author: By the Court.—Curtis, J. Blackburn, J., Mellor, J.,

text:
    WILLIAM SANDER and CHRISTOPHER C. EARL, Plaintiffs and Appellants, v. GEORGE M. HOFFMAN and SOPHIA HOFFMAN, Defendants and Respondents.
    RESTRICTION OE TRADE.
    Contract op sals op business, and good-will op the same, and
    COVENANTS TO ABSTAIN PROM PROSECUTING LIKE BUSINESS WITHIN CERTAIN LIMITS.
    The defendants sold the good-will of a provision business, at 228 Third avenue, to plaintiffs, and covenanted with them that they would not engage in a similar business, for five years, within certain limits. Within the stipulated time, defendants resumed and engaged in a like business at 805 Sixth avenue, beyond the limits prescribed. Some of their former customers residing within the prescribed limits sought them in their new place of business, and solicited them to supply them with meats, &c., and they did so, sending their agent or messenger every day to their houses, situate within the limited district, to receive orders and afterward s'filling the orders given. The orders were not originally sought or procured by defendants, but proceeded from the customers.
    The plaintiffs claimed this to be a breach of the covenant of defendants.

      Held, by this court, that the acts of the defendants did not constitute a breach of said covenant.
    Such contracts are upheld only when it appears that the public interest or convenience will not he prejudiced. The public comfort and welfare are the controlling considerations. A construction or decision that would make defendants liable under the circumstances in this case, would he harsh and unjust. It would be an unwise interference with the usual course of business and trade, and the requirements of public convenience and comfort, which should never be prejudiced by contracts imposing restraints upon traffic.
    The following cases reviewed and approved : Lawrence v. Kidder, 10 Barb. 641; Smith; Smith, 4 Wend. 468; Turner v. Evans, 2 Bilis & Blackburn, 512; Lee v. Ebrhardt, 19 Law Times N. S. 637

      Before Curtis and Speir, JJ.

      Decided May 3, 1875.
    Appeal from a judgment in favor of 'defendants, and from an order denying plaintiffs motion for a new trial upon the minutes.
    This action is to recover five thousand dollars liquidated damages for breach of covenant.
    The defendant George M. Hoffman by bill of sale, dated May 1, 1871, for three thousand five hundred dollars, sold to plaintiff the good-will of the butcher, and fish, and vegetable, and provision business, carried on by him at 338 Third Avenue, Hew York City, and also leases of the premises and utensils there. And both the defendants, in consideration thereof and for one dollar, by virtue of a separate instrument dated May 1,1871, covenanted that they would not, either jointly or severally, as agent or principal, engage in or carry on any similar or competitive retail butcher, and fish, and provision business for five years in certain limits in said city, under five thousand dollars liquidated damages, and Mrs. Hoffman bound her own estate to pay that sum in case of her own default.
    The plaintiffs then entered upon the premises and conducted the business. It was the purpose of the vendor to go to Germany. He went to Europe, and returned in the fall. In June, 1873, he opened business as a retail dealer in “butcher’s meat, vegetables, and provisions,” at a store Ho. 805 Sixth avenue, beyond the specified limits.
    During the period limited, by the agreement, the defendants, in a few instances,- sold-and delivered meat to three or four of his old customers, within the restricted limits. When the meat was sent, the carrier would bring back a new order which would be supplied. The defendants testified, that these persons applied to them for meats, without any solicitation or procurement on their part. It appeared that the defendants when they sold out, had recommended their old •customers to purchase from the plaintiffs, and that in two or three of the instances complained of, the. customers had become dissatisfied with the plaintiff’s meats, had resorted to other dealers, and ultimately applied to the defendants who then sold to them.
    The defendants claimed that these supplies were furnished as a favor or personal accommodation to the applicants, and that it was in no sense an engaging in, or carrying on a similar or competitive business. The defendants’ shop or place of business, where they kept their meats and attended to their occupation, was about, half a mile outside of the prescribed limits. There was conflicting testimony, as to whether the defendants’ went within those limits and solicited the trade and custom of persons who had previously dealt with them. The plaintiffs requested the court to direct a verdict in their favor. The court refused, and they •excepted.
    The court charged, that the defendants could not •engage in a business similar to that which was previously carried on within the restricted limits ; that is, that the defendants had no right to go within those limits, and then solicit and procure the custom and trade of persons who had previously dealt with them at their place there.
    The court then instructed the jury that they were to pass upon the question of fa,ct arising from the conflicting evidence as to whether there was such solicitation or procurement on the part of the defendants. That if they found that the defendants at any time after the sale to the plaintiffs went by themselves or their agents into the prescribed limits, and there solicited or procured orders for meat, &c., to be sent from their establishment or store in the Sixth avenue, between Forty-fifth and Forty-sixth streets, and that the defendants received and filled such orders and sent in pursuance of them their meats to the persons from whom they had thus procured such orders, it was within the meaning of the contract a competitive business, and a breach of the defendants’ covenant.
    But if they found that they did not go into the prescribed limits and procure such orders, but that the persons within such limits voluntarily and without solicitation of defendants gave them orders (and whether they gave their orders within such limits or otherwise was immaterial), the filling of such orders was not a breach of the covenant.
    That to be a breach of the covenant, it must appear that the defendants solicited the custom of persons residing within the prescribed limits; not that such persons came to the defendants or saw them, or either of them, within the limits, and gave them orders. If it was voluntary on the part of the customers, and not the result of solicitation on the part of the defendants, then, although the defendants filled their orders, it was no breach of their covenant.
    That if they found there was such a solicitation on the part of the defendants, then their verdict must be for the plaintiffs, and that the only amount they were authorized to give was the full amount of the liquidated damages agreed upon between the parties, namely, five thousand dollars.
    The plaintiffs excepted to that part of the charge in which the court instructed the jury, that the defendants had a right to fill orders within the prescribed limits, if customers came to them voluntarily.
    The jury asked this question of the court: "Is the sending of an agent every day to the houses in the limited district to take orders, and filling them, a competitive business, or soliciting the same 1 ” The answer of he court was, “ In the construction I have given to the contract, it would not be. The orders must have originally been procured by the solicitation of the defendants. If they proceeded from the customers, and not by the procurement of the defendants, it was not a breach to fill them. To this, the plaintiffs excepted. The jury found for the defendants.

      Charles H. Smith, Jr., for appellants.

      A. F. & W. H. Kireheis, attorneys for respondents; John L. Mill, of counsel.
   By the Court.—Curtis, J.

From wise considerations of public policy, contracts imposing a restraint upon trade throughout an entire state or county are held void, but this rule is sometimes relaxed as to small districts or towns, when it appears that the public interest or convenience will not be prejudiced. The public comfort and welfare are the controlling considerations (Lawrence v. Kidder, 10 Barb. 641). In the present case no question arises as to the validity of the restraint.

In Smith v. Smith (4 Wend. 468), where a physician bound himself in a penal sum for ten years, not to reside or practice within six miles of a certain village, and had removed seven miles therefrom, and it was shown that he practiced for two months in and around the village during the period, and claimed the right to do so at any time, it was held a breach of the bond. The mere removal of his residence beyond the restricted limits, does not appear to have been considered a compliance with the covenant, but it was construed to extend to a prohibition of a resumption of practice therein. The question was not before the court as to whether, if in three or four instances, old patients had sought his attendance, and he, as a matter of kindness or personal consideration for them, had attended them, that would constitute a breach of the bond.

This question is what we now have before us. There is no dispute but that, in a few instances, the defendants supplied meat to old customers, within the limits; and the jury, in effect, find that this was not done at the solicitation or procurement of the defendants. The defendants’ place of business was outside of the restricted limits. Can we establish the rule, that the obligor in this common species of obligation, who in a large town removes his place of business, in conformity to it, is to be held to have violated it, if subsequently by chance in the current of business at his shop, or as a matter of favor or accommodation, and with no procurement or seeking on his part, he supplies some articles to three or four of his old customers in the forbidden territory % This would be a harsh construction, and one which, the courts have avoided giving to this covenant. It would be an unwise interference with the usual course of business, and the requirements of public convenience and comfort, which . latter can never be prejudiced or made secondary by contracts imposing restraints upon traffic.

In the case of Turner v. Evans (2 Ellis & Blackburn, 512), where the vendor of the business of a wine merchant covenanted, “that he would not set up, embark in, or carry on the business in certain limits,” and removed his place of business outside of the limits,' it was held, that the systematic soliciting and supplying orders within the limits in fifty instances, was a breach of the covenant. Says, Lord Campbell, C. J.: “If done now and then, to oblige an old customer, or the like, it would be no breach of the contract, for that would not be carrying on business ; but it was done on system.” Earl, J., concurred. Compton, J. : “I think the question was one of fact. Was he doing this on system ? For he would not be carrying on business, if he did it only now and then.”

The view of the court of Queen’s Bench seems to confine the question, as to whether the soliciting orders and supplying was done as a system, and to hold-that where it was done, as appears in the present case, now and then to oblige an old customer, it was no breach.

When the question between these parties was before the court of chancery (2 De Gex, M. & G. 740), the application for an injunction was denied, the court appearing to consider the removal of the place of business as the substantial requirement of the contract, and to be reluctant, from regard to the public interest, to enforce a restraint upon the general freedom of soliciting orders, or to sustain any interference in conveying of intelligence to the public of opportunities and requests to make purchases in the ordinary course of trade.

