author: By the Court.—Sedgwick Ch. J.

text:
    AMERICAN STEAM BOILER INSURANCE COMPANY, Appellant and Respondent, v. EDWARD C. ANDERSON, et al., Respondents and Appellants.

      Insurance.—Commissions of agents, construction of contract for same.

    The plaintiff contracted with defendants to secure insurance at a compensation of thirty per centum of the premiums received. Defendants procured two policies of insurance, issued by plaintiffs to R. Hoe & Co, upon which was paid as premiums $1,125, from which the defendants retained as their commissions $337.50, or 30 percent, thereof. Each of these policies were frit three years, and contained a clause that it might be cancelled at the option of the company, on refunding to the assured a rateable proportion of the premium for the unexpired term of the policy, or it might be can-celled at any time by the request of the assured ; and in such case the company shall retain the customary rates for the time the policy had been in force. Afterwards, and before the end of the term of the policies, they were cancelled by agreement between plaintiff and R. Hoe & Co., and the plaintiff returned to the latter $118.13 as unearned premiums. Before the terms of the policies had expired the defendants ceased to be the agents of the plaintiff and became the agents of the Hartford Steam Boiler Insurance Company, and, as such, solicited R. Hoe & Co. to cancel their policies with the plaintiff and take policies in the Hartford Company. R. Hoe & Co. acceded to this, and at their request these policies were cancelled and the premiums to the amount of $118.13, returned to R. Hoe & Co. The judge below directed the jury to find for the plaintiff the sum of $39,34, being 30 per centum on the returned premiums and interest. Held, on appeal, that the ruling of the court below was the result of a correct construction of the contract. The premiums referred to in the contract between the parties, mean the premiums as provided in the policies on which they were to be paid, and if those premiums are afterwards reduced by the terms of the policies, then the premiums on those policies on which the commissions are based, are the reduced amount, and the amount of the commissions are reduced accordingly.
    On the claim of plaintiff that the defendants violated their obligations, as agents, in a way that deprived them of any right to any commissions on the premiums, Held, that if the defendants procured R. Hoe & Co. to require the plaintiff to do what it had previously contracted to do, the plaintiff suffered no damage.
    Before Sedgwick, Oh. J., and Freedman. J.

      Decided June 28, 1889.

      Appeal by each party from the judgment entered for plaintiff, upon the verdict directed for plaintiff, for the sum of $39,34.

      Wolff & Hodge, attorneys, and Robert Sewell, of counsel for plaintiff as appellant and, respondent, argued :
    I.—Defendants violated a positive duty which they owed plaintiff, their principal, when they induced K Hoe & Co. to cancel the policies in question’, and plaintiff is entitled to recover, They were plaintiff’s general agents, with power to issue long term policies, and were not brokers acting for both parties to the insurance contract. The duty they owed was, therefore, entirely to the plaintiff, and their relation to R. Hoe & Co. was merely that of agents of plaintiff soliciting their custom for plaintiff. There existed between plaintiff and defendants, therefore, the strictest kind of a trustee relation. They were bound to serve their principal with the utmost fidelity, and they could do nothing against the interests of that principal. For example, they could not in this case, acting as plaintiff’s agents, procure the insurance of Hoe & Co. for three years, collect their stipulated compensation for the services, and then induce Hoe & Co. to withdraw the business and give it to a rival company. That is what they did do, and we say they not only did not have a legal right to do it, but they committed a positive wrong against plaintiff in doing it. The claim is made that, as the agreement had been cancelled and the agency terminated, they were no longer under a duty or obligation to plaintiff, and had a perfect legal right to rob plaintiff of the business which they had brought to it during the time of the agency, and for obtaining which they had been paid. But the agency had not terminated so far as past contracts were concerned. It was terminated as to future transactions, but it ran with the life of the contracts negotiated during the continuance of the agreement. The defendants’ confidential relations to the plaintiff, so far as the policies were concerned which they had been paid for procuring, could not cease during the three years the policies were to run. An agency, though terminated, will continue so far as past contracts are concerned. The termination of the agreement was not a rescission of it. Hercules Mut. Life Ass. Soc. v Brinker, 77 N. Y. 435. Loyalty to his trust is the first duty which the agent owes to his principal. Without it the perfect relation cannot exist. Reliance upon the agent’s integrity, fidelity and capacity is the moving consideration in the creation of all agencies ; in some it is so much the inspiring spirit, that the law looks with jealous eyes upon the manner of their execution, and condemns, not only as invalid as to the principal, but as repugnant to public policy, everything which tends to destroy that reliance. Mechem on Agency, § 454. Mr. Mechem further says, § 455, “ It follows as a necessary conclusion from the principle last stated, that the agent must not put himself into such relations that his interests become antagonistic to those of his principal. Indeed this rule is but a restatement of the previous one, and is based upon the same fundamental prin-' ciples.
    II.—The plaintiff is entitled to recover from the defendants the amount which it lost through their violation of the duty which they owed to the plaintiff. The evidence is that there was no explosion of the boilers insured during the whole time for which the insurance was taken out, and, therefore, except for the acts of the defendants, plaintiff would have earned on the said policies the amount which they were obliged to return to the insured. This loss was directly owing to the acts of the defendants, and they are responsible to the plaintiff for the same. Mr. Sedgwick on the Measure of Damages (6th Edition), at page 400, says : “ The law is perfectly clear that whenever an agent' violates his obligation to his principal, whether by exceeding his authority, by misconduct or omission, and any damage results to his principal, he is responsible for such injurious consequence and bound to make indemnity.” An agent who violates his obligations to his principal, whether by negligence, misconduct or mere omission in the exercise of the proper functions of his agency, and any loss or damage thereby falls upon his- principal, must make full indemnity. Story on Agency, § 217c ; Marzetti v. Williams, 1 Band Ad. 415. The only two questions that emerge from the facts in this case are: First, were the defendants guilty of misconduct, and second, what is the amount of the plaintiff’s damage. Neither of these questions are affected by the percentage of loss or profit sustained or made by the defendants. This is fundamental, and it is believed that no case can be cited where these clear rules of law have been forgotten or modified. It was error, therefore, for the court to direct a verdict for only thirty per cent, of such return premium. The direction should have been for the full amount.

      T. Henry Dewey, attorney and of counsel for defendants as respondents and appellants, argued:
    I. The proposition of the learned judge that there was an agreement implied in law to refund the amount of the commissions on the premiums returned to E. Hoe & Go. upon the cancellation of their policies, is erroneous.
    II. The proposition of the plaintiff that there was an implied agreement on the part of the defendants that they would do nothing to cause the said -contracts of insurance to be cancelled or surrendered, but that the same should continue for the full term of three years without interference on the part of the defendants, and that for a breach of this implied agreement the damages are the whole amount of the commission paid or the premium returned, is equally erroneous. If this or the court’s proposition is correct the plaintiff should have moved for judgment upon the pleadings, because the only thing that could be called “ interference” on the part of the defendants was the bare solicitation by them- as the agents of another company alleged in the complaint and admitted in the answer. There was no proof of malice or unlawful intent.
    III. “ The law, however, presumes a promise only where it does not appear that there is any special agreement between the parties.” “ Expressum facit cessare tacitum,” 2 Greenleaf on Evidence, § 103; Draper v. Randolph, 4 Harr. 454; 2 Addison on Contracts 575, (n. ed.), 1883; Whiting v. Sullivan, 7 Mass. 107; Mass. Gen. Hospital v. Fairbanks, 120 Ib. 78; Metcalf on Contracts, 6; Toussaint v. Martinnant, 2 T. R. 105; Cutter v. Powell, 6 Ib. 320; Cowley v. Dunlop, 7 Ib. 568; 2 Parsons on Contracts, 515; 1 Ib. 556; 2 Addison on Contracts, 575; bottom of page; Van Ness v. Washington, 4 Pet. 232; Gavinzell v. Crump, 53 Wall. 308; Brown v. Spofford, 95 U. S. 474; 1 Washburn on Real Property (4th ed.) 487 ; 3 Ib. 485 ; Kent v. Welch, 7 Johns. 258 ; Vanderkaw v. Vanderkaw, 11 Ib. 122. There is no room for an implied contract where an express contract exists. Mass. Gen. Hospital v. Fairbanks, 129 Mass. 81; Brown v. Fales, 139 Ib. 21; Earle v. Coburn, 130 Ib. 596-598. Washburn, vol. 1, p. 487, says : “ The presumption where parties have entered into written engagements with express stipulations is, that having expressed some, they have expressed all the conditions by which they intend to" be bound under the instrument.” Courts will not make contracts for the parties which they have not made themselves; nor will they impose conditions or restrictions upon parties to the contracts. 1 Parsons on Contracts, 556. Parsons says : “ The well-recognized principle that courts will not make a contract for the parties which they have not made themselves, will * * prevent the court from interpolating an implied condition.”
   By the Court.—Sedgwick Ch. J.

It is not necessary to state the pleadings. The decision of the judge below was, without objection, upon the case made by the testimony.

The plaintiff was a corporation, with the business of insuring against loss from explosion of steam-boilers. It made a contract in writing with the defendants by which the latter were made the general managers and agents of the company and its business in certain states. There was the following provision : “ and the said company do promise to pay to the said Anderson & Stanton, a commission of 30 per cent, upon all premiums received by them upon policies issued through their agency, which said amount of 30 per cent, is to be deducted from the monthly accounts to be rendered by them and settled for each month, &c.”

