text:
    GORHAM F. BAKER, Plaintiff and Appellant, v. WILLIAM G. CUTTING and Others, Defendants and Respondents.

      [Decided June 4, 1870.]
    The finding of a referee, upon conflicting testimony, that purchases and sales of stocks were made by defendants by the direction and authority, or the subsequent approval of the plaintiff, will not be disturbed on appeal. In matters of fact the finding of a referee upon conflicting evidence is conclusive.
    Before Barbour, C.J., Monell and Freedman, JJ.
    Appeal from a judgment entered upon the report of a referee.
    The action was brought to recover margins deposited with defendants, as brokers.
    In April, 1865, the plaintiff employed the defendants, who were commission stock brokers, to conduct certain transactions in stocks for him, and paid them during that month and the following one, in the aggregate, the sum of $2,000 as margins, as security for any loss in his operations. He employed them in the usual way, except that they agreed to carry such stocks for him as he might purchase or sell, as long .as he desired. The defendants allege that he also told them to operate for him generally on thevr own judgment, and that he would be bound by whatever they did, but this is denied by the plaintiff. The defendants went on and made many sales and purchases, sometimes giving notice to plaintiff of what they had done, and sometimes not, until the month of August, when the defendants rendered an account to the plaintiff, showing him in debt to them in the sum of $1,331.59. Hp to this time the plaintiff had supposed the defendants were largely indebted to him, and he repudiated the larger number of transactions, as not in any way authorized by him, and commenced this action to recover back his margin and moneys he had in their hands. The defense set up the alleged general authority to buy and sell as they deemed best, and a counter-claim for the balance they claimed as due. The action was referred, and the referee rendered judgment in favor of the defendants, dismissing the complaint, and for the sum of $702.27 and costs. From this judgment the plaintiff appealed.

      Mr. George R. Thompson for appellant.
    The referee erred in finding that all the purchases were made by the “direction, authority, or subsequent approval of the plaintiff.”
    This finding is based upon the affirmative defense that the plaintiff gave the defendants general authority to buy and sell stocks on their own judgment for his account, and is supported by the evidence of one witness only. The plaintiff denies any such intention or arrangement.
    • The whole tenor of defendants’ testimony shows that no such arrangement was made, as the defendants were receiving express instructions from the plaintiff all the time, in relation to other transactions, and were concealing from him what they had done where no express instructions had been given.
    The plaintiff is not responsible for these unauthorized purchases and sales, because there was no notice given to him of them until long after they were consummated, as sworn to by both parties.
    Even if the defendants had power to bind the plaintiff under their alleged general authority to operate by purchasing, they had no right to sell without any notice. When they purchased, they became mere pledgees of the plaintiff of the stock, and had no control over it in any other way. They took no measures to ascertain the plaintiff’s wishes, but sold as they pleased. The plaintiff would have had a right to the stock at any time by paying for it, and the defendants were guilty of great negligence and disregard of his interests in not asking his direction, and in selling to his loss (Brass v. Worth, 40 Barb., 649).

      Mr. W. Britton for respondents.
    There were only two questions in controversy—wholly of fact—and the referee has found one with the plaintiff and the other with the defendants, and there is abundance of evidence to sustain the findings as to both.
    Plaintiff denied the authority to make the purchase or sales not marked authorized.” The evidence of such authority sustains conclusively the finding of the referee.
    Plaintiff claimed that the defendants sold one hundred shares of N. Y. Central stock without sufficient authority, which the referee has found in his favor and has allowed him as damage the highest price, before the trial; of this only defendants can complain.
   By the Court:

Barbour, C.J.

There can be no doubt that the referee’s legal conclusion, that the defendants were entitled to recover the sum awarded to them in the report, was correct, if the purchases and sales, found by the referee to have been made by the defendants, were really made by the direction and authority or the subsequent approval of the plaintiff,” as he has found the fact to be. The only question for the court to determine upon this appeal, therefore, is, whether the testimony given upon the trial was sufficient to justify that finding of fact touching the authority conferred upon the defendants by the plaintiff, or his ratification of their acts.