In Lee v. Ehrhardt (19 Law Times N. S. 637), it was held, that occasional assistance of the vendor rendered by him to his daughter, was not a breach of the cove-nan t ‘ ‘ not to take, keep, or be concerned in any public house within the prescribed distance of the one sold.

Blackburn, J.,

charged the jury that the question was one whether defendant acted in good faith as a matter of kindness; but if they were of opinion that his conduct was in the nature of a juggle, to find for the plaintiff. The defendant had a verdict. On a review of the question, Cockburn, Ch. J., considered that the covenant must be taken to mean, that he shall not be concerned in any public house, so as to be interested in it; that is, have any share in its profits, or any interest in it that could prejudice the' other party to the cove na-nt. Blackburn, J., concurred.

Mellor, J.,

stated the interest must be such at. would induce the person having it, to support one pub' lie house, and to prejudice the other. Casual assistance in carrying on business is not a breach. To hold so would be a very harsh construction. Hats, J., concurred.

Applying the construction given to the covenant in the last two decisions to the one under consideration, which is substantially the same, it will appear that the plaintiff failed at the trial to establish the breach of the covenant complained of, and that the defendant’s exceptions can not be sustained.

There are substantial reasons why such construction should be given. It is reasonable, and in comformity to the interest of the parties, and to what is due in this class of obligations to the public welfare.

The judgment appealed from, and the order denying the motion for a new trial should be affirmed, with costs.

Speie, J., concurred.


source: Caselaw Access Project

author: By the Court.—Curtis, J.

license: Public Domain

text:
    FRANCIS C. WIREMAN, Plaintiff and Apellant, v. REMINGTON SEWING MACHINE COMPANY, Defendant and Respondent.
    OFFER OF JUDGMENT—PRACTICE THEREIN.
    Defendants on the 4th of November, 1874, offered to allow judgment to be taken against them for seven hundred and fifty dollars, with interest and costs, which offer was not accepted, and defendant afterwards answered, contesting plaintiff’s claim for all sums beyond the said seven hundred and fifty dollars.
    Plaintiff moves for an order that the defendant pay to him the amount of said offer.
    Held—That since the amendment of § 244 of the code (in 1857), such an application has been and should be granted.
    This is a substantial right when the answer “ admits part of the plaintiff’s claim to he just,” and in conformity to § 244 of the code; it being in the nature of a right to a judgment, and, therefore, no question arises as to whether a party can appeal from an order affecting it.
    Before Curtis and Speir, JJ.

      Decided May 3, 1875.
    Appeal from an order of special term.
    The plaintiff, in his complaint, alleges that he made, furnished, and delivered to the defendants certain sewing-machine covers, drawers, tables, &c., for which the defendants agreed to pay him one thousand two hundred and fifty dollars.
    The answer admits the making and furnishing of the same articles, but sets up that they agreed to pay plaintiff therefor seven hundred and fifty dollars, and no more, and that they have always been ready and willing, and have repeatedly offered to pay the plaintiff said sum of seven hundred and fifty dollars, but the plaintiff has refused to accept the same.
    The defendants have also offered to allow plaintiff to take judgment for said sum of seven hundred and fifty dollars, with interest and costs, but the plaintiff did not accept the same.
    The plaintiff in his complaint also alleges that he did certain other work, and furnished certain other material for the defendants, of the value of forty-one dollars and ten cents, which the defendants deny.
    A motion under section 244 of the code was made by the plaintiff at special term, that the defendants pay said sum of seven hundred and fifty dollars to him with interest, &c., which motion was denied, and the plaintiff appealed.

      Jno. J. Lindsay, for respondent.

      Wm. G. Bussey, for respondent.
   By the Court.—Curtis, J.

In the case of Smith v. Olssen (4 San. 711), decided in 1852, it was held that the court would not make an order like that applied for here, where the defendant before answering served the plaintiff with a written offer, allowing the latter to take judgment for the part of the claim so admitted. But the reason which the court assigned for this refusal was obviated by the amendment of section 244 of the code in 1857, and since then it has been the practice to grant the application, although an offer has been made and rejected. When the justice of a part of the plaintiff’s claims is admitted, both by the answer and by an offer to submit to a judgment, an additional reason exists for extending the remedy granted by the legislature. A refusal is in substance saying, to the plaintiff, you shall have nothing of what the defendant admits belongs to you until the end of the litigation (Duncan v. Ainslie, 26 Barb. 201; Roosevelt v. N. Y. & H. R. R. Co., 45 Barb. 554; Guiet v. Murphy, 18 How. Pr. 411).

In the present cause there is no splitting up of the cause of action, as the admission in the answer relates only to the making of the sewing machines, for which one thousand two hundred and fifty dollars is claimed as due by the plaintiff, and for which the defendant admits seven hundred and fifty dollars to be due. There appears to be no just reason why this amount of seven hundred and fifty dollars should be withheld from the plaintiff, which.the defendant concedes is due to him, and about which there is no manner of controversy, and the payment of which to the plaintiff can in no way prejudice the right of either party in proceeding by legal steps to determine the real matters in controversy between them. To hold otherwise would defeat the right of a party to the relief afforded by this wise "and equitable provision of the law.

This right is a substantial right, when the admission in the answer “ admits part of the plaintiff’s claim to be just” in conformity to section 244 of the code, it being in the nature of a right to a judgment, and no question arises as to whether a party can appeal from an order affecting it.

The order appealed from should be reversed with costs of appeal to the appellant, to abide the event of the suit.

Speir, J., concurred.


author: By the Court.—Curtís, J.

text:
    EDWARD M. WORDEN, Plaintiff, v. THE GUARDIAN MUTUAL LIFE INSURANCE COMPANY OF NEW YORK, Defendant.
    The policy of insurance in this case, designated the first days of March and September as the time for the payment of the semi-annual premiums, and then proceeds to declare that the premiums shall be paid on or before the days upon which they become due, or within thirty-five days thereafter. It then provided that in case of a violation of any of its provisions, it should become null and, void. It also contained a provision, that from the amount paid in case of death, there should be deducted the balance of the year’s premium, and all indebtedness of the assured.
    It also contained a provision for the issue to the assured of a paid-up policy, for a pro rata amount of the whole amount insured, in case the assured discontinued payments of premiums after the payment of the first annual premium. The policy also had printed prominently on its face the words, “Non-forfeiting life policy.”
    The assured paid two semi-annual premiums on this policy that became due, to and including the 1st day of September, 1873.
    The premium due on the 1st of March, 1874, was not paid on that day, but was paid on or about the 24th day of March, 1874, by the plaintiff, brother of the assured, under the following circumstances. On the 31st or 33nd day of March, 1874, the brother of the assured received a letter from him (then residing in Virginia) requesting him to send to the company the amount of the semi-annual premium due on the 1st of March, 1874, before the, expiration of the thvrty-fime days from the 1st of March,, 1874. Before the premium was paid in pursuance of said letter, and after the said brother had received a telegram announcing the death of the assured, and on the 34th day of March, 1874, the said brother in pursuance of the request in said letter, sent by mail to the company, the semi-annual premium, due March 1, 1874, but without notifying the company of the death of the assured, and the company gave a receipt for the same without knowledge or information of the death of the assured; but afterwards and on the 31st of March, 1874, the company wrote to the said brother that “the death having occurred while the premium was unpaid, the policy is not binding on the company, and the premium remitted on the 34th is held subject to your order, or of the legal representatives of George P. Worden ” (the deceased and assured).
    The court held in this case, that an omission to pay the premium on this policy at the day provided therein, violated no condition of the policy, until thwlyy-fhe days thereafter had elapsed.

    The insurance was in full force and effect for six months and thirty-five days after the 1st of September, 1873, without the payment of any further or additional premiums than had been paid, and the assured was protected during that time, and the defendant would have been liable on the policy if the premiums had not been paid at all (the assured died before the expiration of this time).
    That the payment was made in accordance with the instructions of the assured, during his life-time, and there was no bad faith on the party acting for the assured, in complying with his request, and no undue delay in the payment in view of the time in which he had to comply with the terms of the policy.
    The right to pay in this case was not personal to the assured, and could be delegated by him to, and paid by another. On this last point (Want v. Blunt, 13 East. 183 ; Howell @. The Knickerbocker Life Ins. Go., 44 K T. 381; and Tarleton e>. Stanforth, reviewed and considered).
    Judgment rendered against the company defendant for the amount of insurance provided in the policy.
    Before Monell, Ch. J., and Curtis and Speir, JJ.

      Decided May 3, 1875.

