text:
    William R. Carnes, substituted in place of Martha B. Carnes, deceased, plaintiff and appellant, vs. George W. Platt and John L. Griffin, defendants and respondents.
    1. It is the duty of counsel to call the attention of a judge at the time, to any erroneous assumption by him in his charge to the jury, of the existence of a material fact, concerning which, there is either contradictory evidence, or none at all, in order to have it corrected. Such an assumption, however, must be expressed, and not merely inferential, in order to make it erroneous.
    2. Counsel cannot take advantage on appeal, of an omission by the judge, on the trial of an action, to submit to the jury questions of fact which should be submitted to them. A judgment will not be reversed merely because questions of fact ought to be submitted to the jury, unless such submission be specially requested by the party desiring it.

      8. But if the judge incorrectly charges the law to the jury, and such error injuriously affects one of the parties, who excepts thereto, he need not, in order to place himself in position to correct that error, request the judge to charge correct propositions, which are the converse of those charged, nor request him to submit any matters of fact to the jury.
    4. Where the judge made an erroneous charge to the jury, (although he also charged, that in a certain other event the defendants would be entitled to a verdict, which latter charge standing by itself was correct, yet it being impossible to determine that the verdict was not rendered exclusively upon such erroneous charge, if the plaintiff was injuriously affected by it, he is entitled to a new trial, unless there were some other circumstances in the case to prevent it.
    6. As the question of delivery, in respect to a deed, involves acceptance, it is always one of intention, depending on the circumstances of the transaction.
    6. Although the mere placing of a deed in the hands of the grantee, or an agent of his, authorized by him to receive it, is presumptive evidence of an intent to deliver it so as to take effect immediately, as the deed of the grantor, yet this presumption may be rebutted by attendant circumstances.
    7. Where the same attorney is employed by a grantee to examine the title, and by the grantor to draw a deed, of real estate, the mere placing in his hands by the grantor-, of the deed executed and acknowledged, the consideration whereof has not been paid or delivered, is not, in law, a delivery to the attorney for the use of the grantee, with intent to pass the title; hut at most constitutes the attorney the agent of the grantor to make a delivery upon payment of the consideration, which is the condition upon which the delivery is to be made,
    8. The grantor may, when he hands the deed to the attorney, either qualify that act by stating that he merely deposits it for safe keeping, until he shall deliver it personally; or may make it a present delivery of the deed for the use of the grantee, with intent to pass the title to the latter before receiving the consideration, hut in the latter case he must so expressly declare and instruct the attorney.
    9. Where the evidence showed no express instructions or declarations to the attorney by the grantor, and only the placing of the deed in his hands by the latter; Held, there was no delivery of the deed with intent to pass the title to the grantee.
    10. There being no evidence to show, that the agent had authority from the grantee to receive the deed for him as his agent, and he was not furnished with the consideration to be paid on delivery ; no such authority could he implied from his mere retainer as counsel to examine the title.
    11. There having been no delivery of the deed, in such case, by the mere leaving the same with the attorney, there was no acceptance; for like reasons a subsequent delivery and acceptance could not relate back to the time when the deed was so left with the attorney, so as to cut off intervening rights.
    12. Where an agreement was made between a debtor and creditor, by which the latter agreed to release certain property of the former, which had been attached in another state, on condition that the debtor should convey to him other property in this state; which agreement was subesquently abandoned by both parties, and the deed contemplated by it was never delivered nor accepted; Held, that persons in the occupation of the premises so agreed to he conveyed by the debtor, not in possession under the said agreement, or under a title derived through a deed delivered pursuant to it, could not protect their possession by it.
    13. Where a person, in taking an assignment of a judgment, acts for the judgment debtor, and takes the assignment for his use, he has a right to hold it as a valid security, for the money he advances on its purchase, and, in case of non-payment of that money by the debtor, to enforce the judgment against ■ any property on which it is a lien.
    14. On an issue rendering the question, whether a judgment was purchased by a witness for his own benefit, or that of the judgment debtor, material, the witness may be asked “ Por whom did you purchase that judgment! ” Also, “ In your negotiation with the bank, (the judgment creditor,) for whom were you acting 1 ”
    (Before Monell, Garvin and Jones, JJ.)
    Heard May —, 1868;
    decided May 30, 1868.
    Action of ejectment, to recover the possession of certain premises situate in the city of New York.
    The complaint alleged the plaintiff to be the owner in fee and entitled to the possession of the premises; that the defendant Platt unjustly claimed to have the title to, and to be the owner of them; and that the defendant Griffin was in possession as tenant under said Platt; that before the commencement, of this action, while Platt claimed to be the owner, and Griffin was in possession, the plaintiff demanded possession of the premises from them, and they unlawfully and without the consent of the plaintiff, withheld from him the possession thereof, to his damage $5000; and prayed that the defendants might be adjudged to surrender possession and pay the aforesaid damages for detention.
    The defendant Platt by his answer denied all the allegations of the complaint, and for a distinct defense, alleged that in July, (26th,) 1854, one Charles W. Houghton was seised .in fee simple of the premises, and he, with ' his wife, on that day, conveyed the same to one Charles L. Anthony by a full covenant warranty deed, and Anthony, in September, (4th,) 1854, conveyed .the same by a quitclaim deed to Elijah and Edwin Houghton, who, in October, (17th,) 1860, mortgaged the same to him, (the defendant Platt,) to secure $12,000; that he commenced an action to foreclose the mortgage, and such proceedings were therein had that, in January, 1863, a judgment of foreclosure and sale was had; that the premises were sold under such judgment, to him, (the defendant Platt,) and a deed therefor executed and delivered to him, and that he entered into possession about May, 1863, under that deed. That in August, (10th,) 1854, the Merchants’ Bank of Boston, recovered a judgment (for $7190.37) in the Supreme Court of the state of New York, against Houghton, which was docketed in the clerk’s office of the city and county of New York, before the recording of the deed made by Houghton to-Anthony in the register’s office, which judgment Houghton was in equity, as between himself and Anthony and his grantees, bound to pay. That Houghton, in April, (26th,) 1862, conspired with Martha Carnes, (the original plaintiff in this action,) to defraud the defendant. In pursuance of which scheme, Houghton procured the plaintiff to obtain an assignment of said judgment and hold the same under a secret trust for himself, and to issue an execution on said judgment to the sheriff of New York, under which execution, the sheriff, in June, (18th,) 1862, sold all the interest of Houghton in said premises which he had at the time of the recovery of such judgment, or at any time thereafter, to the plaintiff, and at the expiration of fifteen months after the sale the sheriff executed a deed of the premises to the plaintiff, which was recorded in the register’s office of the city and county of New York, in September, (19th,) 1863. That such judgment, assignment, execution, sale and deed constituted the only claim or title of the plaintiff; that Houghton was the real assignee of such judgment, and the plaintiff held the sheriff’s deed for his benefit, and that this action was commenced and prosecuted for the immediate benefit of Houghton.
    The plaintiff) in a reply to this answer, admitted that Houghton was, in July, (24th,) 1854, seised in fee simple of the premises, and alleged that he continued to be so seised until after August, (10th,) 1854. The reply admitted the recovery of the judgment by the Merchants’ Bank, alleging the same to have been docketed in August, (10th,) 1854; also that that bank, in April, (26th,) 1862, assigned said judgment to the plaintiff, for a good and valuable consideration; also that the plaintiff, in May, (6th,) 1862, issued an execution to the sheriff of the city and county of New York, setting forth the contents of the execution ;, also that in January, (18th,) 1862, the sheriff, at the proper place and time, after due notice, sold under that execution, to the plaintiff, all the estate and interest which said judgment debtor had at the time of the recovery of such judgment, or at any time afterwards, in the premises. It alleged the making out by the sheriff of the two certificates in manner and form as required by statute, and the delivery of one of them to the plaintiff) and the filing of the other in the office of the clerk of the city and county of New York. It admitted that, in September, (19th,) 1863, after the expiration of fifteen months from the time of sale, the sheriff by a proper deed conveyed the premises to the plaintiff, in fee simple. It denied that Houghton and wife in J uly, (26th,) 1854, by deed or otherwise, conveyed the premises to Anthony, and alleged that the deed mentioned in the answer, by which it is there claimed that the premises were aliened by Houghton to Anthony, was not delivered to Anthony, or any one on his behalf, until September, (14th,) 1854, and was given without any consideration whatever; and that the deed mentioned in said answer, by which, it is there claimed that the premises were conveyed by Anthony to Elijah and Edwin Houghton was not given on the 4th of September, 1854, but was dated on the 13th, and was not executed or delivered until the 15th of that month, and was given without any consideration whatever. It also alleged that the mortgage, alleged, in the answer to have been given by Edwin and Elijah Houghton, was not given as security for S 12,000, or any sum whatever, then loaned, or advanced by the defendant Platt to the Houghtons, or to any one in their behalf, but as collateral security for. some antecedent debt or indebtedness past due and owing from them to him. It takes issue on the allegations in the answer of combination, conspiracy,- fraud, secret trust, and procurement of Houghton; of the plaintiff’s holding the assignment of the bank judgment, or the sheriff’s deed, under' secret or other trust for- Houghton, or for his use or benefit, or pursuant to some scheme or otherwise; of the issuing of the execution, and the other proceedings had by the plaintiff, mentioned in the answer, by the procurement of Houghton, or in pursuance of some conspiracy, or with the design mentioned in the answer, or with any design, intent, or understanding whatever between the plaintiff and Houghton and also of the latter’s being the real assignee in interest of said judgment,.or having an interest therein, and of the commencement and prosecution of the action for the benefit of Houghton.
    On the trial, the following facts appeared : One Charles L. Anthony, having a claim against Houghton, (Charles W.) obtained an attachment against property of his in Rhode Island. Some time in July, 1854, Houghton being then seised in fee of the premises in question, made an agreement with Anthony, (whether in writing or not did not appear,) whereby the latter agreed to accept the property and release his attachment, if this property was all free, clear and satisfactory. Anthony then employed Messrs. Wetmore & Bowne, as his counsel, to examine the title. After they had examined the title and found it satisfactory, Houghton requested them to draw the deed. They did so, and gave it to him to procure its execution. This deed was dated July 10, 1854, and acknowledged July 26. It was handed to Mr. Wetmore, and remained in his possession, never having been put on record, until some time in September. Anthony being absent when the deed was left with Mr. Wetmore, and not returning until September, and Houghton being still seised in fee of the premises, a judgment was recovered against him by the Merchants’ Bank of Boston for $7190, docketed in the county clerk’s office on the same day.
    When Anthony returned in September, Wetmore carried down the search and found this judgment. Thereupon Anthony, under the advice of Wetmore, refused to release his attachment and accept the deed, or carry out the arrangement made between him and Houghton. He proceeded upon his attachment, not releasing it, and in the latter part of September, (about the 13th,) 1854, at the request of Houghton, that he should convey the property to some one, he executed a qyát-claim, subject to all liens, to Elijah and Edwin Houghton, his brothers, without receiving any consideration therefor.
    On the 17th of October, I860, Elijah and Edwin mortgaged the premises to the defendant Platt to secure, as appeared on its face, $12,000. This mortgage Platt foreclosed, and on the foreclosure sale became the purchaser of the premises, and received a deed therefor, under which he entered into possession about May 18,1863.
    On the 26th of April, 1862, the Merchants’ Bank assigned its judgment to Mrs. (Martha B.) Carnes, (the original plaintiff herein,) receiving from her between $400 and $500. An execution was duly issued to the sheriff of the county of Hew York, who, on the 18th of June, 1862, duly sold thereon to Mrs. Carnes, (for $11,194,) all the interest which Houghton had in the premises on the 10th of August, 1854, or at any time afterwards. After the sale, the sheriff made, filed and delivered the certificate of sale, as required by law, and subsequently, at the proper time, (September 19, 1863,) executed and delivered .to Mrs. Carnes the usual sheriff’s.deed, pursuant to such sale.
    The following questions arose on the trial:

      1. Was the deposit of the deed with Wetmore a delivery thereof hy Houghton, as his deed, to Wetmore for the use of Anthony, with intent to pass the title to Anthony ?
    2. Was such deed then and there accepted hy Wetmore, he being authorized by Anthony to accept it for him ?
    3. Was there such an acceptance of such deed by Anthony, in September, as to relate back to the day of the leaving the deed with Wetmore, so as to cut off intervening rights ?
    4. Could the defendants protect in this action their possession, (under the circumstances developed in the evidence,) by the agreement between Anthony and Houghton, (C. W.)
    5. Was the assignment of the bank judgment made to Mrs. Carnes for the benefit of and in trust for Houghton ? and were all proceedings had thereafter had in pursuance of such trust, and for the benefit of the latter ? and was this action commenced, and is it prosecuted, for the immediate benefit of Houghton ?
    The evidence bearing on the first four questions, (beyond such as goes only to prove those facts before stated to have been established,) was, in substance, as follows:
    Mr. Anthony said at first: “I requested Wetmore to examine the title,” and afterwards, “I employed Wetmore & Bowne to conduct the business on my side. I expected them to attend to the whole of it. I presume I acquainted them with the nature of the transaction I entered into with Houghton, because they gave me the value of the property.”
    Mr. Wetmore said: “I was counsel for Anthony to examine the title, and see that he got a good title. I acted for Anthony in searching the title. I was employed by Anthony to investigate this title; that is all. * * I did not put Houghton’s deed to Anthony on record. I could not cancel the attachment, or do any thing. I could not close the matter until after Anthony’s return. * * * If Anthony had come in for the deed, and had executed the necessary papers, I should have handed it to him. I have no recollection of any instructions, now.”

      Anthony never paid any consideration or parted with any property or security for these premises; Edwin and Elijah Houghton never in any shape paid or agreed to pay to Anthony any consideration for the property, nor paid nor parted with any thing to any one, or agreed so to do with any one.
    There was no evidence, except the face of the mortgage, that Platt advanced any thing on its faith and credit.
    On the fifth question, the evidence consisted, on behalf of the defense, of the testimony of Fuller (the cashier) and Haven (the president) of the bank that, held the judgment, and on behalf of the plaintiff, in rebuttal of the testimony, of William R. Carnes, the husband of the former plaintiff. The testimony of the former two, repeated statements made by Carnes to them while negotiating the purchase of the judgment. It was in substance, that Carnes represented himself to be a friend of Houghton; that he wanted to do him a service; that the judgment was of no value; and urged the bank to release Houghton, as he was insolvent, of feeble health, and unable to do any thing while this judgment was hanging over him; poor, with nothing in the world, and that he (Carnes) wanted to do him a friendly service, and would like to have the judgment given up; that he (Carnes) for the sake of befriending Houghton, would be willing to pay some small trifle for the judgment, although he did not think it would be worth any thing.
    William R. Carnes, on-being called by the plaintiff in rebuttal, testified that the negotiation for the judgment occupied nearly three years; that he never stated to the officers of the bank that he was purchasing for Houghton, whom he had known for twenty-four years and frequently saw while the negotiation was going on for the judgment, once in Boston, but he didn’t know whether he came there about the judgment; that he did not think that Houghton then, or previously, consulted with him about obtaining a satisfaction of the judgment; he did not consult with him with reference to obtaining an assignment; he was a creditor of Houghton, at the time he bought the judgment.; the testimony of the president and cashier was substantially correct; that Houghton was in court. Being asked on his direct examination, “ Eor whom did you purchase that judgment ?” also, “In your negotiation with the bank, for whom were you acting?” also, “How did you ascertain that the judgment was a lien on real estate?” All these questions were severally objécted to by the defendant, the objection sustained, and exceptions taken to their exclusion.
    Charles W. Houghton, although present in court, was not called as a witness by either side.
    The judge charged the jury that they should find for the defendant if they found either that the above mentioned agreement to take the property in question and release the Rhode Island property was made between Anthony and Charles W. Houghton, or that the purchase of the judgment in Boston was really made for the benefit of Houghton. To each of which instructions the plaintiff separately excepted.
    The plaintiff’s counsel made several requests to the judge to charge the jury, all of which were refused and exceptions taken. Among such requests was one, “that the delivery, in September, of the deed, by Houghton to Anthony, could not relate back to the time it was left with Wetmore, because a deed cannot relate back so as to defeat the intervening rights of third parties.”
    The jury rendered a verdict for the defendant; from a judgment on which the present appeal was taken.

      E. Walden, for the appellant, plaintiff.

      I. C. Carter, for the respondent, defendant.
   By the Court, Jones, J.

The charge to the jury to find for the defendant if they found that there was an agreement made between Anthony and Houghton,-(C. W.) whereby this property was to be convéyed to Anthony and he was to release the Rhode Island premises, was clearly erroneous. It is charging as matter of law that the mere making of the agreement in question transferred the legal title title to Anthony. Ho case that I have met with goes to this extent. The respondent does not claim such to he the law; but he says, that the judge, in making this charge is to be regarded as having assumed the facts that, in the event of the agreement having been made, the deed was either delivered to and accepted by Anthony prior to the recovery of the judgment, or that it was delivered before and accepted after, and that as matter of law, the acceptance related back to the delivery.

There is, however, nothing in his charge to indicate any such assumptions. On the contrary, it indicates on its face that in his view the case did not turn on the question of delivery and acceptance of the deed, but entirely on the bare question as to whether the agreement was made or not; he holding if it was made, that the title was out of the judgment debtor at the time of the recovery of the judgment; otherwise, if it was not made.

I fully concede the rule that if the judge in his charge assumes a fact to be proven, concerning which there is contradictory proof, or no proof at all, it is incumbent on counsel to call his attention to the matter, at the time, and this so that if it be a mere error the judge may correct it; but the assumption must be expressed in language. It would be pushing the rule too far, to suppose that counsel can look into the brain of the judge and ascertain what mental assumptions he has made, in order to arrive at a supposed conclusion.

I also fully concede the rule that if the judge omits to submit to the jury, questions of fact which should be submitted to them, counsel cannot on appeal take advantage of such omission and claim that the judgment should be reversed, because the question of fact ought to have been submitted to the jury, unless they specially requested such submission. But if the judge incorrectly charges the law to the jury, and such error may have injuriously affected the party and he has excepted thereto, he need not, in order to place himself in position to correct that error, request the judge to charge 'correct propositions which are antagonistic to his charge, nor request him to submit matters of fact to the jury.