The evidence upon the subject is contained, substantially, in the testimony of L. W. Badger, one of the defendants, on the one side, and that of the plaintiff himself upon the other. Mr. Badger, after stating in detail several transactions in stocks by his firm, as brokers for the plaintiff, and conversations with the latter, testified as follows: The account was rendered, and a check given for the difference. He made this remark once to me in the office, ‘ That he would have done better to have taken my advice.’ I told him Tes, the bears make most in the long run.’ He said he did not know as he could be a bear. He said his business was such he could not come up every day, a/nd told me when I sa/w a chance to make anything, to do it. I told him 1 would do the best I could, and that I was as lAable to make a mistake as any one. The next transaction I made for him was to sell short one hundred shares of Horth-western preferred stock. * * He knew nothing of the transaction last named until after it was sold. He said he knew nothing about that stock. I told him I was in hopes to make something on it, and he told me whenever I thought it best to take it in; that is, to buy it and return it. * * The next time I saw Mr. Baker, soon after, I told him I had made him fifty dollars or more. He wanted to know if I was going to do anything more. I told him I would if he wished, and that I thought stocks were better sale than purchase. ‘Well] he says, ‘you may do as you think best about it.’ I told him perhaps if I made him some losses, then he would not feel so well about it. He said it would not be the first time, if he did lose / that he could not come up very often, and would rather I would go on ami do the best I could. * * About the 5 th or 6 th of June, I sold for him another hundred of Erie, at 72-J-, and bought it in at 75f. I told him about the transaction, and he asked me what I was going to do next, and if it would not do to buy something. I told him it would be Mariposa, if anything. He said I might do as I pleased, and that he would rather leave it with me. I bought him one hundred shares,” etc. Although the plaintiff admitted upon the trial that he authorized or sanctioned all of these purchases and sales, and they are, therefore, not in controversy, I have thus stated the testimony of Mr. Badger touching the transactions, for the purpose of exhibiting the mode in which the .parties dealt with each other. The Erie stock, next spoken of by the witness, was the very subject of the controversy so far as concerns this appeal. In regard to that Mr. Badger testified, in continuation of what is above set forth, The next transaction was in Erie. I told him perhaps he had better put the Erie out again; that is, sell short. He told me to do as 1 pleased, a/nd that he would rather lea/ue it with me; that he couldn’t give it his attention every day. I sold a hundred shares for him at 75, about June 21st. I told him what I had done. * * The next time I saw him, he asked me if it was a good way to buy in a hundred shares of Erie. I told him it was, for the time being. I did buy a hundred Erie, at 91i. * * The market advanced rapidly, and, the next day or two, I met him. I told him there was quite an excitement in Erie, and he asked me what I had done. I told him I had bought a hundred shares at 91-1, and they were now bidding ninety-six for it, which would give him a profit of four or five hundred dollars. I ashed him if 1 had not better sell it, and he said, 1 By all means? I went and sold it at 96J. This was July 27. * * I told himbeforeheleft what I had sold it for, and he then went away, telling me to manage the best I could. He said, ‘ When you thinh best to buy, buy; andwhen to sell, sell, but don’t lose any money if you can help it? ”

The same witness further testified that after all the purchases of stocks had been made, and all except the hundred shares of Central sold, the defendants sent their account to the plaintiff, after which the witness asked him for money, and that when he told the plaintiff how the account stood, the latter “ took no exceptions to it, except to regret it, and promised to pay in a few days; ” and that as the witness went out at the door the plaintiff slapped him on the shoulder and said, Badger, you will not lose a cent of this money. You will have it, but you will have to wait a few days.”

Mr. Cook, who was in the employ of the defendants during the transactions, testified that he had heard conversations between the plaintiff and Badger, and that the former said he would leave it to Mr. Badger to act on his own judgment; ” that they were talking about stocks, but the witness did not know what stocks. Another witness (Mr. St. George) also stated that he had heard the plaintiff say to Badger, Do the best you can for me.”

