text:
    FREDERICK LAW OLMSTEAD, Plaintiff, v. THE MAYOR, ALDERMEN AND COMMONALTY OF THE CITY OF NEW YORK, Defendants.
    I. OFFICE, OFFICER, EMPLOYEE.

    1. DEFINITION AND DISTINCTIONS.

      (a) Office. It is a right to exercise a public function or employment, and take the fees and emoluments belonging to it. It involves the idea of tenure, duration, fees or emoluments, and powers as well as that of duty. It implies an authority to exercise some portion of the sovereign power of the State, either in making, administrating or executing the laws.
    (6) Officer. One who holds an office.
    (c) Employee. One who receives no certificate of appointment, takes no oath of office, has no term or tenure of office, discharges no duties, and exercises no powers depending directly on the authority of law, but simply performs such duties as are required of him by the persons employing him, and whose responsibility is limited to them, is not an officer and does not hold an office.
    1. This although the persons so employing him we public officers, and his employment is in and about a public worlc or business.
    H. APPLICATION.

    1. Landscape architect employed by the Department of Public Parks, does not hold an office, and is nqt an officer within the meaning of the 114th section of chap. 335 of the Laws of 1873.
    Before Sedgwick and Speir, JJ.

      Decided June 25, 1877.
    This case comes up on plaintiff’s motion that this court direct a judgment to be entered upon a verdict rendered in favor of the plaintiff, subject'to the opinion of the general term. The plaintiff sued to recover the salary alleged to be due him as landscape architect of the Department of Public Parks from May 31,1876, to July 31, then next, inclusive.
    The plaintiff was by profession a landscape architect, and had been employed many years in that capacity by the Department, which had fixed his salary at the rate of $6,000 per annum, and he had been paid at that rate down to and including May 31, 1876.
    In the year of 1876 (Laws of 1876, p. 196, ch. 193), the legislature created a board known as the “Commissioners of the State Survey,” to hold office for one year, and named the plaintiff one of the commissioners.
    He accepted the office of commissioner and took the oath of office May 31, 1876. He afterwards, on July 18, 1876, resigned. During the time he held the office of commissioner he, without interruption, performed the duties and rendered the services devolved upon and required of him as landscape architect. On August 4, 1876, the Department of Parks passed the resolution referred to in the opinion, whereby it was resolved “ that an allowance or payment be made to him” (the plaintiff) ‘‘ for the services to the Department from May 31, 1876, at the rate of $6,000.”

      Smith E. Lane, attorney, and A. J. Vanderpoel, of counsel for plaintiff, urged:
    I. The plaintiff was not an officer within the prohibition of section 114 of the charter of 1873. 1. He did not hold any office under the charter. 2. He was an employee or servant of the Department of Public Parks, having no official relations whatever to the city government. 3. The charter throughout maintains this distinction between employees and officers (§§ 93,94, 95, &c.; Holly v. Mayor, &c. of N. Y., 59 N. Y. 166; Stone v. U. S., 3 Court of Claims, 260 ; Sullivan v. Mayor, &c. of N. Y., 48 How. Pr. 239 ; Sullivan v. Mayor, &c. of N. Y., 53 N. Y. 652, reported in full in 47 How. Pr. 491; Commonwealth v. Binns, 17 Serg. & Rawle, 219; 3 Greenleaf, 481). In this case, and in Bacon’s Abr. Title Officer, a definition OF AN OFFICE AND OFFICER IS GIVEN WHICH EXCLUDES THE CASE AT BAR.
    II. If plaintiff, as landscape architect, shall be deemed to be a city officer, and hence, by his acceptance on May 31, 1876, of the office of a commissioner of the State survey, to have ceased to be such architect, he may still recover for his services rendered at the request of the department of parks for defendants’ benefit, by virtue of the resolutions of August 4, 1876, passed by the commissioners of the department. 1. They had a right to receive such services under the general powers conferred by sections 23 and 83 of the charter. 2. The resolutions of August 4 were a ratification of plaintiff’s employment, and legally made so. The doctrine of ratification applies to municipal corporations (1 Hoff. Laws, 330; Peterson v. Mayor, 17 N. Y. 449 ; Brady v. Mayor, 20 Id. 312 ; In the Matter of Doubleday v. Supervisors of Broome County, 2 Cow. 533 ; Thompson v. Mayor, 7 Robt. 543; Langdon v. Castleton, 30 Vt. 285 ; 1 Dillon's Mun. Corp. § 168, and cases in notes, §§ 168, 169,170, 171). 3. Here there is no illegal contract to contend against. Nelson v. The Mayor, 2 W. Dig. 313, is therefore in point: “Where the city has received property there is, independent of contract, an implied obligation to pay its value.” 4. There remains but the question “what were plaintiff’s services during the 31st of May, and June, and July, 1876, reasonably' worth.” This sum plaintiff should recover. The value of these services is not disputed.
    III. The defense interposed cannot avail after the date of the resignation of plaintiff, viz., July 18, 1876. 1. Failure to fix his compensation was cured by the resolutions of August 4, 1876, referred to in the complaint, and admitted. There is no law which requires the pay of an employee to be fixed in advance.

      W. C. Whitney, counsel to the corporation, and Francis Lynde Stetson, of counsel for defendants, urged:
    I. The plaintiff, as landscape architect, in the department of public parks, was “a person holding office,” and his position was an “office under the city government ” within the meaning of section 114 of chapter 335 of the Laws of 1873 (Ryan v. Mayor, &c. of New York, MS. opinion of Judge Freedman, delivered in the superior court, Nov. 11, 1875; Davenport v. The Mayor, &c. of New York, 2 T. & C. 536; affirmed by the court of appeals ; Henly v. Mayor of Lyme, 5 Bing. 91-107; Wood’s Case, 2 Cow. 30, n.). The last two cases give a definition of an office, WHICH WILL INCLUDE THE CASE AT BAR (People v.
      Hayes, 7 How. Pr. 248 ; Sweeny v. Mayor, &c. of New York, 5 Daly, 274; affirmed, 58 N. Y. 625; Costello v. Mayor, &c. of New York, 63 Id. 48 ; People v. Van Nostrand, 46 Id. 381).
    II. The case of Sullivan v. The Mayor, &c. of New York, 53 N. Y. 652, reported at large in 47 How. Pr. 491, has by above cited authorities been so limited as to be inapplicable to the case at bar.
    III. Applying the doctrine of these cases to the position held by the plaintiff, it seems impossible to consider him a mere servant or employee. He was the landscape architect of the Central Park, a position of dignity in its duties and emoluments. He designed most of the work of the Park; had general supervision of those engaged in carrying it on ; and discharged a great variety of miscellaneous duties. His position, therefore, was one supremely important to the maintenance and extension of the great public work with which he was connected. The original execution of all that made the place a park was confided to his artistic sagacity and discretion. The whole machinery and system of the Central Park had its being and operation solely according to his designs and direction. If the enterprise itself was of a public character it seems impossible to deny that its originator, designer and artistic director was a public officer. The construction and maintenance of. this magnificent public park is. certainly a public undertaking as much as is the construction of the highways.
    IV. The expression of the legislature and the courts alike have demonstrated that the defendants attribute the proper signification to these words, (a) As to the Legislature: By section 21 of chapter 757 of the Laws of 1873, the section of the chapter under consideration was amended as follows : “ Section 114 of said chapter shall not be construed to apply to civil or consulting engineers who may be employed to superintend any specific work on the part of the City of New York.’-’ Under the operation of the maxim ‘' Ex-prés sio unius est exclusio alterius ” the effect of the legislative exception of one class of employees was to leave all others under the operation of the charter rule. If it was necessary to specifically except civil and consulting engineers employed on specific works, why was not the landscape architect bound in absence of any such release ? (i) As to the courts ; The decision in the case of Davenport v. The Mayor (supra), arising upon this very section, is directly in point.
    V. The plaintiff accepted, held and retained a civil office of honor and trust under the government of the State from the 30th day of May to the' 18th day of July, 1876. This was an “office,” and involved his taking the oath prescribed by the constitution.
    VI. From the thirty-first day of May, when he vacated his office, until the fourth day of August, 1876, when he was re-appointed, the plaintiff was not entitled' to compensation for his services. It was not enough that he should render services, but it was necessary also that they should be rendered by the officer designated for that purpose. Neither was it in the power of the board to vote away the salaries of the department to any persons other than those holding office under it.
   By the Court.—Speir, J.

A preamble adopted by the department of parks on the 4th of August, 1876, is set forth in the complaint, reciting that the plaintiff had, without advice as to the effect it might have on his position as landscape architect, accepted the office of commissioner of the State survey; that some doubt had been expressed on the point, and that he had resigned the office, and had without interruption performed the services on which he was employed, and it was resolved that an allowance and payment be made to him for the services to the department, from the 31st day of May, 1876, at the rate of $6,000.

No salary or compensation was attached to the office of commissioner of the State survey. The plaintiff took the oath of office on the 31st of May, 1876, and the board was organized.

The defense is based upon the following provision of section 114 of chapter 335 of the Laws of 1873 : “ Any person holding office, whether by election or appointment, who shall, during his term of office, accept, hold or retain any other civil office of honor, trust or emolument, under the government of the United States (except commissioners for the taking of bail, or register of any court) or of the State (except the office of notary public or commissioner of deeds, or officer of the national guard), or who shall hold or accept any other office connected with the government of the city of New York, or who shall accept a seat in the legislature, shall be deemed thereby to have vacated every office held by him under the city government. No person shall hold two city or county offices, except as expressly provided in this act; nor shall any officer under the city government hold or retain an office under the county government, except when he holds such office ex-officio, by virtue of an act of the legislature ; and in such case he shall draw no salary for such ex-officio office.”