Afterwards the defendants issued to B. Hoe & Co. two policies of insurance upon which was paid the sum of $1,125 as premiums, and upon which the defendants retained as their commissions $337.50, as the 30 per cent, upon the premium. These policies were made for the term of three years. Each contained a clause, that it might be cancelled at any time, at the option of the company, on refunding to the assured a rateable proportion of the premium for the unexpired term of the policy, and the policy might also be cancelled at any time, at the request of . the assured, in which case the company shall first retain the customary short rates for the time the policy has been in force.

Afterwards, and before the end of the term of the policies, by mutual consent of the parties to the agreement, “ it is understood and agreed that the same shall cease and determine upon the first day of January, 1886, and on and from that date be null and void ; but it is also understood and agreed that in no way shall it invalidate any claim that the company shall have against Anderson & Stanton, for unpaid accounts.”

Afterwards the defendants became agents of the Hartford Steam-Boiler Insurance Company, and, as such agents, solicited R. Hoe & Co. to cancel their policies with the plaintiff and take policies in the Hartford Company. R. Hoe & Co. acceded to this, and at their request, and under the terms of the policies of plaintiff, these policies were cancelled, and the plaintiff returned to R. Hoe & Co. the premiums to the amount of $118.13.

On this case the learned judge below directed the jury to find for the plaintiff in the sum of $39.34, being 30 per cent, of the returned - premiums and interest.

The judge was, in my opinion, correct in his ruling, as it was the result of a correct construction of the contract. By the contract the compensation was to be 30 per cent, of the “ premiums received by the defendants upon policies issued through their agency.” The premiums referred to, necessarily mean the premiums as provided in the policies on which they are to be paid. If, as in the policies in question, in the first instance they are specified as being a certain sum, yet if they are subject to a future claim in the policy which' will change the policy and reduce the amount, and the latter is carried into effect, and the amount is reduced, then the premiums on that policy, as a whole, is in the reduced amount.

In the first instance, the higher amount of premium being paid, there being no presumption that a change will be made in the policy, it may properly be included in monthly settlements. But in those settlements the item is to be considered according to the fact, and be held subject to future occurrences which may properly reduce the amount. The matter would appear more clearly if the reduction were . to take place before a monthly settlement, and while the defendants remained the agents and managers of the plaintiff. If, on the first day of a month, the premium of $1,125 was paid, and in the middle of the month the policy cancelled, so that they themselves, as managers, returned to the insured $1,000 . of that premium, could it be maintained that on the whole transaction, they received the sum of $125 as premium. And the whole of a transaction is to be considered and not a part by itself, when that part is related to the rest by the nature of things and the interest of the parties.

One difference between this transaction and the one in action is, that the part of the premium returned, was returned after all monthly settlements had been made. If the views that have been expressed are correct, these monthly settlements were not final in those matters that were, in their nature, to be subject to future occurrences, and should be corrected according to those occurrences when they exist. On this point the annulling the agreement did not annul rights that had accrued before. Hercules Mutual Life Assurance Soc. v. Brinker, 77 N. Y. 435.

Another difference is, that the returned premium was returned by the plaintiff itself, and not by the defendants, as in the transaction supposed. Physically, this is correct, but in legal effect, and as to the correction of the account of commissions, the plaintiff being bound to return it by the terms of the policy as issued by the defendants, and as the defendants were in the first instance to receive premiums for the plaintiff, they were bound by the return, as reducing the original amount as efficiently as if they had themselves returned the part premiums.

I, therefore, think that the conclusion of the court below should be sustained.

The defendants urge that there was error in excluding evidence as to a custom among insurers, that agents should not be charged with the amount of the per-centage upon returned premiums in instances like the one in action. I, however, think, that the contract has a conclusive force in its terms that cannot be varied by proof of custom. The proposed proof as to short rates would not have altered the result.

The plaintiff argues, that the defendants continued in their obligations, as agents, after the contract was annulled, and that they violated these obligations in a way that deprived them of. any right to commissions to any amount. Without going into the merits of this, I think it must be seen that if the defendants procured R. Hoe & Co. to require the plaintiff to do'what it had contracted to do, it suffered no damage.

The judgment should be affirmed on each appeal, without costs.

Freedman, J., concurred.


source: Caselaw Access Project

author: By the Coubt.—Sedgwick, Ch. J. Truax, J., (dissenting).

license: Public Domain

text:
    CARRIE WEIL, By Guardian, etc., Appellant, v. DRY DOCK EAST BROADWAY AND BATTERY RAILROAD COMPANY, Respondent.

      Negligence, action for damages therefrom—Infant non sui juris.

    In the case of an infant non sui juris if her parents’ negligence suffered her to go into the danger which resulted in her injury, she has no action. And if on the trial it incontrovertibly appeared that there was such negligence on the part of the parents, and the jury could not have properly, found to the contrary, a dismissal of the complaint below was correct.
    If a child of plaintiff’s age, that needed positive restraint to keep her in safety, goes into danger, and it appears that the use of ordinary means of restraint would liave prevented it, the conclusion of law is, that such ordinary means were not used, and a jury could not properly conclude otherwise.
    Before Sedgwick, Ch. J,, Truax and Dugbo, JJ.

      Decided June 28, 1889.
    Appeal by plaintiff from a judgment dismissing the complaint, entered on the direction of a judge, made at trial term before a jury.

      Albert I. Sire, attorney, and Chauncey Schaffer and Clemens J. Kracht, of counsel, for appellant.

      Robinson, Scribner & Bright, attorneys, and John M. Scribner of counsel, for respondent.
   By the Coubt.—Sedgwick, Ch. J.

The action was for damages from the negligence of a driver of defendant in managing a car, so that the leg o.f plaintiff was run over.

The court below dismissed the complaint on the ground that the case did not show that the alleged negligence of defendant was the sole cause of the accident.

The plaintiff was, at the time of the accident, a girl of less than two years of age, and therefor non sui juris. McGarry v. Loomis, 63 N. Y. 104; Prendegast v. N. Y. C. & H. R. R. R. Co., 58 Ib. 652, Birkett v. Knickerbocker Ice. Co., 110 Ib. 504. The testimony showed, that her conduct contributed to the injury, and if she had been adult she would have had no action.

By the law of this state, if her parents’ negligence suffered her to go into the danger which ended in her injury, she has no action ; and if on the trail it incontrovertibly appeared that there was such negligence, and the jury could not have found, properly, to the contrary, the dismissal of the complaint below was correct. ' There is no intention here of deciding whether or not in the case of a plaintiff non sui juris, and therefore not capable of negligence, the plaintiff must prove that the parents or guardians were not negligent, or whether that is matter of defence.

The plaintiff, as her mother testified, was scarcely able to talk, and could speak a few words only. About four in the afternoon the child was with her mother in the kitchen. The mother was cooking and was afraid the child would burn herself. She took the child by the hand into the store to the father, and said to him to be so kind and take some care of the child. The father testified that the mother asked him to watch the child a little. The store door was open. He played with her and talked with her a little. She ran behind a counter. He went to a desk about ten feet from the door, for the purpose of making entries in his account. When there the child was not within his sight. She remained for some time behind the counter. The father, for no other reason that appeared in evidence than that the child needed more attention than he was giving, looked around the counter for the child and then in the bed-room and then heard a noise in the street, He ran out and saw the child had been run over.

The testimony given by the parents evinced that they knew that the child was so young, and so incapable of taking care of herself, that constant and particular care was needed to keep her from the street, where, as the facts undoubtedly showed, it was dangerous to the child to suffer her to go. This is in one respect clearly shown, by the alarm or anxiety of the father when he became conscious that the child was out of his sight and his prompt and hurried effort to find her. The mother would have kept her in a back-room if there had not been a • danger to the child from the hot stove, and that she might do her duty to the child when she took her into the outer room, she put her in care of the father, with the significant request of him.

The father allowed the child to be out of his sight, so that he could not instantly restrain her, if necessary, for a certain length of time. He testified that • she stayed out of his sight for “ ten or fifteen minutes. I don’t know.” He was afterwards asked by the plaintiff’s counsel. How long was it, from the time you saw the child by your side until it was brought back to you ? He answered. “ It was not ten minutes, not two minutes, I mean. I didn’t think she was out at all, so quick it was. It happened so quick I did not think she was out at all.” The mother testified that before the accident, or rather before the husband brought her the child, the child had been in the store scarcely “ about ten or fifteen minutes.”

If the case had gone to the jury, and they had properly passed upon it, they could not have given a rendering to the father’s testimony that would establish the fact that his withdrawal of his observation of the child was so momentary, that it was not negligent. That would give credence to him, when he said : “It happened so quick, I did not think she was out at all.” This was, however, at variance' with his testimony that she was out of his sight ten or fifteen, or even two, minutes, and his occupation in writing in his account three charges to customers, and also his action in searching for her. When he said the child was absent from his side not ten minutes—not two minutes I mean, I didn’t think she was out at all so quick it was, the first part being merely negative and establishing nothing affirmative, the meaning of the whole is to be found in the latter part, with the implication that he could not categorically give the time. If it had simply appeared, on behalf of defendant, that a child of plaintiff’s age, that needed positive restraint to keep her in safety, had gone into danger, when it also appeared that the use of ordinary means of restraint would have prevented her escape, the conclusion of law is, that ordinary means were not used, and a jury could not conclude otherwise. The testimony that has been particularly examined shows, that the plaintiff failed to overcome the presumption of law, by proof of sufficient explanatory facts, for the attempted explanation was incoherent, one part of it varied from the other. Indeed if the extrinsic circumstances, and the indubitable references from them, were to be considered to give weight to one or the other branch of the contradiction, the result would be unfavorable to the plaintiff.