• Such is the position of. the present plaintiff. The judge charged the jury, as matter of law, that if a certain agreement was made, the defendants were entitled to a verdict. This was clearly erroneous. Although he also charged them, that in a certain other event, the defendants would also be entitled to a verdict, and this latter charge may perhaps be correct, yet as it is impossible to say but that the verdict was rendered solely upon the erroneous charge, the plaintiff was injuriously affected by it, and is consequently entitled to a new trial, (Sayre v. Townsend, 15 Wend. 647,) unless upon the undisputed facts either both the first and second, or both the first and third, or the fourth alone, of the questions mentioned in the statement of the case, or arising on the trial, can be answered affirmatively.

First, then, does the evidence establish that the handing of the deed to Wetmore operated as a delivery thereof as his deed by Houghton, for the use of Anthony, with intent to pass the title to Anthony ?

Under the evidence in this case, there was no such delivery until at least sometime in September, 1854. The question of delivery, involving acceptance, is always one of intention, depending on the circumstances of the transaction. (Brackett v. Barney, 28 N. Y. Rep. at p. 340.) It is true that the mere handing of a deed to the grantee or his agent authorized to receive it, is presumptive evidence of an intent to deliver it, so as to take effect instanter as the deed of the grantor; but this presumption may be overcome by attendant circumstances.

In this case, assuming that Wetmore was authorized to receive the deed for Anthony, yet all the attendant circumstances are repugnant to the presumption of an intent on the part of Charles W. Houghton to deliver it to the grantee as his deed. Wetmore was the attorney of Anthony to examine the title, and was employed by Houghton to draw the deed. He was thus cognizant of the ternas on which the deed was to be delivered and accepted, and must be regarded as acting for both parties in the matter. This is evident from his testimony, and is by no means an unusual thing. If Anthony had furnished him with the consideration, there can be no doubt, that he would have considered himself authorized and would in fact have had authority (there being no proof to limit the effect of entrusting him with the papers which were to be mutually delivered) to close the transaction. But in doing so, he would be acting as the agent of Houghton in delivering the deed and receiving the consideration, and as the agent of Anthony in receiving the deed and paying the consideration. Thus until he did some unequivocal act showing, that he had delivered and received as the act of the one, and received and paid as the act of the other, he must be regarded as holding the deed as the agent of the one, and the consideration as the agent of the other. As in this case Wetmore did no such unequivocal act, until somewhere about September 13, 1854, (if he did any then, since it is not clear but that he returned the deed to the grantor,) he must be regarded (even if he had authority from Anthony to receive the deed as his agent as holding the deed, up to that time, as the agent of Houghton, for him and his use, and not as agent for Anthony, or for him or his use. There is nothing in the evidence showing that Wetmore had authority to receive the deed for Anthony as his agent. Bo express authority was given him; he was not furnished with the consideration to be paid on delivery; and no such authority can be implied from his mere retainer to examine the title.

As the grantor had' employed the attorney to draw the deed, and as when he handed it to the attorney properly signed and acknowledged, he did not receive the consideration, the only possible inference from his act of handing to, and leaving the deed with, the attorney under these eircumstances, in the absence of any evidence of instructions given at the time, is that he left the deed with the attorney as his agent to deliver on payment of the consideration.

The acts of the grantor (Houghton) and the attorney (Wetmore) show, that such was the intent of the grantor in this case, and that it was never contemplated, that the leaving the deed with Wetmore was a delivery thereof, for the use of, and with the intent to pass the title to, the grantee, or that Wetmore was authorized to accept the deed, as agent for the grantee, or that he did, in fact, accept it for him as his agent. Wetmore says he could not close the transaction, and did not record the deed, because Anthony was out of town, and the consideration had not been placed in his possession, while he says if the consideration had been placed in his hands, he would have deemed himself at liberty to close without Anthony’s presence. This is equivalent to saying that, in his view, he held the deed, as the agent of the grantor, only to be delivered in the event of the grantee’s performing, as a condition of delivery, his -part of the agreement. Therefore we find that Wetmore did not, in his capacity as agent of Anthony, record the deed. It is suggested that the neglect to record arose from oversight or .negligence; but his evidence refutes this. He says, in effect, that Anthony being absent, and not having left with him the consideration, he could not close the matter and record the deed. Why ? Evidently because, not having the consideration in his hands, he could not fulfill his obligation to Houghton, to receive the consideration before delivering the deed. If he had been acting solely as agent for Anthony, and in no respect for Houghton, and assuming the deed to he left with him with intent to deliver it to Anthony, so as to pass the title, there would have been no necessity for waiting until Anthony’s return.

So, too, the acts of Houghton himself show that the leaving of the deed with Wetmore was not intended as a delivery to Anthony with intent to pass title to him. When Anthony refused to accept the deed, and carry out the arrangement, and proceeded with his attachment on the Rhode Island property, we do not find Houghton claiming that he had performed his part of the agreement, and transferred the title to the Hew York property, and insisting that Anthony should perform his; but he conceded the validity of the objection arising out of the recovery of the judgment, and induced Anthony to take the deed, without paying any consideration therefor, as a mere conduit to pass the title to his (Houghton’s) brothers, without any consideration paid to Anthony.

It may be laid down as a sound proposition, that where a grantee employs an attorney to examine the title, and the grantor employs the same attorney to draw the deed, the mere handing by the grantor of the deed, executed and acknowledged, to the attorney, the consideration not having been paid, cannot be regarded as a delivery to the attorney for the use of the grantee with intent to pass the title, but, at most, it only constitutes the attorney the agent of the grantor to make a delivery upon payment of the consideration, as a condition for the delivery. True, the attorney may violate his duty to the grantor, and deliver the deed to the grantee, without insisting on the performance of the condition; and such delivery may, perhaps, from the time it is actually made, take effect against the grantor; but the law will indulge in no fiction to create a delivery contrary to the duty of the attorney, but, on the contrary, will require it to be evidenced by some unequivocal act. The grantor may, however, when he hands the deed to the attorney, either qualify that act by informing the attorney that he only deposits it for safe keeping until he, the grantor, delivers it personally; or may make it a present delivery of the deed for the use of the grantee with intent to pass the title to the grantee, before receiving the consideration, by so expressly declaring to and instructing the attorney.

In the present case, the evidence shows no express instructions or declarations to the attorney. It only shows a bare handing of the deed to the attorney. Under the proposition above laid down, the evidence clearly shows no delivery of the deed until some time after the docketing of the judgment in question.

.There not having been any delivery prior to September, of course there could be no acceptance prior to that time, and for the same reason the delivery and acceptance in September, could not relate back to the time when the deed was left with Wetmore.

The first three questions, then, must be answered in the negative. How stands it in regard to the fourth ?

I do not deem it necessary to enter into an inquiry as to what would be the relative rights of the plaintiff and defendants, if the defendants were in possession under the agreement between Houghton and Anthony, or wider a title derived through a deed delivered pursuant to that agreement, because, under the evidence, they are not in possession under either that agreement'or such title. The agreement was abandoned by both of the parties to it, and the deed from Houghton to Anthony was clearly never delivered, nor accepted, pursuant to that agreement,» but was used as a mere conduit to pass the title from the judgment debtor to his brothers, for his benefit, with the design ■to avoid, if possible, the effect of the judgment.

There never was the slightest act done, under this agreement, that would justify a court in giving any one an equitable lien upon it. Indeed, as the evidence does not. show that the defendants ever knew of the agreement, or acted on the faith of it, it is difficult' to perceive how they can claim, that by reason of the fact of its having once existed, they have a superior equity over the plaintiff. They certainly have no such equity, on the ground of having acted on it, nor can they claim that such an equity has passed to them from either Anthony or the brothers of the judgment debtor, for they manifestly had no equitable rights to pass.

The error of the judge in charging the jury the first proposition in his charge is therefore not cured, and for that error the judgment must be reversed.

Nor is the second poposition charged, accurate. Admitting that Carnes acted for Houghton, and took the assignment for his use, still he had a right to hold it as a valid security for the money which he advanced, on its purchase, and in case of non-payment of that money by Houghton, to enforce the judgment against any property on which it was a lien. (Harbeck v. Vanderbilt, 20 N. Y. Rep. 395.) In this aspect Houghton, and perhaps the defendants through him, may have a claim for the proceeds of the sale on the execution, over and above the sum necessary to reimburse Carnes, or may perhaps have a claim in equity to have the land reconveyed upon making such reimbursement. If he has either of these claims, he cannot urge them as the case stands. The first would clearly be no defense to this action to recover possession, and the second can only be enforced in equity, or perhaps in this action by setting forth the facts in the answer and claiming the equitable relief sought.

In concluding, as the point may possibly arise on the new trial, it will be well to pass on the exception taken to the decision sustaining the objections to the three questions referred to in the statement of the ease. The first two questions are clearly admissible, under the case of Sweet v. Tuttle, (14 N. Y. Rep. 465.) The evidence proposed to be elicited by the third question was immaterial. The manner in which the witness became possessed of the knowL edge that the judgment was a lien on real estate would throw no light on the question as to who he was acting for in procuring the assignment. Perhaps if followed up by questions founded on what the counsel supposed would be the answer to this one, its materiality might have appeared. As it was not so followed up, we must assume that counsel proposed to drop the subject on receiving an answer to the question; since the answer to this question, whatever it may have been, would not have assisted the jury in arriving at a conclusion on the question presented for their determination. The question was properly overruled, as calling for immaterial testimony.