Was the plaintiff, a landscape architect in the Department of Public Parks, an officer within the prohibition of the preceding section ?

An office has been defined to be a right to exercise a public function or employment, and to take the fees and emoluments belonging to it. An officer is one who is lawfully invested with an office (Bacon’s Abridgment, vol. 7, title Office and Officer, p. 279, ed. of 1860; Bouv. Law Dic.). The idea of an officer clearly embraces the idea of tenure, duration, fees or emoluments, and powers, as well as that of duty. The nature of the power and the control over the officer appointed does not at all depend upon the source from which it emailates. The execution of the power, and the control over the officer, depends upon the authority of law, and not upon the agent who is to administer it. The tenure of ancient common law offices, and the rules and principles by which they are governed, have no application in this country. In England the tenure of office depends in a great measure upon ancient usage. Here there is no ancient usage which can apply to, and govern the tenure of officers created by the constitution and laws. In such a case the tenure of the office is determined by the meaning of the statute. Every office under the constitution implies an authority to exercise some portion of the sovereign power of the State, either in making, executing or administering the laws. In the section of the statute there is no ambiguity, and there is no room for construction or interpretation. The words are clear and explicit: “Ho person shall hold two city or county offices, except as provided in this act; nor shall any officer under the city government hold, or retain an office under the county government, except when he holds such office ex-officio, by virtue of an act of the legislature ; and in such case he shall draw no salary for such ex-officio office.” The distinction is plainly taken between a person acting as a servant or employee, who does not discharge independent duties, but acts by direction of others, and an officer empowered to act in the discharge of a duty, or trust, under obligar tions imposed by the sanctions and restraints of legal authority in official life. I can find nothing in all the sections of the charter which does not strictly limit the prohibition to persons included in the foregoing definition given by the elementary writers. The plaintiff received no certificate of appointment—took no oath for the faithful performance of duties—had no term or tenure of office—discharged no duties, and exercised no powers depending directly upon the authority of-law. He was simply the servant of. the commissioners , of the park, and responsible only to them. His responsibility was limited to them, and is in no way distinguishable from that of the carpenter and the mason who are employed to build the bridges or erect the buildings designed by the architect. The nature and dignity of the duties confided to the employees by the commissioners do not determine the character of the position. It is in no proper sense official according to any sense in which the term is used in the statute' above recited.

The justices of the supreme court of Maine, 1822, gave an opinion as to whether certain duties which had been delegated by agents to be appointed by the governor, constituted the appointees officers. The case is reported in the appendix to the first edition of 3 Greenleaf App. No. 2. They say, "There is a manifest difference between an office and an employment under the government. We apprehend that the term ‘ office ’ implies a delegation of a portion of the sovereign power to, and possession of it by, the person filling the office, and the exercise of such power within legal limits constitutes the correct discharge of the duties of such office.” The question was directly put before the learned judges for decision, and they returned a sharply defined answer, wholly disconnected with other matter,' and it seems to me to be conclusive. The courts in this State are in accord with the foregoing opinion.

The plaintiff must have judgment for the amount claimed in the complaint, with costs.


source: Caselaw Access Project

author: The Court.

license: Public Domain

text:
    SAME v. SAME.
   The Court.

This case comes within the decision of the foregoing, and must be controlled by the same principles of law.

The plaintiff is entitled to judgment for the amount of the verdict, with costs.

Sedgwick, J., concurred.


author: By the Court.—Speir, J.

text:
    JAMES P. KERNOCHAN, et al., Trustees, &c., Plaintiffs, v. WALTER R. WHITING, Defendant.
    I. LEASE.

    1. ASSIGNMENT OF, WHEN PRESUMED.

      (a.) A lease was made to A., who formed a copartnership with B. for a term exceeding the demised term, and the firm occupied a part of the demised premises (the rest having been sub-let by A. before the partnership with B.) until November 18, 1875, when it was dissolved. The firm paid the rent up to November 1, 1875. On the dissolution, by arrangement between the partners, all debts owing to the firm were to be received by B., and all demands against it were to be presented to him for payment. B. gave public notice of this, and also that the business would be conducted in the name of B. at the demised premisos. B. remained in the occupancy of the portion of the demised premises previously occupied by the firm, until February 1, 1876, when he was dispossessed. B. collected of the sub-tenants to whom A. had sublet, the rents for their respective premises up to February 1, 1876, and deposited them in bank to his individual account. The lease to A. contained a clause against under-letting without the written consent of the lessors. No consent was given to under-let to B.
    held ;
    in an action by the lessors to recover from B. the quarter’s rent falling due February 1, 1876, the above facts appearing without contradiction, that he was holden as assignee.

    Before Speir and Freedman, JJ.

      Decided June 25, 1877.
    The plaintiffs leased the premises No. 396 Broadway, New York, for two years from May 1, 1874, to William H. Ward, for $8,000 a year, payable quarterly on the usual quarter days.
    On July 30,1875, Ward entered into partnership with the defendant under the firm name of Ward, Dickson & Co., which was to continue by the partnership agreement for one year from August 10,1875. The business of the firm was carried on at the premises, occupying the first floor of the store and part of the cellar. Ward had, prior to the formation of the partnership, sub-let the remainder of the building, and the tenants were in occupation when the defendant came in. The rent was paid by the firm up to November 1, 1875.
    The partnership of Ward, Dickson & Co., was dissolved November 18, 1875. The notice of dissolution provided that all debts owing to the partnership were to be received by the defendant, and all demands against the partnership were to be presented to him for payment. The defendant remained in possession of the premises until after February 1, 1876, when he was ejected by the plaintiffs. The action is brought to recover the quarter’s rent from November 1,1875, to February 1,1876. Additional facts appear in the opinion.
    A verdict was directed for the plaintiffs, exceptions, to be heard in the first instance at general term. •

      G. W. Lockwood, attorney, and of counsel for defendant, on the point on which the court rests the case,, urged:
    The lease was never assigned, nor any part off it. To render the defendant liable as assignee of the lease it must appear that the whole term of the lease was assigned (Davis v. Morris, 36 N. Y. 569 ; Bedford v. Terhune, 30 Id. 453; 27 How. Pr. 472; affirming 1 Daly, 371). Ward never had any conversation with: Whiting about the rent before he became his partner, and then no particular conversation. Nor was there any agreement about the rent, except such as is contained in the copartnership articles. The copartnership articles show that Whiting (the defendant) agreed to pay one-half the rent of the first floor and part of the cellar to Ward. That is the only liability Whiting (the defendant), assumed. There is not a particle of evidence showing an assignment of the lease by Ward to Whiting (the defendant). There was no agreement, except such as is contained in the copartnership articles : “Wo other agreement at all.”
    II. There was no privity of contract between the plaintiffs and defendant (42 N. Y. 201; 42 Id. 316; 15 Id. 374).

      Man & Parsons, and W. M. Man, of counsel, for plaintiff, on the point on which the court rests the case, urged:
    I. The defendant is liable for this quarter’s rent as assignee, as alleged in the complaint, in which it is expressly alleged that the defendant became assignee and successor of said Ward in regard to said lease and the possession of said premises. Wo objection is taken that Ward is not joined as a party defendant, which objection must be taken by answer, if at all. The plaintiffs bring themselves, by their evidence, clearly within the doctrine of the case of Bedford v. Terhune, 30 N. Y. 453; which case has never been overruled or modified. We have proved the lease to Ward; we have proved his entering into partnership with the defendant under the firm name as above, and their joint occupancy of the premises ; we have proved the payment of rent by that firm for the quarter ending Wovember 1; the subsequent dissolution of the firm; the defendant taking all the assets and agreeing to pay the debts ; his subsequent occupancy of the premises during the quarter in question; his collection of the rents from the sub-tenants, and appropriation thereof to his own use, and the notice by him that the business would be conducted in his individual name, as successor of the firm. The presumption is, under the case of Bedford v. Terhune, of an assignment from Ward to the defendant, as alleged in the complaint. The burden is thereupon thrown upon the defendant of proving in what capacity he occupied the premises. No such proof was given. No question of fact was requested by defendant’s counsel to be sent to the jury, and the learned judge who tried the case was justified in directing a verdict for the amount claimed, and interest.
   By the Court.—Speir, J.

The action is brought to recover the quarter’s rent from November 1,1875, to February 1, 1876, alleging that defendant became the assignee of Ward. The complaint contains a separate allegation that the defendant was liable to pay the quarter’s rent to the plaintiffs, by reason of his use and occupation. The answer admits the making of the lease, that Ward entered into possession of the premises, and the demand for rent. It denies every other allegation.

If the defendant is liable for the rent to the plaintiffs, in either of the above characters, the judgment appealed from should be affirmed. The premises in question must have been occupied by the defendant, either as sub-lessee of Ward, or as his assignee of the . term, or as tenant of the plaintiffs. By the terms of the lease, Ward covenanted with the plaintiffs not to let or under-let the premises, without the written consent of the plaintiffs; and no such consent is claimed. Privilege was given to sub-let part of the store. There was no agreement to under-let proven, nor is there any fact proved by which an under-letting could in fairness be inferred. It is not to be presumed that Ward and the defendant would transfer the lease, or the term, in such a way as to cause a breach of the express covenant, if by any other mode possession could be acquired by the defendant without producing such a result.