My opinion is, that the judgment should be affirmed with costs.

Dugro, J., concurred.

Truax, J., (dissenting).

I cannot concur with the conclusion reached by my associates. There is no evidence tending to show any negligence on the part of the plaintiff, while there is evidence tending to show that the defendant was negligent, and, therefore, the negligence of the child’s parents, even conceding that the child’s parents were negligent, is immaterial. Cumming v. Brooklyn City Railroad Co., 104 N. Y. 669. The evidence offered by the plaintiff shows that the driver was extremely careless in the method in which he drove through this street. I am also of the opinion that the question of the parents’ negligence should have been submitted to the jury. Ames v. Broadway Railroad Co., 56 Super. Ct. Reports, page 3: Crystal v. Troy and Boston Railroad Co., 22 Weekly Digest, 551.

I do not see how we can hold, as matter of law, that it was negligence in the mother to let the child go out into the room where the father was; or that it was negligent for the father to take his eyes for a few moments from the child while it was with him in the house.

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


author: By the Court.—Sedgwick, Ch. J. Trtjax, J. (concurring).

text:
    JOHN H. DRESLER, Respondent, v. GEORGE M. HARD, Impleaded, etc., Appellant.

      Expert in handwriting, what testimony of, inadmissible—Estoppel, when necessary to plead. General exceptions to refusals to charge requests raises no question.

    An expert in handwriting was called as a witness, and there was then exhibited to him a receipt, and certain other papers properly in evidence, and then lie was asked to state, after comparing all the papers, but especially their dates, whether the date of the receipt was Jan’y 22d or July 22d, the evidence was excluded, Held, that it was properly excluded.
    When the matters which are relied on by a defendant to constitute an estoppel do not affect the issues as made by the pleadings as to the original obligation, they must be pleaded in order to give the defendant a right to offer testimony in support of them.
    An exception to refusals to charge in the following form, “ I except to the refusal of the court to charge each and every request submitted by me as requested that he has declined to charge, and to the refusal of the court to find any requests as requested which he has charged in substance,” raises no question for determination by the general term (per Tbuax, J.)
    Before Sedgwick, Ch. J., and Truax, J.

      Decided June 28, 1889.
    Appeal from judgment and from order denying motion for a new trial, made upon the minutes.
    The complaint alleged that, about November 1, 1880, plaintiff agreed to purchase of defendants, and defendants agreed to sell and deliver to plaintiff, one thousand shares of a certain stock, for the agreed price of $4,000, payable in four months, for which sum of $4,000, and interest plaintiff gave to defendants his promissory note ; that when that note became due, plaintiff paid to defendants $1,000, on account of principal and the interest on $4,000, to that date, and gave to defendants his promissory note for $3,000, at four months ; that when this note became due plaintiff paid defendants $100, on account of the principal and the interest on $3,000, to that date, and gave his promissory note for $2,900, at three months; that when this note became due plaintiff paid to defendants $200, on account of the principal and the interest on $2,900, to date, and gave his note for $2,700, at three months; that when this note become due plaintiff gave to defendants, in renewal thereof, his note for $2,700, at four months; that when this note became due plaintiff paid defendants $700, on account of the principal and the interest to that date on $2,700, and gave his note for $2,000, at three months; that when this note became due plaintiff paid to defendants on account of the principal $250, and the interest to that date on $2,000, and gave his note for $1,750, at three months; that all these payments were made and notes given by agreement between the parties; that the stock was originally to be delivered when the first note was given, but by agreements from time to time the delivery was postponed until November 18, 1882; that when the last of the above-mentioned notes became due, November 18, 1882, it was agreed between the parties that plaintiff should pay defendants $250, on account of the principal of that note and interest on $1,750, to that date, and should give his promissory note for $1,500, at three months, and that defendants should deliver to plaintiff the said shares . of stock on or before the first day of January, 1883; and in case they failed so to deliver the same that the said sale should be considered cancelled and rescinded, and the said defendants should then return to this plaintiff the said note for $1,500, and repay to him the moneys so paid to them, as aforesaid, on' account of such purchase with interest. That on the said first day of January, 1883, the said defendants, having wholly neglected to deliver to plaintiff the said shares in pursuance of said last mentioned agreement, this plaintiff demanded of said defendants the said one thousand shares of the Manhattan Refining Company’s stock, and the said defendants wholly neglected and failed to deliver to plaintiff the said shares of stock on the first day of January, 1883, but then agreed and promised to return to the plaintiff the said note for $1,500, and promised to pay and return to him the said several sums of money so paid by him, as aforesaid, with interest, but had ever since wholly neglected and refused to pay the said money or any part thereof; that said note for $1,500 was not paid at maturity, but was renewed at defendants’ request and further accommodation; that when said renewal note became due,

      defendants paid on account thereof $250, and plaintiff, at defendants’ request and for their accommodation, renewed the same for $1,250 ; that when this renewal note became due defendants paid on account thereof $500, and plaintiff, at defendants’ request and for their accommodation, renewed the same for $700; that when this $700, became due, defendants neglected and failed to pay it or any part of it, and plaintiff paid the same in full, and prayed judgment for the several sums paid by plaintiff to and for defendants, with interest thereon from the dates of the respective payments.
    Defendant Hard answered. By his answer he denied all the allegations in the complaint, and then set forth, as an affirmative defence, that on January 1, 1886, plaintiff and defendant Blauvelt had an accounting and settlement on which there ■ was found due from Blauvelt to plaintiff the sum of $6,677.49; that Blauvelt delivered to plaintiff, and plaintiff accepted, in full settlement of said account, Blauvelt’s promissory note, and that all matters set forth in the complaint, as well as other matters between said Blauvelt and plaintiff, were included in said settlement and the amount of the note.
    The other facts sufficiently appear in the opinion.

      Hayes & Greenbaum, attorneys, and Daniel P. Hayes of counsel for appellant, on the questions considered in the opinion, argued:
    I. The court erred in refusing to allow the witness Carvalho to state whether, in his opinion, the date on the receipt, Exhibit B., was January or July. The witness being an expert it was proper, and violated no rule of evidence to ask him his opinion, he having compared this receipt with the note which was put in evidence upon a material point in the case. The jury were entitled to the benefit of his opinion, and the exclusion of it was error and fatal to the defendant Hard.
    II. The court further erred in refusing to submit to the jury the question as to whether the plaintiff would not be estopped if he stood by with knowledge of the interest of Mr. Hard in this action and allowed Mr. Hard to make a settlement with the assignee. An estoppel may be taken advantage of without being pleaded. Rogers v. King, 66 Barb., 496.

      Isaac L. Egbert, attorney and of counsel, for respondent, on the questions considered in the opinion, argued:
    I. The opinion of the expert Carvalho as to the date on the receipt', Exhibit B, was properly excluded by the trial judge. This was not a case of disputed writing, and there is no rule of law -under which the proposed testimony would be permissible. The handwriting of the date of Exhibit B. was admitted to be that of defendant Blauvelt, by both sides, and the question was: what it was ? what it meant ? not who wrote it. It was, therefore, for the court and jury to interpret, and the opinion of the expert was wholly inadmissable. Even in cases of disputed handwriting, the admission of such comparisons was an innovation before the Act of 1880, now as amended by the Act of 1888. These acts, however, confine the authority for such comparisons to cases of “ disputed writing.” Laws of 1888, chap. 555; Peck v. Callahan, 95 N. Y., 73.
    II. The exception to the refusal of the court to charge as requested by the appellant is not specific, and it appears from the charge that the appellant’s requests were substantially complied with.
    III. The refusal to charge the 8 th request was proper. The defendant had not pleaded the alleged estoppel. (§ 500, Code Civil Pro., subdiv. 2.)
   By the Court.—Sedgwick, Ch. J.

The defendant placed upon the witness stand an expert in handwriting, and exhibited to him a receipt, at the same time exhibiting to him other papers, properly in. evidence in the cause, and asked him to say, after comparing all the papers, but especially their dates, whether the date of the receipt was Jany. 22, or July 22. It was for the interest of the defendant to show that it was the former. The witness was not called upon to give his opinion of the handwriting. This was not in dispute. As it was the office of the jury to find what the date was, I am of opinion, it was not competent for the witness to speak to that. I do not deny that it would have been competent for the expert to testify as to an analysis of the lines that made up the date, and by that to exhibit details which might escape the attention of ordinary observers, and that the jury might consider such testimony. This was not the object of the question, which was properly excluded.

The defendants’ counsel asked the court to charge, which the court refused to do, that “ if the jury find that Mr. Dresler knew that Mr. Hard was interested in the sale of the Manhattan stock in question and made no claim against Mr. Hard, filed his claim with the assignee against Blauvelt, individually, and allowed Hard to go on and make a settlement with the assignee of Blauvelt, he is estopped from making any claim against Mr. Hard, and cannot recover against him, in this action.”

There was no question as to whether the conduct of the plaintiff, as described in the request, might be considered as evidence against the plaintiff of what his relations were with Blauvelt, individually, or jointly with Hard.