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


source: Caselaw Access Project

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

license: Public Domain

text:
    Albert D. Bishop, plaintiff and respondent, vs. James L. Jackson et al. defendants and appellants.
    1. Where part of the work to he delivered by the defendants to the plaintiff, under a sealed contract between them, consisted of iron legs for a proposed derrick, and the plaintiff had agreed by such contract to furnish a machine to bend such legs into shape, which was essential to the complete performance by the defendants, of the work therein undertaken hy them, within the time specified; Held that its delivery was a condition precedent to such performance.
    2. Held, also, that a subsequent waiver by the defendants of the furnishing of that machine by the plaintiff, by entering into a new verbal contract, whereby they agreed to furnish such machine themselves, the plaintiff drawing plans for, and superintending its construction, completely changed the nature of the written contract between the parties.
    3. The plaintiff having, in such a case, superintended the construction of the machine, and drawn patterns and plans for it, while its construction went on in the workshop and foundry of the defendants, without objection, until it was finally finished, long after a period specified in the written contract for its completion had expired; Held that this was evidence of a waiver by both parties of the completion of the work within that time.
    4. The plaintiff having agreed, by an instrument in writing under seal, to make the legs of a derrick, which was part of the work undertaken, hy a contract made eight months previously, to be done'by the defendants, who were to furnish iron plates for the purpose; Held that this rendered the time of making such legs wholly independent of any time for the completion of such work fixed by the first contract, and therefore only due diligence was required.
    6. Subsequently, the plaintiff converted iron plates, furnished by the defendants, by means of such bending machine, into legs for the derrick, attached them thereto, and accepted and used other parts of the work made by the defendants pursuant to the first contract. Held that the original contract must be considered as being abandoned, except as regarded the work to be done, and the prices to be paid for it. The making of the legs of the derrick, unmanufactured iron plates for which were to be furnished by the defendants, but which were to he shaped by the plaintiff, was thereby taken out of the first contract.
    6. Meld, also, that under such circumstances neither party could complain of the non-completion of the bending machine in time; the plaintiff having superintended its construction, and accepted and used it when finished, and the defendants furnishing a workshop and workmen for the purpose, without' making any objection.
    7. So, too, in regard to the iron plates actually furnished by the defendants, the plaintiff having accepted and made use of them; Held that he thereby waived any objection as to time.
    8. Where questions of fact, upon which there is conflicting evidence, are submitted to the jury and passed upon by them, their verdict should not be disturbed.
    (Before Monell, Garvin and Jones, JJ.)
    Heard May —, 1868;
    decided May 30, 1868.
    This action was brought to recover damages for three breaches of contract by the defendant, to wit: Failing to deliver, pursuant to a contract with the plaintiff, the iron parts of a boom derrick agreed by him to be erected for the United States government; also iron plates to be made into the legs of such derrick, pursuant to. a second contract between the parties; also a machine to bend such plates for such derrick, pursuant to a third contract between the same parties; as well as for the value of the plaintiff’s services in preparing drawings and plans, and superintending work for the defendants.
    By an agreement under seal, dated in August, 1862, which recited the plaintiff’s contract before mentioned with the government of the United States, the defendants agreed to furnish the plaintiff, with all the wrought and cast iron work called for in the specifications and plans of such derrick, excepting the machinery, and deliver it at the Brooklyn Eavy Yard within .four months; the setting up of the work not being included. And the plaintiff agreed thereby to pay the defendants a certain sum (9 cents) per pound for the wrought iron work, and a certain other sum (3 cents) per pound for the cast iron work, in four equal installments, during the progress of the work, on the same condition as to time as the plaintiff’s contract with the government. He also agreed thereby to furnish to the defendants a rolling machine for bending the iron plates to form the legs of such derrick, as mentioned in the specifications, to remain, however, his property. He also agreed to give the defendants a power of attorney to collect as much of the money payable to him from the- government of the United States, as it became due, as would meet the payments due to him. The former was to be $20,000, payable in four equal installments.
    In September following, (1862,) about two or three weeks after making such contract under seal, the parties made a new contract orally, whereby the defendants dispensed with the furnishing of the bending machine mentioned in the former contract, and the plaintiff agreed to employ them to construct one for him, they furnishing the materials, and he superintending the work and furnishing the detailed plans and drawings. He forthwith proceeded to prepare such plans and drawings, and superintended the work at the foundry of the defendants, where he had the entire control of their workmen. Such machine was completed about the first of April, 1863. On the 17th of that month, the parties entered into a third new written agreement, whereby the plaintiff agreed to make the iron legs of the derrick required by the contract of August, 1862, (eighty in number,) in three pieces, to be fastened together by rivets, do all the workmanship thereon, deliver them at the Brooklyn Havy Yard, assume all the responsibility of such iron legs corresponding to the requisition of the contract of August, 1862, and fill out the third certificate of payment by the government of the United States to the defendants. The latter stipulated by the same agreement to furnish the iron ' and rivets for such legs, and pay for them when made, at a certain rate per pound, (three cents,) also to furnish different specified numbers of plates of different specified dimensions, whereof a certain number were to be delivered in a certain time (sixteen days.) They also agreed to sell the bending machine, at a fair estimate, to the plaintiff, to pay pver to him $1000 out of his second United States certificate of indebtedness, and also to pay him for his work, after he had completed a certain number (sixteen) of such legs, and to furnish the rest of the iron plates as fast as the plaintiff might want them, to erect.
    Such bending machine was delivered to the plaintiff about the first of May, and with it he formed all the legs of the derrick. The defendants did not furnish iron plates for the legs of the derrick, except for sixteen of them, and those were not furnished of the requisite size until about fifty days after the April contract was made. The plaintiff finished the legs from such plates in sixty days after the plates were delivered, but seven were insufficient for the purpose intended. The defendants failed to furnish much of the wrought and cast iron parts of such derrick, consisting of plates for the residue of its legs, suspensions of the boom rods; lateral boom rods, cast iron couplings, diagonal rods and rivets, and the plaintiff was compelled to procure the iron material and have it made into the requisite forms, at a higher price than that fixed in the contract. Some of the parts furnished by the defendants were also defective, and the plaintiff was compelled to bestow work on them to repair tne defects. The plaintiff finally completed, erected and put together, the derrick and delivered it to the government, under his contract with them, in July, 1863. The government furnished part of the iron and did part of the work to complete it, on which account they refused to pay the plaintiff the last installment.
    The plaintiff’s causes of action are set out in the complaint in three statements. The first for non-delivery by the defendants of the parts of the derrick required by the contract of August, 1862, and of the iron plates for the legs of the derrick required by the- contract of April, 1863. Second. For not constructing the bending machine provided for by the oral contract in September, 1862, and Thirdly. For the value of detail drawings and other drawings gnd specifications for work. The answer of the defendants denies every allegation of the complaint, except as therein admitted. It alleges the performance by the defendants of all their covenants in the' contract under seal of August, 1862, except where prevented by the plaintiff, and that such prevention arose from four causes: First. His failure to furnish the bending machine therein mentioned. Second. A like failure to make the drawings and plans agreed to be furnished by him for the work therein mentioned. Third. Wrong and incompetent directions to the defendants’workmen; and Lastly. By revoking his authority to the defendants to receive his pay from the navy department. The defendants also aver in such answer that they fulfilled all the conditions required of them by the contract of September, 1862, for building a bending machine, and that the plaintiff superintended and directed the construction of such machine at his own risk and trouble.
    A counter-claim was set up in such answer by way of defense, for four causes of action. First. The failure of the plaintiff to provide the bending machine and drawings for carrying out the contract of August, 1862. Second. The revocation by the plaintiff of his power of attorney to the defendants to receive his pay from the navy department, being the first two installments. Third. Work and labor, under such contracts;" and Fourth. The failure of the plaintiff to supply the defendants with the certificates mentioned in the contract of April, 1863, and his obtaining the money himself.
    The action was tried at a special term, before Justice Garvin and a jury. A verdict was rendered in favor of the plaintiff, and the defendants moved for a new trial. The following opinion was delivered, on deciding that motion.
   Robertson, Ch. J.

It is necessary, preliminarily in this case, to ascertain and determine the precise state in which the relation and obligations of the parties to this action to each other stood in May, 1863, after the plaintiff had accepted the iron plate bending machine made by the defendants, at their foundry and by their workmen, under his directions, pursuant to their mutual oral agreement Sf September previous. ' Part of the work to be delivered by the defendants under the sealed contract of August, 1862, was iron legs for the proposed derrick. A machine to bend them into shape, to be furnished by the plaintiff according to such agreement, was essential to the complete performance by the defendants of the work therein undertaken by them, within the time therein' specified, and its .delivery was therefore a condition precedent to such performance. The subsequent waiver by the defendants of the furnishing of that machine by the plaintiff by entering into a new contract, orally, in September, 1862, whereby they agreed to furnish such machine themselves, the plaintiff drawing plans for and superintending its construction, evidently to be employed in forming the legs for the proposed derrick, completely changed the nature of the contract between the parties. There is no evidence in the case, except from the written agreement of April, 1863, at whose cost such machine was to be. The plaintiff went on superintending the construction of such machine, and drawing patterns and plans for it, and the defendants had it in progress in their foundry until it was finished, in April, 1863, which was long after the four months of the first contract had expired. This was evidence of a waiver by both parties of the completion of the work within that time. But still further, the plaintiff* agreed by the instrument of April, 1863, himself to do part of the work undertaken by the defendants by that of August, 1862, which was to make the legs of the derrick, the latter merely furnishing iron plates for the purpose. This put the time of making them entirely under the plaintiff’s control, and effectually interfered with any fixed time for the completion of such work, which therefore was to be done with due diligence. Subsequently the plaintiff took some of the iron plates furnished by the defendants, converted them by the bending machine into legs for the derrick, attached them thereto, and accept- . ed and used other parts of the work made by the defendants pursuant to the contract of August, 1862.