      The controversy is presented in a case agreed upon, and submitted without action, pursuant to § 372 of the code, and which is as follows :
    Edward M. Worden claims to recover of the Guardian Mutual Life Insurance Company of Mew York the sum of two thousand dollars and interest thereon from the 2d day of August, 1874.
    The following are the facts upon which the said controversy depends:
    I. That on the 17th day of October, 1872, the said company, which then was, and still is, a corporation duly organized under the laws of the State of Mew York, for the purpose of carrying on the business of life insurance, and has a place of business in the cir,y of Mew York, issued to one George P. Worden a policy of insurance on his life, of which the following is a copy :
    “THE GÜAED1AM.
    “Mo. 33.435 Age 25.
    “Mutual Life Insurance Company,
    “Amount, $2,000. of Mew York.
    “ Mon-forfeiting Life Policy.
    “ This policy of insurance, witnesseth that the Guardian Mutual Life Insurance Company of the City of Mew York, in the State of Mew York, in consideration of the surrender of policy Mo. 1711 in the Mew York State Life Insurance Company of Syracuse, M. Y., and of the representations and agreements made in the application of George P. Worden for said policy of insurance on the life of himself, and of the sum of thirty dollars and twenty-four cents paid said first mentioned company, and of the semi-annual payment of a Hice amoxint on or before the first days of March and September in every year for the term of five years, or during the continuance of this policy, at the office of said first mentioned company in the city of Mew York, or to their agents as hereinafter provided,
      do insure the life of George P. Worden, of Fulton, in the county of Oswego, and State of Mew York, in the sum of two thousand dollars, for the term of 'Ms-natural life.

    “ And the said company do hereby promise and agree to pay the amount of the said insurance at their office, in the city of New York, in lawful money of the United States, to the assured under this policy, his-executors, administrators or assigns, in sixty days-after due notice and proof of death of the said person whose life is hereby insured, the balance of the year’s premium, if any, also the amount due on all notes-given for premiums hereon, and all indebtedness of the insured to said company, or said Mew York State Life-Insurance Company, being first deducted therefrom.
    “And it is agreed by said company that in case the assured shall elect, after the payment of the first annual premium stipulated to be paid hereon, to discontinue further payments, then said company will issue a paid-up policy for a. pro rata amount of the-whole sum insured upon a surrender of this policy while in force, to wit: two hundred dollars, for each and every annual premium paid hereon during the-life of the person hereby insured to this company, and to the Mew York State Life Insurance Company upon-said policy No. 1711, for which this is substituted.
    “This policy is issued, and is accepted by the insured, and by the holder hereof on the following express
    “ Conditions and Agreements.
    “First. That these statements, declarations and answers made in the application for policy Mo. 1711. issued by the Mew York State Life Insurance Company, and in the faith of which it is issued, which application is made a part of this contract, are warranted to be in all respects true, and without the suppression or concealment, of any facts directly or indirectly relating to the health of the insured.

      “ Second. That the premiums shall be paid on or before the days upon which they become due, or within thirty-five days thereafter, at the office of said company in the city of Mew York, or to their duly authorized agents, only when they produce receipts signed by the president or secretary.
    “ Third. That the said insured shall not, without the consent of said company previously obtained in writing, personally engage in the production of highly inflammable or explosive substances, or in the manufacture of gunpowder or fireworks, or as engineer, fireman or brakeman upon any railroad, or as engineer or fireman upon any steamboat, or enter into any active military or naval service, whatever.
    “ Fourth. That agents of the company can not alter or waive any of the conditions of this policy, nor change the time for the payment of premiums or notes, nor grant permits.
    “Fifth. That if this policy shall be assigned or held as security, written notice shall be given to said company, and due proof of interest submitted with the proofs of death.
    “ Sixth. That in case of the violation of any of the foregoing conditions, or of any of the conditions or agreements contained in the application aforesaid, or of the assured dying by his or her own hand, or by delirium tremens, or in consequence of a duel, or in violation of the laws of the United States, or of any ¡Nation, State or Province, or in case the insured shall be convicted of a felony, this policy shall become null and void.
    “ Seventh. That should this policy become null and void by reason of the violation of any of the said conditions or agreements, all payments made thereon shall be forfeited to said company.
    “In witness whereof the said (Guardian Mutual Life Insurance Company have, by their president and secretary, signed and executed this contract, this seventeenth day of October, one thousand eight hundred and seventy-two, but the same shall not be binding until countersigned by Adin W. Davis, agent at Syracuse, N. T.
    “Lucius McAdam, And. W. Gill,
    “ Secretary. President.
    “ Countersigned at Syracuse this 24th day of October, 1872.
    “A. W. Da vis. Agent.
    “ Note.—All endorsements on this policy, to be valid, must be signed by the president or secretary.
    “ Special Notice to Policy Holders.

      ‘■'•Payments of Premiums.—Premiums may be paid to an agent, bub only on the production of a receipt signed by the president or secretary, who are alone authorized to sign receipts on the part of the company. When receipts are delivered to a policy holder by an agent, such agent should countersign the same as an «evidence of payment to him.
    “Agents are not authorized to receive any premium on the part of the company, unless they shall have been furnished with a receipt therefor, signed by the president or secretary, as no payment made to an agent without such receipt being given in return by him, is considered valid by the company.
    “ Should any policy holder tender payment of a premium to an agent, for which no receipt has been furnished, the following conditional receipt may be given by the agent, and no other:
    “Conditional Receipt.
    “ Received 187 from $ stated to be the amount of a premium due this day on Policy No. issued by the Guardian Mutual Life Insurance Company upon the life of for the sum of $ and in the favor of Said alleged premium is to be held by the undersigned until application can be made to the company to accept the same, and forward their receipt. If such receipt be forwarded, this conditional receipt is to be exchanged therefor; if the company’s receipt be not forwarded, the money is to be returned and this conditional receipt cancelled.
    “(Signed) J. D., Agent.
    “ Powers of Agents.—Agents are not authorized to make, alter or discharge contracts, waive forfeitures, name an extra rate for special risks, or bind the company in any way ; their duties being simply the reception and transmission of applications for policies and premiums, under the rules and instructions laid down in their letters of appointment.
    “Agents of the company are not, under any circumstances, authorized to write the receipt of premiums, or make any indorsement whatever on the policy.
    “ Restoration of Forfeited Policies.—The company may, but solely as an act of grace or courtesy, and when the interest of the company will not be impaired in any way thereby, restore a forfeited policy. When a restoration is applied for, the application must invariably be accompanied by a certificate as to the health of the person whose life was insured, and at his expense, from a physician acceptable to the company The agent forwarding such application will then be notified of the decision made in the case.
    “In all cases of restorations of forfeited policies, and in all cases where the premium is received after the day on which it becomes due, although the policy may not have been formally cancelled on the company’s books, the renewal or the revival of' the policy, in whatever form made, will be in accordance with the decision of the commissioners of internal revenue, subject to stamp tax, the same as if a new policy had been issued.

      Alteration of Policies.— Changes in the manner of paying, premiums (as from yearly to half yearly or quarterly, or the reverse) can only be made at the end of ay ear, dating from the commencement of the policy ; and when such a change is desired by a policy holder, the policy must be forwarded to the office of the company for the requisite indorsement.
    “A change of interest in a policy, can only be made on the written request of the legal owner of the policy, and with the consent of the company.
    “ Assignments.—A wife can not legally assign a policy drawn in her favor.
    “ When a policy is issued to a person on his own life, and afterward assigned by him for a ‘ valuable consideration,’ written notice of such assignment must be given to the company for registration on its books.
    “All assignments, to be valid, require a revenue stamp, equal in value to that on the policy, and the cost of such stamp must be borne by the policy holder.”
    IT. That thereafter the plaintiff, at the request and for the benefit of the insured, paid the semi-annual premiums thereon as follows :
    The semi-annual premium due thereon on the first day of March, 1873, and payable as therein provided, was paid and accepted on the third day of April, 1873, and the semi-annual premium due thereon on the first day of September, 1873, and payable as therein provided, was paid and accepted on the 25th day of September, 1873; that the semi-annual premium due on the first day of March, 1874, and payable as therein provided, wms not paid on said first day of March, 1874, but that on the 21st or 22d day of March, 1874, the plaintiff, who resides at Fulton, New York, received a letter from the insured, his brother, who was then at Saltville, Virginia, requesting him to send the company the amount of the semi-annual premium due on the first of March, 1874, and payable as in said policy provided, before the expiration of the thirty-five days from the first of March, 1874.
    III. That on the 24th day of March, 1874, said plaintiff received a telegram, informing him of the death of the insured.
    And that on the same day, being the day on which the assured died, but after his death, and after the reception by said plaintiff of the said telegram announcing the death of the insured, the said plaintiff, pursuant to the previous request, sent by mail to the company the amount of the semi-annual premium due •on March 1st, 1874, and payable as therein provided, without notifying or informing the company of the ■death of the insured, and that thereupon the company gave a receipt for the same, without knowledge or information of the death of the insured, or anything to put them on inquiry.
    That on March 31st, 1874, and after the payment of the premium as above stated, the company wrote the plaintiff, that “the death having occurred while the premium was unpaid, the policy is not binding on the company, and the premium remitted on the 24th is held subject to your order or of the legal representatives of Geo. P. Worden.”
    IV. That the insured died intestate at Saltville, Virginia, March 24th, 1874, from causes other than those excepted by the terms of the policy.
    V. That on April 28th, 1874, W. A. Stuart was “at a circuit court held in and for Smyth county, Virginia,” duly appointed administrator of the goods and chattels of the said George P. Worden, deceased, and duly qualified as such.
    That on June 2, 1874, due notice and proof of the death of said insured was given to said company .
    VI. That on November 16th, 1874, W. A. Stuart, as administrator aforesaid, for value duly assigned and transferred to plaintiff, of Fulton, New York, said policy of insurance, together with all causes of action thereunder, and that said Edward M. Worden now owns and holds the same.
    VII. That the company has not paid the sum of two thousand dollars, agreed to be paid by the terms of said company’s policy, and that they refuse to pay the same or any part thereof. .
    The question submitted to the court upon the case is as follows:
    Is the company under this policy liable for the amount of the insurance ?
    If this question is answered in the affirmative, the judgment is to be rendered in favor of the plaintiff, and against said company, for the sum of two thousand dollars ($2,000),- and interest from August 20th, 1874, with his costs.
    If answered in the negative, judgment is to be rendered in favor of said company for their costs.
    None of these admissions herein contained are in any wise to affect either party, or to be regarded -as made except for the purpose of this submission of this controversy.