The counsel for appellant has not pointed out what testimony there was in the case that required the court to make the charge as requested; but I am of opinion, with the court below, that he was bound to refuse the request, because the matters that were supposed to constitute an estoppel had not been pleaded. These matters did not affect tho issues as made by the pleadings as to the original obligation. If the plaintiff were right on those issues he proved his case, and the law fixed the appellant as liable. A subsequent estoppel would not disprove the existence of the original obligation, but if it afterwards occurred, and had the force claimed for it, it would be an equitable defence or ground for the plaintiff not being permitted to enforce his right and, in effect, an extinguishment of that right. All this would constitute new matter, and should have been pleaded to give the defendant a right to offer testimony on the subject. § 500 Code Civil Procedure, subd. 2.

Certain questions were admitted by the court, against appellant’s objection. They were ' to be allowed, in the discretion of the court, upon cross-examination.

The judgment and order should be affirmed, with costs.

Trtjax, J. (concurring).

I am of the opinion that the appeal book does not show that the defendant excepted to the refusal of the trial judge to charge certain requests. The alleged exceptions are presented by the following words: “I also except to the refusal of the court to charge each and every request submitted by me as requested, that he has declined to charge, and to the refusal of the court to find any requests as requested which he has charged in substance.” Then follow fourteen requests to charge.

An exception to a refusal to charge should be specific. It is not enough for counsel to say, in general terms, that they except to the refusal of the court to charge each and every request that it has declined to charge. The case should show that the trial judge was requested to charge a certain proposition, that he refused to do so, and that an exception to such refusal was duly taken. The court at general term should not be required to examine the charge of the trial judge in order to determine whether the appellant has or has not a good exception to a refusal to charge as requested. What refusal is excepted to should appear from the exception itself. Briggs v. Waldron, 83 N. Y. 586 ; Baylis v. Stinson, 110 Ib. 624.

The judgment and order are affirmed with costs.


author: By the Court.—Freedman, J.

text:
    WILLIAM HAYS, Respondent v. THE PHENIX INSURANCE COMPANY, Appellant.

      Perils of the sea, when a loss occurring through an omission of the captain and a failure of the mate to act is covered by.—When there is evidence on both sides as to whether the captain is responsible for his omission and whether the failure of the mate was negligent, those questions are properly submitted to the jury.

    Although a vessel is lost by reason of the omission of the master to take certain precautionary measures, which a careful and prudent captain would ' have taken under the same circumstances, and the failure of the mate to take charge of the vessel in time to prevent her loss, yet if the omission of the captain was due to his sickness, for which he was not to hlame, and the condition of the captain could not under the circumstances be ascertained by a reasonable and careful man in time to enable him to prevent the loss, then the loss is covered by a policy insuring against the perils of the sea, and the insurer is liable therefor.
    Where there is evidence, pro and con, as to whether the master’s omission was due to his sickness for which he was not to blame, and as to whether the mate should have ascertained the master’s condition and taken charge of the vessel in time to prevent her loss, those questions are properly submitted to the jury. •

      Before Sedgwick, Ch. J., Freedman and Truax, JJ.

      Decided June 28, 1889.
    Appeal by defendant from a judgment entered in favor of the plaintiff upon the verdict of a jury, and from order denying defendant’s motion upon the minutes for a new trial. The facts sufficiently appear in the opinion.

      George A. Black, attorney and of counsel for appellant, on the questions considered in the opinion, argued:
    I. The loss of the “ Sheldon ” is directly attributable to the gross negligence and misconduct of the master (the assured), for which the defendant is not liable. Lowndes on Marine Insurance, p. 114; Thompson v. Hopper, 6 El. & Bl. 937; Emerigon on Insurance (Meredith), p. 337; Phillips on Insurance, § 636.
    II. It was conceded by the plaintiff on the trial, and the judge charged the jury that if the condition of the master was due to the use of liquor, he could not recover, and the court allowed the jury to pass upon the question as to the condition of the plaintiff. .The verdict of the jury under this ruling was clearly contrary to the weight of the evidence and should be set aside.
    III. While the underwriter is liable for loss by perils insured against—though in consequence of the negligence of the insured himself, when such negligence amounts to gross negligence or wilful misconduct, the rule does not apply. Johnson v. Berkshire Mut. F. Ins. Co., 4 Allen, 388; Sturm v. Atlantic Mut. Ins. Co., 63 N. Y. 86; 2 Phillips on Insurance, §§ 1049, 1096. Such misconduct need not consist of malfeasance, non-feasance is enough. Chandler v. Worcester Mut. F. Ins. Co., 3 Cush. 328; Patapsco Ins. Co. v. Coulter, 3 Peters, 222; Lawton v. Sun Mut. Ins. Co., 2 Cush. 200.

      IV. If the story of the plaintiff’s witnesses is to be believed, the circumstances were such that the mate must have taken notice of the condition of the captain.

      Goodrich, Beady & Goodrich, attorneys, and William W. Goodrich, of counsel, for respondent, on the questions considered in the opinion, argued :
    I. The underwriter is not discharged from liability by reason of the sickness of the captain. The law upon this subject is well laid down in the following case: “A vessel which is insured on a voyage out and home, and which departs with officers and a crew competent for the voyage, does not become unseaworthy by reason of the master’s becoming incompetent at the foreign port, to command the vessel; and if the vessel sails from such port under his command, and is lost on the homeward passage, the underwriters are not discharged, although the loss may have been caused by the master’s incapacity. And although, in such case of the master’s incompetency, it is the duty of the mate to take command of the vessel, and although he has a right to resort to all lawful means to establish himself in the command; yet, if, from want of judgment, or even from culpable negligence, he omits so to do, and the vessel sails under the master’s command, and is stranded, the underwriters are not discharged.” Copeland v. Marine Ins. Co., 2 Metcalfs Reports, 432.
    II. The underwriter is not discharged because the mate did not assume command of the ship. He did not know the condition of the captain, and while he saw that something was the matter with him, between the time he came on deck and the loss of the ship, he did not have such positive knowledge as would have justified him in taking the command of the ship from the captain, which, unless entirely and clearly justifiable, would have been a mutinous act. It will appear,' by examination of the testimony of the expert witnesses on both sides of the case, that even physicians differ as to what was the real trouble with the captain and, also, as to the effects of malaria and the administration of quinine as a remedy for such sickness. • The question whether the mate acted in good faith was one of the questions which was submitted to the jury under the charge of the learned judge.
    III. There were disputed questions of fact as to the causes of the disaster, as to the causes of the condition of the captain, as to whether the mate should have assumed the command of the vessel, all of which were submitted to the jury, and their verdict will not be disturbed.
   By the Court.—Freedman, J.

This action was brought on a policy of marine insurance, insuring Parsons & Loud, on account of whom it may concern, in the sum of $1,500 on the body, tackle, apparel and other furniture of the brig “ Emily T. Sheldon,” for one year from July 14,1885, and covering among other risks, perils of the sea and barratry of the master and mariners.

The plaintiff was the owner of three - sixteenths of said brig; was the master of the vessel and in command of her at the time of her loss. He was sailing the vessel on shares, furnished and paid the crew; and the provisions on board, which at the time of the loss were of the value of $130, belonged to him. The policy was taken out for the account of the plaintiff.

The brig sailed from Boothbay, Maine, with a cargo of ice on March 18,1886, bound for Annapolis, Md., and went ashore at Peaked Hill Bars, near Provincetown on Cape Cod, on March 22, 1886. She thereafter became a total loss and was stripped and sold. The net proceeds of said sale were $756.22, of which the plaintiff received three - sixteenths.

As the plaintiff was master and part-owner, and in command at the time of the loss, no claim can arise for loss by barratry, and to recover, the plaintiff must show a loss arising from the perils of the sea. These perils, as defined by Kent, denote natural accidents peculiar to the sea, which do not happen by intervention of man, nor are to be prevented by human prudence. Another definition of sea peril is, “ a sea damage occurring at sea and nobody’s fault.”

At the trial it was made to appear that the brig was lost by reason of the omission of the plaintiff as master to take certain precautionary measures which a careful and prudent captain would have taken under the same circumstances, and the real substantial issue litigated was whether such precautionary measures were not taken in consequence of plaintiffs’ intoxication or in consequence of plaintiffs’ sickness for which he was not to blame. Upon this issue there was quite a conflict of evidence.which could only be determined by the jury, and the whole case was submitted to the jury under a charge which carefully guarded every right which the defendant could rea-' sonably claim.

The defendant could not rightfully claim, upon all the facts disclosed, that, as matter of law, the mate should have ascertained the plaintiffs’ condition and taken charge of the vessel in time to prevent her loss, and that, having failed to do so, it was such negligence on the part of the mate as relieved the defendant from liability. The question of negligence on the part of the mate presented under all the circumstances a question of fact, and as such it was fairly submitted, to the jury. Upon this point the trial judge charged the jury, that if the captain was incapable of performing his duties, the duty devolved upon the mate to act in his place, but that the mate could not be expected to ascertain the captain’s condition any sooner than that condition could be ascertained by a reasonable and careful man under the circumstances.

A careful examination of the whole case shows that there is no merit in any of the exceptions taken.

The .judgment and order should be affirmed with costs.

Sedgwick, Oh. J., and Truax, J., concurred.


text:
    THOMAS MURPHY, Appellant, v. RUEL PHILBROOK, Impleaded with others, Respondent.

      Insolvency court of another state,-judgment and discharge by, conclusiveness of, at whose instance it cannot be re-opened.—Matters which will not raise a trust or an implication of fraud, in favor of parties concluded thereby, or their assignee, in respect of particular assets.