The original contract must, therefore, be considered as having been entirely abandoned in May, 1863, except so far as regarded the work to be done, and the prices to be paid for it, and in reference to so much of the former, as related to the legs of the derrick, unmanufactured iron plates were to be furnished by the defendants, but shaped into such legs by the plaintiff, instead of by themselves, thus taking them out of the former contract. There is, therefore, of course, no room for complaint by either party, as to the non-completion of the bending machine in time, the plaintiff having superintended its construction, and accepted and used it, when it was finished, and the defendants furnishing a workshop and workmen. So, too, in regard to the iron plates, actually furnished by the defendants, the plaintiff accepted and made use of them, and thereby waived any objection as to time, although, in consequence of the delays of the defendants, he refused to- receive any more.

The only serious claims of the plaintiff in this case, therefore, are for services in the defendants’ employment; for damages in being obliged to procure elsewhere the materials and parts of his derrick which the defendants neglected to furnish, and for bad workmanship in some of that which ■ they furnished, and the expense of rectifying it, and for injury by their delay in furnishing it in a reasonable time. There was no evidence in the case of any injury by the delay, as the government completed and accepted the derrick, and only withheld the last payment, because it had furnished part of the iron and caused part of the work to be done, which was to be deducted from the last installment.

The articles omitted to be supplied by the defendants were, iron plates for the derrick legs, boom rod suspensions, lateral boom rods, cast iron couplings and patterns for them, and'diagonal rods and rivets. The iron plates furnished by the plaintiff instead of those so omitted, weighed 30,000 pounds, for which he paid from five and a half to nine cents per pound, and was only to pay, by the contract . of August, 1862, when converted into legs, nine cents per pound, from which was to be deducted the allowance of three cents to him for such conversion by the contract of April, 1863, making a difference of about one cent per pound of loss, or $300 in all. The lateral boom rods omitted weighed 1400 pounds, costing thirty cents a pound, on which there was a loss of twenty-one cents a pound, in all $291. The suspension boom rods omitted weighed 13,965 pounds, costing ten cents a pound, being a difference of one cent, and making a loss of $139.65. The cast iron couplings and patterns for them cost $85, whereas the cost, under the contract, would have been only $7.50, making a loss of $77.50. On the diagonal rods, weighing 2912 pounds, there was a difference and loss of about sixteen cents on each pound, or $465.92 in all.' The rivets cost twenty cents a pound for 60,000 pounds, making a loss of eleven cents per pound, and a difference of $660. All of such losses amount, together, to about $2475. Erom these is- to be deducted the value of the bending machine furnished by the defendants, being $830 Leaving a residue of over $1100.

The value of this claim of the plaintiff for extra work, caused by the insufficient work furnished'by the defendants, was from $3000 to $4000; whether this was a fair test of the inferior value of the articles furnished to that of those agreed for, is quite immaterial, as no exceptions were taken on the trial to any refusals to charge, and the jury were, therefore, at liberty to take that into consideration.

The plaintiff testified that the defendants agreed to pay him for his services in making drawings and superintending the work, and the jury passed upon that question. He also testified that such services were worth from $4000 to $5000 a year, and he was engaged eight months, being from $2700 to over $3300. The jury, therefore, might under the evidence, have brought in a verdict of nearly $9000 as damages for all the losses. of the plaintiff, whereas they only found $6000 damages. They must also be considered as having passed upon the question of the plaintiff’s refusal to receive more plates after a delay of three months.

E. W. Dodge, for the appellants, defendants.

J. Townshend, for the respondent, plaintiff*.

I see no reason for interfering with the verdict. The new trial asked for must be refused, -with costs.

An order refusing a new trial was accordingly entered; from which the defendants appealed to the general term.

By the Court, Jones, J.

In this case it is not necessary to add much to the opinion delivered at special term, which I approve of.

A few observations may, however; be proper. The defendant claims that the plaintiff should not be allowed compensation .for services in superintending and furnishing plans, because under the contract he was to perform those services without charge.

Whether these services were covered by any contract, so that he was bound to perform them without compensation, was a question of fact for the jury. They have found in the negative, on conflicting evidence, and there is no reason for interfering with their' verdict.

Again, the defendants say that the plaintiff should recover no damages arising out of the unskillful performance of the work by the defendants’ workmen, because he gave directions and furnished the plans for the work, and superintended it, and, therefore, if the work was not properly done it was his own fault. And for the same reason it is claimed that if the work is improperly done the plaintiff is not entitled to compensation for giving directions, drawing plans and superintending, even if a valid contract to give a compensation therefor had been made. This depends on the solution of four questions.

Was the doing of the work improperly, the result of erro- • neous directions and plans given by the plaintiff? Or was it the duty of the plaintiff, under the agreement under which • he claims compensation, to see that at every step the workmen followed his orders and plans, and performed the work properly, and used proper materials? Or was it confined simply to keeping such supervision over the work as to be • ready when his previous directions and plans had been carried out, apparently with proper workmanship and materials, then to give further directions and plans for future prosecution of the work ? ■ Or did the damage complained of result from improper workmanship, or the use of improper materials in any portion of the work that was superintended by the plaintiff?

If the 1st, 2d and 4th of these questions, or any one of them, be affirmatively answered, then the defendants’ proposition is correct; if they are all answered negatively, and the 3d is answered afiirmatively, then it is wrong.

These four questions were questions of fact for the jury. The claims of the defendants upon the subjects covered by them, it appears from the portion of the charge contained in the appeal papers, were presented in general terms to the jfiry. There is conflicting evidence on them, and the jury have answered the 1st, 2d and 4th, negatively, and the 3d affirmatively. Their verdict should not be disturbed.

Again, the defendants say that the plaintiff broke the contract on his part by not making payments as agreed. The evidence does not support this. The agreement was to make Jackson & Brother, the attorneys of the plaintiff, to make collections from the government so far as the payments became due under the contract.

Whatever difficulty'may have existed as to the second payment, it was waived by the parties.

The third payment was not countermanded until after the plaintiff had refused to continue the contract, which refusal the jury have decided to be justified.

Judgment affirmed, with costs.


author: Monell, J. (dissenting.)

text:
    Elizabeth Gonzales, administratrix, &c. plaintiff and respondent, vs. The New York and Harlem Railroad Company, defendants and appellants.
    This case is reported antep. 93. The following dissenting opinion of Mohell, J, was not received in time to be inserted in its proper place.
   Monell, J. (dissenting.)

The appeal from the order, denying the motion upon the judge’s minutes, for a new trial, has brought before us for review all the evidence given at the trial, and we are now called upon to determine whether or not such evidence is sufficient to sustain the. verdict.

The rule seems to be now established, that if there is any conflict of evidence, in respect to the negligence charged on the one side or the other, it must go to the jury; and as a general thing their finding is conclusive. The latest reported case on this subject is Sheridan v. Brooklyn City Railroad Company, (36 N. Y. Rep. 39;) but for a more full enunciation of the rule see Ernst v. Hudson River Railroad Co., (35 id. 9, 38, 40,) where it is especially applied to the proof of negligence on the part of the plaintiff.

The plaintiff must have been free from fault. Any contributing negligence on his part, will defeat a recovery. The evidence must be sufficient to satisfy the mind. If it is conflicting, it must go to the jury. If it is undisputed, its sufficiency is a question for the - court. (Clark v. Eighth Avenue Railroad Co., 36 N. Y. Rep. 135.)

The delicacy of disturbing the verdict of a jury on a question of fact found under proper instructions as to the law, as well as the pecuniary importance of this case to the plaintiff, has induced me to bestow much care and thought in its examination.

The facts proved on the trial were these: The deceased was a man of about forty-three' years of age, sound in limb, and in full possession of all his faculties. He had resided at Mount Vernon for a period of upwards of fourteen years. His house was on the westerly side of the railroad, and on the southerly side of a road or street crossing the railroad, and within one hundred yards of the depot building. He was engaged in business in the city of New York, where he was accustomed to go daily, returning usually upon the train which was due at the Mount Vernon station at twenty-seven minutes after three in the afternoon. These facts establish beyond any reasonable doubt, that the deceased must have been, and was entirely familiar with every fact, circumstance and thing which related to the operations of the railroad at -that point. He must undoubtedly have known the precise moment of the arrival and departure of all the trains; the precise position and purpose of the tracks, platforms and depot, and of the passing of express trains without stopping. From his constant habit of travel, he must have been apprized of the frequent variations of a few moments of time in the arrival, departure or passing of trains; and he also knew that there was but one minute of intervening time between the departure of the up, and the passing of the down train. From his long continued practice and observation, he was able to avoid all exposure to such dangers, as a stranger might have fallen into. He was in the habit of getting off the cars at a time when he knew there was danger from the express train, due only a minute afterwards. He knew that the platform on the easterly side of the track, had been put there by the railroad company for the safe and convenient landing of passengers from the up train; and the deceased must be. presumed to have known that if he left the cars from the east side, and landed upon the platform, he would be beyond all danger from the-down train. His long experience in railroad traveling, must, and very probably had informed him, of the difference in the speed of express, and way or accommodation trains, and that the latter were the most liable, from their frequent stoppages, to be behind time. From the same experience, he knew- that the train he usually took, stopped abreast of the platform to discharge its passengers; and that if it stopped for any purpose before it reached the platform, as. some of the witnesses testified it did, he was not obliged to alight until it came alongside the platform.