      Childs & Hull, attorneys for plaintiff, and Daniel B. Childs, of counsel.

      Miller, Peet & Opdyke, attorneys for defendant, and Livingston K. Miller, of counsel.
   By the Court.—Curtís, J.

It will be observed that the policy in question differs in its phraseology and provisions from those that have usually been before the courts for consideration. It insures the deceased in the sum of two thousand dollars, for the term of his natural life, in consideration of the surrender of a pre-existing policy, and of the semi-annual payments of thirty dollars and twenty-four cents for the term of five, years. It also contains a provision for the issuing to the assured of a paid-up policy for a pro rata amount of the whole sum insured, in case he discontinues payments after the payment of the first annual premium.

The principal question presented, by the ease, agreed upon and submitted by the parties, is whether the policy was in force on the day when the assured died. The policy designates the first days of March and September as the time when the payments of premiums are to be made. It then proceeds to declare that the policy is issued, and is accepted by the assured upon the express condition and agreement “ that the premiums shall be paid on or before the days upon which they become due, or within thirty-five days thereafter.” The policy then provides that in case of a violation of any of its conditions it shall become null and void. The policy also contains a provision that from the amount to be paid in case of the death of the assured, there shall be first deducted the balance of the year’s premium and all indebtedness of the assured.

These provisions and clauses of the policy have to be considered and construed together to ascertain and give effect to the real intentions of the parties. There is no provision that the policy shall become void, if the payment of the semi annual premiums is not made on the first days of March and September, but it is provided that it shall become void if the premium is not paid within thirty-five days thereafter. An omission to pay the premium violates no condition of the policy until the thirty-five days have elapsed. There could be no forfeiture of the rights of the assured except in accordance with the terms of the policy. The defendants saw fit to issue a policy by the terms of which the insurance was in effect for six months and thirty-five days after September 1st, 1873, and containing no clause or intimation that the policy was to be annulled or made void by an omission to pay the premium before the expiration of that time. Under such circumstances it is but reasonable to suppose that the assured was to be protected during the thirty-five days. He had reason to consider that to be the true meaning and intent of this policy, and if the defendants desired a different ■construction, they should have inserted in their policy the provision that a failure to pay on the first day of September or of March forfeited the policy.

Forfeitures are only enforced when it is clearly shown that they were meant by the actual agreement of the parties. Nothing in the present case shows that the parties agreed that there was to be any forfeiture "before the expiration of the thirty-five days. If a life insurance company, with a view of attracting the public and promoting its own business, chooses to extend the period for the payment of semi-annual premiums through a period of thirty-five days, and to employ language tending to indicate that the risk is extended through the same period, or which might bear that construction, it is not just that its reasonable intendment should be defeated by an interpretation in favor of the insurers. When still further the insurers, as in the present instance, place prominently upon the face of the policy at its head the words "non-forfeiting life policy,” it is difficult for the courts to enforce harsh forfeitures, into which the unwary may have been innocently lured. Verba ambigua fortius accipiuntur contra proferentum, (Jackson v. Topping, 1 Wend. 394; Linden v. Hepburn, 3 Sand. 670; Baxter v. Lansing, 7 Paige, 353; Marvin v. Stone, 2 Cow. 781).

In this aspect of the case, the defendants would have been liable if the premium payable within thirty-five days from March 1st. 1874, had not been paid. It was, however, paid to the defendants on the twenty-fourth day of March following, by the brother of the deceased, under written instructions from the deceased conveyed to him from Virginia two or three days previous. The brother paid it on the twenty-fourth of March, the same day after he received by telegraph the intelligence of the decease of the assured.

The case as submitted shows no undue delay on the part of the person who made the payment, in view of the time in which he bad to comply with the terms of the policy.

It is claimed on the part of the defendants that this payment under the circumstances was unfair, and that the right to make it was personal to the assured, and could not be delegated, and that it ceased with his death.

The payment was by the instruction of the deceased, and reached the insurers after his death, as it might have done if the deceased had forwarded it by post or by a public carrier. There was no bad faith in complying with his request.

There is not much force in the claim that the right to make the payment was personal, and could not be delegated, and closed with his death. The language of the policy imposes no restriction as to who may make the payment, and is entitled to the same construction in favor of the assured as has been applied to the thirty-five days clause, and comes within the same principle. In the case of Want v. Blunt (12 East, 183) Lord Eilenborough based his ruling that the right to pay was personal to the assured on the provision of [the policy that the party whose life is insured should \himself pay during Ms life. But the present policy ban not be affected by decisions which, though apparently adverse to the plaintiff, will upon a careful examination be found to turn upon different language and restrictions. In Howell v. The Knickerbocker Life Ins. Co. (44 N. Y., 281) it is said in reference to a policy providing that the assured shall duly pay ” the premium, that such act could have been performed by any other person as well, and that “its payment did not. necessarily depend upon his continued capacity or existence.”

The case of Tarleton v. Stanforth (5 T. R., 695) cited by the defendants on the argument, as well as various other cases, and some of them seemingly favoring the defendants’ position, will be found on examination to turn upon admissions or policies differing from the one before us.

In view of the form of the policy, and the construction put upon that class of instruments by our courts, the language of which is that of the insurers, I think the defendants are liable for the amount of the insurance, and the plaintiff is entitled to a judgment therefor, with his costs.

Monell, Ch. J., and Speir, J., concurred.


author: By the Court.—Sedgwick, J.

text:
    DUNCAN McCOLL, et al., Plaintiffs and Respondents, v. THE SUN MUTUAL INSURANCE COMPANY, Defendant and Appellant.
    MARINE INSURANCE—POLICY, CONDITIONS OP—TOTAI LOSS.
    The facts in this case show the vessel upon a reef at Cow Bay od the coast of Cape Breton, a dangerous coast, at a season when there was the greatest probability of gales and destructive seasl and the vessel on the rocks under a high and precipitous clifl'l and confirm' the oral testimony that she could not have beeil taken off, and was a total loss, subject only to a chance that shl might survive the winter tempests and waves. This merl chance (which was sold at public auction) did not forbid thi conclusion that under this policy the loss was total. If the facts had been submitted to the jury, a finding contrary to this conclusion of the court would have been against a decided preponderance of the testimony.
    DEVIATION.
    The hark “ Lindo,” was insured for the voyage, “at and from Miramichi, to a port in (Jape Breton, and at and thence to (New York"

    The vessel sailed from Miramichi November 34th, 1864, bound for Big Glace Bay, a port in Cape Breton, having cleared at the Custom House in Newcastle (within which district Miramichi lies) for the port of Big Glace Bay, under a certificate from the collector to that effect, consigned to the agent of the Clyde Mines, at Big Glace Bay, to load coal at that port for New York under a writjen charter dated November 18th, 1864, by which the owner agreed with Halls & Creed, agents of the mines, that the said vessel should receive on board a full cargo of coal in bulk, which the charterers agree to furnish “at Clyde Mines, Big Glace Bay, C. B.,” and being so laden, to sail to New York, for three dollars and seventy-five cents, gold, per ton. By the charter it was also stipulated that “if on the arrival at Big Glace Bay, the captain does not consider it safe to remain and load, then he is to be at liberty to proceed elsewhere, and this charter to he considered cancelled.” On the evening of November 35th, the vessel having passed the North Cape of Cape Breton, and at ten o’clock p. m. Sydney light, then bearing west about three miles, the captain concluded to put into Sydney, a port in Cape Breton, and lying off and on till morning entered that port and anchored there November 36th. There was no storm or stress of weather which required him to put into Sydney. There the vessel remained sixteen days, until December 13th, when she sailed for Cow Bay, a third port in Cape Breton, and while loading there with coal for New York, a sudden storm drove her upon the rocks, constituting the alleged loss.

      Held, That the act of the master taking the vessel from Sydney, to Cow Bay (a second port of Capo Breton) was a deviation from the voyage for which she was insured.
    The master had a right to select a port of Cape Breton, but his right and the rights of the bark were exhausted by the use of one port. He could not enter one for the purpose of selecting another, or afterwards proceed to another port from the one first entered.
    If the nso of the first port was a part of the voyage, then the act of seeking and taking another was a deviation. If the first port was not a part of the voyage, then the act of seeking it was a deviation in itself. By the policy, it was also warranted, that the vessel was commanded by a captain holding a certificate from The American Shipmasters’ Association. The bark was not so commanded, hut this fact was made known to the insurers by the insured, and the policy made and delivered, and the premium paid upon the condition that this vessel was a foreign vessel, and it should not or would not apply.

      Held, that the insurers dispensed with such a certificate, and waived the same.
    Before Sedgwick and Speir, JJ.