    The judgment of, and discharge granted by, an insolvency court of another state, having as a court of record jurisdiction over the matters embraced in an insolvent’s petition must be held, there being no conspiracy, fraud, collusion or concealment in the proceedings, to be conclusive between all the parties over whose persons it had obtained jurisdiction, not only in that state but in all other states, and to be a, bar, as to them, to any action in a matter involved therein and determined thereby.
    Such a judgment and discharge cannot be re-opened or reviewed by the ■ courts of another state, at the instance of an assignee of a claim, an action whereon is thus barred by reason of his being a citizen of a state other ■ than that in which judgment was rendered and discharge granted.
    The disposal, by the assignee in insolvency under an order of such insolvency court, at a private sale of an asset inventoried as of nominal value, to a son-in-law of the insolvent, for the nominal sum of $2, and the relinquishment by the purchaser of the subject of his purchase to the insolvent, will not, in the absence of other facts or evidence establishing conspiracy, fraud, collusion or concealment, raise an implied trust in favor of the insolvent’s creditors upon whom the discharge is conclusive, or of their assignees, i>y assignments subsequent to the discharge, or sustain an implication of fraud for their benefit; ct fortiori not, when his interests in the asset is purely speculative, resting in trust to him and defendant on the ultimate success of litigation, which success is itself dependent on his personal exertions and ability to raise and procure funds to meet the necessary expenses.]
    If, in the appraisement or sale, there was some irregularity or in adequacy for which the sale could be set aside in the exercise of the discretion of the court and a re-sale ordered, the insolvency court is the only court that can make such an order.
    Before Sedgwick, Ch, J., Freedman and Truax, JJ.

      Decided June 28, 1889.
    Appeal by plaintiff from an order and interlocutory judgment, overruling plaintiff’s demurrer to defendant’s answer, and directing final judgment for defendant, unless the plaintiff shall withdraw the demurrer and pay costs, &c.
    The facts sufficiently appear in the opinion.
    The following decision was rendered at special term :—
    “ Dugro, J.—The plaintiff to invoke the action of a court °of equity in his behalf states in his complaint what he considers to be the material allegations which, if true, entitles him to the relief he seeks. The answer in denying that the appraisers were misled and that Philbrook had any interest which made the suit mentioned in the complaint valuable at the time of the assignment for the benefit of creditors, and in denying the alleged conspiracy, puts in issue what the plaintiff must of necessity consider to be the basis of his action. I have assumed the sufficiency of the complaint, but of it have grave, doubt. The demurrer must be overruled.”

      Roger M. Sherman, attorney and of counsel for appellant, argued:—
    I. The contract which Philbrook described in his schedules as “ one-fourth contingent interest in Patent No. 42,920,” was by its terms, assignable. It reads to his assigns. It was in its nature assignable. Devlin v. The Mayor, 63 N. Y. 8, 14-19; Zabriskie v. Smith, 13 Ib. 335; Barnes v. Morgan, 3 Hun, 703; McKee v. Judd, 12 N. Y. 662; Sherman v. Elder, 24 Ib. 381; Rightmeyer v. Remsen, 38 Ib. 206; Gillett v. Bate, 86 Ib. 92. It is no obstacle that the right depends upon a contingency. Couch v. Delaplaine, 2 N. Y. 397; Lawrence v. Bayard, 7 Paige, 70; Powell v. Waldron, 89 N. Y. 328; Nor that it is coupled with a burden; Sewell v. Ives, 61 How. 54; Grocer’s Bank v. Murphy, 60 Ib. 426; Stinements v. Ainslie, 4 Den. 573; Carter v. Hammett, 12 Barb. 263; Lewis v. Burr, 8 Bosw. 140. In general such a trust passes to the personal representatives, and it is therefore assignable; Boone v. Citizen’s Savings Bank, 84 N. Y. 83; Ex parte Howell, 61 How. 179. Regarded as a mere power, being coupled with a beneficial interest, it is assignable: Clark v. Crego, 47 Barb. 599; affirmed 51 N. Y. 646; Barnes v. Morgan, supra. Philbrook is estopped to deny the assignable character of this asset. He has made it a consideration for his discharge from the debts of his creditors, plaintiff’s assignors. Gillett v. Bates, 86 N. Y. at p. 92, 93.
    II. The asset in question is, in Philbrook’s hands, power or control, not divested of its trust character; the trust is enforceable by any court of general chancery powers, having the parties before it. Clark v. Clark, 17 How.U. S. 315; Phelps v. McDonald, 99 U. S. 302-306; Midland v. Girod, 4 How. U. S. at p. 557; 2 Story Eq. Jur., § 899, 900; Mead v. Merritt, 2 Paige. 404; McCartney v. Bostwick, 32 N. Y. 57. Except the limited power to annul a discharge, the jurisdiction and authority of the Massachusetts Insolvent Court ceases with the granting of a discharge. Rice’s Case, 7 Allen 114, In Harlow v. Tufts, 4 Cush. 448, the supreme judicial court held that it had jurisdiction of a bill in equity against persons charged with fraudulently disposing of any of the estate of the insolvent debtor. See also Lancaster v. Choate, 5 Allen, 534; Hill v. Hersey, 1 Gray, 586; Foster v. Lamb, 6 Allen, 561; Fains.v. Richardson, Ib. 118.
    III. There is a general jurisdiction in equity to entertain a suit by a person for whose benefit a trust is executed who is to be the ultimate receiver of the money, to have it paid to him, and where the trustee is guilty of what the law considers a breach of trust in regard to the trust property the cestui que trust may invoke the aid of equity to give him such remedy in the premises as the circumstances may require. Story Eq. Pl., § 155; James v. Cowing, 17 Hun, 269; Bate v. Graham, 11 N. Y. 237, 239, 242; Wright v. Delafield, 25 Ib. 266; Crouse v. Frothingham, 97 Ib. 113, 114.
    IV. This suit was well brought against Thompson, as a colluding trustee, and Smith, having a colorable title to the property as co-defendants, with Phil-brook, as a trustee ex maleficio. Crouse v. Frothingham, 97 N. Y. 113, 114; Fort Stanwix Bank v. Leggett, 51 Ib. 554; Dewey v. Meyer, 72 Ib. 70, 78.
    V. The denial of particular intentions, ear marks, or circumstances of fraud, is ineffectual; the facts being admitted upon which the law imputes fraud. Doss v. Tyack, 14 How. U. S. at p. 313.
    VI. This court must, in due regard to the mandate of the Federal Constitution, give due faith and credit to the proceedings of the Massachusetts Insolvent Court, which, as pleaded and admitted, create a trust for plaintiff.
    VII. Those proceedings, however, do not go to the extent of making the discharge of Philbrook a muniment of title to those assets, which he assigned as a consideration for the discharge. Clark v. Clark, 17 How. U. S. at p. 321. If they do those proceedings are, so far as the discharge is concerned, fraudulent and void. Devlin v. Cooper, 84 N. Y. 418; Slacum v. Simms, 5 Cranch, 363, 367, 368, Marshall, C. J.; Sturgis v. Crowninshield, 4 Wh. 197-8; Harris v. Burdett, 11 J. & Sp. 57; 76 N. Y. 582; Bissell v. Kellogg, 65 N. Y. 432; Forbes v. Waller, 25 Ib. 430. If fraudulent the discharge is not within the protection of the Federal Constitution. Story on Conflict of Laws, §§ 597, 608, 609; Lazier v. Westcott, 26 N. Y. 152; Kerr v. Kerr, 41 Ib. 275. Plaintiff disclaims. any construction of his prayer respecting the discharge, except as incidental to the relief by receiver and in junction.

      Harvey D. Hadloch, attorney, and of counsel for respondent, in answer to the points relied on by appellant, argued:
    I. There was nothing conveyed to Mr. Philbrook by the instrument of trust, which could pass to his assignee in insolvency, and when the interest of Mr. Philbrook was appraised at one dollar that was all that his interest would then bear. The instrument of trust gave Mr. Philbrook the right to collect such sums as were due for past infringements of a then defunct patent. It did not and could not vest in him any interest in the patent, for that had by operation of law ceased to exist. He was simply created a trustee of such moneys as he might collect in excess of all the expenses incident to the collection, as specified in the instrument of trust, and, after all expenses had been paid, one-fourth of all sums collected could be appropriated to himself, and therefore there was nothing that could pass to Mr. Philbrook’s assignee in insolvency. The value of his interest remained to be established, and was made dependent upon his personal exertions ; and such an interest cannot pass to an assignee; and as the contract was a contract between him and his cestuis que trust based upon a personal trust and personal services, it could not be assigned. Henry v. Hughes, 1 J. J. Marsh, 454; Bathrich v. Purdy, 3 Mo. 82; Lansden v. McCarthy, 45 Ib. 106. And if he could not assign as against the rights of his cestuis que trust his insolvency would not make his assignee a trustee in his stead, with power to sell the trusteeship at public auction to the highest bidder. Shaw v. Del. R. R. Co., 3 Stockt. 229; Perry on Trust, § 104, and § 401. The trust estate did not pass to the assignee of an insolvent, nor does his certificate of discharge relieve him from any fiduciary obligation. Perry on Trust, § 58. It follows that as Mr. Philbrook did not conceal anything that the assignee was entitled to receive, and as there was nothing for the assignee to take when Mr. Philbrook was in insolvency, and as he has been discharged, this court has no jurisdiction over the subject matter of the plaintiff’s complaint.
    II. The counsel for the complainant claimed that courts of equity have jurisdiction over matters in insolvency, and in support of that claim cited Harlow v. Tufts, 4 Cush. 448, apparently unmindful of § 15 of chap. 157, of the insolvent laws of Massachusetts, which provides that the Supreme Judicial Court shall have a general jurisdiction of all cases arising under chapter 157; and that it may from time to time make such general rule and forms as it deems necessary to establish and maintain a regular and uniform course of proceedings in all the counties. And that it may upon the bill, petition, or other proper process, of any party aggrieved, hear and determine the case as a court of equity. The decision in the case Harlow v. Tufts was rendered in accordance with the provisions of the 15th section of chap. 157. It must not be overlooked that the person seeking relief in that case was the assignee in insolvency and not a creditor or an assignee situated as Mr. Murphy is in this case.
   By the Court.—Freedman, J.