With all this information and knowledge derived from an observation and experience of fourteen years, what did the deceased do ? The time was early in the afternoon of a Hovember day.

According to the evidence most favorable to the plaintiff; the deceased had occupied a seat in the cars with the witness Lavinsky. As the train was approaching the station, they shook hands, and Lavinsky jumped off from the rear part of the car. The last he saw of the deceased, he was just stepping down from the step on the west side of the car. The plaintiff testified that she saw the deceased standing in (or as she expressed it “ under ”) the door upon the platform. All the evidence concurred that he got off on the west, or opposite side from where the platform was placed for the convenient reception of passengers by the up train. The evidence also established that the deceased left his seat, and reached the rear platform of the car before the train was stopped. Indeed, the clear weight of the evidence was that the train had not stopped when the deceased stepped off. Lavinsky testified that the train “stopped a very little; she stopped and went directly on.” But the witness Heller, who was standing very near the train, and had a better opportunity for seeing, said, “ the train was just coming to a stop when the deceased stepped off. It was in the act of stopping.” And he was fully corroborated by several of the defendants’ witnesses who swore positively that the train was “ slowed” as it approached the station, but did not stop until it reached the platform, or until after the express train had passed down. It was further established, that the deceased left the car before it reached the platform. Lavinsky, who got off on the east side, at the same instant the deceased was getting off from the west side, said he had to jump down, and there was no platform there.

Under this evidence, which I may say is without any real contradiction, I am totally at a loss to account for the verdict, which, under the charge of the court, that if the jury believed that the cars had not stopped when the deceased . stepped off, the plaintiff could not recover, should have have been for the defendants.

A person seeking redress for personal injuries, is held to the exercise of ordinary care and prudence only. "While the law affixes a high degree of responsibility upon carriers of persons, and requires the utmost skill and caution in their transportation, yet the law is satisfied with a far less degree of prudence on the part of the person injured. The ability to exercise such ordinary care and prudence, must always depend, in a great measure, upon the knowledge, information, intelligence and experience of the person exercising it. Hence, what is called negligence is always relative; that is, it must always, more or less, relate to the particular and peculiar circumstances of the case. It would be highly imprudent for a cripple to cross a crowded thoroughfare; or for a blind person to walk unattended in the public streets. Yet one, with sound limbs and perfect sight, could do so without danger. A stranger arriving for the first time at Mount Vernon station, might be excused, if in his ignorance he stepped from the car on the side where danger threatened; but an old inhabitant, with the knowledge and experience of Gonzales, would be without excuse. This rule, that negligence is relative, is recognized in Beisiegel v. N. Y. Cent. R. R. Co. (34 N. Y. Rep. 622,) and is founded upon sound principles.

The embarrassment of finding that the getting off the car on the west side was not a heedless and imprudent act of the deceased, was probably removed from the jury, by the admission of some evidence of, in my judgment, very doubtful propriety. The plaintiff was allowed to prove, under objection, that the deceased and others, were in the habit of getting off on the west side, and that the employees of the railroad were in the habit of assisting passengers off and delivering passengers on that side, and that no notice was put up, warning passengers of the danger of alighting on the west side, or inviting them to alight on the east or platform side. If the daily practice of the deceased and of others was to expose themselves to peril, in the face of their knowledge and experience, by disregarding the means of safety provided for them by- the defendants; and if it was their daily habit to venture upon reaching the opposite side of the railroad, with only the short period of one minute within which to escape an approaching danger, such practice and habit with persons familiar with the situation, was, in my judgment, highly imprudent and heedless. Nor did the apparent security-of the act render it any the less crina-, inally negligent. Such persons may have passed out on the west side a thousand times in safety, without its furnishing any excuse for experimenting again with a few seconds of time between themselves and almost certain destruction.

The deceased had no- right to get off on the west side. He knew it was the wrong side. He knew the platform on the other side was made for the convenience and safety of passengers. If he was thoughtless or inattentive, he was negligent. He had no right to be thoughtless or inattentive, for he was bound to the exercise of every ordinary care, and as far as he had the means, to avoid all danger. He had a right to take a risk upon himself, but he must also take the consequences of it.

If a passenger voluntarily, without any known or discern-able necessity for it, and without any direction from the carrier or its servants, puts himself in a place of danger, his negligence is prima facie established, and the burden rests upon him to rebut the presumption. (Clark v. Eighth Avenue R. R. Co., ubi sup.) In that case the charge of negligence was, that at the time of receiving the injury the passenger was standing on the steps of the front platform of a city car, it appearing that he would have escaped the injury had he been either inside of the car or upon the platform; and the court say: In the absence of any explanation, I should have no hesitation in saying that this position of the plaintiff at the time of the injury, proved that he was negligent, and that it would have been the duty of the court to non-suit. (Curran v. Warren Chem. and Manufacturing Co., 34 How. Pr. 250.) The presumption in that case was rebutted by proof that there was no room inside the car or upon the platform, and that the conductor assented to his standing on the step.

From the array of facts which I have presented, which, and more, are to be found in the case, can any one doubt that • the negligence of Gonzales was a contributing cause • of his death. Had he left the cars on the easterly side he .would have been safe; but he saw fit, heedlessly, I think, to disregard the means of safely provided, and violating his duty to exercise care, exposed himself voluntarily to the danger which destroyed his life.

Being unable to find any evidence to relieve the plaintiff from the consequences of the imprudent act of her husband, I am constrained to conclude that the verdict of the jury is unsupported by the evidence, and applying the well settled principle that the injured or deceased person must have been wholly free from all contributing negligence, the ver- , diet must be set aside and a new trial granted.

But there is another side to this case to which I regard it my duty to address some attention.

In the charge of the learned justice to the jury, he directed them,' at much length, to the law relative to the concurring negligence of the deceased. He seemed to assume that the proof of the defendant’s negligence was sufficient; and without directing the jury to any evidence, (except the omission to sound a whistle or ring a bell on the express train,) proving or tending to prove negligence on their part. He merely instructed them that if they found that the deceased was not guilty of negligence, “ and that the defendants were,” they must find for the plaintiff.

The deceased was crushed under the wheels of the train from -which he had alighted. He was not run over by the express train. That he was even struck by the express train, as testified to by Lavinsky and Heller, is not probable. But it-is possible, that getting off the up train on the west side at the moment the express train was passing down, he was thrust under the wheels of the former, by the concussion or violent agitation of the air. Yet, notwithstanding the testimony of these two witnesses, it is left, I think, entirely to conjecture how, or through, or by what agency he got under the wheels of the up train. He may have fallen there by slipping, as he stepped from the car; or, in some other way, having no connection whatever with the express train, have fallen under the wheels. The jury had no right to assume or infer, that the express train was the proximate or remote cause of the death; and if there was uncertainty as to the cause, the burden was upon the plaintiff, to connect it by competent proof with some negligent act of the defendants. The mere fact that the death occurred by being crushed under the wheels of the defendants’ car, raises no presumption of wrong against the defendants. (Curran v. The Warren Chem. and Manuf. Co., 34 How. Pr. ubi sup.)

The only evidence from or upon which the jury could find any negligence on the part of the defendants, was in connection with the running of the express train. That evidence was only proper upon the theory that such train caused the injury. I think I have shown that the evidence did not justify that conclusion, and that it could not be predicated upon a bare presumption or conjecture. Yet the learned jústice charged the jury that it was required by the statute that when a train of cars passes a crossing they shall ring the bell or blow the whistle, or give some signal showing their approach, .and that, independently of the statute they were bound to give notice of an approaching train. It is to be presumed that under this instruction the jury found from the evidence, which was conflicting, that no bell was rung or whistle sounded, and therefore there was negligence on the part of the defendants.

In actions by persons using the highway and who have been injured at or upon the crossing by a passing train, the omission to give notice of the approaching train, is sufficient evidence, ordinarily, of negligence. But I am not aware that it has been .extended to any other class of persons. If a person not being at the time upon the public highway, is injured by a passing train, no such consequences of the omission to give notice will follow; and neither under the statute, nor without the statute, is any such duty imposed upon railroad companies.

An attempt was made to show that the deceased was upon the highway when he met his • death, but the evidence of ■ the plaintiff’s two witnesses, who alone testified on the subject was so contradictory that it furnished no guide for the jury, and was not sufficient to authorize the application of the law in respect to giving notice at crossings. For if he was not upon the highway but upon the defendant’s premises, and was injured while upon their premises, they owed no duty to him, under the statute, or otherwise, to give notice of the approaching train, for they had provided another and more complete method of escape from danger, which the deceased was bound to avail himself of.

