is, an offer to allow judgment for such costs as the plaintiff is entitled to. This leaves it open for subsequent inquiry and deter ruination as to the amount of costs to which the plaintiff is entitled.

For such determination it is necessary to ascertain what is included in the word “ costs.”

■ The same act which contains the provision permitting the defendant to serve an offer to allow judgment to betaken against him with “costs,” defines what is meant by the term costs when used in the act. It defines it as meaning those sums which by the provisions of the act may be allowed to the prevailing party in the judgment by way of indemnity for his expenses in the action (Code, § 303). How, section 307 authorizes the allowance of certain specified sums, and section 309 authorizes, in certain cases, a further allowance in addition to the sums specified in section 307. Section 303 declares that these allowances are for the purposes of that act termed “ costs.”

There being nothing in section 385 to control this declared signification of the word costs, it must be . taken to have been used with that meaning in that section.

The offer, then, is not merely to allow judgment for such of the sums allowed by section 307 as the plaintiff might then be entitled to, but also such further sum as the court may deem him entitled to, and allow him, under section 309, by way of indemnity for his expenses. Both allowances are covered by and included in the term costs,”' as used in section 385.

It is suggested that if this construction prevails the defendant would be without the means of determining, with any degree of accuracy, the amount of the costs that might be adjudged against him, and that thus he would be deprived of one important element in determining whether to make an offer or not.

Whatever force there may be in this suggestion as addressed to the legislative body for an alteration of the law, it has no force as an argument against the above construction of the law. Indeed, I think it has no force as a suggestion to the legislature. The amount of costs to which a defendant might be subjected under his offer, forms no element in determining whether he should make an offer or not. The object of the offer is to enable a defendant to exempt himself from liability to pay the plaintiff’s expenses of future litigation by reason of his ultimate recovery of a judgment which the defendant was willing he should take at the outset, although he was unsuccessful as to the matters litiga-1 ted, and to enable the defendant to recover from the plaintiff his expenses of his future successful litigation I of the matters really in controversy. All that is neces-1 ' sary for the defendant to determine for this purpose is, I whether he is willing to concede that the plaintiff is en-l titled to some part of the relief he demands. He is not to indulge in a train of reasoning like this: I know the plaintiff is entitled to some relief, and if I can get off for a certain amount of costs, or for less costs than I would otherwise be chargeable with, I will let him take that which I know he is entitled to, and will make an « offer, but if I cannot then I will not. He might have relieved himself from all costs by a proper notice, offer, tender, or payment before suit brought; but not having done this, and having put the plaintiff to the expense of a suit which has forced an offer, he should not be permitted to use that offer for the purpose of impairing the plaintiff’s claim for an indemnity for his expenses up to that time.

For the above reasons I have come to the conclusion that on an offer under section 385, the court has power to grant an allowance under section 309.

The next question is whether there is any basis on which an allowance can be granted.

The power to grant an allowance is limited to five per cent. It results from this that the allowance granted must be ascertained by a percentage, and for this purpose a sum of money must be ascertained as the amount on which the calculation is to be made.

Otherwise the limitation would be inoperative, since it could never be ascertained whether five per cent, had been exceeded, and the result would be a power to grant an allowance without limitation.

It is provided by the Code that the percentage may be granted on the amount of the recovery or claim, or subject matter involved.

In the case of a plaintiff, the percentage can be calculated only on the recovery, or the subject matter involved, and not on his claim ; while in the dase of a defendant it may be calculated on the plaintiff’s claim, and also in some cases on the defendant’s recovery, or on the subject matter involved.

The words “ amount of recovery or claim,” indicate and mean that the recovery or claim shall be for a sum of money, the words “subject matter involved” being used to cover all other cases.

In the present case the plaintiff has not recovered a money judgment. He has only obtained a judgment for an injunction. If, then, he is entitled to an allowance, it must be on the subject matter involved, and the percentage must be calculated on the money, value thereof.

Even though the claim for damages and profits may be considered as originally involved, yet no allowance can be granted thereon, because the plaintiff has not succeeded as to them, but by the acceptance of the offer has waived his claim thereon.

The plaintiff, however, claims in his complaint a right to and property in a certain trademark, and that defendants have infringed thereon. The answer puts both these claims in issue. The offer is to be regarded as a concession of both claims. It results that the trademark and its infringement constitute the subject matter involved, and that the plaintiff has succeeded thereon.

But no money value can be assigned to the trademark as distinct from the value of the article of which it is the trademark; while the infringement is a wrong, and as such, incapable of possessing a value.

I have been unable to ascertain any money basis on which to calculate a percentage, and for this reason think the order below must be sustained.


source: Caselaw Access Project

author: By the Court.—Monell, J.

license: Public Domain

text:
    BENJAMIN F. STEPHENS, Plaintiff and Respondent, v. MANLY HOWE et al., Defendant and Appellant.
    I. Contract. Option as to mode op payment.
    1. What contract gives such option. Where one proposes to do work and furnish material for another at a certain rate gold, or a certain other rate currency, which proposal is accepted, an option as to mode of payment is provided for.
    2. First right to exercise the option, belongs, under such a contract, to the party who is to make payment.
    3. When he must exercise the right. Before he is in default for nonpayment.

      a. When he is in default. When a day certain is fixed for payment he is in default if he does not pay at the day; if a day certain is not fixed he is not in default unless he neglects to pay upon demand made after the debt has become payable.
    4. Effect of his exercising the right is to bind both parties.
    5. Effect of his not exercising the right is to give the other party a right to elect; in which case his election binds both parties.
    6. Evidence of exercising the right, what is sufficient.

      a. The receiving of bills for the work, &c., made out on the gold basis without objection, is sufficient evidence of an election by the party so receiving to pay on that basis.
    5. The sending of bills made out on the gold basis is sufficient evidence of an election to receive payment on that basis.
    H. Contract payable in gold. Currency in which damages should be assessed.

      Damages should he assessed, and judgment should be payable in gold.

    HI. Contract por work and materials, to be performed and furnished. Eeseission of.

    1. Notice to the person who is performing and furnishing under the contract, to stop, so far operates as a rescission of the contract as that he cannot proceed and recover the contract price as for work done and materials furnished after such notice given.
    2. His remedy is the recovery of damages for breach of contract.
    3. Complaint, form of, under which such damages are or are not recoverable.

      а. They cannot be recovered under a complaint on the contract for the contract price.
    б. The complaint must be for damages for breach of contract.
    Before Monell, Jones, and Spencer, JJ.