      Decided May 3, 1875.
    Appeal from judgment for plaintiff on verdict direcd by the court.
    The action was upon a policy of marine insurance which insured the bark “Lindo,” “at and from Miramichi to a port in Cape Breton, at and thence to New York, with privilege of carrying coal exceeding her tonnage.”
    The bark sailed from Miramichi, on November 23 1864, for Cape Breton. There were several ports in Cape Breton, viz. : Cow Bay, Little and Big Glace Bays, Schooner Pond, Bridgeport, and Lingan, which were upon open roadsteads. Vessels loaded with coal at these ports ; but daring the winter months, it was dangerous to vessels to lie there, while waiting to load. Strong evidence was given to show that, at such time, it was the custom of trade and navigation that] vessels proceeded to the port North Sydney, where! the harbor was safe, and waited until they could b immediately' loaded at the unsafe ports with coal, an then went, were loaded and departed on the voyage.
    The “Lindo” was chartered at Miramichi, to take a cargo of coal at Big Glace Bay. The charter party had the provision, that “ if on arrival at Big Glace Bay! the captain does not consider it safe to remain and load! then, he is at liberty to proceed elsewhere, and this charter to be considered cancelled.” The captain was not, on the voyage, acquainted with the terms of the policy. The bark arrived off the North Cape of Breton, on November 25th about noon. It then began to snow in thick squalls. This continued until six o’clock in the afternoon. About eight o’clock in the afternoon Sydney Light was made. At about ten o’clock in the afternoon the captain tacked ship and lay off and on until morning, and at about five o’clock in the afternoon of November 28th, dropped anchor in the harbor of Sydney. In his protest lie stated that he went into Sydney “for the purpose of making a harbor, there being no safe anchorage either at Big Glace Bay or Cow Bay.” In his testimony he said that he went to Sydney for a harbor, that he did not know what kind of a place Big Glace Bay was, and did not like to go there with the vessel. In answer to a question by plaintiff, “ Did you go into Sydney for the purpose of obtaining a cargo of coal, or did you go into it as a port of safety?” he said: “ 1 went into it as a port of safety, but did not go in for the purpose of obtaining a cargo of coal.”
    The captain went to Big Glace Bay to find if it were prudent to take in coal there, but deemed it best to cancel the charter party, and then entered into a charter-party to take a cargo at Cow Bay. This was done promptly, but the. bark waited at Sydney for her turn at Cow Bay until December 12th. She. reached the wharf at Cow Bay on the 18th. On the evening of the-19th, a most violent gale arose and tore the bark from her fastenings. Her bitts were pulled out and part of her deck ripped up, and she was driven upon a reef of rocks, beating and thumping heav-ily. The main-mast, fore-mast, and mizzen top-mast went by the board with all the gear attached. She was driven to the foot of a perpendicular cliff, from sixty to one hundred feet in height. She received many other serious injuries. It was impossible, under the circumstances, to get her off the rocks, at that time, on account of her situation and the stormy character of the climate at that season. Some of the spars, sails, rigging, blocks, and stores, were removed from the bark to the shore, and they and the hull were sold by the captain at public sale for the aggregate gross sum of one thousand and seven dollars. The captain had to pay for stripping the vessel, two hundred dollars. In August of 1865, and after she had been still further injured, she was raised and taken to Sydney, where she was repaired at the expense of about ten thousand dollars in gold. The cost of raising her and towing her to Sydney was more than two thousand dollars in gold. She was not repaired until 1866.
    The policy contained a warranty by the assured, that the vessel be commanded by a captain holding a certificate from the American Ship Masters’ Association. The bark was a British vessel, and th.e master of it a British subject. The president of the company, when the plaintiff’s broker informed him before the taking out. of the policy of the facts in this regard, said to him, that this provision was not, applicable. There was no proof that the master had the certificate.
    On the evidence the defendants moved for anon-suit, but the court directed a verdict for the plaintiff, to which exception was taken.

      Joseph H. Choate, for appellants.

      Albert Matthews, for respondents.
   By the Court.—Sedgwick, J.

We must consider with the learned judge who directed the verdict, that at the time the bark was upon the reef at Cow Bay, she was totally lost under the policy. The character of the coast, the season, when there was the greatest probability of gales, and a destructive sea, the-situation of the bark on the rocks under the cliff, contain the oral testimony, that she could not then have been taken off'. At the best, there was a possibility that in the next season, she might be raised and removed. But in the meantime, how far she would be broken up by the storms and waves, was not certain, It was certain that, as the fact turned out, she must suffer more and more loss from time to time. It was not improbable that in the next spring, she could not be known as a vessel. The captain had no means of determining the event. It then being certain that before the vessel could be repaired, there must be a delay until spring to know whether or not she could then be moved, and it being just as likely, as not likely, that in the spring the only improvement in the circumstances would be that the weather and the sea would allow work to be done, but that then the vessel would have been broken up by the tempests and waves of the winter, there was at the time the bark went on shore, a loss, total to human calculation and obversations, subject to a chance, that there might be in the future enough left of her to permit her being moved. This mere chance, which was sold at public auction, was not a well-founded hope, that she could be repaired in the spring, and does not forbid the conclusion that under this policy the loss was total. If the question had been sent to the jury, and they had found that the captain was bound in November to have a reasonable hope that the bark would retain its character as a vessel through the winter, and until the calmer weather of the next year, it would have been against what seems to me to be the decided preponderance of the testimony on this point.

I, however, am of the opinion, that the master taking the bark from Sydney to Cow Bay was a deviation. She was insured to and at a port in Cape Breton. The owner or master had a right to select the port. The rights of the bark would be exhausted by use of one port. Even if it be granted that whatever (even another) port was by custom incidental to use of the selected port might itself be used, it is manifest that there was no right to enter one port, for the purpose of of selecting another port as the one at which the policy provided the insurers were to be liable, and to proceed to the other port. It was not meant that the liberty described in the policy might be enjoyed in full, in order to enable the master to select another port, with its additional risks. This would be using two ports in Cape Breton, the use thus made of Sydney not being by custom incidental to the use of the other. If such use of Sydney was part of the voyage, to take another port was a deviation ; if it were not, either geographically or by the custom of trade or navigation, then it was itself a deviation.

The testimony of the master is direct, that when he went into Sydney he had a purpose to take a cargo at either Big Glace Bay or Cow Bay, but had not made up his mind at which. He then used Sydney for a purpose which was not incidental to the use of another port. At the time, he had no knowledge of the terms of the policy, and had no regard one way or the other to its specific provisions. The fact was, he went into Sydney before he had selected another port to load at. The policy insured him at Sydney, but his departure thence to Cow Bay, and not to New York, was a deviation.

For the determination of the party’s right it is only necessary to see if the course taken was contemplated by the policy, and it is unimportant to see that the risks were increased. Yet we observe that Miramichi was but a short sail from Cape Breton, and the owner or master had full opportunity of determining, before sailing, at which port it was best and safest to load.

We do not mean to decide what is the construction of such a policy as respects its giving a right to elect the port, and then to use another port which prudent navigation and the custom of trade have made necessary or incidental to the use of the first. We have endeavored to show that Sydney was not thus used. But we further remark, that the supposed use of Sydney would only be justifiable or incidental to the use of a single port, theretofore selected. The use of Sydney would, under the policy, be the use of the privileged port. In the present case, no other port having been selected, the master when he entered Sydney, intending to go to Big Glace Bay or Cow Bay, as he should thereafter choose, in fact used Sydney as incidental to the purposes of trade at more than one port, until he in fact made his final choice.

It is not correct that the risks were in fact the same as if the insured had chosen, as he might have done, that port of loading which would involve the longest delay at Sydney. The contract, in giving the election to the insured, should not be construed absolutely in view only of a selection most unfavorable to the insurer. Beyond, however, the risks existing through this longest period, there was actually the risk that lasted through the time spent in examining the different ports before selecting one, be it that which involved the least or the most delay. In the present case the master was prompt, and examined but two ports. If his course can be justified on principle, the difficulty will be to find in other cases whether the time spent was necessary or not, to the due selection from not only two ports, but several more that are on that side of Cape Breton. It can not be said there was no more risk, for the one or two or three days then spent, might delay the vessel until the coming on of a destructive storm.

It would not change the conclusion to consider that Cow Bay was not a port. It was not within the port of Sydney. If the policy allowed only the use of that port, to depart from the direct voyage to New York was a deviation. I can not find any evidence tending to show that the bark was compelled to go into Sydney, by stress of weather or fear of disaster. She went in voluntarily for the convenience of the harbor only.

Under the evidence, I think the learned judge was right in holding, that the want of a certificate from the American Ship Masters’ Association did not prevent a recovery. There was but one inference to be drawn from the testimony on this point. The company dispensed with such a certificate, and received the premium after this. As we think there was a deviation, upon the present evidence, the judgment should be reversed, and a new trial ordered, with costs to the appellant to abide the event.

Speir, J., concurred.

       This case was before the court, and a new trial ordered, because of a failure to prove total loss. See 34 Sup’r Ct. Rep. 310.


text:
    EBENEZER S. B. BRIGGS and MARY A. BRIGGS, Plaintiffs and Appellants, v. THOMAS M. PARTRIDGE, et al., Defendants and Respondents.
    CORTRAOT, URDER SEAL ARD OTHERWISE, EXECUTED BY THEAGERTOF URKROWRARD ÜRRAHED PRIRCIPAL— EFFECT OF.
    In this state, many cases have been decided where it has been held, that when a contract not under seal has been made in . writing by a person apparently acting on his own behalf, his unnamed and undisclosed principal may sue, and be sued upon the same, although the contract was required to be in writing by the statute of frauds, but the principle and rule of these cases fail, in the case of a contract under seal for the conveyance of real estate. An unnamed and undisclosed principal can not be made liable for a breach of such a contract, nor compelled to perform the same specifically, nor can he enforce the same. See the able opinion of the court in this case, for the review of numerous decisions upon this question.
    Before Sedgwick and Speir, JJ.