I do not think, therefore, that there was sufficient evidence to go to the jury, of negligence on the part of the defendants. And while there should be no hesitation in holding railroad corporations to a strict responsibility for all injuries sustained by passengers received through their neglect, they should as unhesitatingly be relieved from liability, when the injury has been received without their fault, by a person who has omitted to avail himself of the means of safety which the company has provided, and who imprudently and recklessly ventures upon experiments which are attended with such fatal results.

I am of opinion that the judgment and order should be reversed and new trial granted, with costs to abide the event.


author: By the Court, Monell, J.

text:
    Conrad W. Rose, plaintiff and respondent, vs. The United States Telegraph Company, defendants and appellants.
    A broker, employed by telegram to sell a specified quantity of merchandize, for his principals, deliverable at a future day, who has made contracts in accordance with the telegram received, disclosing his principals, cannot maintain an action against the telegraph company for a mistake or error in transmitting the message, by which a larger quantity of the article is ordered sold than that specified in the message as written. His principals being alone liable upon such contracts, and not he individually, the broker is not the injured party.
    (Before Monell, Garvin and Jones, JJ.)
    Heard May —1867;
    decided January —, 1868.
    In August, 1865, Tack, Brothers & Co. residing and doing business in the city of Philadelphia, delivered to the defendants at their office in that city, a telegraphic dispatch, addressed to the plaintiff at the city of New York, directing him to contract- to sell for them, five hundred (500) barrels of-petroleum, at fifty-one and a half cents a gallon, deliverable from September 1, to September 15, sellers’ option, ,and requested an immediate reply. The defendants transmitted the telegram in all respects as it was written, except that as delivered to the plaintiff, it was written ufive thousand barrels,” instead of “ five hundred barrels.” On delivery of the telegram, the defendants demanded of, and the plaintiff paid to the defendants the sum of seventy-five cents therefor. Within an hour of the receipt of the telegram, and in pursuance of it, the plaintiff made contracts with different persons, to sell and deliver to them five thousand barrels of. petroleum, deliverable at the option of the sellers from September 1, to September 15, at fifty-one and a half cents a gallon. Whereupon the plaintiff forthwith sent a telegram to Tack, Brothers & Co. stating that he had made such contracts," and received a reply, that in the dispatch which they had sent, they had directed the sale of five hundred and not five thousand barrels; and they refused to furnish or deliver any greater number than five hundred barrels, and also refused to ratify any of the contracts made by the plaintiff in excess of the number mentioned in their dispatch. After the contracts were made, and before the error in the dispatch was discovered, the price of petroleum advanced one and a half cents a gallon, and on the 15th of September, had advanced to fifty-eight and a half cents a gallon. The plaintiff claimed that he was liable upon his several contracts to the parties concerned, and demanded judgment against the defendants for a sum which should cover such liability and also his commissions.
    On the trial before Justice Jones and a jury, it was proved that the plaintiff had paid two bills, amounting together to $2700 for the difference as expressed, in “ oil bought of Messrs. Tach, Brothers $ Qo. of Philadelphia, August 26, 1865.”
    The defendants moved for a nonsuit, on several grounds. The motion was denied, and they excepted.
    Upon the facts as proved, the court instructed the jury to find a verdict for the plaintiff for the difference between the contract and market price of the petroleum, and also for Jhis commissions, the amounts of which were agreed upon. To this instruction the defendants excepted; and appealed from the judgment entered on the verdict.

      G. P. Lowrey, for the appellants.

      J. E. Parsons, for the respondents.
   By the Court, Monell, J.

It does not appear that the contracts made by the plaintiff for the sale of five thousand barrels of petroleum, were put in evidence on the trial. It therefore does not appear in whose name the contracts were made. There is no allegation in the complaint that the plaintiff made the contract in his own name, and if any thing can be inferred from the tenor of the receipts taken on settling the contracts, the sales were made either in the names of Tack, Brothers & Co. or their relation as sellers was disclosed to the purchasers.

I am not prepared to say that irrespective of a liability arising purely on contract, a telegraphic company may not be responsible to a third person, for the injurious consequences of an error in transcribing and transmitting a telegraphic message to such third person. If upon the faith of a message thus communicated, the receiver enters into contracts, or makes engagements which result in loss to himself, which loss is wholly occasioned by errors in the message as transcribed and sent, and which errors were negligently made by the. telegraphic company, it would seem that a liability should attach, not on the ground of the violation of a contract, but of the violation of a duty, the faithful discharge of which, the company had undertaken. A mere gratuitous offer to perform a service for another, imposes no legal obligation to perform such service; but if performance is undertaken, and it is done negligently or without due care, so that an injury ensues, an action will lie, by the person injured. (Thorne v. Deas, 4 John. 84.) Upon principles, therefore, analogous to the case last cited, any person injured by the negligence of a telegraphic company in transmitting a message, although neither a party or privy to any contract with such company, can sustain an action for his damages; for when “ one does a legal act in such a careless and improper manner, that injury to third persons may probably ensue, he is answerable in some form of action, for all the consequences which may directly and naturally result from his conduct.” (Vandenburgh v. Truax, 4 Denio, 464.)

It is not claimed in this case, that the plaintiff was either a party to, or that there was any privity of contract between himself and the defendants. Their contract was with Tack, Brothers & Co. and for a breach of such contract they are liable only to the latter; and the right, therefore, to maintain this action by the plaintiff, rests solely upon the principle before stated, of a wrong and an injury; and to bring himself within the principle, he has endeavored to show that in legal contemplation, he was the injured party. The case shows, that upon being informed of the contracts to sell five thousand barrels, Tack, Brothers & Co. refused to ratify such contracts, or to furnish or deliver any greater number than five hundred barrels; upon which the plaintiff, assuming his liability to the purchasers of the five thousand barrels, closed the contracts, paying to the purchasers the difference between the market and contract price.

If the plaintiff was correct in such assumpsit of liability, he can doubtless sustain this action.

All the parties to the transaction immediately connected with the error of the telegraph company, held the relation of principals and agents. Tack, Brothers & Co. were the common principals in Philadelphia, who desired to.sell; the defendants were their agents authorized to transmit their instructions to the plaintiff, who, as their broker, was directed to sell, and nothing in any of the subsequent transactions of the parties changed such relation of principals and agents. The plaintiff, therefore, acting as the broker of Tack, Brothers & Co. to negotiate a sale, not having the property in his possession, could not by making sales in his own name, affect their rights as sellers, (Story on Sales, § 85;) for nothing is better settled than that a principal is entitled to the same rights and remedies against the purchaser, whether the contract be in his name or in the name of his broker.; (Story on Sales, §§ 88, 89;) and hence, so far as such rights and remedies go, it is not material whether the sales in this case were made in the plaintiff’s name, or in the names of his principals, as in either case they were the contracts of Tack, Brothers & Co. and not of the plaintiff. Qui faoit per alium faeit per se. For says Parsons, (2 Pars. on Cont. 250,) a “ broker being one to whom goods are not entrusted, and who usually and properly sells in the name of his principal, and who is understood to be only an agent, whether he sells in his own name or not, stands only on the footing of an agent.” It does not, however, by any means follow, that an agent who does not disclose his principal, is not liable to the person with whom he contracts. If he conceals his character of agent, he then becomes a principal, and individualy liable upon his contracts, but the party dealing with him may, when he discovers the principal, charge either at his election. (Beebe v. Robert, 12 Wend. 413.) But I do not propose to pursue this branch of the subject further; for it does not appear that the plaintiff made the contract in his own name, and it does sufficiently, I think, appear that he disclosed his principals, and thereby relieved himself from personal responsibility. It is not then disputed that the plaintiff was the mere agent of Tack, Brothers & Co. and was acting for them and on their behalf. Hor can it be disputed, that having disclosed his principals, they, and not he, were liable, upon any contracts which he made in pursuance and within the scope of his agency.

The principals in Philadelphia, in prosecuting their business, and in communicating with their agent in Hew York, employed the defendants to transmit their message. Upon receipt of the message, the agent, obeying his instructions and disclosing his principals, made contracts for the sale of five thousand. barrels of petroleum. Can it be sucessfully contended that the principals were not liable on such contracts, merely, (and there can be no other reason,) because the defendants, their (quasi at least) agents, had negligently transmitted'their message, and by a mistake directed a sale of a larger quantity than was intended ? I think not. A vendor is bound by all the acts of his broker done within the limits of his authority, (Story on Sales, § 90,) and it can make no difference whether the authority proceeds directly from the principal or indirectly through another agent.

Suppose Tack, Brothers & Co. had directed one of their clerks to communicate to the plaintiff by letter to sell five hundred barrels, and the clerk had negligently written five thousand barrels, and the plaintiff had contracted to sell the latter number, would not such be the contract of and binding upon Tack, Brothers & Co.? Clearly it would. Nor is there any difference in the two cases. The authority to the agent coming through the telegraph company, or through the clerk, so far as the protection of the agent is concerned, is the same. Whatever errors or mistakes were committed by the medium employed by the principals to transmit their instructions to their agent, can in no way, it appears to me, affect either the .duty or the right of such agent literally to obey their injunctions, and to throw all responsibility from himself upon them.