All the allegations of conspiracy, fraud, collusion and concealment stated in the complaint having been denied in the answer to which the plaintiff has demurred, the facts still available to the plaintiff may be summed up as follows :

The plaintiff sues as assignee of the claims of certain creditors who are residents of the state of Massachusetts, and who, in the year 1885 proved their demands in an Insolvency Court of that state against the defendant Enel Philbrook. The Insolvency Court was a court of record and had full jurisdiction over the matters contained in Philbrook’s petition for a discharge. The assignment of the said creditors to the plaintiff was not made until 1887. Philbrook was a voluntary insolvent petitioner in the Massachusetts proceedings, and in the course of such proceedings the defendant Euel W. Thompson was duly appointed assignee for the benefit of creditors. By the law of Massachusetts the assignment vested in Thompson all the property of Philbrook which he could have lawfully sold, assigned or conveyed, or which might have been taken on execution against him, and also his rights of action. •Philbrook included in his schedule of assets “ one-fourth contingent interest in patent No. 42,920,” which patent was for an improvement in fire engines. This item was stated as “of no value.” It was duly appraised as of no value by appraisers duly appointed, and subsequently, upon due notice, duly sold at public auction in the course of the proceedings by Thompson, as assignee, to the defendant Albert H. Smith, as the highest bidder therefor, for the sum of two dollars. Smith then was, and how is, the son-in-law of Philbrook. In May, 1885, Philbrook obtained from said Court of Insolvency a full discharge from all debts proved against his estate, and from all debts held by residents of the commonwealth of Massachusetts, which said discharge he pleads as a bar to the present action, on the ground that the creditors represented by the plaintiff were residents of Massachusetts and parties to the insolvency proceedings, and as such proved their claims against him and shared in the proceeds. To overcome this plea the plaintiff relies upon the fact that, since the said sale to Smith, the latter has not attempted to exercise any right or control over, or to assert any interest in or to said one-fourth contingent interest in the said letters patent, but that he has allowed Philbrook to litigate claims for infringement of said letters patent during the life of the patent. Concerning this claim Philbrook says in his answer :

“ That at the time when he filed his petition in insolvency, as aforesaid, he was an assignee in trust of certain rights, recoveries and choses in action, created by an instrument dated the 20th day of May, 1884, for infringement of said letters patent during the term of their existence, a period of seventeen years, said patent having expired on the 24th day of May, 1881; that the condition of said trust was that he was to prosecute all claims that had arisen by reason of the infringements of said letters patent during their said term of existence, and pay all the expenses of such prosecution, and when all expenses of such prosecution had been paid from such sums as he held in excess of the necessary expenses aforesaid, he was to have and enjoy as his own separate property one-fourth interest in all recoveries ; * * * * that at no time since he was trustee, as aforesaid, has there been any fund in his hands for distribution; that at the time when he filed his proceedings in insolvency, as aforesaid, he had never received as much as one dollar by reason of the assignment of May 20th, 1884, and that on the 13th day of October, 1884, the only interest that he had in and to the rights and recoveries specified in his said assignment was that of trustee, and that interest he has continued to hold until the present time, and is now, so far as within his power, prosecuting said suits to final decree to obtain the rights and recoveries arising by reason of the infringements aforesaid.”

Upon this state of facts the plaintiff demands judgment: 1. That said discharge granted by the Court of Insolvency within and for the county of Suffolk, in the commonwealth of Massachusetts, on or about the 29th day of May, 1885, to the defendant Philbrook be adjudged null, void and of no effect as against plaintiff and as a bar to the debts proved against his estate aforesaid. 2. That it be adjudged and decreed that all right, title and interest of said defendant Phil-brook, which he had on the 13th day of October, 1884, in or to one-fourth contingent or other interest in letters patent of the United States, number 42,920, or any suits, demands, rights or causes of action for or because of infringements thereof are subject to a lien in favor of this plaintiff to the extent of the claims assigned to him as aforesaid and interest thereupon; and that the sale and conveyance to said Smith is null, void and of no effect. 3. That a receiver be appointed herein to take possession and control of all said right, title and interest, and that he have power to interplead and be substituted in all the suits at law and ih equity aforesaid as fully as said defendants Philbrook, Thompson or Smith are or may lawfully be in his or their name, place and stead: and to hold and prosecute the same subject to the direction of this court. 4. That the defendants, their and each of their attorneys, counsel, agents, employes and all persons acting by their and each of their appointment, or authority, be during the pendency of this action and permanently enjoined and restrained from selling, assigning, transferring, receiving, collecting, discharging, incumbering or in any manner disposing of or interfering with said one-fourth interest in letters patent of the United States, number .42,920, or in any of said suits at law or in equity or any cause of action therein or in any manner inter-meddling or proceeding in said actions or suits or either of them, &c., &c.

I fail to perceive how the plaintiff, upon the foregoing state of facts admitted by the demurrer, can have the relief claimed, or any part thereof.

The Court of Insolvency of the state of Massachusetts having, as a court of record, obtained full jurisdiction over the matters embraced in Philbrook’s petition, and over the persons of plaintiff’s assignors by reason of their appearance and submission to the jurisdiction of the court, and the proof of their- claims, and there having been no conspiracy, fraud, collusion or concealment in the proceedings, full faith and credit must be given to the judgment of said court, and the said judgment, and the discharge granted thereby, must be held to be conclusive between the parties and a bar to any other action founded on a matter involved therein and determined by it. A controversy between citizens of the same state cannot, after its final determination by the courts of that state, be re-opened or reviewed in another state in •consequence of a mere assignment by a party to the controversy to a citizen of another state. No such assignor can convey a greater title than he himself possesses.

There are still other reasons why the plaintiff must fail upon the case as it stands :

If Philbrook’s interest in the letters patent was assignable at all, it passed to his assignee, and was by the latter duly sold to Smith as the highest bidder therefor. By that sale the title to such interest became vested in Smith. In the absence of conspiracy, fraud, collusion and concealment, the sale cannot be disturbed, and it was competent thereafter for Smith to relinquish the subject of his purchase to Philbrook.

But even if there had been some irregularity or inadequacy in the appraisement or sale, for which the sale could be set aside in the exercise of the discretion of the court and a re-sale ordered, it is too clear for argument that no other court than the Insolvency Court can make such an order.

In conclusion it should be pointed out that, whatever interest Philbrook really had in the said letters ■patent, depended upon a certain contract, a copy of which was set forth by him in full in his answer. By that it appears that his interest was purely speculative ; that it was in trust to him ; that it depended upon the ultimate success of litigations then pending and thereafter to be brought; and that such ultimate success was dependent upon his personal exertions and upon his ability to raise and procure the necessary funds with which to pay the necessary expenses. Such an interest was a personal trust based upon personal services to be thereafter rendered, and as such it could not be assigned. His duties as such trustee could not be renounced by an assignment to his assignee in insolvency without the consent of his cestuis que trust; and, consequently, notwithstanding the assignment, his assignee could not, and did not, become a trustee in his stead with power to sell the • trusteeship at public auction to the highest bidder.

Thus it has been shown that, in whatever aspect the case as left by plaintiff’s demurrer is considered, the plaintiff has no cause of action. In no aspect of it will the law, in the face of Philbrook’s specific denials and explanations, raise an implied trust in favor of plaintiff’s assignors or sustain an implication of fraud for their benefit.

The order and interlocutory judgment should be affirmed with costs, with leave to plaintiff to withdraw his demurrer on payment of such costs and of the costs below;.

Sedgwick, Ch. J., and Truax, J., concurred.