The action for use and occupation is founded upon contract, and lies only when the relation of landlord and tenant exists. Such relation does not appear in the case. The power to occupy and enjoy must be given by the landlord to the tenant. The defendant’s power was derived from Ward, the lessee, who held the unexpired lease from the plaintiffs. The presumption upon the facts proved would be that the transfer to the defendant was by assignment and not by under-letting. The defendant by arrangement held for the whole residue of the term, and his partnership agreement with Ward extended beyond the term (Davis v. Morris, 36 N. Y. 569). The business of the firm was carried on at the premises, and the rent was paid by the firm to the plaintiffs up to November, 1875. The partnership was dissolved on the 18th of said November. The notice of dissolution provided that all debts owing the partnership were to be received by the defendant, and all demands against it were to be presented to him for payment. Appended to this notice was the following: “ The business will be conducted in the name of Walter B. Whiting,” the defendant, “as successor to Ward, Dickson & Co., at 296 Broadway, New York City,” being the demised premises. The defendant remained in possession of the premises until February 1, 1876, when he was ejected by the plaintiffs, and for the same reason as the lessee could have been ejected, had he continued in possession and failed to pay. The defendant had collected the rents from the sub-tenants who had been put into possession of parts of the store by the lessee, including the quarter’s rent for which this action was brought, and put the money in bank to his own individual account.

When the transfer is for the whole term the person taking is an assignee and not an under-tenant, although there is a formal under-letting. ‘‘ The ordinary distinction between an assignment and an under-lease is, that the former transfers the land for the whole term, the latter for only a part of it” (1 Hilliard’s Abridgment, 126, § 55).

It being shown that the defendant occupied the whole of the unexpired term of the lease to Ward, or could have done so by his arrangement with Ward, in the same manner as Ward could, by paying rent to the plaintiffs, the fair presumption is that he entered for the whole unexpired term, and as such interest is given, not by an under-lease but by an assignment, the further presumption must be that the defendant was in as assignee, and not as under-tenant. If he was in as under-tenant, he would not be liable to the plaintiffs for rent, either in an action on the lease, or for use and occupation (Woodfall's L. & T. 358 ; 1 Chitty Pl. 36).

The evidence clearly established a prima fade case of an assignment to the defendant of the term. If there was, in fact, no assignment, the defendant could not be made liable. But as the law infers an assignment from certain facts proved, the inference must be of a valid operative assignment, sufficient to -transfer the term. The onus was on the defendant to prove either that there was no assignment, or that it was void in law. Instead of making such proof, he rests upon the case as made by the plaintiffs, andas the case made fixes his liability, he should not complain (Bedford v. Terhune, 30 N. Y. 454). Although there are dissenting opinions in this last case, the law, as settled, seems not to have been disturbed.

The defendant’s exceptions must be overruled, and the plaintiffs must have judgment upon the verdict, with costs.

Freedman, J., concurred.


text:
    CHARLES KNOX, Plaintiff and Respondent, v. DAVID HEXTER, Defendant and Appellant. Action No. 1. DAVID HEXTER, Plaintiff and Appellant, v. CHARLES KNOX, Defendant and Respondent. Action No. 2.*
    I. EXECUTION.

    1. STAY OF, TO ENABLE THE JUDGMENT-DEBTOR IN A CROSS ACTION BROUGHT BY HIM AGAINST' THE JUDGMENT CREDITOR, TO RECOVER JUDGMENT SO AS TO OFFSET IT AGAINST THE JUDGMENT ON WHICH THE EXECUTION IS ABOUT TO BE ISSUED.

      (a) Power of the court to grant.

    1. It has such power.

      (b) Exercise of power, when.
    1. Where the party against whom the stay is asked is protected and secured, while the other is in peril and exposed to loss, and the subject matters of the two actions are such as justly call for a settlement without further trial of issues of fact, and the effect of the order will be to finally adjust the rights of the parties without gaining advantage or suffering harm from the fact that one judgment is prior in point of time to the other, a proper case for the exercise of the power is presented.

    Before Speir and Freedman, JJ.

      Decided June 25, 1877.
    Appeal from an order staying execution in second above-entitled action.

      It seems proper, with a view to giving all the facts upon which the decision of the court is based, to particularly set forth the stipulations referred to in the opinion, and the facts out of which they arose.
    After judgment had been entered on the verdict, in Knox v. Hexter, defendant appealed to the general term and obtained an ex parte order staying plaintiff’s proceedings. On a motion to vacate this stay, it appeared that judgment had been recovered by the plaintiff, in the case of Hexter v. Knox; that defendant had appealed from that judgment to the general term, where it had been affirmed, and an appeal from the general term decision to the court of appeals was pending, and thereupon the court, on denying the motion to vacate, required Hexter to enter into the following stipulation:
    “It is stipulated by the defendant above named, that the judgments in the action heretofore brought by the present defendant against the present plaintiff, now pending on appeal in the court of appeals, have not been assigned or incumbered by him, nor has either of them ; and that he will not hereafter make or execute any assignment or incumbrance thereon, by which the right of the plaintiff, if any, to offset the amount of the judgment in this action against the amount of the said judgments recovered by him against the said Knox, should be defeated or impaired.”
    “ Dated November 8th, 1875.”
    After this, Knox was about to foreclose a chattel, mortgage, given to secure another quarter’s rent falling due since that sued for in Knox n. Hexter.
    Thereupon Hexter commenced an action in the supreme court" against Knox, and obtained an injunction against said foreclosure.
    Thereafter, the following stipulation was entered into:

      Superior Court of the City of New York.
    David Hexter

      Judgment for Plaintiffs $18,163.18. Doclceted May 15, 1874.

      against

    Charles Knox.
    “The above-mentioned judgment having (on the appeal therefrom by said Knox) been affirmed by the court of appeals, it is stipulated and agreed between the parties to this action that the quarter’s rent of the Prescott House premises, due on the first day of November last from said Hexter to said Knox, with interest to this date, amounting to five thousand seven hundred and eighteen 96-100 dollars, shall be allowed as an offset against the said judgment in this action.
    “And the said Knox having this day paid the sum of seventy thousand one hundred and forty-six 36-100 dollars in cash, on account of said judgment and costs of appeal therein, leaving a balance of principal and interest due thereon amounting to seven thousand and seven hundred and eleven 71-100 dollars,  it is stipulated and agreed (the sureties for said Knox consenting) that no proceedings shall be taken under said judgment to enforce payment of the said balance, or the interest to accrue thereon, until the expiration of thirty days after the entry of judgment on an appeal now pending to the general term of this court, from a judgment recovered by said Knox against said Hexter for the sum of seven thousand and five hundred and fifty-seven dollars and forty-one cents, on October 9, 1875; and that if said Hexter shall, within said.thirty days, commence an appeal to the court of appeals from the judgment of said general term on the appeal now pending, all proceedings on the aforesaid judgment in this action shall be further stayed until the decision of the court of appeals on such last mentioned appeal; but no security shall be required from said Hexter, except an undertaking in the sum of five hundred dollars, the balance of the judgment in this action left unpaid, pursuant to this stipulation, being deemed and taken to be in lieu of all security which might be required from said Hexter to obtain a stay of proceedings on the appeal now pending from the said judgment against him, or on any appeal thereon to the court of appeals.
    “In the case of the decision of said appeals being in favor of said Knox, then the balance of the aforesaid judgment against him now left unpaid is to be accepted in discharge of his judgment against said Hexter and interest thereon, and both of said judgments to be satisfied and discharged; and in case the judgment against said Hexter shall be reversed, he shall be at liberty to collect and recover said balance from said Knox and his said sureties, together with interest thereon. All other actions and proceedings now pending between said Knox and said Hexter are to be discontinued, without costs to either party.
    “ Dated Hew York, January 26, 1876..
    “ Buckhah, Shales & Walker,
    ‘ ‘ David Hexter. Plaintiff’s Attorneys.
    “ W. MoDerhot,
    “C. Knox. Defendant’s Attorney.”
    The sureties given by Knox on his appeals to the general term and court of appeals consented to this stipulation.
    On the execution of this stipulation Knox surrendered and cancelled his chattel mortgage, which he swore he would not have done if he had not understood and believed that by the stipulation all proceedings by both parties were intended to be stayed until determination by the court of appeals in the action commenced by him, of his right to recovery of the judgment entered in his favor, no matter whether the appeal to the court of appeals was required tobe taken by Hexter or himself.
    Buckham Smales and Walker, attorneys, and Stephen A. Walker, of counsel, for appellant, urged :
    I. The justice cites Chitty Pr. vol. 1, p. 667, as sole authority for the proposition that though a common law court cannot set off unliquidated claims against a judgment, it can stay execution upon a judgment with a view to enable a defendant to obtain a judgment in a cross action. The proposition in Chitty is not supported by the authority of the single case cited in support of it, Masterton v. Malin (7 Bing. 435). Mr. Chitty’s interpretation of the decision of the case is as follows: “The court will sometimes even stay execution in an action till judgment has been obtained by the defendant therein, viz., a cross action, so as to enable the latter afterwards to obtain such set-off.” Fisher and Harrison (Dig. 7,774) state the same case in the following language : “A plaintiff having been non-suited and costs taxed for defendant, the court refused to allow the plaintiff to set them off against costs to be - taxed for him in an ejectment in which he had obtained a Verdict, but which defendant had obtained a rule nisi to set aside and. enter a nonsuit.” With two directly counter interpretations of the same case, and with Judge Sedgwick’s citation of it as sole authority for his decision in the present case, it is well petere fontes —and see the case itself, which will be found to be a mere practice motion, and not stated with absolute correctness by any of the learned gentlemen. Whatever else it is, it is not the slightest authority for the position taken by its latest interpreter. Its remoteness and obscurity is sufficient evidence that cases which support the view taken in the order appealed from are difficult to find.
    II. But if there were authority for such a ruling, Mr. Knox is in no position to claim this relief. He withdrew the counter-claim (the subject-matter of Knox v. Hexter) at the last moment of the trial in Hexter v. Knox. The opportunity of adjudicating all matters in controversy by one verdict he voluntarily repudiated nearly three years ago. This course on his part precludes him from asking relief from the'consequences of his desire to continue rather than end litigation.
    III. The court, however, has undertaken to make, by an order, what is in effect a judgment in an injunction suit upon a misconstruction of a private agreement between the parties, viz., the stipulation. Such action by a common law court is without jurisdiction. . Further than this, the interpretation of the instrument is erroneous. The stipulation provides that no proceedings shall be taken by Hexter to enforce payment of the balance left in Knox’s hands until the expiration of thirty days from the determination of the appeal to the general term; and that, if Hexter shall appeal therefrom to the court of appeals, proceedings shall be further stayed until the decision of the court of appeals. And it also expressly provides that the balance of the judgment against Knox is to be in lieu of all security which might be required from Hexter to obtain a stay of proceedings in two cases : 1st. On the appeal then pending in the general term. 2nd. On any appeal by Hexter thereon to the court of appeals. Also, that in case the judgment against Hexter is reversed he shall be at liberty to collect and recover said balance from Knox and his sureties. The judgment being reversed, Hexter is entitled to collect the balance.
    IV. The whole tenor of the stipulation shows the balance left in Knox’s hands was a mere substitute for the statutory undertakings which would have been required by Hexter on his appeal to the general term, and in case of a decision adverse to him in that appeal, in lieu of a similar undertaking on appeal by him to the court of appeals. There is not a single expression or word in the stipulation giving Knox any right to retain the money in case of an appeal by him ; such an appeal is not even referred to in the stipulation, and it is not competent to the court to delay Hexter’s proceedings by a forced construction not warranted by the agreement of the parties. There is now no judgment against Hexter, and he is entitled to collect the balance due to him from Knox.