Not only were the cqntracts'made by the plaintiff obligatory upon his principals in Philadelphia, to the full extent of five thousand barrels, but in like manner, such principals were liable to the plaintiff for his accustomed commissions and expenses, (including the seventy-five cents for the telegram,) in effecting the sale, and which could have been recovered in an action for such purpose. Any payment, therefore, made by the plaintiff in settlement of the contracts, was voluntary, and was made merely on behalf, and for the benefit of Tack, Brothers & Co. and does not give any right of action whatever to him, against these defendants. His only remedy being, if any, against his principals to recover for money paid.

In Wash, and N. O. Tel. Co. v. Hobson, in the Court of Appeals of Virginia, (15 Gratt. 122,) an order to buy five hundred bales of cotton was altered to twenty-five hundred, and in an action by the sender of the message, against the company it was held he might recover not only his damages^ but also the commissions due to his factor.

We were referred to one case only in opposition to the views I have here expressed. In that case, (N. Y. and W. Print. Tel. Co. v. Dryburgh, 35 Penn. Rep. 298,) the order transmitted was “send me for Wednesday evening, two hand boquets,” which was transmitted two hundred boquets; and it was held that the receiver of the message having commenced filling the order before the mistake was discovered, could maintain an action. Judge Sharswood, in an opinion delivered below, admitted, that if the company were to be regarded as the agents of the sender, it was clear they were not liable to an action by the receiver. But he did not regard them as such agents, for reasons which to my mind are not very satisfactory. Yet Judge Woodward when the case was up on appeal, said,, “that the relation of principal and agent existed between LeRoy, (the sender,) and the company, there can be no doubt; but I do not think it equally clear that that relation was not established between the plaintiff and the company. Telegraph companies are in some sense public institutions, and I am inclined to think the company ought to be regarded as the common agent of the parties at either end of the line.” But the error in transmitting the message was regarded as a misfeasance, and the company held responsible as a wrongdoer. The case is unsupported by authority, and is, it seems to me, opposed by well settled principles applicable to the relations of principal and agent, and I cannot therefore regard it as more than a mere dictum emanating, it is true, from a court entitled to much respect, but not binding upon us here.

The examination I have given this question, has led me to the conclusion, that treating the mistake of the company as a misfeasance, and extending their liability to every person injured by the wrong, which is the extent to which any of the cases go, the plaintiff in this case was not the injured party; that he was not responsible individually upon any of the contracts he made; that Tack, Brothers & Co. were alone liable on such contracts, as also .for the plaintiff’s commissions and expenses; and that the settlement of such contracts by the plaintiff, did not, in contemplation of law, make him the injured party.

I am of opinion the judgment should be reversed, and a new trial granted, with costs to abide the event.


text:
    Richard W. Trundy, plaintiff and appellant, vs. The Hartford and New York Steamboat Company, defendants and respondents.
    1. The commissions of a broker are earned when he produces a party ready to make the purchase.
    2. In an action by a broker, to recover commissions on the sale of a steamboat for the defendants, there was no evidence of any employment of the plaintiff directly by-the defendants, but the plaintiff testified that he was requested by a director, or trustee of the defendants’ company, to find a purchaser. The president of the company testified that at a meeting of the stockholders he was authorized to sell the boats of the company, and that he did not delegate the authority to any other person. Held that the evidence failed to show an employment of the plaintiff, by the defendants, to sell or procure a purchaser for the steamboats ; and that in the absence of any proof of recognition by the defendants of the plaintiff’s authority, it was not error to dismiss the complaint for a failure of proof.
    3. Held, also, that a director or trustee of the company had no authority, as such, either to sell, or to procure a broker to sell, the vessel.
    4. Held, further, that if a telegraphic dispatch from the defendants’ president to the person in charge of the steamboat, offered in evidence, contained any evidence tending to show a recognition and ratification by the defendants of the plaintiff’s employment, and if the proof was sufficient to allow the dispatch to be read, it was competent .proof; but if otherwise it was wholly immaterial, and therefore properly excluded.
    (Before Monell, Garvin and Jones, JJ.)
    Heard and decided May —, 1868.
    Appeal from a judgment and order.
    The action was to recover commissions for effecting a sale of a steamboat of the defendants.
    The defendants were a corporation created under the laws of the state of Connecticut, having its principal place of business at Hartford, in that state, and were the owners of a line of steamboats, of which the “Dudley Buck” was one, plying between Hew York and Hartford. The plaintiff proved that he was spoken to by a Mr. Goodspeed, a director of the company, to find a purchaser for the steamboat Dudley Buck, and that he procured a purchaser for the boat. A verdict for the plaintiff on a former trial was set aside ás' being against the weight of evidence, and it is understood that upon the second trial the evidence was not materially changed. Some new evidence, however, was offered and rejected.
    i The court, on the defendants’ motion, dismissed the complaint. The plaintiff appealed.

      Henry E. Knox, for the appellant.

      S. P. Nash, for the respondents.
   By the Court, Monell, J.

I think there was sufficient evidence, at least to have gone to the jury, that the sale to Whitney or to Whitney and Snow, was procured by the plaintiff. The testimony was uncontradicted, that the plaintiff spoke to Captain Snow, informing him that the vessel was for sale, and that the plaintiff introduced Captain Snow to Captain Mills and Mr. G-oodspeed. Negotiations between Whitney and Snow and Mills and Goodspeed were thereupon opened and continued three or four days, and resulted in the sale to them, or one of them.

The commissions of a broker are earned when he produces a party ready to make the purchase, (Moses v. Bierling, 31 N. Y. Rep. 462;) and enough was proved in" this case to authorize a recovery, if an employment of the plaintiff by the defendants, to make the sale, or to find a purchaser, was shown.

Some questions intended, probably, to prove a custom at New York for the sellers of vessels in all cases to pay the broker’s commissions, were properly overruled.

There was no evidence whatever of any employment of the plaintiff directly by the defendants. The plaintiff testified that he was requested by Mr. Goodspeed, a director or trustee of the company, to find a purchaser. He did not claim any other employment. And Mr. Smith, the president of the company, testified that at a meeting of the stockholders he was authorized to sell the boats of the company, and that he did not delegate the authority to any other person.

It was claimed, however, that the plaintiff having introduced the purchasers, and the company having made the sale, this was a ratification of the employment of the plaintiff. I have not been able to find in the testimony any recognition whatever of the plaintiff by the defendants. The most the plaintiff can claim is, that he was requested or employed by. Mr. Goodspeed to find a purchaser; that he; introduced Captain Snow and Mr. Whitney to Mr. Good-speed and Captain Mills. All the subsequent negotiations were conducted by Mr. Mills with the president of the company, and there was nothing in any of the interviews or negotiations which recognized the plaintiff, or in which he was spoken of or alluded to by the defendants-. Mr. Good-speed was shown to have had authority either to sell or to procure a broker to sell the vessel. As a director or trustee of the company he had no such authority.

I think the evidence failed to show an employment of the plaintiff by the defendants, to sell or to procure a purchaser for the steamboat, and that upon all the evidence it was not error to dismiss the complaint for a failure of proof.

But it is insisted that the exclusion of some evidence offered by the plaintiff was erroneous.

A witness connected with a telegraph office in Hew York, produced a telegraphic dispatch purporting to have been signed by Smith (the defendants’ president) and addressed to Captain Mills (then in charge of the steamboat) “ authorizing the sale of the steamer." The defendants’ counsel objected to the dispatch as evidence, but consented that it should be examined by the court. It was examined and excluded by the court, on the ground that telegraphic dispatches are usually private communications between individuals, and should be privileged, and the court thought it against public policy to allow them to be read in evidence.

Without concurring in .the reason assigned by the learned j ustice, I think there is another satisfactory one for excluding the evidence. It is claimed by the plaintiff that the telegram contained evidence tending to show a recognition and ratification by the defendants of the plaintiff’s employment. If it contained any such evidence, and if the proof was sufficient to allow the paper offered to be read, of which I express no opinion, as the objection was only to the materiality of the evidence, I have no doubt, it was competent proof. But in my opinion it contained no evidence whatever favorable to the plaintiff. It was at most an authority to Captain Mills to sell the steamer. Now it is not pretended that the plaintiff had been employed by Captain Mills. The plaintiff claimed no other employment than that of Mr. Goodspeed. All the evidence concurs that pending the negotiations with Whitney and Snow for the sale to them, Captain Mills telegraphed to Mr. Smith, the president, for the price and terms of sale. The plaintiff so testified, and also testified substantially that the telegram offered in evidence was a reply to Mills, consenting to sell at the price proposed. Not only is there no evidence of any employment of the plaintiff by Mills, but the evidence is very clear and positive that Mills had no authority to employ him. Therefore, the only possible effect which could have been given to the telegram as evidence, was, that it authorized Mills to sell the steamboat. But it did not, directly nor by indirection, recognize the employment of the plaintiff by Goodspeed, nor furnish any evidence of a ratification by the defendants of such employment.

The telegram was therefore wholly immaterial, and for that reason was properly excluded.

There was some conflicting evidence, but upon subjects not material to the main issue between the parties.

Taking the case as made by the plaintiff, without any reference to the conflict of evidence, and there was a failure to show an employment of the plaintiff by the defendants, and the complaint was therefore properly dismissed.

The judgment and order should be affirmed, with costs.