      Decided December 31, 1873.
    Appeal from judgment entered on referee’s report.
    Action to recover for the publication of certain advertisements in newspapers printed and published in the island of Cuba.
    The complaint alleged, that the defendants employed and directed the plaintiff to publish certain advertisements, of certain preparations and merchandise, of which the defendants had an interest, or were the owners, in certain newspapers published in the island of Cuba, for which they were to pay the sum of nine cents per line for each insertion. That the plaintiff caused such advertisements to be published, the same occupying four hundred and seven thousand six hundred and.two lines, and amounting, at the contract price, to the sum of thirty-six thousand six hundred and eighty-four dollars and eighteen cents, of which the sum of four thousand three hundred and four dollars had been paid. Judgment for the balance was demanded.
    The answer admitted the employment, but insisted that the price was to be four and a half cents per line ; and that it was agreed that none of the advertisements should exceed thirty lines of printed matter; and that the total amount to be paid for such advertising should "not exceed the sum of three thousand dollars, which sum the defendants had paid.
    By a supplemental answer, the defendants alleged that the four and a half cents a line was not only as compensation to the plaintiff for his services, but also to reimburse him for such sums as he might pay out for the publication of such advertisements; and that, the sum, nor any part of it, should be due until the several newspapers had been paid.
    The answer further alleged that the plaintiff had not paid such newspapers, and that the proprietors thereof were claiming payment of the defendants.
    The action was tried by a referee.
    On the trial, the plaintiff introduced a letter from himself to the defendants, and their reply thereto, of which the following extracts only are material:—
    “Boston, February 13, 1865.
    “Messrs. Howe & Stephens :
    “Gentlemen : Enclosed please find my circular list of newspapers published in Spanish dominions. I will agree to insert your advertisements of “ Family Dyes” as frequently as you may decide upon, in. any or all the said newspapers during the year 1865, upon the following terms:
    “Once per week in each, at five cents gold, or ten cents currency per line each insertion. Oftener than once or every day for four and a half cents gold, or nine cents per line currency.”
    The defendants’ reply was as follows :—
    “Boston, February 13, 1865.
    “Bent. . F. Stephens, Esq.:
    “Dear Sir : Tours of this date came to hand this P. M. In regard to advertising in Cuba papers, we have sent you cuts and three different advertisements per Adams Express to your address. We wish you to form an advertisement of about forty lines; have it inserted .in each of the papers on your printed list coming under the head Island of Cuba, making twenty-six papers, at prices of your of this date, and as much lower as you can make them.”

      It was also proved by uncontroverted evidence that plaintiff had rendered to defendants seven bills for advertising,' covering the period between March 20, 1865, and November 14, 1865, all of which bills were made out on a basis of four and one-half cents in coin, and were received by defendants without objection.
    It wa.s further proved by uncontroverted evidence that defendants on February 8, 1866, notified plaintiff to stop the advertisement.
    One of the defendants testified that he agreed with plaintiff at Boston in July or June, 1865, that the rate of gold should be $1.40 for the future as well as past advertisements. The plaintiff testified to the contrary.
    The rpferee made the. following findings:—
    That on or about February 13, 1865, the defendants employed and directed the plaintiff, and the plaintiff agreed with the defendants, to prepare and publish for the defendants certain advertisements of family dyes, owned by the defendants, in certain newspapers published in the island of Cuba, oftener than ' once a week, at and for the price of nine cents per line in currency, for each insertion.
    That under and in pursuance of such agreement and direction of the defendants, the plaintiff prepared and caused the advertisements to be published or inserted in the Spanish newspapers, and that the number of lines in the publication of such advertisements, in all the aforesaid newspapers, amounted to the aggregate to four hundred and seven thousand six hundred and twenty-two (407,622) lines, which at the rate of nine cents per line, in currency, amounted to the sum of thirty-six thousand six hundred and eighty-five dollars and ninety-eight cents ($36,685.98).
    That the plaintiff on or about and up to May 1, 1865, paid, laid out and expended for the defendants, at their request, the sum of one hundred and thirteen dollars and sixty-two cents ($113,62), making in the aggregate indebtedness of thirty-six thousand seven hundred and ninety-nine dollars and sixty cents, from the defendants to the plaintiff.
    That the defendants have paid to the plaintiff, on account, and are entitled to a credit of four thousand . three hundred and four dollars ($4,304), thus leaving a balance of 'thirty-two thousand four hundred and ninety-five dollars and sixty cents.
    That the interest on the said balance of thirty-two thousand four hundred and ninety-five dollars and sixty cents ($32,495.60), from May 1,1866, the date from which interest was demanded in the complaint, to date of the report, amounted to seven thousand three hundred and ninety-seven dollars and twenty-two cents, making an aggregate indebtedness of thirty-nine thousand eight hundred and ninety-two dollars and eighty-two cents from the defendants to the plaintiff.
    That the defendants’ advertisement “Family Dye Colors” was inserted in the newspapers, the names of which, with the time of the first insertion, the number of lines each insertion occupied in each paper, and the number of insertions in all the newspapers were set forth in a paper hereto annexed ; that the insertions were made at divers times after the commencement thereof, in the years 1865 and 1866; that it was not the agreement between the plaintiff and defendants that only forty lines should be charged for, and inserted in each of the papers, but that the insertions should be for a year, that is a year’s advertising for each newspaper, and though there were more insertions made in several newspapers, he had allowed only a year’s advertising in any instance ; that the defendants did give notice to the plaintiff to countermand the advertisements, about February 8, 1866 ; that the price to be paid for advertising was the sum of four and one-half cents gold, or nine cents currency, per line, for each insertion, and that the plaintiff is entitled, by the terms of the agreement, and the facts given in evidence, to receive the sum of nine cents per line for each insertion.
    Judgment was entered for the plaintiff for forty-two thousand two hundred and sixty-two dollars and fifty-seven cents.
    The defendants appealed.