      Wm. McDermott, attorney, and John M. Scribner, Jr., of counsel for respondent, among other things, urged:
    I. Nothing contained in the stipulation precluded Knox from making the application which he made at special term. There was a distinct provision for two appeals by Hexter ; and although, by its precise terms, it does not appear to guard against the contingency of a reversal of Knox’s judgment at the general term, yet, as a whole, the stipulation was manifestly intended to create an armistice until the court of appeals should decide whether Knox was entitled to his quarter’s rent, after the verdict obtained by Hexter in the other case, which, at the general term of this court, and in the court of appeals, was upheld as an indemnity to which Hexter was entitled, for want of possession of the demised parts of the new buildings.
    II. Even if it should come to the conclusion that the stipulation, in its strict language, is not broad enough to cover the appeal by Knox, the court, for the promotion of justice, should not hesitate to reform it, or give it such an equitable construction as will prevent injustice, especially in a case where no harm can result to the appellant. Knox has exhibited confidence in the merits of his suit by giving stipulation for judgment absolute, if he is defeated on appeal, and he ought not to be denied the benefit of such appeal, which would be the effect of a reversal of Judge Sedgwick’s order, in view of the alleged (and substantially undisputed) want of responsibility on the part of Mr. Hexter. It was sufficient at special term, and is sufficient now, to maintain the order, that the undisputed facts disclosed that Hexter was protected and secured; that Knox, on the contrary, was in peril. Justice and equity, therefore, required the interposition of the court, to the end that neither party should be allowed an unjust advantage.
    III. The court has power to grant the stay (Ferry v. Roberts, 15 How. Pr. 65; Durkin v. Vanderburgh, 1 Paige, 622; People v. N. Y. Com. Pleas, 13 Wend. 649 ; Baker v. Hoag, and Macy v. Stott; 6 How. Pr. 201; Smith v. Towden, 1 Sandf. 696; Cole v. Grant, 2 Caines, 105; Dewy v. Bower, 3 Johns. 247). Assignment does not cut off the right (Chamberlain v. Day, 3 Cow. 353 ; Insurance Co. v. Power, 3 Paige, 365; Graves v. Newsbury, 4 Hill, 559). Equities between the parties are paramount to attorney’s lien for costs (Roberts v. Carter, 24 How. 44 ; Mohawk Bank v. Burrows, 6 Johns. Ch. 317 ; De Figaniere v. Forrey, 2 Robert. 670; Nicoll v. Nicoll, 16 Wend. 446; Brooks v. Hanford, 15 Abb. Pr. 342).

       For principal cases, see 39 N. Y. Superior Court Deports, 109; 42 Id. 4.

       In the case at bar both actions were in the same court. The opinion of the court, however, does not seem to regard the circumstance as having any bearing on the question of the power of the court.

       The interest on above judgment of $18,163.18 amounted to $3,157.90, and the costs on appeal to general term and court of appeals to $355.95.

   By the Court.—Speir, J.

The defendant Hexter appeals from an order staying his proceedings to collect by execution the unpaid balance of a judgment recovered. by him against Mr. Knox, which was left unpaid under a stipulation between the parties.

Hexter first obtained a judgment for damages for being kept out of possession of certain leased premises. Knox shortly after procured his judgment against Hexter for rent of the premises, part of which he had not put into the possession of Hexter. This latter judgment has been reversed by the general term, on the ground that Hexter is liable only for the use of that part of the premises actually occupied by him, but is liable for the part so occupied. Knox has appealed to the court of appeals, and given a stipulation for judgment absolute if he be defeated on appeal, claiming to be entitled under the lease to a quarter’s rent. Should Hexter be allowed to collect from Knox the balance of his judgment under the decision of the trial term, he would still owe Knox for use of the premises actually occupied by him, even though Knox should not be entitled to recover the full quarter’s rent. Knox ought not to be denied the benefit of such appeal which would result from the order made at special term, and especially so in view of the alleged want of responsibility on the part of Mr. Hexter. It is therefore sufficient to sustain the order by the facts disclosed that Hexter was protected and secured, while Knox, on the contrary, was in peril and exposed to loss, and that the effect of the order under the stipulation will finally adjust -the rights of the parties between themselves.

It is claimed by counsel that the court had not the power to make the order. The rule as laid down in Chitty’s General Practice, vol. 1, page 666, is that the superior courts favor the equitable mode of adjusting-accounts between the same parties at common law, if there be cross-actions, or suits, and allow one judgment to be set off against the other, and sometimes even stay executions ' in an action till judgment has been obtained by the defendant by a cross-action so as to enable the latter afterwards to obtain an off-set (Masterman v. Malin, 7 Bing. 435). It is claimed that this authority cited by the elementary writer does not sustain the rule. It is true the case shows the rule obtained to support the motion for the set-off was discharged by the court; but not until the court had determined to make the rule absolute by granting it, and so communicated its decision to counsel, whereupon the counsel furnished an affidavit proving that the judgment in the suit sought to be stayed had actually been levied under a ca. sa. The reporter was consequently authorized to announce the rule as stated by Mr. Philips. On these priúciples relief has been granted in all the courts (Terry v. Roberts, 15 How. Pr. 65). It is the equitable control which they are authorized to exercise over the parties and proceedings in causes before such courts to promote equity and prevent injustice. The late chancellor of this State has said this power of a court of chancery to set off on motion, is the same as that of a court of common law, but that the jurisdiction of the court of chancery is more extensive than that of the common law court (Duncan v. Vandenburg, 1 Paige, 622). If no possible injury results to the parties by a stay of proceedings, it seems difficult to perceive why a stay of execution on a judgment for a brief period should not be granted, until a judgment has been obtained by the defendant, in a cross-action to enable him to make an off-set.

The subject matters of the two actions are such as justly call for a settlement, without further trial of issues of facts.

If, therefore, the order of the court below staying the proceedings on execution until the decision of the question of law involved will finally adjust the rights of the parties without gaining advantage or suffering harm from the fact that one judgment is prior in point of time to the other, the order should not be set aside.

The order appealed from must be affirmed with costs.

Freedman, J., concurred.


text:
    LOUIS HEIDENHEIMER, Plaintiff and Appellant, v. DAVID MAYER, Defendant and Respondent.
    I. USURY.

    1. COMMISSIONS AND CHARGES FOR EXPENSES.

      (a) Device to cover usury, when.
    1. Charges of specific sums or certain percentages for pi'ospectivc commissions and bsses or expenses on and for the anticipated borrowing, by the creditor, of the sum forborne during the period Of forbearance, the debtor agreeing to pay such charges at all events, whether the commissions be earned or not, or whether the losses and expenses occur' or not, constitutes usury.

      (a) Example. A creditor, upon giving time for payment of a present indebtedness to be paid in four installments, one at the end of twelve months, one at the end of eighteen months, one at the end of twenty-four months and one at the end of thirty months, took notes of the , debtor, having those periods to run respectively, and in each note included the legal interest for the period the note had to run, and two and a half pet' cent, commission for each six months, and one and a half per cent, for each three months the note had to run, the percentages being calculated on the portion of the principal indebtedness for which the note was given; the two and a half per cent, was charged for commissions for the anticipated borrowing each three months during the running of the notes respectively of the amount of the principal indebtedness secured thereby for the use of the creditor, and the one and a half per cent, for anticipated losses, charges, and expenses in so borrowing. There was no evidence that, the creditor had been obliged to borrow by reason of this extension of time, or had in fact borrowed, or had been put to any loss, charges or expenses in and about borrowing.
    Held

      a device or cover for usury.