      Decided May 3, 1875.
    Appeal from judgment dismissing complaint.
    This was an action for the specific performance by the defendants, the alleged vendees, of a contract for the sale of lands.
    The complaint averred that the plaintiff entered into an agreement in writing, ‘ ‘ with one L. P. Hurlburd, who was acting for, and under the authority of -the defendant, whereby these plaintiffs sold, and the defendants through said Hurlburd bought” a certain described price of land, “for the sum of seven thous- and two hundred dollars, which said sum the defendants, through their agent the said Hurlburd, agreed to pay as follows : one hundred dollars on the signing of the agreement of sale aforesaid, three thousand two hundred dollars by assuming a certain mortgage then subsisting .on said property, and the balance in cash, before the execution and delivery of a deed by these plaintiffs to the defendants ; ’’ that it was further agreed that the plaintiffs should deliver the deed, and that the defendants should accept the same, and pay the balance of the purchase money on the first day of February, 1874 ; that the defendants through said Hurlburd, paid on the delivery of the agreement one hundred dollars ; that on the said first day of February, 1874, the plaintiffs were “ready to carry out on their part the agreement aforesaid, by executing and delivering to said Hurlburd, for and on account of said defendants, a good and sufficient deed of the premises herein before described,” whereas the defendants wholly failed on their part to fulfill said agreement, or to take title to said property, but on the contrary refused, and they have ever since refused so to do; and the plaintiff demanded judgment that the defendants perform said agreement, and pay to plaintiffs the sum of three thousand nine hundred dollars.
    The answer contained a general denial of the allegations of the complaint.
    The action came on for trial at special term. Plaintiff’s counsel, in opening the case, said that the agreement on which the plaintiff relied was in writing ; that it was made by the plaintiff as vendor, and Llewellyn P. Hurlburd as vendee ; that the written instrument did not show but that Hurlburd was a principal party; that it was - signed and sealed by Hurlburd individually; that the name of defendant Partridge did not appear in the instrument, but that plaintiff would prove that the said Hurlburd was acting solely for and under the direction of Thomas M. Partridge, who paid, or caused to be paid, the first payment under the contract; that said Hurlburd was the agent and trustee of said Partridge in the transaction, and that, the authority given by Partridge to Hurlburd was oral.
    On their opening and on the complaint, the defendant’s counsel moved to dismiss the complaint on these grounds: 1st, that the facts stated in the opening and by the complaint did not constitute a cause of action ; 3d, that it was not competent to vary the terms of the written contract, by parol proof that the party who executed the same as principal was not a principal, but an agent.
    The plaintiff’s counsel asked leave to put in his testimony for the purpose of proving this cause of •action, and also of moving “if necessary for a reformation of the written agreement to enforce which the action had been brought.” The court refused to give this leave. The plaintiff’s counsel offered to prove that “Hurlburd was constituted, by parol, agent to ■enter into and execute the contract in behalf of the defendant Partridge ; that at the time the contract was made, the plaintiff did not know that Partridge was the real principal; that the plaintiff tendered a deed to Hurlburd, and did not at that time know that Partridge was the real principal.”
    Thereupon the complaint was dismissed, and exception taken.

      Edward D. McCarthy, for appellant.

      Wm. F. Shepard, for respondent.
   By the Court.—Sedgwick, J.

There can be no doubt that in this state many cases have considered it law, that when a contract not under seal has been made in writing by a person apparently acting on his own behalf, his undisclosed principal may sue and be sued thereon, and although the contract was required by the statute of frauds to be in writing. The reason of this rule, and the exceptions to it and its limitations, have not been much discussed. Another class of cases have held, that when the cause of action depends upon the written contract, oral evidence can not vary it so as to charge a person who is not a party to it, by proof that he was the principal in fact of the party to it. The reasoning had in Fenley v. Stewart (5 Sandford Sup’r Ct. 101) to support this conclusion has not been, as far as I know, disapproved by any case in the court of appeals. But, in my view, it is not necessary for us 'to decide that these cases required a reversal of the present judgment, because, 1st, the judgment below must be sustained by authority applicable to this particular case ; 3nd, the reason of the rule that sustains an action against an unknown or unnamed principal upon a contract in writing made by his agent, apparently in his own behalf, and affecting personal property, fails in the case of a contract for the conveyance of real estate.

Townsend v. Hubbard (4 Hill, 351), in the court of errors, sustains the present judgment. That case, like the present, had regard to a contract for the sale of real estate, under seal. The contract stated that it was made between certain parties of the first part by their attorney, as vendors, and the parties of the second part. The contract ended: “In witness whereof, the said. Harvey Baldwin, as attorney of the parties of the first part, and the parties of the second part, have hereunto set their hands and seals,” &c., and was signed, “ Harvey Baldwin, (l. s.).” It was held that this was not the contract of the principal (althougii Harvey Baldwin was authorized by them to make a contract for them, and in their names under seal), so as to make a valid contract under the statute of frauds. The argument of counsel called the attention of the court to the fact, that although the contract was under seal, yet it would have been valid without a seal; but the court’s decision implied that when the instrument was in fact sealed, no other part of the contract than the signature and seal could be looked to, to determine by whom it was made. The result of this decision, of course, forbids, in alike case, oral proof being given to show that although one person made the contract, so far as its contents were concerned, he in fact acted on behalf and as agent of another.

This gives great force to the fact of sealing, and a seal is often regarded as a mere form, having no intrinsic significance. It is not, however, a mere form, as the law stands, because if the contract were not under seal, an equitable action for its performance would cease after ten years, and an action at law based upon any promises to pay money contained in it would cease in six years. If it were sealed, there might be action upon some of its provisions during twenty years. It is not merely a formal rule that requires great certainty in regard to a cause of action that may last so long.

This case was not at all affected by Worral v. Munn (5 N. Y. 246). It was recognized as authority for the proposition that the contract was void within the statute of frauds, because it was not properly executed by the vendors or their agents. It was again referred to as establishing this in Burrell v. Root (40 N. Y. 496). In case of a contract not under seal, where the principal is named in the body, while it is signed by the agent individually, the contract has been inferred against the principal (Pinckney v. Hagadorn, 1 Duer, 89; Tallman v. Franklin, 14 N. Y. 584); but in Squier v. Norris (1 Lans. 282), in which, like our case, the contract did not refer to the principal, it was held that the principal was not bound. The cases already cited, and Williams v. Christie (4 Duer, 29), and Mason v. Breslin (2 Sweeny, 386), call for t.he affirmance of the present judgment.

But, second, if we had no authority to guide us, excepting such cases as refer to personal property, I should be of opinion that they were not meant to govern contracts for the sale of real property, irrespective of any technical rule. In none of the cases that I know, has there been any attempt to enforce against a principal any obligation different from that described by the written contract. On the contrary, the funda mental position is, that the agent is the principal in legal effect, and that delivery to or performance by the agent is delivery to or performance by the principal. Again, the undisclosed agency was created orally or in writing. If the former, it is valid and not against the statute of frauds, so far as its form goes. If in writing, the law permits its performance according to its terms —that is, a man may take personal property to himself, so as to receive the title to and dominion over it, and yet the property be in fact another’s, for whom he in fact acts, whether the person making the transfer knows it or not. The principal receives the consideration and makes the obligation.

When, however, the contract is for the transfer of land, those propositions are not correct. The covenant is to deliver to Llewellyn P. Hurlburd a deed conveying the fee simple ; and the offer of proof was that the deed was made to Hurlburd and tendered to him, as agent and trustee for the defendant Partridge. This would not convey the property to, or give any interest in it to the defendant Partridge. The delivery of the deed to Hurlburd was not delivery to Partridge, in fact or in legal effect. The terms of the deed were conclusive as to that. Furthermore, the so-called agency was not made in writing, and Partridge could not compel Hurlburd, after receiving the title, to convey i,t to him. Where a man merely employs another person by parol, as an agent to buy an estate, who buys it for himself, and denies the trust, and there is no written agreement, “he can not compel the agent to convey to him, 'as that would be directly in the teeth of the statute of frauds” (12 Sugden on V., 8th Am. ed., ch. 21, § 1, 15; Levy v. Brush, 45 N. 7. 589). Under our statu te it would be immaterial that the so-called principal furnished the agent to make the contract in the name of the latter, with a part or whole of the consideration money afterwards paid. Nor would the vendor in the contract have greater rights against the so-called principal, if the agency had been formed by a writing. The present case, and what we here say, refer to a contract in which the so-called agent appears as principal in all its parts. Such a contract could only be performed by the vendor by delivering or tendering a deed to the person named in the contract, i.e. the so-called agent. But, as we have noticed, the law makes it conclusive that the title goes to the grantee named in the deed, so that, as matter of fact, he can not receive it as simply an agent or representative of the so-called principal. It may be that if the power of attorney were in writing, as between two parties, the statute of frauds might be satisfied, so as to compel the agent to convey; but it would not be upon the ground that anything the vendor had done had vested the title in the principal, but would rest upon the promise or the contract obligation of the agent to convey, or upon the facts of the case that might create a trust saved by the statute. So, if the agency were created by writing, a vendor can say nothing more than that upon performance, the contract vendee will be bound to convey. It is not true that before that time—that, in fact, by force of legal principles—the vendee acts for his principal or stands in the place of his principal. The consequences of the agency being made in writing are, however, not under review, as the agency was alleged by the plaintiff to have been created by words.