      John S. Jenness, John Alex. Beall, Clarence A. Seward, of counsel for appellants, urged :
    —I. That the referee erred in holding defendants liable under their contract for a year’ s advertising in each paper. The written contract between the parties is explicit on this point. The plaintiff’s proposition was as follows : “I will agree to insert your advertisements of 6 Family Dyes ’ as frequently as you may decide upon in any. or all the said newspapers (on the inclosed'list) during the year 1865 upon the following terms, &c.” This proposition was accepted without modification in this particular. The witnesses produced by defendants testify that no change in this particular was ever talked of afterward.
    II. But again, upon the question of the length of time for which defendants can be held liable for these publications, we contend, that the notice given by defendants to plaintiff in February, 1866, had, under the circumstances, the legal effect to put an end to the further continuance of the contract. The referee finds “ that the defendants did give notice to the plaintiff to countermand said advertisements about the 8th day of February, 1866.” This countermand was by letter from defendants to plaintiff, dated February 7, 1866, in which defendants write : “We would say we have ordered all advertising done through you to be stopped some months ago.” Referring to a previous oral countermand in the previous November. We contend that as a matter of law defendants had a right to discharge plaintiff from further employment, and to discontinue any further advertising, always subject to the defendants’ liability for damages, if the plaintiff could be shown to have sustained any. The relation of the plaintiff towards the defendants, as it is correctly set forth in the complaint and established by the testimony, as well as found by the referee in his report, was that of agency, the plaintiff being employed by defendants to procure the publication of defendants’ advertisement in sundry Cuban newspapers ; and such appointment being revocable at defendant’s pleasure, subject always to such a rule of damages as the case may call for (see Story on Agency, § 466). The broadest rule of damages which could be a pplied in the present case would be to hold defendants liable to plaintiff upon all contracts which he had made previous to the revocation of his authority with the sundry newspapers. Had the plaintiff on the trial shown that he had, previous to the revocation of his authority, actually ordered defendants’ advertisement inserted for one year and that he had paid for the same—then, if his efforts to cancel his contracts with the newspapers had failed, the law might well entitle the plaintiff to the damages claimed.
    III. Under the language of this contract, it becomes a question of law as to the price recoverable against defendants. And as to this question we submit, that the option to pay in gold or currency was by the contract expressly reserved to defendants, and a pay in either gold or currency satisfied the contract. The option in an alternative contract belongs to the promisor (see 2 Pars, on Cont. 657; 7 Johns. 465; 11 Id. 59). If, moreover, it be thought that, in analogy to alternative contracts to deliver property to pay money, it was necessary for the defendants to elect what sort of money they would pay in, before action brought, we reply that such an election is positively proved to have been made on all the advertisements published before November, 1865.
    Messrs. Eldridge & Johnson, attorneys, and of counsel, and John K. Porter, of counsel for respondents, argued:
    I. The referee was right in holding that the defendants, who were in default throughout, were liable under the contract at the rate of nine cents per line for each insertion of the advertisement. 1. This is really the only point in the case, and it is of vital importance ; as a decision of it adversely to the view of the referee would compel the plaintiff to stipulate for a reduction of the price per line from nine cents in currency to four and a half cents in gold. Such reduction would be against the oath of the plaintiff, supported by the finding of the referee, that no such stipulation was made by the plaintiff with the defendants. It would also be against the rule of law hereinafter cited, that the party in default loses his option, and that the election is with the party fulfilling and enforcing the contract, as the referee held, in accordance with the decisions of the courts. 2. The contract gave to the defendants the option to pay the plaintiff either nine cents in currency, or four and a half 'cents in coin per printed line for each insertion of the advertisement in the Spanish journals of the island of Cuba, embraced in the circular list. 3. By failure to fulfill the contract in either form, the defendants voluntarily relinquished their option, and the law vested the plaintiff with the right, of election between the agreed rates in currency or in coin (McNitt v. Clarke, 7 Johns. 465, 467). “ After the day of payment is passed, his right of elec-1 tion is gone, and the right of the payee to demand the money is absolute ” (Church v. Feterow, 2 Pen. & W. 301). “If a contract is to do one of two things by a given day, the debtor has until that day to make his election ; but if he suffer that day to pass without performing either, his contract is broken and his right of election gone” (2 Pars, on Cont. 657, note C, 5 ed.; Chit, on Cont. 795, note M, 10 Am. ed.). The plaintiff’s readiness and willingness to accept payment in the form most favorable to the defendants, as evinced by the bills first rendered, is of no avail to the defendants, who elected to break their contract, and to make payment in either form.
    II. The referee was right in holding that the contract was for one year s advertising. 1. The fact was proved and undisputed, that by the uniform custom, such a contract for advertising by the year, imports “ a year from the time the order is given, allowing a reasonable time to get the advertisement started in all the papers ; ” and that in this business of advertising in the Spanish dominions, “ it takes several months to get advertisements in, after the order is given, and it takes about the same time to stop them.” 2. The written proposition, accepted by the defendants, was for yearly advertisements, giving the rates for the year 1865, which applied, of course, to the defendants’ order given in that year. 3. It is true that the acceptance did not state in, terms the time the advertisement was to continue; but the defendants on the receipt of the order were advised in writing that the plaintiff understood it as a direction to insert it for one year in each of the papers, and were requested to correct him if he misunderstood it. They received the letter, and did not express any dissent. 4. The defendants told the plaintiff’s clerk-in February, 1865, at the time the form of the advertisement was agreed on, that they “ wanted the advertising to go in for one year in all the newspapers.” 5. The evidence as to the so-called countermand was conflicting ; and the referee finds that there was none in fact until February, 1866 ; too late, if a countermand were admissible, to stop the advertisement before the year would end. 6. But the defendant, in law, could no more countermand his contract for a year, before the expiration of the year, than he could countermand a deed after its delivery, or a vote after the election.
   By the Court.—Monell, J.

The contract in this case was in the alternative, to pay five and a half cents in gold coin, or nine cents in currency. The defendants had the option, at any time before default, to pay in either kind of money.

But if, within the proper time, they had failed to ■ exercise the option, they would have lost the right of election, and the plaintiff could have elected for himself. The rule is, that if a party is bound to make an election, by performing one or other alternative by a certain time, and suffers the day to pass, without performing either, he loses his election, and the other party may elect for himself (2 Pars, on Con. 169). As where the condition of a bond was to pay six hundred . dollars in one year or four hundred in six months, &c., and the obligor failed to do either, he lost his right to elect, and the obligee could recover the larger sum (McNitt v. Clark, 7 J. R. 465; Smith v. Sanborn, 11 Id. 59).

The option of the defendants continued until the debt was payable, and its payment was demanded. If when such demand was made, they failed to make their election to pay either in coin or currency, then, probably, the plaintiff could elect for himself; and the election might be evidenced by his action to recover judgment for the agreed price in currency, unless he was concluded by his previous acts.

In November, 1865, the plaintiff presented to and left with the defendants, sundry bills for advertising during the months from March to October inclusive, and a portion of November. Those bills were made out on the basis of four and'óne-half cents in coin, and the demand of payment then made was for such money.

Thus the plaintiff, as regards those bills, elected, so far as he could or has the right to elect, to receive payment in gold instead of currency. Besides, there was some evidence, contradicted, it is true, that in the preceding June or July, the parties, by agreement, fixed the rate of gold for future .and past advertisements.

The fact, however, of the presentation of such bills by the plaintiff, and their receipt without objection by the defendants, is sufficient to show the understanding of the parties. ¡Neither seem to have contemplated any other than the four and a half cents in gold ; and I think the plaintiff must be concluded by such understanding.

The. defendants had the right, after that, to believe that gold would be the medium of payment. They were parties to the alleged agreement fixing the rate of gold; they received the bills, drawn payable at the gold rate, without objection ; and thus elected, as far as they could, or were bound to elect, to pay at such rate.

Certainly the plaintiff cannot, after having, in effect, agreed to the gold rate, claim now to recover the currency price, upon any ground of a waiver of election by the defendants. Even if upon this contract, there was any .time before suit brought when they were bound to elect between the gold and currency price, they must be deemed to have made such election, both when they agreed as they say they did, with the plaintiff, on the rate of gold, as a satisfaction of the contract, and when they received the bills rendered at the gold price, without objection. And the proofs of their having so elected, especially that derived from their acquiesence in the bills rendered, are equally potent, to estop the plaintiff from considering it an open question

The referee therefore erred, as I think, in estimating the plaintiff’s claim at the currency price. He should have calculated it at the rate of four and a half cents in gold.

The contract, therefore, being payable in gold, the damages, under the authority of Butler v. Horwitz, cited in Quinn v. Lloyd, 1 Sweeny, 253, 257, should be assessed at the sum found to be due, in gold, and judgment entered in coin at that amount, unless, under an • amended complaint, the plaintiff can establish a right to recover in currency, the rate alleged to have been agreed upon, as the value of gold in currency, namely, one hundred and forty per cent.

Another error of the referee, was, in allowing for any advertising after the termination of the contract by the notice of February, 1866.

The plaintiff’s written proposal was to insert the advertisements “ during the year 1865,” and the defendants accepted the proposal only to that extent. There was no direct evidence of an extension of the time into any part of the succeeding year. But be that as it may, by the notice of February, 1866, all right to continue the advertisements terminated. The contract was revocable by either party, and when either party saw fit to rescind, he left himself merely exposed to an action for damages. But for all purposes of further execution, the contract was at an end, when the notice of February was given; and for any advertising after that day, the defendants are not responsible. And although the measure of damages for a breach of the contract, might be the contract price, until the advertisements could be stopped, yet such damages, without an amendment of the complaint, at least, could not be recovered in this action.

It would not be proper for this court to reverse any finding of fact of the referee, which has been found upon conflicting evidence, merely because we might think such finding was not supported by the clear weight of the evidence. We have not, therefore, undertaken to disturb any of his findings of fact, except so far as such findings are unsupported by evidence, upon the construction which we have put upon -the contract, and the respective rights of the parties. Upon such construction the referee should have found for the gold instead of the currency price. And he should have confined the recovery to a period anterior to the revocation of the contract.