    3. GOVERNING LAW.
    (a) The notes being dated and payable at the city of New York, and having been delivered to the payee in the State of New York, by being mailed by the maker at the city of New York" to the payee by his direction,
    Held

      the contract was not only made, but to be performed in the State of New YorTc, and the usury law of that State governs.

    3. GUARANTY.

      (a) Effect on, of usury in that which is guaranteed.
    1. If the notes or other obligations, the payment whereof is guaranteed, are void for usury, then if the guaranty has no other or different consideration than such notes or obligations, it necessarily fads with the notes or obligations.

    Before Speir and Freedman, JJ.

      Decided June 25, 1877.
    The action is brought upon the defendant’s guaranty of four notes of Joseph Bernhard, two of which had been paid. The defense is usury. The four notes are all dated March 11, 1873, at the city of New York, and are payable there. The guaranty was delivered simultaneously with the notes by Bernhard, to the plaintiff, by mailing the same to him in a letter at the city of New York, by his direction.
    The action was tried before the court without a » jury by consent of parties, and judgment was ordered for the defendant against the plaintiff, with costs.

      R. W. Townsend, attorney, and A. R. Dyett, of counsel, for respondent, urged:
    1. The four promissory notes, being not only dated, but payable at the-city of New York, were New York contracts,, and their-validity is to be determined by the laws of this State (Lee v. Silleck, 33 N. Y. 615 ; Jewell v. Wright, 30 N. Y. 259; Hildreth v. Sheppard, 65 Barb. 265; Jack v.. Nichols, 5 N. Y. 178; Cope v. Wheeler, 41 N. Y. per Woodruff, J., at foot of page 311; Coook v. Litchfield, 9 N. Y. 280; Newman v. Kerson, 10 Wis. 338; Consequa v. Fanning, 3 Johns. Ch. 587, 610 ; 17 Johns. 511, 520, 521; Story on Confi. of Laws, 7th Ed. §§ 279, 280). If there be any cases apparently in conflict-with these cases they will be found on examination not to be so; but if otherwise they must all yield to the superior authority of the above cases of Lee v. Silleck and Jewell v. Wright.
    II. The four notes were not only payable at the city of Hew York, but those notes and the guaranty having been sent to the plaintiff by Bernhard, by mail, at and from the city of Hew York, by the plaintiff’s direction, were delivered in this State (Barry v. Eq. Ins. Co., 59 N. Y. 587 ; at pages 589 and 594). They were contracts, therefore, not only to be performed, in this State, but were executed and delivered there.
    III. But if the notes and guaranty were otherwise valid, the plaintiff knew the usury laws of this State, and that the notes and guaranty were for that reason void, and the plaintiff is not protected by that comity which otherwise would aid him to enforce them in this State (Miller v. Tiffany, 1 Wall. 298 ; Merchants’ Bank v. Spaulding, 5 Seld. 53; in which the notes were both payable in New Jersey, at foot of page 62).
    IV. The defendant had the right to set up usury in the four notes (Paschall v. L’Amoureux, 37 Barb. 189 ; Price v. Lyons Bank, 33 N. Y. 55; Rosa v. Butterfield, Id. 655). The guaranty had no independent consideration from, and was delivered simultaneously with the notes, and when they fell, the guaranty fell with them (Same cases).

    V. The position that the “ commissions ” and “ charges” which went to make up the notes were for services or expenses, within the cases allowing such items, is hardly tenable. Indeed, the finding of the judge that they were fictitious, and mere pretexts for usury, is conclusive ; and it was fully sustained by the evidence. The intent which is essential, is not an intent to violate the statute, but an intent to take more than seven per cent., and is to be deduced from the facts (Fiedler v. Darwin, 50 N. Y. 437 ; Hall v. Earnest, 36 Barb. 325). If, however, it be thought necessary to refer to the cases where such items have been allowed, it will. be seen that they differ toto ocelo from the present. Some of these cases are Elwell v. Chamberlain, 31 N. Y. 611; Smith v. Morris, 27 Id. 138; Trotter v. Curtis, 19 Johns. 160; Seymour v. Marvin, 11 Barb. 80. See also the following cases : Dry Dock B’k v. Am. Life Ins. Co., 3 Comst. 344 ; Clark v. Sheehan, 47 N. Y. 194,197 ; Harger v. McCullogh, 2 Denio, 121; Steel v. Whipple, 21 Wend. 105; Cleveland v. Loder, 7 Paige, 557 ; Brown v. Vredenbergh, 43 N. Y. 195; Bank of Salina v. Alvord, 31 Id. 473; Tyler on Usury, (1873), 329-338. In all the cases where such charges have been allowed, they were for service actually rendered in good faith. In Williams v. Hand, 7 Paige, 582, a charge for anticipated trouble and expense was condemned as usurious, and .the case is exceedingly like the present.

      Sigismund Kaufman, attorney, and Lewis Sanders, of counsel for appellant, among other things urged:
    I. The original contract between Kapp, Bernhard & Einstein was made in- Germany, for money to be advanced in Germany; the money was advanced in Germany, and in March, 1873, the debt was held in Germany by third parties, there to be repaid.
    II. The release of Bernhard from his liability to pay the other two-thirds of the debt due Heidenheimer, is ample consideration for the guaranty in suit (Woodcock v. Bennett, 1 Cow. 733; Waydell v. Lauer, 3 Denio, 417; Livingston v. Radcliff, 6 Barb. 206).
    III. The release of Kapp and Einstein from their liability to pay the one-third guaranteed by the defendant. Mayer, is a valuable consideration which will support the guaranty.
    IV. The guaranty, being given at the same time as the notes, is valid and binding, if the consideration of the notes was legal (Bickford v. Gibbs, 62 Mass. 155-6 ; McLaren v. Watson’s Exrs., 26 Wend. 435 ; Emmott v. Kearns, 5 Bing. N. C. 559 ; Leonard v. Vredenberg, 8 Johns. 29). 2. The guaranty is binding, if it have an independent valuable consideration to support it, as it is an independent contract (Baily v. Freeman, 11 Johns. [m. p.] 221; Veazie v. Willis, 6 Gray [Mass.] 93 ; Leonard v. Vredenberg, Bickford v. Gibbs, cited supra). 3. The guaranty expresses a consideration and its receipt. Defendant estopped from denying the receipt after plaintiff accepted and acted upon it, without showing plaintiff knew the money had not been paid (Continental N. Bank v. Ntl. Bank Com., 50 N. Y. 580; Watson’s Exrs. v. McLaren, 19 Wend. 563, and cases cited ; Duchess Kingston’s Case, 2 Smith L. C. [End. ed.] 873).
    V. The defense of usury fails, because the money was advanced in Germany—on a contract made in Germany, on a promise to repay in Germany—and in Germany there is no usury law or forfeiture of contract. The notes and guaranty were delivered in Germany on a contract accepted there, and the guaranty expressly states: “I herewith guarantee to Mr. Louis Heidenheimer, in Frankfort-on-Main, Germany, th% punctual payment of the following notes.” The usury laws of New York do not govern the contract in suit, and cannot avoid a contract valid by the laws of Germany, and not against the public policy of the lex fori. The notes were negotiated in Germany, though payable with current rate of exchange in New York, and come within the rule laid down in Tilden v. Blair (21 Wall. U. S. 247), where a draft was accepted and made payable in New York, but first negotiated in Chicago, 111.—held: “It is plain, therefore, that the contract is an Illinois contract, and the rights and liabilities of the parties must be determined according to the law of that State” (Held in Miller v. Tiffany, 1 Wall. 310). “If the rate of interest be higher at the place of the contract than at the place of performance, the parties may lawfully contract in that case, also, for the higher rate.” This principle is.considered and affirmed in Chapman v. Robertson (6 Paige, 634, citing Depau v. Humphreys, 20 Mart. 1. See Bank of State of Georgia v. Lewin, 45 Barb. 343).
    VI. The letter of Heidenheimer, offered by defendant, claims that the expenses and the 7 per cent, cover all the additions to the principal, except a small commission for services—services rendered in keeping up or carrying the loans originally obtained for the firm of Kapp, Bernhard & Einstein. Mr. Heidenheimer claims to have done this; no one with any knowledge on the subject was called to contradict it; it was defendant’s evidence, and Hiedenheimer is unimpeached. Onus proband,i is on defendant to show that charges, and commissions and expenses for raising or carrying loans in Germany, are exorbitant or unusual, or a mere cover, to constitute usury (Trotter v. Curtis, 19 Johns. 160, where commissions of 2½ per cent, were charged on drafts for advances ; Elwell v. Chamberlain, 31 N. Y., 615; Seymour v. Marvin, 11 Barb. 87; The Dry Dock Bank v. Am. Life Ins. Co., 3 N. Y. 355 ; Smith v. Marvin, 27 Id. 137; Tyler on Usury, 3d ed. 128).
   By the Court.—Speir, J.

It appears from the evidence in the case, that the firm of Kapp, Bernhard and Einstein, owed the plaintiff §13,387.90, for money advanced by him in Frankfort-on-Main in Germany, by his drafts on them payable in the city of New York, but they did not pay the drafts. This sum of $12,387.90, included interest and commissions for advances. The plaintiff’s right to these commissions is not in dispute. Subsequently, when the four notes were given, the indebtedness of the firm was divided into three equal parts of $4,129.30 each, and each member assumed one of said parts, as his share.