If we are correct, then : 1st, the so-called but unnamed principal, in a contract for the sale of land, on its performance receives and can receive no part of the consideration which the vendee receives, and which holds him; 3d, proof of the oral authority, for the purpose of showing that by virtue of it the title to the land would go to the so-called- principal, would be proof of a transaction void by the statute of frauds. In these respects such a contract is unlike a contract for the sale of personal property. Several other points of dissimilarity might be noticed, but perhaps without benefit.

Therefore, I think this judgment should be sustained. Having passed upon the merits, it is not necessary to examine, what is very doubtful, if the complaint or the offer of testimony assert that any tender of performance was made by the plaintiff.

The judgment appealed from is affirmed, with costs.

Speir, J., concurred.


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    MARY McLAIN by JAMES McLAIN, her Guardian, Plaintiff and Appellant, v. THOMAS VAN ZANDT, Defendant and Respondent.
    CONTRIBUTORY NEGLIGENCE.—TRIAL BY JURY.
    In this case the complaint was dismissed on the motion of the defendant at the trial, when the plaintiff had rested, for the reason that the plaintiff’s case had failed because it clearly-appeared that the plaintiff’s negligence had contributed to the injury.
    The plaintiff asked the court to submit this question to the jury and the court refused.
    On the argument at general term, the main point of error claimed by the appellant, was the refusal of the court to submit the question of the plaintiff’s negligence to the jury. That thereby the plaintiff has been denied the right of a trial by jury, and been compelled to submit her claim to the decision of a single judge.
    Held, by the court,
    That if the evidence on the trial clearly established the plaintiff’s negligence, and was undisputed, and the inference from that evidence indisputable, the court can pronounce the law applicable without going through the form of taking a verdict of the jury on the point.
    The plaintiff must make a prima, facie case, must show that tha injury was not caused partly by negligence with which the plaintiff was chargeable.
    If there is an entire want of proof as to the care the plaintiff used, the complaint should be dismissed (Warner v. The N. Y. Cent. R. R. Co., 465).
    On the whole case, it appearing clearly that the child was non std juris, and the father negligent, the dismissal of the complaint by the court was affirmed.
    Before Sedgwick and Speir, JJ.

      Decided May 3, 1875.

      Appeal from order denying motion for new trial made upon case and exceptions.
    The pleadings do not appear in the cas<r. By the case it appears that on the trial of the action, the plaintiff proved the following facts: The defendant was owner of two houses, numbered 22 and 24, East Twelfth street. In front of No. 24 was a deep area, on or along the street, guarded only by a coping stone four inches high. In October, 1865, the plaintiff was three years and eight months old. At that time, her father was standing with her, three houses from No. 22, the house No. 24 being between them and No. 22. They lived in No. 22. The father told the plaintiff “ to go to her ma, and away she went, and I watched her to see whether she would go in, and just as she went there she lifted her foot to go up—there is only one step to the door—as she lifted her foot to go up that step, she fell into the area-way.” She was seriously injured.
    On the plaintiff resting her case the defendant’s counsel moved to dismiss the complaint. The motion was granted, and exception was taken by plaintiff. A case and exceptions having been settled, a motion was made at special term for a new trial. The motion was denied. and it is from the order entered on this denial that the plaintiff now appeals.

      A. K. Hadley, attorney for appellant, and I. T. Williams, of counsel, argued:
    I. The question of negligence presented in this case is a question for the jury, and not for the court. (1) It is not proposed here to discuss the question of negligence. It was not in any manner or degree discussed before the court below, by | the counsel for the plaintiff. It is no more a question j for the court here, than it was at the trial. (2) Thel question here presented is a question of forum. The right here asserted is the right of trial by jury. The I complaint here made is that the plaintiff has been denied the right of trial by jury, and been compelled to submit her claim to the decision of a single judge. (3) To establish the proposition here asserted, the following decisions are relied upon: Mackey v. N. Y. Cent. R. R. Co., 35 N. Y. 79; Wolfkiel v. Sixth Avenue R. R. Co., 38 Id. 50; Davenport v. Rnckman, The Mayor, &c., 37 Id. 568; Driscoll v. Newark, &c. L. & C. Co., Id 637; Hulbert v. N. Y. Central R. R. Co., Id. 145; Jetter v. N. Y. and N. H. R. R. Co., 2 Keyes, 154; Matteson v. N. Y. Cent. R. R. Co., 58 Barb., 182; Robinson v. N. Y. Cent. R. R. Co., 65 Id., 146; O’Mara v. Hudson River R. R. Co., 38 N. Y. 445; The Sioux City and Pacific R. R. Co., plaintiff in error, v. Harry G. Stout, 17 Wal. U. S. Reps.

    II. It is a matter of record, and therefore a part of the public history, of which this court will take judicial notice, that for this same injury a suit was brought against the mayor, aldermen and commonalty of this city (the excavation above referred to being in the public street), under the authority of Davenport v. Ruckman (The Mayor, &c.), above cited. That action was brought to trial at a circuit court in this city. The authority of the nonsuit granted in this case was invoked upon a motion for a nonsuit in that. The motion was, notwithstanding, denied, and the question of negligence was submitted to the jury, who found a verdict for the plaintiff. It is claimed that this is an uthority in point on this appeal.

      Sherwood & Howland, attorneys for respondent, John Sherwood, of counsel, cited many cases in opposition to the point claimed by appellant, among Inch are the following: Morrison v. Erie R. R. Co., Ct. of Appeals, published in Albany Law Journal, Jan. 9, 1875; Flynn v. Hutton, 43 How. Pr. R. 333; Hackford v. N. Y. Cent. R. R., 53 N. Y. 654.
   By the Court.—Sedgwick, J.

On the argument it was not contended that the defendant was not liable for any other reason than that the plaintiff’s case failed on the point of contributory negligence. The appellant’s counsel took the single ground, that the question as to negligence on the part of plaintiff, was for the jury and not for the court. He declined to discuss that question, because it was' no more a question for the court on appeal, than for the court on the trial, and the claim was that the plaintiff had been denied a trial by jury, and had been compelled to submit his cause of action to the decision of a single judge.

If the counsel meant to insist that if the evidence in this case was undisputed and the inference from that evidence uudisputable, still it must go to the jury on the question of the existence of contributory negligence, we can not agree with him. In such a case, the duty of the jury would be to find in a certain way, as matter of law, and therefore the court can pronounce the law without going through the form of taking a verdict on the point. Beyond this, the plaintiff must, to make a prima facie case, show that the injury was not caused partly by negligence, with which she is chargeable. If there is an entire want of proof, direct or circumstantial, as to the care she used, the complaint should be dimissed (Warner v. The N. Y. Central R. R. Co., 44 N. Y. 465).

If the counsel, however, argued that the facts of the present case did not call indisputably for the conclusion that the plaintiff had failed to show that she was not in fault, it is necessary to examine the evidence. There was ho doubt that the child was non sui juris, and, therefore, that no fault or want of care, on the part of her personally, would relieve the defendant from responsibility. The defendant must respond unless the father was guilty of fault or negligence in permitting the child to go, or rather sending the child to the place where she tripped and fell. It is not the case of letting the child go to the highway to meet whatever may happen, but the actual risks were seen and known by the father.

The child being non sui juris, her qualities are fixed by law and to be learned from it. She was incapable of self-control and personal protection (Mangam v. Brooklyn R. R. Co., 38 N. Y. 459). She could not personally exercise that degree of care which becomes instinctive at an advanced age (Hartfield v. Rope, 21 W. R. 618). This want of discretion and this incapacity were obvious to the father (Ihl v. Forty-second street R. R. Co., 47 N. Y. 323).

The conclusion seems direct, that, if the father sent the child, who was incapable of self-control and of using discretion, to a set of circumstances that called for the exercise of self-control and discretion, he was in fault. These circumstances were that the child had to pass an open area, along the street, and up a step at the end of the area. If she tripped and fell towards and into the area, there was great likelihood of serious injury. These facts suggest to me, that common prudence calls for the use of discretion in walking along such a danger, and that it is ordinarily used. It may be instinctively and oftentimes it is consciously used. Everyone when passing such a place, walks with more than usual care, to prevent accident from tripping or loss of balance. Especially on going up a step (for all steps are not of uniform height and width) is an educated discretion used, as to how far. the foot should be raised and where it should be placed. As the place called for the exercise of discretion, the father was chargeable with neglect in sending to it the child incapable of exercising discretion.

This result would not have called for the dismissal of the complaint, if the child in going, as matter of fact, did what a person of ordinary prudence would have done. Then the injury would be solely caused by the negligence of the defendant. According to Warner v. The N. Y. Central R. R. Co. (ubi supra), this must be shown by direct evidence, or by inference from the facts. In the present case, the testimony did not disclose the facts, from which an inference could be drawn as to whether the child at the time was careful or the reverse. The father saw her trip and fall, but there was no proof as to the cause of the tripping. There was no evidence as to the condition of the pavement, or whether there was anything lying upon the pavement. If the tripping was occasioned by something external to the child, it was consistent with the facts that ordinary prudence could have avoided it, or that the child was taking a hazardous course. If it were not external to the child, but because of her childish weakness in body or mind, that would not show that in fact she was free from fault, but would be a reason for deeming the father negligent in sending her near to such danger.