       Upon a motion to continue a preliminary injunction granted in the action the following opinion was delivered.
      Tbxjax, J. (after reciting the facts):—The plaintiff claims that in some. way the defendant Philbrook has become re-possessed of said patent, and that he now claims to be the owner and holder thereof; and that the sale by the assignee of said Philbrook under the insolvent proceedings in Massachusetts was fraudulently made; and he seeks to have said sale, as well as the discharge of said Philbrook by the Insolvent’s Court, set aside as fraudulent and void against the plaintiff and his assignors; and he asks that an injunction may be issued restraining the defendants from disposing of or in any way interfering with the said patent and of the rights acquired by him under the assignment above referred to.
      I have no doubt but that in a proper case a court of this state could refuse to be bound by the decree of a court of another state, which decree was obtained by fraud. But I am also of the opinion that this is not a case in which this court should refuse to be bound by the decree of the Insolvent’s Court of Massachusetts.
      It was said in Smith v. Nelson, 62 N. Y. 288, that “ the jurisdiction in one court to vacate in an independent proceeding the judgment of another having power to render it, is in its nature so extraordinary as to demand a close adherence to principles and precedents in exercising it.”
      Judge Folger, in Verplanck v. Van Buren, 76 N. Y. p. 254, states the general principle to be that “ fraud and imposition invalidate a judgment as they do all acts,” and then pertinently asks what fraud and imposition are they which so do ? »

        He there shows that the fraud and imposition which will warrant a court in setting aside a judgment are the fraud and imposition which were used in obtaining the decree, and that the fraud must have been unknown to the opposite party at the time, and for not knowing which he is not chargeable with neglect or inattention, and of w'hich, had he known it, he could have availed himself in the court giving the judgment.
      How the only fraud charged here consists in estimating the value of Pliilbrook’s interest under that patent at a nominal amount, and in selling his interest for a nominal sum.
      I cannot see that the defendant Philbrook was guilty of any fraud in estimating his interest under the assignment of the aforesaid patent at a nominal amount. Whether or not he had any interest depended upon the ultimate success of litigations then pending, and thereafter to be brought. It does not appear, although more than three years have elapsed since the 13th day of October, that anything has been realized by said Philbrook or his assignees under said patent. His interest under the assignment of the patent was purely speculative, and in determining whether a fraud was committed in valuing it and selling it for a nominal sum we must consider things as they were at the time the valuation and sale was made.
      Besides he disclosed whatever property, if any, he had under the assignment, and the insolvent laws of Massachusetts provided a way by which the value of the property could be ascertained. He had disclosed his property, and I cannot say that he practiced a fraud having disclosed all his property, by simply undervaluing it.
      I have treated this matter as though he had a property interest under the assignment. It is to be noticed, however, that the assignment is to him in trust, and that he gets nothing under the assignment unless he succeeds in his claims against the infringers of the patent.
      The opinion above expressed is not in conflict with the decision in the case of Clark v. Clark, 17 Howard’s U. S. Repts. 315; it appears from the opinion in that case that the bankrupt did not mention in his first schedule his claim against the Republic of Mexico, while in this case the claim was mentioned by Philbrook. It is true in the Clark case that the bankrupt in his amendment did refer to the claim, but this was after he had received his discharge in bankruptcy.

        The plaintiff also seeks to set aside the assignment from Philbrook to Thompson, and the sale by Thompson to Smith as having been made with the intent to hinder, delay and defraud the creditors of Philbrook, but that action cannot be maintained by this plaintiff because he represents creditors who are not judgment creditors, and it is well settled by the laws of this state that such an action can be maintained only by a judgment creditor.
      I do not think that in a case of this kind where the plaintiff’s cause of action is, to say the least, so doubtful, that an injunction which rests largely in the discretion of the court should be granted. •'
      Motion to continue the injunction denied, and the temporary injunction vacated, with $10 costs.


author: By the Court.—Freedman, . J.

text:
    HELEN JULIA OSZKOSCIL, by Guardian, etc., Appellant, v. THE EAGLE PENCIL COMPANY, Respondent.

      Negligence case.—Absence of specific instructions by employer to employee, when not ground of liability.—Minors, principles as to duty of employer towards.

    Where all the parts of the machinery and their movements are fully exposed to view and the employee has been engaged thereon for some time, the absence of specific instructions by the employer to the employee not to permit her hand to be caught between the moving machinery, constitutes no ground of liability.
    The principles laid down in Hickey v. Taaffe, 105 N. Y. p. 26, as to the general rule of law upon the subject of employees not being altered by the bare fact that an employee is a minor, applies.
    Before Sedgwick, Ch. J., and Freedman, J.

      Decided June 28, 1889.
    Appeal by plaintiff from judgment entered upon a dismissal of the complaint at the trial.
    In addition to the facts stated in the opinion, it appeared on the trial that the plaintiff was of an age to appreciate and to have full knowledge of the danger of permitting her hand to be caught between the moving machinery, and was competent to perform the duty required of her.

      Hays & Greenbaum, attorneys, and Daniel P. Hays, of counsel, for appellant, argued:—
    I. The court erred in refusing to submit the questions of fact to the jury and dismissing the complaint. It has been well settled that, in employing young persons, the employer is bound to take notice of their age and ability, and to use ordinary care to protect them from risks which they cannot properly appreciate and to which they ought not to be exposed. This is a duty which cannot be delegated, and any failure to perform it leaves the master subject to the same liability, with respect to such risks, as if the child were not a servant. Sherman & Redfield on Negligence, sec. 219; Buckley v. Gutta Percha Mfg. Co., 41 Hun, 450; Coombs v. New Bedford Cordage Co., 102 Mass. 572; Grizzle v. Frost, 3 Fost and F. 622; Fanter v. Clark, 15 Ill. App. 470; Hickey v. Taaffe, 105 N. Y. 36; Sullivan v. India Mfg. Co., 113 Mass. 396 at 399; Finnerty v. Prentice, 75 N. Y. 615, MS. The rule invoked by the appellant is that laid down in the above cases. The plaintiff was an infant, 15 years of age, not accustomed to working on machinery, just three months out of school, was given no instructions as to the dangers incident to cleaning or operating the machine, but, on the contrary, was directed to clean it while it was in motion. The machine was one operated by steam, and had many wheels and rollers moving quickly. She had only been employed on it one week. She was attending to her work, and not looking at any other place. No one told her it was dangerous to clean this machine while in motion. Under the above decisions, it was clearly a question for the jury to say whether it was dangerous to clean the machine while in motion, whether proper instructions were given to plaintiff, or whether she was old enough to appreciate the dangers of the occupation, and whether she was guilty of contributory negligence.
    II. The case of Hickey v. Taaffe, 105 N. Y. 36, which has been cited above as an authority in favor of plaintiffs position, is also relied upon by defendant to support the nonsuit. Although in that case the court held that the girl could not recover, it recognized the principle contended for by us, and affirmed the dismissal of the complaint upon the ground that while the plaintiff had received no instructions as to the dangers of the machine, she had acquired the information from the best of all teachers—practical experience. In that case the plaintiff was fourteen years and four months old, and had been employed in the laundry nearly four months, from April 1st to July '26th. She had fed the machine for six weeks. During that -time defendant had talked to her about her hair being too long, and told her to keep it up in front or it might get caught in the rollers and be burned off. She knew the rollers were so close together that they would, if they caught her hair, either draw it out of her forehead or burn it off, and she knew this did once occur. She knew also that the rollers were hot enough to iron a collar and that there was a pressure of one roller upon the other. She also knew that if her hand was caught between the rollers it would be burned and crushed, and she knew that other girls had had their hair caught and burned off on the machine. She knew that the upper roller was weighed down to the lower roller by weights. It can readily be seen that the plaintiff in that case knew all about the machine that the defendant could have told her. The law did not, therefore, require the defendant to go through the idle ceremony of pointing out dangers of which she was aware. In the case at bar the plaintiff had no knowledge of the dangers, she had had no experience such as the plaintiff in Hickey v. Taaffe had received, but she was injured after working a week at the machine, and while performing her work in the manner in which she had been directed to perform it by defendant’s foreman.

      Stine & Caiman, attorneys and of counsel, for respondent, argued.
    I. Plaintiff was engaged in the room where she received the injury, fully twelve weeks before the accident ; during all that period, this machine was used by other girls there, and no one else was hurt there ; during all the time plaintiff was there she never heard of any one being hurt by this machine. It is clear from plaintiff’s testimony throughout, that she had seen this machine operated during all the time that she was there, and that it was a machine of very simple construction, and that when she was placed at the machine to attend to it, her duties were of the very simplest and safest kind. It was a machine which had been in that factory for years, and as plaintiff herself testified, she never heard of any one else being hurt. Where, then, is there any negligence on the part of the defendant ? The plaintiff testifies, that she was ordered to clean the machine while in motion ; if this be true, as must be assumed in the absence of evidence by the defendant, this is no proof of negligence. There is nothing in the whole case, not a word, not an iota of evidence that the cleaning of this machine in motion was dangerous. This case is as closely analogous to that of Hickey v. Taaffe, in 105 N. Y. 26, as any two cases can be. In that case, as in this, there was a girl of just about the same age (in fact Miss Hickey was about six or seven months younger than the plaintiff herein), who was employed upon machinery, which in itself was not dangerous, but which, as all machinery, can become dangerous if handled negligently. In that case even, it had happened, as appears from the testimony therein, that another girl had been injured by carelessness. This did not appear in this case. In that case, the court holds that plaintiff could not recover.
    All the plaintiff in this case had to do, all her duties, were connected with those parts of the machine which were in clear view of plaintiff all the time. And as the court said in Hickey v. Taaffe, on pages 35 and 36, there is no doubt that an employee in accepting services with a knowledge of the character and position of the machinery, the dangers of which are apparent, and from which he might be liable to receive injury, assumes the risks incident to the employment and cannot call upon the defendant to make alterations to secure greater safety. A mere inspection of the machine will show that there is no possibility of any machine operated by steam being safer or more easily handled than the one in question here.
    II. In Hickey v. Taaffe, it is held that, she being of an age to appreciate and having full knowledge of the danger and at the same time being competent to perform the duty demanded from her, the fact that she was a minor, does not alter the general rule of law upon this subject of employees taking upon themselves the risks which are patent and incident to the employment.
   By the Court.—Freedman, . J.