The plaintiff agreed with Bernhard to give time for payment by him of his said share, amounting to $4,129.30, as follows; on $1,129.30, part thereof, for 12 months from March 11, 1873, on $1,000 thereof, for 18 months from March 18, 1873, $1,000 thereof, for 24 months from March 11, 1873; and on $1,000, balance thereof, for 30 months from March 11, 1873, upon his giving his four several promissory notes: one.at 12 months from March 11,1873, for $1,321.77, gold ; one at 18 months from March 18,1873, for $1,255.00, gold ; one at 24 months from March 11, 1873, for $1,340.00, gold ; one at 30 months from March 11, 1873, for $1,425.00, gold. Such notes to be guaranteed by defendant.

The notes and guaranty were given.

The amount of these notes was arrived at by the following statement:

Total amount of indebtedness of Kapp, Bernhard &

Einstein, divided into three parts, 9831.40 ) ^ qs each one-third M, ' - - - -)

fl. at 42 cts. gold, - - $4,129.30 being amount due by each individual party, March 18th, 1873, in gold.

DIVIDED INTO FOUR PAYMENTS.

$1,129.30, at 12 mos. from March 11th, 1873.

79.05 interest at 7 per cent.

56.46 commission each 6 months 2¿á per cent, making 5' per cent.

56.46 charges 1m per cent, each 3 mos., 5 per cent.

$1,321.27 in gold, first payment.

$1,000.00 at 18 mos. from date of maturity, March 18th, 1873.

105.00 Int. at 7 per cent., for 18 months.

75.00 2m per cent, commission in each 6 mos. 7M i

75.00 charges lM per cent, each 3 mos. 7m per cent.

$1,255.00 in gold.

$1,000.00 at 24 mos. from March 11th, 1873.

140.00 Int. at 7 per cent, for 24 months.

100.00 2M per cent, commission for each 6 mos. 10 %

100.00 charges lM each 3 mos., 10 per cent.

$1,340.00 in gold.

$1,000.00 at 30 months from March 11th, 1873.

175.00 Int. at 7 per cent, for 30 months.

125.00 2m per cent, commission each 6 mos. 12m #

125.00 lM- per cent, charges each 3 mos. 12m i

$1,425.00 in gold.

The 2m per cent, mentioned in the statement was called and intended by the plaintiff as commissions, and the lM per cent, therein mentioned was called and intended by him as contingent expenses to be incurred fur raising and borrowing money for the plaintiff’s use during the said period. „

An agreement is not necessarily usurious which provides a commission on advances made by a factor, or where money has been advanced by factors to pay drafts, and the commissions have been earned. Nor is it per se usurious for an agent or factor to agree for a reasonable commission to be paid by the principal for accepting and paying bills with funds furnished by the latter. The rule extracted from the English cases clearly defines the distinction which exists in these cases. It is, wherever the lender stipulates even for the chance of an advantage beyond the legal interest, the contract is usurious, if he is entitled by the contract to have the money lent, with the interest thereon, repaid to him at all events (Barnard v. Young, 17 Vesey, 44; Chippendale v. Thurston, 1 Car. & Payne, 101). In cases of this kind it becomes a question of intent which is essential to constitute the offense of usury. But the intent must be deduced from and determined by the facts. Knowingly and intentionally taking or reserving a greater interest or compensation for a loan than that allowed by law is per se usurious. The intent is manifest in this case. The transaction was a mere pretense or cover to take more than seven per cent, for the use of the- money during the term of the loan, and so the court below has found. The plaintiff writes:

“I have to say, Gents, that the proposition which you make, and according to which it would take three years until I would be paid off by you, is not quite reasonable. You know not and cannot judge about the trouble it gives me, to raise and provide the large amount advanced to you. If I would have been prepared for it, or if I had made arrangements before with you accordingly, it would be different; but instead of that, and as 1 have no cash to my disposition, but have to borrow the money from three to three months, or raise the amount by drafts on my friends and relations living out of the city, it is great trouble to me ; three months is the longest time allowed in this country for such transactions, and then it can only be done with more or less expenses, such as loss on exchange, brokerage, commission, stamps, etc. Regarding the interests offered by you, I will not accept the same, and I have charged you only, as you will seeo by my account, the regular interest of seven per cent. But as the transaction as it now stands gives ine considerable more work and trouble as if I would transact for you in a regular business way, I have to charge you the same commission as if this would be the case, and which is

two and a half per cent, for each six month, or for twelve months twice two and a half per cent., or five per cent., and so on. (The time for closing np your transactions before took always about six months, and I charge you two and a half per cent, for it.)
“Besides this, however, I have to charge you for each three months one-quarter per cent, to raise and cover the amounts by borrowing and as described above, and which scarcely covers my loss and disbursements, and for which you have also to come up. You can surely also not object against this, or I would be compelled to sell some of my American securities, and where I would lose none, and under the present horrid state of money matters and difficulties on all European exchanges, perhaps ten to twenty per cent., and which I would then have to charge to you. Since I wrote you last on this subject, it has changed yet considerably to the worse in this direction. By my actions you see that 1 do all in my power, and with so much trouble to assist you, and at the same time to save you from losses so much as possible, but above that I cannot go. Consequently the charges are seven per cent, for interests; five per cent, for commissions, and five per cent, for losses and disbursements, which makes altogether seventeen per cent.”

There was no evidence that the plaintiff had been obliged to borrow by reason of the extension of time, or had in fact borrowed, or had been put to any loss, charge or expense over and above borrowing.

The debtor agrees that commissions might possibly be earned, and were proper, although they had never been earned, and by the terms of Ms obligation agrees to pay them at all events, whether earned or not, and the stipulated percentage for prospective losses and disbursements which may be met in the future, whether they actually occur or not. It is evident that the plaintiff intended to stipulate for this chance of a greater profit than seven per cent, for the use of his money, as it is made a part of the written agreement showing the terms upon which the use of the money was made, and it does not appear there was any mistake or misunderstanding in making the agreements If agreements of this character are carried out and tolerated by the courts the most oppressive exactions of usury would become legalized, because the necessitous and indigent debtor had agreed to the extortion.

The appellant’s counsel contends that the original contract was made in Germany for money to be advanced in Germany. It cannot be denied that a contract is to be governed by the laws of the place where it is made, if it is not to be performed according to the terms of the contract elsewhere (Story on Conflict of Laws, § 282). The four notes are dated and payable at the City of New York, and they were delivered in this State, as they were mailed in this city by Bernhard to the plaintiff, and by his directions. I am unable to appreciate the view taken by counsel between the notes and the guaranty as separate existing contracts. If these notes are intrinsically usurious, and therefore in violation of the statute, the guaranty is equally so. It had no different or other consideration than the notes. They were delivered at the same time and identical in their consideration, and the contracts are not independent (Rosa v. Butterfield, 33 N. Y. 665).

An examination of the requests by plaintiff for additional findings of fact shows that they were properly refused; and the exceptions to the facts found, and conclusions of law, were properly overruled.

The judgment appealed from must be affirmed, with costs.

Freedman, J., concurred.


text:
    JOSEPH ENEAS, Plaintiff and Respondent, v. HERMAN F. HOOPS, Defendant and Appellant.
    I. GUARANTY.

    1. GUARANTOR, CHARGING.

      (a) Demand of payment from principal, and notice to guarantor not necessary when the guaranty is absolute: e. g., when the guaranty is as follows:
    “For and in consideration of the sum of one dollar, I hereby guarantee the payment of invoice of cargo covered by within contract. ”
    2. GUARANTOR, DISCHARGING.

      (a) Alteration op contract guaranteed.
    1. An alteration or variation, materially affecting the contract guaranteed, will discharge the guarantor.

      (a) Advantage to guarantor. This although the variation may be to his advantage.
    2. Examiple of alteration discharging guarantor.—The guaranty was of the payment of the purchase-price of a cargo of nuts agreed to be sold and delivered. A subsequent agreement, made without the consent of the guarantor, that the vendee need not take the deck-load (if under the term cargo, used in the guaranteed contract, the vendee was bound to take the deck-load), will discharge the guarantor.
    H. CUSTOM.

    1. Words and phrases in a contract, custom admissible to show the sense in which they were used, when.

      (a) Trade Words. The sense which words have acquired in the trade with regard to which they are used, may be shown by usage.
    1. Ambiguity, art, science, &c. It is not necessary that the word or phrase should be at all ambiguous on its face, or relate to an art or science.
    III. CARGO.—DECK-LOAD.—FRUIT.

    1. The term cargo may be shown by the usage of the fruit trade to exclude the deck-load, when it is used in reference to that trade.
    IV. EVIDENCE.

    1. Estimation, when inadmissible.

      (a) An estimate made on a part of a whole does not necessarily furnish a basis for a calculation as to whole, based on such estimate.
    1. Therefore, an offer to prove by a witness (an expert), that he had estimated the number of culls in a part of a cargo, and that he could estimate such percentage with accuracy, with the view of^showing the percentage of culls in the whole cargo, was properly excluded.

    Before Sedgwick and Speir, JJ.

      Decided June 25, 1877.
    Appeal from a judgment for §7,500 rendered on a verdict for the plaintiff, and also from an order denying a new trial.
    The plaintiff and Joseph Heron, on May 11,1875, in New York made this agreement: “ I have this day bought of Joseph Eneas, the cargo of cocoanufcs on board the schooner ‘Win. R. Knighton,’ now here, for forty dollars per thousand, as they run, throwing out cracks and rots only. The cargo to be of prime, merchantable quality, culls not to exceed ten per cent,. Ten working days to discharge. I am to furnish one man to count and .select with his man, and to sign receipts for them as they are delivered. He to pay the man for his time. Cargo bought on four months time, to be paid for by my note, for one-half of whole amount, at four months, indorsed by Hoops ; the balance to be paid for on or before the expiration of four months. Interest at the rate of seven per cent, per annum to be allowed for the unexpired term.
    (Signed) Joseph Heron.
    Joseph Eneas.”
    The following guaranty was executed and indorsed by the defendant on the foregoing agreement: “ For, and in consideration of the sum of one dollar, I hereby guarantee the payment of invoice of cargo covered by within contract.
    (Signed) H. F. Hoops.”