As we cannot adjust the amount to which, upon the principles we have stated, the plaintiff may be entitled, there must be a new trial.

We have not found it necessary to examine the other questions raised by the exceptions in this case, both as respects decisions of the referee, admitting or excluding evidence, or other findings of fact.

Except such questions as we have here determined, another trial will not be controlled by the judgment of this court.

Judgment reversed, order of reference vacated, and new trial granted, with costs of the appeal to the appellants, to abide the event of another trial.


author: By the Court.—Jones, J.

text:
    MIRUAN SULZBACHER, Plaintiff and Appellant, v. PAULINE DAVISON, Defendant and Respondent.
    1. Contract in writing—how superseded.
    By contract not in writing inconsistent therewith, made subsequently thereto on sufficient consideration,
    n. Hiring of articles (bailment for hire) contract in writing of, may be superseded by subsequent contract not in writing of sale and purchase.
    1. Evidence, what sufficient to establish such subsequent contract so as to supersede the prior one.

      a. Where the contract of hiring valued the articles at a certain sum, and the hirer agreed to pay as rent a certain sum per month in advance, and that the latter might at any time remove the articles, refunding the money ;paid for rent for time not expired, and the latter, by agreement indorsed on the back of the contract of hiring, agreed to give a bill of sale to the hirer when the sum fixed in the contract of hiring as the value of the articles should have been paid in rent, provided the same should be paid in ten months from date, ift regular monthly installments as per agreement. Held,, that oral evidence that the hirer, after paying a certain amount in installments for rent, came to the latter, surrendered the various receipts held by her, and requested the whole amount to be put in one receipt, and said she would keep the articles and pay the balance as soon as possible, and within a specified time, and that thereupon the latter received the several receipts and gave instead thereof one for the whole amount, and allowed the amount paid for hire on account of the purchase, was, being uncontradicted, conclusive of a contract of sale and purchase superseding the piior one of hiring.
    HI. Married women.
    1. Evidence as to carrying on sepa/rate buisness.

      a. What sufficient to call for a verdict in an action against married woman that she carried on a separate business, and that the goods were sold for that business.
    See statement of case.
    IV. Dismissal oe complaint on trial aeter evidence closed on both sides.—Exception to.
    1. When judgment entered on will be reversed under such exception.

      a. When the dismissal is based on the want of evidence as to matters material to be proved, while in fact there is evidence upon them.
    1. The doctrine of the cases of Bidwell v. Lament, 17 How. Pr. Bep. 357, and of Marine Bank v. Clements, 31 M. Y. p. 33, is inapplicable to such a case.

      b. Where upon the proof a verdict of the jury against the plaintiff would have been against the evidence.

      Before Monell, Jones, and McCunn, JJ.

      Decided December 31, 1871.
    Appear from judgment.
    This action was brought to recover a balance due for goods sold and delivered. The defenses were a general denial, and coverture of the defendant.
    On the trial, the plaintiff on his direct examination testified, that he sold to defendant three hundred and thirty-one dollars’ worth of furniture, and that there was a balance of one hundred and one dollars and fifty cents due which the defendant had promised to pay. On his cross-examination it appeared that the first negotiations between the parties resulted as to one hundred and forty dollars’ worth of furniture in the following agreements:
    “ This is to certify, that I have hired and taken from M. Sulzbacher, lío. 135 Bleecker street, furniture. One walnut bedstead, seventy dollars; one turkish easy chair, in silk reps, seventy dollars ; valued at one hundred and forty dollars ; for which I agree to pay the said M. Sulzbacher the sum of fifteen dollars per month rent in advance, and all charges of delivery and return of the same; keeping it in good order, at my expense; the hiring to continue until I notify him to remove it. I also agree, that if the said furniture, by fire, or otherwise, be partially or wholly destroyed, to pay the amount of damages sustained thereby. I further agree, that I will retain the said furniture for my own use, and that I will not underlet it for any purpose whatever, nor shall it be removed from the premises now occupied by me, hTo. 11 West 39th street, except on account of danger from the elements, without the written consent of said M. Sulzbacher; said parties to be at liberty to remove said furniture at any time, provided moneys paid for time not yet expired, if any, be refunded. No agreement of sale of said furniture is implied hereby, nor shall a sale or purchase of it be deemed valid, without a written receipt from said M. Sulzbacher therefore.
    “ In witness whereof, I have hereunto set my hand in the City of New York, this 5th day of March, 1869.
    (Signed,) “ PAULINE DAVISON.
    “ Witness,
    M. Sulzbacher.
    H. Sulzbacher.”
    f TJ. S. Bev. Stamp, l ■} $ cents. ) .

      (Printed on hack.)

    “I hereby agree to give a bill of sale of the within furniture to Mrs. Davison, or order, when she shall have paid the sum of one hundred and forty dollars in rent, provided the same is paid within ten months, March 5th, from date, and in regular monthly installments, as per agreement; payments to be made at No. 135 Bleecker street, New York.
    (Signed,) “M. SULZBACHER.”
    And as to one hundred and ninety-one dollars, in agreements precisely the same as the above, with the exception of the description of the articles, their respective prices, their total valuation, and the date of the agreement, which was Dec. 3d, 1868.
    It also appeared that on October 11th, 1869, the •.ai-,wing receipt was given:
    “ $206,00. October 11, 1869.
    Received from Mrs. Davison two hundred and six dollars in installments.”
    On his re-direct examination plaintiff testified :
    Q. What is the date of the agreement ?
    A. December 1st, 1868, and March 5th, 1869.
    Q. What further transaction did you have in regard to the furniture after that date ?

      A. Mrs. Davison came to me with the receipts I had given her, and requested me to put the whole amount in one receipt, which I did; which is the receipt for two hundred and six dollars; she then said that she would keep the fiirniture, and pay me the balance as soon as possible. When I gave her the receipt for two hundred and six dollars, she returned the small receipts ; I allowed her all she had paid for the hire on account of the purchase. She said she would pay the balance within a specified time, and would keep the goods ; I saw her afterwards, and she promised to pay.
    Q. Had you any further transaction in regard to the furniture ?
    A. Ho, sir.
    Q. The small receipts she gave up were for payments of installments on these agreements ?
    A. Yes, sir.
    The delivery of the furniture to the defendant was proved.
    The plaintiff then rested, and defendant moved to dismiss the complaint on the ground that there was no evidence of a sale, which motion was overruled for the present. Ho further evidence was given by either party on the issue as to a sale.
    On the issue of coverture, the defendant testified that she was married on the 23rd of December, 1861 or 1862, and that her husband was still living. On cross-examination she testified that she was carrying on a boarding house, that she signed the lease of the house, that she sometimes hired out the rooms and made agreements with the boarders, and sometimes received the money and sometimes her husband did, that she never told plaintiff the business was her own.
    On her re-direct examination, in answer to the question, “The money you receive from boarders you receive as the agent of your husband?” she said, “I do.”

      In rebuttal, plaintiff and his son both testified that in December, 1868, at the time of the making of the above written instruments made in December, 1868, defendant told plaintiff that she carried on the business of a boarding house in her own name, that it was her own business, and her husband had nothing to do with it; and plaintiff further testified that he requested her husband to sign the paper, when she said her husband had nothing to do with the boarding-house, that everything she purchased was her own, and that her husband had a separate business.
    The testimony was then closed on both sides.
    Defendant moved to dismiss the complaint, on the ground that there was no proof of a sale; also, that it was proved the defendant was a married woman, living with her husband, and no evidence that she carried on business in her own name; or that this was a debt con: tracted in relation to her business.
    Motion granted; defendant excepted.
    Thereupon judgment was entered in favor of defendant against plaintiff, for the sum of seventy-two dollars and forty-seven cents, costs.
    From this judgment defendant appeals to the general term.