No evidence was adduced at the trial of any defect or want of repair or secret danger in the machinery complained of. The machinery appeared to have been in every way suitable and adequate for the purposes for which it was used. Whatever danger there was arose from coming into contact with some one of the parts while in motion. But all the parts of the machinery, and their movements, were fully exposed to view. Under these circumstances, and the plaintiff having been engaged upon said machinery for some time, a specific instruction by the employer to the plaintiff not to permit her hand to be caught between the moving machinery, was unnecessary, and the absence of such an instruction constitutes no ground of liability. An employee in accepting or continuing in service with a knowledge of the character and position of the machinery, the dangers of which are apparent, and from which he may be liable to receive injury, assumes the risks incident to the employment, and the fact that he is a minor, does not change the rule. Upon the principle laid down and enforced in Hickey v. Taaffe, 105 N. Y. 36. the complaint was properly dismissed.

The judgment should be affirmed with costs. •

Sedgwick, Ch. J., concurred.


text:
    AARON B. COHU, as Executor, etc., Respondent v. JOSEPH HUSSON, Appellant.

      Stay of proceedings, non-payment of costs awarded by a general term order made on an appeal from an order operates as,—Reversal without prejudice.

    Under § 779 of the Code of Civil Procedure as amended by chapter 181 of the Laws of 1884, the non-payment of costs (within the time limited by that section) awarded by a general term order, made on an appeal from an order below, works a stay of all proceedings on the part of the party against whom the costs were awarded, including the service of a notice of appeal from a judgment entered against him in the action in which the general term order is entered subsequent to the entry of that order.

    Where the service of a notice of appeal from a judgment is irregular, as having been made pending a stay arising from the non-payment of costs awarded by an order, and the court below erroneously orders its acceptance, the general term (the appeal from the judgment having already been heard ) may reverse the order below without prejudice to the appeal from the judgment upon terms.
    Before Sedgwick, Ch. J., and Freedman J. '

      Decided June 28, 1889.
    Appeal from an order.
    The issues in this case were tried before the court and a jury November 7,1888, and a verdict rendered in favor of the defendant.
    The clerk of the court- having refused to tax costs in favor of defendant against plaintiff, and the court at special term having made an order sustaining the clerk, defendant thereafter, and prior to February, 1889, appealed to the general term, where an order was made dated February 10, 1889, reversing the order below, with $10 costs and disbursements of the appeal, and directing the clerk to tax the costs of the defendant in the action and to insert the same in the judgment to be entered in defendant’s favor on the verdict. This order was entered March 8, 1889. The costs in the action having been taxed, judgment was, on March 12, 1889, entered on said verdict in favor of defendant against plaintiff for such costs; and a copy of the judgment with a notice of its entry was that day served on plaintiff’s attorney. On the 13th of March, 1889, a copy of the aforesaid order of reversal, with a demand for payment of the costs thereby awarded, was served on plaintiff’s attorney. On the 15th day of March, 1889, the costs awarded by the aforesaid order of reversal were taxed at $47.52. On the 25th of March, 1889, defendant’s attorney served on plaintiff’s attorney a notice that the costs awarded by the aforesaid-order of reversal had been taxed at $47.52, and that defendant demanded payment thereof; also that more than ten days having elapsed since the service of said order, and said costs-not having been paid, defendant would at all times insist that all proceedings on the part of the plaintiff in the action were stayed until said costs were paid. On 'the 1st of April, 1889, defendant served a notice of appeal from the aforesaid judgment to the general term. On the next day the notice of appeal was returned, endorsed, “ Respectfully returned for the reason that all proceedings on the part of the plaintiff are "stayed under §-779 of the Code for non-payment of costs of order entered herein on the 8th of March, 1889.” Plaintiff then moved for an order compelling defendant to receive said notice of appeal. After hearing counsel, the court, at special term, made an order, ordering defendant’s attorney to receive and accept said notice of appeal as of the date of the service thereof on him, to wit: April 1st, 1889. From this order the present appeal is taken.

      Edward P. Wilder, attorney and of counsel, for appellant.

      Abram Kling, attorney and of counsel, for respondent.

       Neither of the counsel adverted to the fact that since the decision of Verplank v. Kendall, 47 Superior Ct. R. 513, § 779, had been amended by chapter 181 of the laws of 1884, upon which fact the above decision rests.

       The appeal from the judgment was heard at the same term, and decided August 8,1889. (See post.)

   By the Court.—Freedman, J.

This is an appeal from an order made at special term compelling defendant’s attorney ^o accept a notice of appeal from the judgment in this action, which notice had been ' previously served by plaintiff and returned by defendant’s attorney on the ground that plaintiff’s proceedings were stayed for non-payment of costs of an order under § 779 of the Code of Civil Procedure. The order awarding such costs was a general term order, which reversed an order made at special term with $10 costs and disbursements of the appeal, and granted defendant’s motion below with $10 costs. There is no claim that the stay, if it existed, has been waived by the defendant. The court below made the order appealed from in deference to the authority of Verplanck v. Kendall, 47 Super. Ct. 513. That case was decided in 1880, and at that time section 779 of the Code read as follows: ‘ Where! costs of a motion, directed by an order to be paid, are hot paid, &c., &m” It was upon this language that it was held by this court that costs of a motion did not include costs of an appeal from an order. In Phipps v. Carman 26 Hun, 518, decided in 1882, the general term of the Supreme Court of the Second Department reached a different conclusion. The conflict between the two .decisions was settled by the passage of chapter 181 of the Laws of 1884, by which section 779 was amended so as to read as follows: “ Where costs of a motion, or any other sum of money, directed by an order to be paid, are not paid, &c., &c.”

Under the section, as thus amended, non-payment of any sum of money directed by an order to be paid, is made by law a ground for staying further proceedings in the action on the part of the party thus in default, and the section applies to all orders, irrespective of the question whether they have been made at special or general term. From this it follows that the order appealed from was erroneously made.

The order must be reversed, with $10 costs and disbursements to be taxed, such reversal, however, to be without prejudice to the appeal from the judgment heard during this term, provided the plaintiff, within 20 days, pay the said costs and disbursements and the costs as taxed under the former general term order.

Sedgwick, Ch. J., concurred.


text:
    JOSEPH ATKINSON, et al., Respondents, v. TITUS B. TRUESDELL, Appellant.
    TPnííen contract—Parol evidence to explain the meaning of words used therein to make clear what would otherwise he uncertain.

    By the words in the agreement the glassware, the subject thereof, was “ to be made-after September 1, and to.be taken by January 1, ’83. Terms, 60 days. Net on dock.”
    The court below received, subject to objection, parol evidence as to the particular meaning of the words used. The evidence received showed that in the glass business the words “to be taken ” between fixed dates, have the particular meaning that the buyer has the right of ordering the goods to be shipped, as he wishes, between the dates mentioned, and the seller must ship them as the buyer orders, and may not deliver the goods without such order from the buyer. That the provision for manufacture after September 1st was explained by evidence that glass factories throughout the United States suspend operations annually on June 30th, and resume on September 1st.

      Held, that this evidence did not vary, nor tend to vary, the written contract, but explained it and made clear what, without it, would have been uncertain. Not one word was added to the terms of the contract, but the words used in it were exhibited in the same light in which the parties saw them when they employed them, and consequently the evidence was competent and admissible.
    Before Freedman and Truax, JJ.

      Decided June 28, 1889.
    Appeal by defendant from judgment entered in favor of the plaintiffs upon the verdict of a jury, and from order denying defendant’s motion upon the minutes for a new trial.

      Edward P. Wilder, for appellant.

      Samuel W. Weiss, for respondents.
   By the Court.—Freedman, J.

The action was "brought to recover, as damages for the breach of á contract, the amount of the purchase price of a portion of the goods not taken by the defendant, which amount was fixed by the jury. No question was made on the trial as to the right of the plaintiffs to recover such amount, if anything, and no exception was taken by defendant to the judge’s charge in that respect, nor to any other part of the charge.

On July 19, 1882, the plaintiffs, through their agent Dorflinger and the defendant, entered into an agreement of sale and purchase of a certain quantity of glassware at fixed prices, the glassware “ To be made after September 1st, and to be taken by January 1, ’83. Terms, 60 days net on dock.”

As by the terms of the contract the defendant was to take the goods from a dock not specified, and not later than the time stated, parol evidence was admissible as to the particular meaning of the words used. The evidence received for this purpose showed that in the glass business the words “to be taken ” between fixed dates, have the particular meaning that the buyer has the right of ordering the goods to be shipped, as he wishes, between the dates, and the seller must ship them as the buyer orders, and may not deliver the goods without such order of the buyer. The provision of the agreement for .manufacture after September 1st was further explained by the fact that glass factories throughout the "United States suspend operations annually on June 30th, and resume on September 1st.

This parol evidence did not vary, or tend to vary, the written contract, but explained it and made clear what, without it, would have been uncertain. Not one word was added to the terms of the contract, but the words in it were exhibited in the same light in which the parties saw them when they employed them. The evidence was therefore competent within the rules laid down in Dana v. Fiedler, 12 N. Y. 40 ; Walls v. Bailey, 49 Ib. 464; Collender v. Dinsmore, 55 Ib. 200.

The question whether proof of the customary meaning of a contract can be received unless the custom is specially pleaded, was not raised at the trial, and should not be entertained on appeal for the first time. The evidence which established that Borflinger was acting as plaintiffs’ agent in the making of the contract, and that plaintiffs were the principals, was properly admitted. The question whether from Nov. 13, 1882, up to January 1, 1883, the plaintiffs had and kept the goods on hand ready to deliver on receiving directions from the defendant, was fully and fairly submitted to the jury as a question'of fact, and their verdict upon this point should not be disturbed. The case as a whole discloses no ground for reversal.

The judgment and order should be affirmed, with costs.

Truax, J., concurred.