      Townsend & Mahan, attorneys for defendant; H. B. Townsend, of counsel.

      Wm. W. Goodrich, attorney and counsel, for plaintiff.
   By the Court.—Speir, J.

The action is brought upon the guarantee executed by the defendant after the expiration of the term of credit provided for by the agreement. It is in evidence that after the above credit had expired the plaintiff commenced an action, and recovered a judgment against Heron for the same amount as was recovered in this action, and notice of pendency of that action was given to the defendant herein, who was a witness at the trial. The guaranty in the case is absolute, and did not require any preliminary demand of payment upon the principal debtor, and notice of non-payment. Hor does it appear that the omission of such demand and notice has been the occasion of any injury to the defendant. The defendant made no stipulation for notice to him as guarantor in any event. The points made in these respects by defendant’s counsel may therefore be disregarded.

The terms of the contract of guaranty must be strictly complied with, or the guarantor will not be bound, and any subsequent alteration at all materially affecting the principal contract made without his consent discharges him.

The cases go to the extent of holding that although sucli variation may be to the advantage of the surety, yet it releases such surety from all liability on his contract. It is not a question whether he is harmed by a deviation to which he has not assented (Barnes v. Barrow, 61 N. Y. 39). He has the right to prescribe the exact terms upon, which he will enter into the obligation, and in case of variance to avail himself of the technical objection that it is not his contract.

The defendant claims that there was a revocation of the agreement between the plaintiff and Heron. That by it the deck-load, consisting of about ten of twelve thousand eocoanuts, was excluded from the operation of the contract. That under the contract as originally made, the plaintiff was bound to deliver, and Heron was bound to receive, the whole of the cargo, including the deck-load, and that subsequently it was agreed without the defendant’s assent that Heron need not take the deck-load. The learned judge, admitttéd ,the legal proposition, and charged the jury that, if this was so, such subsequent agreement amounted to an alteration of the contract guaranteed, and the guarantor was discharged.

The plaintiff introduced certain evidence tending to show a custom in the city of Hew York, and on the exchange, by which in the fruit trade deck-load was not included as part cargo. It is clear, if such custom can be maintained there would be no variation in the contract between the plaintiff and Heron. By excluding the deck-load from the contract, the legal consequences flowing from the foregoing proposition would be avoided.

The introduction of the evidence of custom was opposed upon the ground that the term cargo is neither a technical or professional term, or a word having any significance in any art, business, trade or calling different from its ordinary accepted use. In short, that the word has a definite well-known meaning.

The custom should be reasonable, as growing out of the exigencies and conveniences of commerce and trade. The point is, are the words or phrases of a written contract to be understood in that sense which they have acquired in the trade with regard to which they are used. In Myers v. Earle (3 Q. B. 20, November, 1860, 30 L. J. 9), the court say, “I do not think that in order to introduce this extrinsic evidence, it is necessary that the phrase itself should be at all on the face of it ambiguous.” In Houghton v. Gillut (7 Car. & P. 701), the word “ cargo” received a mercantile construction, as applicable to that case. Nuts, like most articles in the fruit trade, are exposed to the vicissitudes of weather, and cannot be so well preserved as when conveyed under the deck. In this case Herron refused to accept the deck-load. The court instructed the jury that, inasmuch as there was a conflict of evidence on the question whether such a custom prevailed, it was for them to determine the fact.

The defendant offered to show by an expert witness, that he estimated the number of culls in a part of the lot which was to be sent to auction, and that he could estimate such percentage with accuracy. This was properly excluded. It did not follow that the percentage on the whole cargo could be ascertained by a calculation of the percentage on a portion of it. It was shown that in that part of the cargo received by Herron there were 17,050 culls, and' there were only 6,364 left in the whole remaining part which were sold at auction. In other words, 238,363 nuts were sold and delivered, and the culls, as stated in the receipts, were 23,414, which is less than ten per cent.

It is claimed by the defendant that the cocoanuts, excluding rots and cracks, were not prime and merchantable. The contract of warranty was “ $40 a thousand as they run, throwing out cracks and rots only, the cargo to be of prime, merchantable quality, culls not to exceed ten per cent.” It is to be observed that this is a warranty with a qualification. The important fact to be determined relates to the percentage of the culls on the whole cargo. It has already been shown that they did not contain more than ten per cent. Eneas and Herron, by agreement, each appointed a counter to select and throw out all cracks and rots, in order that the nuts which they both selected as sound should be delivered to Herron. They were duly receipted for until he refused to receive any more. This was an acceptance of the goods by Herron, so far as cracks and rots were concerned. Under all the facts and circumstances, and in view of all the evidence, the question was left for the jury to determine whether there was a breach of the warranty as to the prime and merchantable quality contemplated by the principal contract.

The requests to charge are embraced in the motion to dismiss, except two, which were charged by the court.

The judgment and order must be affirmed with costs.

Sedgwick, J., concurred.


text:
    THE FARMERS’ AND MECHANICS’ NATIONAL BANK OF BUFFALO, Plaintiff and Respondent, v. ERASTUS S. BROWN, BENJAMIN J. LOGAN, and JOSEPH P. PRESTON, Defendants and Appellants.
    I. PERSONAL PROPERTY—TITLE TO.
    1. Purchase by A at the request of B.

      (a.) Title and property nests in A, when.

    B, doing business at New York, sent an order to A, doing business at Buffalo, to buy wheat for him and ship it, advancing the purchase price himself. A not having the money with which to pay the purchase price, applied to the cashier of C, (a bank at Buffalo) stating he had the order to buy, and asking if the bank would discount a draft at 20 days, drawn on B at New York for an amount sufficient to pay for the wheat with the bill of lading consigning the wheat to the Bank as security; the Bank consented to do so. A thereupon purchased, the wheat ordered by B, and shipped it, consigning it not to B, but to the cashier of the Bank, and drew a draft on B for the purchase money, but only agreed to deliver the wheat to the drawer upon condition that the draft should be accepted and paid. The Bank discounted the draft, receiving from A the Mil of lading for the wheat as security, and gave A a check for the proceeds of the discount, with which A paid the purchase price óf the wheat. A made the purchase as principal vendee without disclosing to his vendor for whom he was acting. After the order to purchase, but before the purchase, B wrote to A, asking him not to draw for any margin, but to advance the whole purchase price himself, assigning as a reason that prior thereto he had purchased on his (B’s) order, and had drawn on him at sight for part of the purchase money, known as “margin,” and a time draft for the balance, which he (A) had procured to be discounted by the Bank of Commerce, in Buffalo, with a bill of lading as collateral; and the Bank was refusing to deliver the bill of lading until the time draft was paid; and he (B) was trying to get the bill of lading in that case, and suggesting to A to consign to his (B’s) “ care” instead of “notifying me.”
    HELD THAT
    (1.) A, upon the purchase, became the owner of the goods, with full power and authority to dispose of it as he saw fit.
    (8.) A, by his transaction with the Bank, transfered his title and ownership to the Bank,
    fl. BILL OF LADING.
    1. Special endorsement—effect of, as to the passing of-TITLE BY DELIVERY OF THE BILL OF LADING, OR BY ITS INDORSEMENT AND DELIVERY.

      (a.) Upon a bill of lading whereby wheat was shipped by A. consigned to 0, at the City of New York, to be delivered to. C or~ its order, on payment of freight and charges, C indorsed a letter. • directed to B, stating that the bill of lading, with insurance outlie same, were pledged to it (C), as security for the payment-, of an accompanying draft drawn on him (B!; and that the - property was placed in his (B’s) custody in trust for that purpose, and that it was not to be devoted to any other use until) the draft was paid; and that upon his (B’s) accepting and pay? ing the draft, its (C’s) claim would cease. C sent the draft t with the bill of lading attached to its correspondent at New.York, who presented the same to B, who accepted them,., and.. detached and retained the bill of lading and certificate of insurance annexed. B did not pay the draft.
    HELD,
    The property in the wheat did not pass to B.
    (5.)' On or shortly after the arrival at New York of the boat on which the wheat was shipped, but before its delivery to any consignee, B procured a sample thereof and sold the cargo by such sample at the Produce Exchange, to D, who knew that the cargo was afloat and had not been delivered to any consignee. B, by producing to the carrier’s agent the aforesaid bill of lading, prevented a delivery of the wheat to D.
    HELD
    The draft having been dishonored that D acquired no title to or property in th» wheat as against 0.
    III. USAGE, INADMISSIBLE.
    1. "PKOOF OF USAGE, WHICH WOULD AID B OB D TO MAKE TITLE
    TO THE WHEAT, IS INADMISSIBLE.
    Because it cannot be invoked to change the established rules of law, or to change or modify the express terms of the contract.
    Before Sedgwick and Speir, JJ.

      Decided June 25, 1877.
    Appeal from judgment entered on verdict in favor plaintiff.
    The action is in trover for the conversion of wheat.

      Evarts, Southmayd & Choate, attorneys, and Joseph H. Choate, of counsel, for appellants Logan and Preston.