On the whole case, the child being non sui juris, and the father being negligent, the order appealed from should be affirmed, with costs.

Speir, J., concurred.


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    LOUISA G. ARMOUR, Plaintiff and Appellant, v. WILLIAM M. LESLIE, Defendant and Respondent.
    demurrer, -counter-claim.
    The latter need not state pacts sufficient to constitute a DEFENSE TO THE CAUSE OF ACTION SET FORTH IN THE COMPLAINT.
    The defendant in this case, after a general denial, with some exceptions, attempted to set upa counter-claim in theanswer. The plaintiff demurred to the counter-claim, on the ground “that the same does not state facts sufficient to constitute a defense to the plaintiff’s complaint.”
    The court below overruled the demurrer, without prejudice to the right of plaintiff to move that the defenses in the answer be made more definite and certain.

      Held, on appeal, that this demurrer in its present form notifies the defendant that the objections to the pleading are not of a general nature, but confined to the special matter stated therein, namely: the counter-claim,; therefore, the order below must be examined upon the nature of this special ground of demurrer.
    The code distinguishes between a defense and a counter-claim. It is not necessary that a counter-claim should contain facts sufficient to make a defense, and, therefore, it was impossible for the court below to properly make any other order than that appealed from. It would be clearly wrong in this case, for the court to decide that the allegations did not constitute a counter-claim, because they were not sufficient as a defense.
    Order affirmed.
    Before Sedgwick and Speir, JJ.

      Decided May 3, 1875.
    Appeal from an order of special term, overruling the plaintiff’s demurrer to the counter-claim set up in the defendant’s answer.

      C. Bainbridge Smith, for appellant.

      Henry A. Boot. for respondent.
   By the Court.—Sedgwick, J.

The action was for a tort. The answer, after a general denial, except as to admissions thereinafter specifically made, in further answering made several allegations, and ended by alleging “that there is now due, owing, and unpaid by this plaintiff, the defendant therein, to this defendant the plaintiff therein, the balance of the said judgment recovered as aforesaid of one hundred and fifty-two dollars, and interest thereon from the 4th day of August, 1874, which said sum, so due, this defendant, recoups, offsets, and counter-claims against any claim this plaintiff may demand, by reason of the allegation in the complaint herein, and all which facts this defendant pleads and shows to this court in mitigation of any damages the plaintiff may claim herein.” The answer demanded j udgment that the complaint be dismissed, and that the defendant have judgment in the said sum of one hundred and fifty-two dollars, and interest.

The plaintiff demurred “to the counter-claim set forth in the answer of the above named defendant, on the ground that the same does not state facts sufficient to constitute a defense to the plaintiff’s complaint.”

The court at special term “ ordered that said demurrer be overruled, with costs, but without prejudice to the right of plaintiff to move that the defences herein be made more definite and certain, upon payment by said plaintiff to defendant of the costs of the demurrer.”

By the former practice, demurrer contained the general or special ground of objection, and the demurring party was held to the ground as stated (1 Chitty's Pl. 666-7). It is true that the code does not require that a demurrer to an answer or reply, should contain a special ground of objection, and a demurrer stating “that the answer is insufficient,” allows the plaintiff to avail himself of any insufficiency which goes to the merits of the action (Arthur v. Brooks, 14 Barb. 535). Without deciding that a demurrer, stating that the plaintiff demurs to the answer, would not also be sufficient, it is clear that the present demurrer, by its form, notifies the defendant that the objections are not of a general nature, but confined to the special ground stated. If any other ground may be examined on the trial of the issue of law, the opposite party will be misled. Therefore, the order below must be examined upon the nature of the special ground of demurrer stated, viz., that the counter-claim did not state facts sufficient to constitute a defense. The code distinguishes between a defense and a counter-claim. It it is not necessary or admissible that a counter-claim contain facts sufficient to make a defense. It was impossible, therefore, for the court to make any other order than the one appealed from. It was not then or now necessary to look into the answer to see if the matters which it attempted to use as an offset, recoupment, counter-claim, and in mitigation of damage, set up a sufficient defense, in whole or in part.

If the court below had sustained the demurrer, then, so far as the record disclosed, it would appear that the court had examined whether the matters set up partly on a counter-claim constituted a defense, and had found as matter of law that they did not, and on the trial it might be plausibly urged that such adjudication was final for the purposes of the action.

Whatever embarrassment there is to the plaintiff, comes from the irregular and informal atttempt to make one set of allegations in an answer serve the purpose of a defense and counter-claim. The court below preserved the rights of the plaintiff, by reserving to her leave to move to make the answer definite and certain, and no doubt, irrespective of this leave, the plaintiff had the right to move in addition, under section 150 of the code, that the defense and the counter-claim be separately stated. Until this was done, it is doubtful whether the court could examine the sufficiency of the matters pleaded to constitute a counter-claim, but it would be clearly wrong to say that allegations did not constitute a counter-claim, because they were not sufficient as a defense.

The appellant also objects that leave was not given below to serve a reply. This was not erroneous, at least unless the plaintiff asked for such a provision, and by the papers before us it does not appear that she did. But, while thinking that the court below was right in its action, I should be willing that the order be modified so as to allow the plaintiff to reply, upon payment of costs of demurrer and of appeal, if it were possible, which it seems me it is not, to wholly affirm, and yet modify the order.

The order below should be affirmed, with costs.

Speir, J., concurred.


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    THE ATLANTIC & PACIFIC TELEGRAPH COMPANY, Plaintiff, v. WILLIAM E. BARNES, et al., Defendants.
    RE-ARGUMENT OF APPEAL.—LEAVE TO APPEAL TO ■ THE COURT OF APPEALS.
    Where the general term has made a thorough examination of the case at a former hearing, a re-argument should be denied.
    Where the rules and principles of law involved are important, and affect large and varied public interests; and where, in the opinion of the court, the rules and principles of law that should control, have not been fully settled by the court of last resort in this state, leave to appeal to the court of appeals should be granted, on proper conditions.
    Before Sedgwick and Speir, JJ.

      Decided May 3, 1875.
    Motion for re-argument, or that defendants have leave to appeal to the court of appeals.
    This case was argued at February general term, 1875, upon exceptions directed to be heard in the first instance at general term. That general term directed that judgment be entered for plaintiff in the sum of two hundred and eighty-one dollars and forty-four cents. The facts of the case, and the opinions of the judges, appear in this report at page 40.

      J. Edwin Leary, for the motion.

      Charles Edward Souther, opposed.
   By the Court.—Sedgwick, J.

The motion for re-argument should be denied. The general term made a thorough examination of the whole case.

I, however, think that the defendants should have leave to take the case to the court of appeals. The rule of law involved is important, and affects many persons that hold, in the large and varied business of this state, the relations that subsisted between the parties to this action. As yet, the court of last resort in this state has not settled the principles that should control. In Hunt v. Roberts (45 N. Y. 696), Judge Rapallo, said that the court “ was clearly of opinion that after a breach which will justify the termination of the contract, the surety has the right to require that the contract with the principal be terminated, and the claim against the surety confined to the damages then recoverable.” Whether such a rule is to be applied, through inferences to be drawn from it, to a case like the present, has not been determined, so far as I know, by the court of error or of appeals. These considerations bring the present motion within Butterfield v. Radde (38 N. Y. Sup’r Ct. 44).

The motion that defendants have leave to appeal to the court of appeals, should be granted, on condition that defendants give notice of appeal, and file security within thirty days. In case of perfecting the appeal there should be ten dollars costs of motion and disbursements, to abide event, otherwise the plaintiff to have the like amount of costs and their disbursements.

Speir, J., concurred.


text:
    FRANZ DELCOMYN, Plaintiff and Appellant, v. JOHN C. CHAMBERLAIN, et al., Defendants and Respondents.
    TAXATION OF COSTS.
    In the taxation of a bill of costs, including fees paid to a commissioner for the examination of the plaintiff, where the court, making the order for the commission, made no order for the taxation of the costs, and where no person was examined except the plaintiff, the fees paid to such commissioner should not be allowed. A different practice would lead to abuses difficult to check.
    Before Sedgwick and Speir, JJ.

      Decided May 3, 1875.
    Appeal from order, directing a re-taxation of costs. The plaintiff took out an order to examine himself and other persons as "witnesses, under a commission issued to London. The plaintiff who lived in London, was, in fact, the only witness examined. The plaintiff recovering judgment, the clerk in taxing his costs allowed, as a disbursement, the amount paid to the commissioner as fees. The court below ordered a re-taxation, disallowing the commissioner’s fees. The appeal is from this order.

      George De Forest Lord, for appellant.

      Benj. F. Dunning, for respondents.
   By the Court.—Sedgwick, J.

The court making the order for a commission had power to direct, as one of the terms, that a disbursement of the kind in question might be taxed. In the ab s nee of such a provision, we think the court below made a proper disposition of the application. We are of opinion that a different practice would lead to abuses difficult to check.

The order is affirmed, with ten dollars costs.

Speir, J., concurred.