      George Carpenter, attorney, and D. T. Walden, of counsel for appellant, urged:
    I. In deciding upon the propriety of a nonsuit, the court is bound to assume the truth of the facts which the testimony of the plaintiff legitimately conduced to prove, though their correctness be controverted by the defendant’s witnesses. The party nonsuited is entitled, upon appeal, to have every doubtful fact found in his favor (Colegrove v. N. Y. & N. H. R. R. Co., 20 N. Y. 492; Merritt v. Lyon, 3 Barb., 110; Ernst v. Hudson R. R. Co., 35 N. Y. 25 41), per Porter, J.

      II. The plaintiff testified that he sold the goods to defendant; and although the effect of that evidence may have been impaired by the cross-examination, yet, on examination by the court, he testifies, that when he gave the receipt for two hundred and six dollars, viz., October 11, 1869, she agreed to keep the goods and pay the balance. Henry'Sulzbacher, the plaintiff’s brother, testifies, that they allowed the amount paid on the hiring towards the purchase, and fixed the balance, and she promised to pay it. This evidence was all in before plaintiff rested, and that the motion was then denied, it is fair to assume that the court decided it was sufficient to go to the jury on the question of sale. Subsequently, defendant was sworn, and was not interrogated as to a sale or promise by her to pay, as stated by the plaintiff. She does not contradict the plaintiff’s testimony as to a sale. The evidence appears to have been directed to the question whether she kept a boarding-house. There was evidence sufficient for a jury on the question of purchase, and the dismissal, if on that ground, was erroneous.
    III. The averment and proof of coverture was no defense, if the defendant was carrying on the business of boarding-house keeper, and these goods were purchased by her for that business (Barlow v. Beers, 35 Barb. 78 ; Badgley v. Decker, 44 Id. 577). And the question whether she was carrying on that business— whether it was hers or not-—was a question which should have been submitted to the jury, if there were any competent evidence in favor of the plaintiff on that issue (Abby v. Deyo, 44 Barb. 374).
    IV. There was evidence, competent and in every respect admissible, tending to prove, and which did prone, that defendant was carrying on .the business of keeping a boarding-house, when she purchased the articles, and that this furniture was for .that business.
    V, Whatever difference there may be as to the force and weight of the evidence, and as to whether the same was met, contradicted or overcome by the defendant, it should have been submitted to the jury ; and its withdrawal from them by a dismissal of the complaint' was error, for which a new trial must be granted.

      Henry C. Denison, attorney and of counsel for respondent, urged
    I. The contract was in writing, and is explicit, and provided for a sale afterwards to be made if certain amounts were paid. In the mean time, the contract was only one of hiring, and hence this action for goods sold and delivered will not lie, and therefore the plaintiff was properly nonsuited. The contract is that the hiring shall continue until she notifies him to take it away. A positive agreement to keep it on the premises and not underlet. No agreement of sale to be implied, nor shall a sale or purchase of it be deemed valid without a written receipt from said M. Sulzbacher therefor.
    II. The right reserved to the plaintiff to take the furniture at any time, provided the money paid as rent for an unexpired month is refunded, and the. agreement to give a bill of sale, all prove conclusively that there was no sale in presentí. The complaint is for a balance due only for goods sold and delivered. Here being a specific written contract, and no pretense or claim of a new agreement or bill of sale afterwards, there is an entire failure of proof to support the cause of action. If anything was due for rent, that would be an entirely different claim, and depend on entirely different principles.
    III. If the plaintiff wished anything but a clear regular sale of the goods submitted to the jury, it was his duty to request it at the time. He °can take, no ground here not urged at the trial (Bidwell v. Lament, 17 How. Pr. 357; Marine Bank v. Clements, 31 N. Y. 33).
    IY. The defense of coverture was also a complete defense. There is no proof that she ever had a separate estate. And not a particle of evidence that these goods were for her separate business if the faint evidence of admission furnish any evidence of a separate business. As she lived with her husband, she had not any such business as would make her liable (Smith v. Allen, 1 Lans. 101; Schmidt v. Corta, 3 Abb. Pr. N. S. 188).
    Y. If the faint admissions of the plaintiff that she carried on business is evidence, then there is no evidence to show that this was a contract made in connection with her business. The statute only makes the wife liable for debts contracted in connection with the business carried on by her; and before the plaintiff can recover, he must show either that the consideration for which the contract was made was for the benefit of her separate estate, or that the- contract was made in connection with the business carried on (Yale v. Dederer, 22 N. Y. 450; Laws 1860, chap. 90, § 8, p. 159).
   By the Court.—Jones, J.

I am in favor of reversing the judgment and ordering a new trial.

There was error in dismissing the complaint. The court, in granting the motion, necessarily held that there was either no evidence of a sale, or no evidence either that defendant carried on business in her own name, or that the debt was contracted in relation to her business. Having held there was no evidence, there was, of course, nothing in view taken by the court to submit to the jury.

The court did not decide on the assumption that certain facts were proved, which would have brought the case within Bidwell v. Lamont, 17 How. Pr. 357, but on the ground that there was no evidence of certain facts, which is an entirely different thing.

Even under the cases of Bidwell v. Lamont, and Marine Bank v. Clements, 31 N. Y. 33, we can only infer, in support of the decision, those conclusions which the jury would have been warranted to draw ; and, from the evidence in the case, we think the jury would not be warranted in finding that the defendant did not carry on business in her own name, or that the articles were not purchased and furnished for that business. Such a finding would have been against the evidence.


author: By the Court. —Jones, J.

text:
    EMELINE MOREY, Plintiff and Appellant, v. THE SAFE DEPOSIT COMPANY OF NEW YORK, Defendant and Respondent.
    Handwriting.—Evidence.—Proving or Disproving by Comparison of Descriptions.
    1. Cannot be proved or disproved by a comparison of the description given by an expert in handwriting, of the formation of the letters, in writings not put in evidence, but as to which the uncontradicted proof is that the handwriting thereof is genuine, the characteristics of such letters, the manner of their formation, and the movements by which they were formed, with a similar description of the writing in dispute given by the same or another expert.
    3. The admission of the testimony of experts giving such descriptions of the said writings other than the one in dispute is error.
    Before Jones, McCunn and Freedman, JJ.

      Decided December 31, 1871
    Appeal from judgment.
    This is an action of claim and delivery brought to recover from defendants the possession of certain United States government bonds which are averred to belong to the plaintiff.