      W. Howard Wait, attorney, and of counsel, for appellant Brown ; Fithian & Clark, attorneys, and Freeman J. Fithian, of counsel, for respondent.
    The points of counsel in this case, and in that of the same plaintiff against Brown & Atkinson, are too elaborate to admit of a condensation which will do them justice, and too lengthy to insert in full.
   By the Court.—Speir, J.

The verdict of the jury has established that the wheat came to the possession of the defendants, and that there was a conversion. The inquiry now is, to whom did the wheat belong when it came into the hands of the defendants, and when they refused to surrender it, upon demand of the plaintiff ?

Sears & Daw, the shippers residing and doing business in Buffalo, received an order from the defendant, E. S. Brown, a commission merchant engaged in business in the city of New York, and dealer in grain, to buy wheat for him, and ship it and advance the purchase price themselves. The shippers, not being furnished with the funds for the purpose, borrowed the money of the plaintiff. It is not open to question that they, having purchased it at Buffalo, and paid for it. with their own money, became iis owners with full power and authority to dispose of it, as they saw fit, although the purchase was at the request of Brown, their correspondent, and on his ultimate account. Had they after the purchase sold the wheat to any one living in Buffalo, or any where else, other than Brown, the vendee would have had title as owner. They made this purchase as principal vendees without disclosing to their vendor for whom they were acting. It will not be contended that Brown, at whose request the wheat was bought, at this stage of the transaction could have interfered with the power of disposition ; and it is not pretended but that the shippers could have transferred their ownership to him in New York. They undoubtedly expected their correspondent Brown would become a purchaser from them, and it is to be presumed that they bought from their vendor with that reasonable expectation.

Before the purchase was made it appears that Sears and Daw called upon the plaintiff and stated to its cashier that they had the order to buy the two loads of wheat at the price named, and asked if the bank would discount drafts at twenty days, drawn by them on the defendant, Brown, at New York, for an amount sufficient to pay for the grain, with the bill of lading, consigning it to the bank, as security. Upon obtaining the consent of the bank so to do, they made the purchase of a dealer in the city of Buffalo, of the two cargoes of grain in question, which was then in store in . an elevator in the City of Buffalo.

They then drew the drafts on their correspondent for the price, but they only agreed to deliver the wheat to the drawee upon the condition that the drafts should be accepted and paid. They shipped the wheat, but did not consign it to Brown, their correspondent, but consigned it to the cashier of the bank, and handed over to the bank the bills of lading as security for the drafts drawn against it. The bank discounted the drafts at the request of the drawers, and gave them a check for the proceeds, with which they paid for the grain so purchased. On the same day they caused the wheat to be laden on two canal boats, and the bills of lading made out and signed as to each boat, whereby the grain specified in each bill of lading was consigned to the plaintiff at the city of New York, to be delivered to the plaintiff, or its order, on payment of freight and charges, and ■ the correspondent Brown was directed to be notified by the carrier of its arrival. On the day of the date of the drafts the shippers advised Brown of the whole transaction, and sent him an account of the purchase. At the same time the cashier of the bank sent the drafts to the plaintiff’s correspondent in New York, the Bank of Commerce, with the bills of lading attached, and on them indorsed a letter addressed to Brown, stating in the most positive terms, that the bills of lading .with insurance on the same were pledged to the plaintiff, as security for the payment of the draft, and that the property was placed in his (Brown’s) custody in trust for that purpose, and that it was not to be diverted to any other use until the draft was paid ; and that upon his accepting and paying the draft the claim of the bank would cease.

The drafts with the documents annexed were presented to Brown, and he thereupon accepted them, and detached and retained the bills of lading, and the certificates of insurance ailnexed. Brown made no objections to these instructions.

Shortly after the arrival at New York of the boats on which the wheat was shipped, Brown procured a sample of the wheat, and sold the wheat by such sample at the Produce Exchange. At this time the wheat was afloat on the boat and had not been delivered to any consignee.

The cargo, which came by the boat “Frank J. Dorr,” was thus sold to defendants Logan and Preston. After this sale Brown, by producing to the agent of the carrier the bill of lading for the cargo on the “Dorr” with the aforesaid indorsement thereon, caused "its delivery to the purchasers Logan and Preston.

The position taken on behalf of the defendants is that the wheat having been purchased at the request of Brown by Sears and Daw as his agents, in Buffalo, he was the general owner of the property from the time of their purchase ; that Sears and Daw had only a special title, as factors, for their advance of the purchase money; and that the bank by the transfer of the bill of lading to it acquired only such special title as pledgee, and upon its voluntary surrender to Brown he was vested with title as general owner, and discharged from any claim of the bank. In my opinion this position cannot be sustained, and has no foundadation in law or fact.

Before the wheat was purchased and after Brown’s requests to buy, he wrote to the shippers in substance asking them not to draw for any “margin” at sight, but to advance the whole purchase price themselves, assigning as a reason that prior thereto they had purchased one or more cargoes oí grain on Brown’s order and had drawn on him at sight for part of the purchase price known as “margin” and a time draft for the balance, which they, S. & D., had procured to be discounted by the Bank of Commerce in Buffalo, with a bill of lading of the grain as collateral, and that the bank was refusing to deliver the bill of lading to Brown until the time draft was paid, and he, Brown, was trying to get possession of the bill of lading in that case, and suggesting to S. & D. to consign grain to his “ care ” instead of “ notifying me.”

Now, as it is clear that as to whether the property in the wheat passed to Brown, depends upon the answer which must be made to the question whether it was the intention of the shippers or the plaintiff, their successors in ownership, that it should pass before payment of the drafts, there can be no doubt what the answer must be. Up to the time Brown was informed of the purchase, and the whole transaction of the drawing of the drafts, and the bills of lading annexed, and' the presentation to him for acceptance, and the delivery of the bills, he had no relation whatever as owner of these cargoes of wheat. Whatever responsibility he assumed, arose only out of his act of acceptance as drawee of the drafts, and the voluntary assumption on his part to execute the trust. No intent to vest immediate ownership in the drawee of the drafts can be implied in the face of these express arrangements, and positive orders to the contrary. It was a clear case of bailment, utterly inconsistent with the idea of ownership in the bailee. “For the rule of law is general, that whatever a man’s real intention may be, if he manifests an intention to another party, so as to induce the other party to act upon it, he will be estopped from denying that the intention as manifested is his real intention” (Benjamin on Sales, 306 [London Ed. 1868]; Freeman v. Cooke, 2 Excheq. 654). Moreover, these bills of lading upon their face are prima facie evidence of an intention to reserve to the shipper the jus disponendi and prevent the property from passing to the drawee of the draft (Jenkins v. Brown, 14 Q. B. 496; Dows v. National Exchange Bank, 91 U. S. 618; Turner v. Trustees of Liverpool Docks, 6 Excheq. 543). An early case is reported in 3 Camp. 92, Barrow v. Coles, which bears great resemblance to the case before us. It was trover for one hundred bags of coffee. N. and F. at Demarara, drew a bill of exchange upon one Yoss in London, payable to their own order, and indorsed it to the plaintiff, at the same time annexing to it a bill of lading of the coffees in question, with an indorsement upon it making them deliverable to Yoss if he should pay the draft, if not, to the holder of the said draft. The bill of exchange and the bill of lading being sent to Yoss he accepted the former and detached the latter from it. He then indorsed the bill of lading for a valuable consideration to the defendant, but he did not-pay the bill of exchange. Lord Ellen-borough held that the special indorsement on the, bill of lading ought to have made the defendants inquire whether the condition on which the coffees were deliverable to Yoss had been fulfilled, and that after the dishonor of the bill of exchange the property in the coffees vested in the plaintiff.

There was abundant evidence in this case apprising the defendants of their duty to inquire for Brown’s authority and power to give title to the wheat. Their broker knew that it was “Milwaukee No. 2,” that it was then afloat on a canal boat, and had not then been delivered to any consignee (Dows v. Perrin, 15 N. Y. 325 ; Bank of Toledo v. Shaw, 61 Id. 283).

The plaintiff then being the owner of the wheat when Sears and Daw undertook to ship it to the defendant Brown, and when he received it, and converted it to his own use by a sale to the co-defendants, the right of the plaintiff to recover cannot be controverted. Brown could not divest it of the ownership. He held the wheat in trust for an express purpose, and the other defendants had, from, all the circumstances of the case, abundant notice to put them upon inquiry.

It is not disputed that where there are circumstances in effect pointing, in different directions, some indicating an intent to pass the ownership at once, notwithstanding the bill of lading, it becomes a question for the jury whether the property has passed. In this case I cannot find any facts disclosed to rebut the intent to retain ownership on the part of the bank. The bills of lading with their indorsements, and the written instructions, to hold the whéat till payment of the drafts, are not even subject to any interpretation or construction other than they bear on their face. There was no evidence received or offered tending to show any other intent. The circumstances relied upon by the defendants as tending to show that the property of the wheat vested in Brown, are not entitled to- the significance attributed to them.

The defendants very properly were not allowed to prove or avail themselves of any alleged usage or custom of business among grain dealers in New York, or in the Produce Exchange, which would aid them to make title to the wheat. The evidence would be immaterial and incompetent, because such usage or custom could not be invoked either to change the established rules of law, or to change or modify the express terms of a contract. Here there was an express contract between the parties, which was neither ambiguous nor uncertain, and such evidence could not be resorted to. In our opinion there is no good ground for complaint against the rulings of the learned judge on the trial, and the exceptions must be overruled. The judgment must be affirmed with costs.

Sedgwick, J., concurred.