      The answer admits the incorporation oí the company, the possession of the bonds, a demand made for them and a refusal to deliver, but denies all the ‘other allegations of the complaint.
    Thus, the only point in issue was as to the owner- . ship.
    The plaintiff claimed title through the possession of a certificate of deposit issued by the defendant, stating the receipt of the bonds from ¡Nathaniel Frost on his account, an assignment purporting to- be signed by said Frost, conveying to the plaintiff the bonds and certificate of deposit, and a written order purporting to be signed by said Frost, directing defendant to deliver the bonds to the plaintiff.
    The defendant disputed the gemiiness of the signature to the assignment and order.
    Evidence was given on both sides by witnesses who had seen Mr. Frost write, as to whether the signatures were his or not—some averring that they were, others that they were not.
    In the course of the trial the defendant put on the stand a witness, who stated his business to be the examination of disputed handwriting, and asked him this question: State the characteristics as to the signatures to the assignments and order (Exhibit 4) now shown yon ? In answer to this question, the witness gave a lengthy and minute description of the formation of the various letters composing the signatures, their characteristics, the manner of their formation, and the movements by which they were formed.
    He was'then shown by defendant’s counsel the defendant’s book of receipts of deposits, and shown the signature “¡Nathaniel Frost” therein, and asked: State to the referee the distinctive marks or characteristics of the handwriting of that signature ?
    The question was objected on the ground that the book was not in evidence, and as having nothing whatever to do with the same. The objection was overruled and the plaintiff excepted.
    The witness then in answer to the question gave a detailed and minute description of the formation of the letters in this signature, their characteristics, the manner of their formation, and the movements by which they were formed.
    Defendant’s counsel then further asked the witness: Look at the signatures on the receipt book marked 1200 to 1245 (being the signatures “Nathaniel Frost,”) and give the characteristics ? The same objection was taken to this question as to the last preceeding one, the same ruling was made, and the same exceptions was taken. In answer to this question, the witness gave a detailed and minute description of the letters of the signature, their characteristics, the manner of their formation, and some of the movements by which they were formed. Previous to this testimony the defendant, under plaintiff’s exception, had given evidence that the signatures “Nathaniel Frost,” in these two books were in his own proper handwriting, but there was no admission of their genuineness.
    Neither the books nor the signature “Nathaniel Frost” therein contained had been put in evidence, nor were they put in evidence at any time during the trial.

      George Day, attorney and of counsel for appellant.

      James R. Whiting, attorney and of counsel, and E. M. Wight, of counsel for respondent.
   By the Court. —Jones, J.

The object of the testimony clearly was to lay a basis whereby the referee could compare the handwriting of the signatures, which defendants claimed to be genuine, with that of those which. were alleged to be spurious, and thus furnish him with a criterion by which to arrive at the conclusion, that the signatures to the papers through which plaintiff claims were forgeries. In no other aspect was the evidence as to the handwriting of the signatures in the two books relevant or material. As there was no other ground on which the testimony was admissible, the referee must have admitted it for that purpose and in that view. The testimony was evidence in the case, and we cannot say that the referee in arriving at his decision did not make the comparison, the basis for which was thus laid, and was not materially influenced thereby in arriving at the conclusion which he has reported.

The question then is whether the evidence as to the signatures in the two books was competent.

It may now be regarded as the law of this State, that for the purpose of showing the genuineness of a signature in controversy, it is inadmissible to compare it with signatures to other papers unless those other papes are in evidence in the cause, and material to the issue, or perhaps admitted to be genuine, and that the signatures in said other papers (except as above stated) cannot be submitted to jury for their comparison with the disputed one (Van Wyck v. McIntosh, 14 N. Y. 439 ; Dubois v. Baker, 30 Id. 355, 362).

Although these signatures were on the trial exhibited to three or four witnesses, it may be that they were not exhibited to or seen by the referee, although that is rather a violent assumption. However that fact may be, the comparison of a full and detailed description of the other signatures with the one in dispute, or with a full and detailed description of the one in dispute falls within the above rule, and, if anything, is more pernicious and open to more objection than the comparison of the signatures themselves.

I think there was substantial error in admitting the evidence as to the signatures in the books, and for that reason the judgment should be reversed.

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


text:
    ANNA ROCKE, Plaintiff and Appellant, v. GERD. D. MEINER, Defendant and Respondent.
    Witkess.—Pabties As.
    1. Cross-examination of .—Line of, what and when permissible.

      a. When a plaintiff rests his case on proof of presentment of a bill to the defendant and his promises to pay, and the defendant testified that he promised to pay only for what he had received, and then proceeded to testify as to what he had received, it is proper to ask questions on cross-examination, the tendency of which is, if answered in the affirmative, to show that' defendant had received more than he testified to on his direct.
    1. If the defendant had confined himself strictly to negativing the promise to pay, such question would not have been admissible on cross-examination, but only as evidence in chief ; and as they would re-open the case, their admission would have been in the discretion of the trial judge.
    2. Questions to party on cross-examination not objectionable as calling for a conclusion of law.

      a. The inquiry being whether the defendant had received from the plaintiff more beer than he had testified to on his direct examination, he maybe asked on cross-examination, “Was any beer received by you from Mr. A. B.’s cellar belonging to the plaintiff ?”
    1. The introduction of the words, “ belonging to the plaintiff,” does not render the question objectionable as calling for a conclusion of law.
    Before McCunn and Jones, JJ.

      Decided December 30, 1871.
    Appeal from judgment.
    This action is brought to recover one hundred and forty-eight dollars and fifty-seven cents'for lager bier sold and delivered to defendant by plaintiff, at an agreed Drice.

      The answer admits the purchase of six and a half barrels of beer at eleven dollars and fifty cents a barrel!—amounting in all to eighty-six dollars and twenty-five cents; it avers a return of three-quarters and one-sixteenth of a barrel, on the understanding that the price of the returned beer, being ten dollars and fifty-,six cents, should be applied on the whole bill of eighty-six dollars and twenty-five cents, and reduced it to seventy-five dollars and seventy-one cents; it avers a tender of said seventy-five dollars and seventy-one cents before suit brought, and denies all the allegations of the complaint except those admitted.
    On the trial the plaintiff, to sustain her action, gave evidence that a bill for one hundred and forty-eight dollars and fifty-five cents was presented to the defendant, and that he promised to pay it; and then rested her case. The defendant, being called as a witness, did not confine himself to a simple denial of a promise to pay the bill as presented, but went further, and testified that he promised to pay for what was bought by, and delivered to, him, but no morethat twenty-four quarter casks and nine-sixth casks were delivered to him at eleven dollars and fifty cents or twelve dollars, and he returned three-quarters and one-sixth, casks, and that he had offered to pay seventy-five dollars.
    On his cross-examination, he was asked a series of questions. Among them the following:
    State whether you received any other beer belonging to Mrs. Bocke from Mr. Buder’s cellar ?
    Did you receive any beer belonging to Mrs. Bocke besides what the carman delivered ?
    Has any been received by you from Mr. Buder which belonged to Mrs. Bocke ?
    Did you receive and promise to pay for any beer belonging to Mrs. Bocke which had been stored in Mr. Buder’s cellar, and which you received from Mr. Buder ?

      These several questions were duly objected, the objection sustained, and plaintiff excepted.
    The jury rendered a verdict for plaintiff for seventy-five dollars. A motion was made by plaintiff for a new trial, which was denied, with ten dollars costs. The defendant having offered to allow judgment for eighty-six dollars and twenty-cents, with interest and costs, judgment was entered in favor of defendant for the difference between the verdict and the costs, being five dollars and ninety-six cents.
    From this judgment, and the order denying the motion for a new trial, plaintiff appealed to the general term.

      George Carpenter, for appellant.

      G. D. Sewards, for respondent.
   By the Court.—Jones, J.

If the defendant had confined his testimony to a denial of the alleged promise to pay the amount of the bill alleged to have been presented to him, then the above questions would not have been in the nature of a cross-examination, and would have been inadmissible in that character ; they would, in that event, have been receivable only as questions put to the witness by the plaintiff as a witness called on his own behalf. As such, they would operate to re-open the plaintiff’s affirmative case after defendant had closed, and so operating it would have been entirely in the discretion of the judge whether to permit them or not.

But the defendant went further in his testimony. He testified, on his direct examination, as to the amount of beer he claimed to have received. It was, therefore, proper cross-examination to prove out of his own mouth that he had received more than he admitted to on Ms direct examination. •

The excluded questions had a tendency to show the reception by defendant of more beer than he aoknowledged in Ms direct testimony, and thus contradict and show the unreliability of the direct testimony.

They should therefore have been admitted, unless there is some objection to the form.

It is suggested that the introduction of the words, “belonging to Mrs. Roche,” rendered the form objectionable because they made the questions call not for a fact, but for a conclusion of law on a variety of facts.

This objection," however, is fully answered by the cases of Sweet v. Tuttle, 14 N. Y. 465-471; Carnes v. Platt, 6 Robt. Superior Ct. 270-286.

Judgment reversed and new trial ordered, with costs to plaintiff to abide the event.


text:
    ADDISON ALGER, Plaintiff and Respondent, v. JACOB VANDERPOEL, Defendant and Appellant.
    I. Contract—Building.
    1. Bxtra worh, whit is not under special clause,

      a. Under a clause as follows: “Should the owner at anytime request any alterations, deviations, additions, or omissions from the said contract, he shall be at liberty to do so, and the same shall in no way affect or make void the contract, but will be added to, or deducted from, the amount of the contract by a fair and reasonable valuation,” work done and materials furnished upon and for the building agreed to be built by the contract, will not be regarded as extra work, although not called for by the contract or the specifications, but will be deemed as done under the contract.
    1. Such work and materials cannot be recovered for as extra work and materials.
    3. Breach of, hy Guilder.

    1. Breach pleaded as a bar, and also damages caused thereby attempted to be pleaded as a counter-claim.

      a. When attempt to prove on the trial damages, does not interfere with subsequent reliance on the bar.
    1. When the judge at the trial, without putting the defendant to his election, makes a ruling which renders the plea in bar inapplicable, and such ruling is error for which the judgment is reversed.
    II. Judgment.—Eeveksal of.

      1. Theory—Game tried and disposed óf on- wrong theory, when the judgment reversed by reason of the error.

    1. When general exceptions have been taken to rulings made, and propositions charged, which have for their basis only such erroneous theory.
    Before Jones, McCunn and Freedman, JJ.

      Decided December 31, 1871.
    Appeal from judgment and order denying motion for new trial.
    This action was brought to recover the sum of four thousand one hundred and eighty-two dollars, the balance alleged in the complaint to remain due of the sum of seven thousand dollars, which the complaint alleges the defendant promised to pay the plaintiff for services rendered by plaintiff as a builder, and materials furnished by him, in and about the erection of certain buildings.
    The defendant pleaded, among other defenses, that the services were. rendered and materials furnished under a contract annexed to the- answer, that plaintiff failed to perform said contract according to its terms, that he was notified to perform, but failed to comply, and gave up and surrendered the contract, that plaintiff, after becoming entitled to the second payment according to said contract, which was fully paid when due, utterly failed to perform any of the further requirements -of the contract or to be entitled to any more payments or money according to its terms.
    The answer also contained the following clause :

      “5th. Defendant further says that be has sustained damages to the amount of two thousand five hundred dollars, by reason of the non-performance by plaintiff of said contract, and which sum plaintiff is liable to pay this defendant on account of the expenses paid and, sustained by defendant in procuring materials and labor for the performance of said contract, and defendant demands judgment therefor against plaintiff.”
    There was a reply«consisting of a general denial.
    On the trial plaintiff offered to read in evidence an agreement in writing, under seal, dated November 15, 1865, made between him and defendant, for the erection of the buildings mentioned in the complaint.
    This agreement contained the following clause :
    “ Third. Should the owner at any time during the progress of said building, request any alteration, deviation, additions, or omissions, from the said contract, he shall be at liberty to do so, and the same shall in no way affect or make void the contract, but will be added or deducted from the amount of the contract, as the case may be, by a fair and reasonable valuation.”
    The defendant objected to the reception of this agreement on the ground that the complaint was not founded thereon. The objection was overruled, and defendant excepted. The agreement was then read in evidence by plaintiff.
    Plaintiff also offered to read in evidence a subsequent agreement, under seal, dated December 6, 1865, made between him and defendant, whereby he, the plaintiff, undertook to do and perform certain alterations and enlargements for the sum of two hundred dollars, which defendant agreed to pay therefor. This contract contained the following clause:
    “ And it is hereby further .agreed between the parties hereto, that this agreement shall not in any way alter, vitiate, or make null and void the existing agreement between them hereinbefore named and bearing date November 15,1865;”
    The plaintiff being called as- a witness and asked, “State the circumstances under which you left the work?” answered, '“Defendant forbid me finishing the washing down of the front. He Ordered me to go away, that I had no more to do with the work.” The question was then put to him, “State the value of the work and material which you furnished on that house ?” The question was objected to on the ground that the work was. done under the contracts and the complaint is not on them. The objection was overruled, and defendant excepted. . He answered, Five thousand nine hundred and forty-five dollars and thirty-seven cents. He was then asked, and answered, as follows:
    . “ Q. Have you stated the value of all the work you did?
    ;,, ‘A. I have done other work besides what is named.
    “Q. What is the value of the additional work you did?
    “A. It was work done not specified in either of the contracts.
    . “ Q. How much was that ?
    “A. TÉree hundred and fifty-nine dollars and seventy-four cents. (
    “ Q. Did defendant promise to pay you for the work ?
    “A. He did, sir.
    “ Q. Was there any more work done ?
    . . “ No more work.” ,
    After' considerable cross-examination, the court made the following statement:
    : “The court here stated to counsel for plaintiff that as the pleadings, now. stand the-plaintiff would be confined to a recovery of the extra work done outside of the two contracts.”
    After plaintiff had rested, counsel for defendant offered to 'show by a witness on the stand:

      “That plaintiff abandoned the work mentioned in the contract in evidence, and that defendant was obliged to go on and complete the work, and that defendant suffered damages by reason of plaintiff’s not fulfilling the contract set out in defendant’s answer, which damages defendant proposed to prove amounted to $3,500, and which he, defendant, claims to set off to plaintiff’s claim in this action, and also by way of counter-claim in this action.”
    This evidence was objected to by plaintiff’s counsel, and was excluded by the court, and the counsel for defendant duly excepted to such decision.
    The evidence showed that the work and material claimed to be extra were done and furnished on and for the building contracted to be erected under the foregoing written contracts.
    The court charged the jury, among other things, that the plaintiff had testified that in the progress of the work done under the contracts he performed certain extra work by direction of the defendant, for which the defendant subsequently promised to pay; and that if they believed the plaintiff did the work under and by direction of the defendant, he was entitled to recover. The defendant excepted to this charge.
    The jury thereupon rendered a verdict for the plaintiff for the sum of three hundred and sixty-two dollars and sixty-four cents.
    The defendant’s counsel thereupon made a motion for a new trial upon the judge’s minutes, which was denied by the court, and exception duly taken by defendant’s counsel.
    Judgment having been entered on the verdict, defendant appealed therefrom, and also from the order denying the motion for a new trial.

      Sheldon & Brown, attorneys, and H. Sheldon, of

      counsel for appellant, urged:—I.
    The court erred in admitting proof of the work performed. The work performed was under a written contract, under seal, and no action could be maintained upon the common counts. The action should have been upon the contracts alleging performance on the part of the plaintiff (1 Chitt. Plead. 340; Cow. Treatise, 635, a; 7 Cranch, 299 ; Adams v. Mayor, &c., 4 Duer, 295 ; Farron v. Sherwood, 17 N. Y. 229 ; Harley v. Black, 28 Id. 438; Addison v. Collins, 30 Barb. 430; 18 How. Pr. Rep. 235 ; 9 Abb. Pr. Rep. 353). The contracts being under seal, the action should be upon them, alleging performance by plaintiff.
    II. There was no distinction between the so-called extra work, and the other work. It was all performed upon the same building, and under the same contract. Part of it consisted of an enlargement of the wall, and part in other alterations made at the request of the defendant. This work is most clearly all embraced in the contract, (a) Subdivision 3 is as follows :. “ Third. Should the owner at any time during the progress of the said building, request any alteration, deviation, additions, or omissions from the said contract) he shall be at liberty to bo so, and the same shall in no way affect or make void the contract, but will be added or- deducted from the amount of the contract as the ■case may be, by a fair and reasonable valuation.” We say, therefore, that the extra work was embraced in the written contract; that it was necessary to proceed upon the contract, and to allege and prove performance thereof, to recover from the' work and materials embraced in the verdict. (5) The charge by the court to the jury is as follows : “H you believe the plaintiff, that he did the work under and by the direction of the defendant, he is entitled to recover,”—which was duly excepted by defendant’s counsel,—was for the same reasons erroneous. Most clearly the plaintiff was not entitled to recover, for the reason that the work was embraced in the contract, as above stated, and nothing embraced in the contract could be properly recovered in this form of action.
    III. The answer of the defendant sets up that the claim of the plaintiff in his complaint arose under the contract set out in the case, that the plaintiff failed to perform and abandoned the contract, and was not entitled to any further pay by its terms. And the answer further claims that defendant suffered two thousand five hundred dollars damages by reason of non-performance of the contract, which defendant claimed to recover of plaintiff in this action. On the trial of the action, and while defendant was on the stand as witness, “ Counsel for defendant offered to show by the witness that plaintiff abandoned the work mentioned in the contract in evidence, and that defendant was obliged to go on and complete the work, and that defendant suffered damages by reason of plaintiff, not fulfilling the contract set out in defendant’s answer, which damages defendant proposed to prove amounted to two thousand five hundred dollars, and which defendant claimed to set off to plaintiff’s claim, and also by way of counter-claim in this action.” “ This evidence was objected to by plaintiff’s counsel, and was excluded by the court, and the counsel for defendant duly excepted to such decision.” This ruling we insist was manifest error, (a) The labor performed and the material furnished, recovered for in this action, were performed and furnished confessedly in and about the same building specified in the contract, and the defendant was therefore entitled to show non-performance as a full defense. (5) The defendant was also entitled to recover any damages he was entitled to in this action, inasmuch as the action was based upon a claim of plaintiff arising upon contract and upon the very contract for the erection of the buildings upon which the work was done and materials furnished, claimed in plaintiff’s complaint, - (c) The evidence proposed was, admissible under the provisions of sections 149 and, 150, of the Code. 1st. This claim arose out of the same.transaction mentioned in plaintiff’s.complain t.3d. The plaintiff’s claim is on contract, and thp, defendant’s claim arises also on contract and is expressly admissi-, ble under subdivision 2 of section 150-of, the.Code., The courts have nowhere confined, a counter-claim to, claims arising out of the same cause of action-specified in the complaint, but when the action, is upon,contract, any other claim of the defendant, arising upqn, pontract also, may be recovered, in the same action by defendant., (Boston Silk and Woolen Mills v. Eule, 37 How, Pr. 299 ; Vassa v. Livingston, 3 Kern. 256.; Beardsley v. Stover, 7 How. Pr.; Gleason v. More, 2 Duer, 642; Shubart v. Harteau, 34 Barb. 447), , It may.be for either liquidated or unliquidated damages) Signot v. Redding, 4 E. D. Smith, 285); and of unrequitable or legal nature (Currie v. Cowles, 6 Bosw. 453;. see also Bates v. Rosekrans, 37 N. Y. 409;; DeWolf v. Crandall, 1 Sweeny, 556).
    IV. The verdict was improperly .influenced, by mis-, direction of the judge., ■ The cqurt. should have stated that if the work was done on the tpiildings, embraced, in the contract, although not specified, if done by (defendant’s direction, it, was embraced in subdivision 3 of. the contract, and could not be recovered in this action., And this point is now. tenable although títere was go specific exception to that effect (2 Lans. Sup. Ct. Rep. 94; Archer v. Hubbell, 4 Wend. 514; Harris v. Wilson,. 1 Id. 511; Wardell v. Hughes, 3. Id. 418 ; Hill & Denio, Sup. 243). .. , ,

      H. A. Gildersleeve, attorney and of counsel forj respondent, urged: ,
    I. The court properly overruled the offer of the defendant to prove, by way of counter-claim, a breach, of the contract on the part of the plaintiff. . First. There is no sufficient averment of fa counter-claim contained in the answer., The. defendant alleges no performance, or offer to perform, ;on his own part (3 Chitty’s Pl. 160; Abb. Forms, 358, 359; Walker v. Millard, 29 N. Y. 375). (a.) The matter in the answer is not in any respect the, statement of a counter-claim (Clough v. Murray, 19 Abb. 97; Cumings v. Morris, 3 Bosw. 560 ; Beers v. Waterbury, 10 Bosw. 397 ; Burke v. Thorn, 44 Barb. 363). Secondly The defendant was estopped, by his own act, in preventing the plaintiff from litigating his rights under the contracts, from giving evidence for the purpose of establishing a cause of action under the same contracts against the plaintiff (Walker v. Millard, 29 N. Y. 375).
    II. All questions under the contract were excluded on defendant’s motion. , , ' ’ ",
   By the Court.—Jones, J.

The charge of the judge, that the plaintiff was entitled to recover for the extra work if the jury believed his testimony, and that the extra work was done under the direction of the defendant, coupled with his overruling defendant’s objection to the question, “ State the value of the, work, and material which you furnished on that house?” (which objection was based on the ground that the work was done under the contracts and the complaint was not on them) and his ruling that as the pleadings stood the plaintiff would be confined to a recovery of the extra work done outside of the two contracts, was clearly a ruling that the work for which a recovery was had was not done under or included, in the contracts, and, as a consequence of this, that a breach of these contracts by plaintiff was no defense. It is evi-' dent that the case was tried and disposed of on this theory.

The exception to this part of the charge sufficiently raises the question as to whether the principles on which the case was disposed of are correct or not.

There is no dispute but that the work recovered for was done on the building which the defendant had agreed by written contract to erect, and for the purposes of this decision it must be assumed (for so the •jury have found) that the work recovered for was done under defendant’s directions, and that it was not specified in the contracts, specifications or plans..

But, notwithstanding all this, it was under the third clause of the contract done under and included in the contract; and, consequently, if the contract had not been fully performed, the plaintiff was not entitled to recover for the work for which he was allowed to recover.

Although the defendant pleaded the non-performance as a bar, and attempted to plead damages sustained by that non-performance as a counter-claim, yet there having been no motion made to compel an election, he was at liberty to elect at the trial.

The fact that he, after the court had held that certain work claimed for by plaintiff was not work under the contract, sought to avail himself of the damages caused.by the breach as a counter-claim, should not prejudice him in his right to elect to use that breach as a bar when the ruling of the court is such as to put him on an election.

The principle on which the case was tried was erroneous, as above stated, and the exception to the charge sufficiently presents the error for review.

Judgment reversed and new trial ordered, with costs to appellant to abide the event.

Ereedmak, J., concurred.