That testimony, uncontradicted, would certainly be sufficient to establish not only the fact that the defendants were authorized to buy and sell stocks for the plaintiff in their discretion, and without waiting for specific instructions, but that aftel’the stocks had all been sold except the Central, the plaintiff was informed, by a statement of the defendant’s account, of what they had done, and did not make any objection thereto, but, on the contrary, promised to pay the balance due them. It is true most of the material statements of the defendants’ witnesses, touching their dealings with the plaintiff, were denied by the latter upon the stand ; but the referee evidently came to the conclusion that the statement of Hr. Badger, corroborated as it was to some extent by two other witnesses, was true, as he well might.

The judgment should be affirmed, with costs.


source: Caselaw Access Project

author:
Jones, J.
      Barbour, C.J.

license: Public Domain

text:
    SIMEON J. AHERN, Plaintiff and Respondent, v. THE STANDARD LIFE INSURANCE COMPANY, Defendants and Appellants.

      [Decided June 4th, 1870.]
    The act of sending a business advertisement to a newspaper for publication, without placing any limit on the time during which it is to be published, authorizes its insertion until notice is given to stop, unless the character of the advertisement in itself indicates that it is not to he published after a certain time.
    If evidence which has no bearing on the issue left to the jury, and is not of a nature to affect their minds to the prejudice of the unsuccessful party, has been improperly admitted in evidence, such improper admission is not sufficient to call for anew trial, unless the court has founded either wholly or in part on it some proposition of law adversely to the unsuccessful party.
    Letters written by a president of a corporation, when evidence against the corporation.
    Before Barbour, C.J., McCunn and Jones, JJ.
    This was an appeal from a judgment.
    This case was tried before Mr. Justice Fithian and a jury.
    The plaintiff was the publisher of a newspaper called the “ Gazette,” and sued the defendants to recover for publishing an advertisement of the defendants.
    The defendants claimed that the advertisement was to be published for a limited number of times, while the plaintiff claimed it was to be published “ until forbidden.”
    Several exceptions were taken on the trial to the admission of evidence, which are referred to in the opinions of the court.
    The jury found a verdict for the plaintiff for the full amount claimed, and the defendants appealed.

      Mr. Livingston K. Miller for appellants.
    The evidence of the letter was not good for a/ny thing. It was not competent thereby to establish any liability of defendants.

      Defendants are not liable for an unofficial and unauthorized act of their president (Bruce v. Lord, 1 Hilton, 247; Soper v. Buffalo and Rochester R. R. Co., 19 Barb., 310; Corn Ex. Bank v. Cumberland Coal Co., 1 Bosworth, 436).
    The court erred in admitting the evidence of custom, for it is evident the witness was not competent to testify to such custom; that defendants had no knowledge of it; and that there is no such custom proved.
    Custom cannot be proved by a single witness, unless possibly where his evidence is very full, thorough, clear, and explicit, as -it was not in this case (Dawson v. Kittle, 4 Hill, 107; Goodrich v. Ogden, 4 Hill, 104; Wood v. Hickock, 2 Wendell, 501).
    The court erred in refusing to charge that the plaintiff, to recover, must prove a custom in regard to an advertisement being published until forbidden, when there is no time specified, and also that one witness was not sufficient to prove such custom (Greene v. Waggoner, 2 Hilton, 297; Hollister v. Bender, 1 Hill, 150; Reynolds v. Dunkirk R. R., 17 Barb., 613; Bentley v. Bentley, 7 Cowen, 701; Johnson v. Hudson River R. R., 5 Duer, 21).

      Mr. Francis Byrne for respondent.
    Evidence of a “ general custom ” is always proper; and the objection thereto and exception thereupon are untenable'.
    The objection to the reading of the letter, as being a “ confidential ” communication and exception, etc., are also groundless.
    It was a question of fact whether the publication was limited by the appellant, and the learned justice left the facts to the jury, and the jury have determined it was not; besides, two copies of the paper were sent to the president and secretary, and the president promised Mr. McDonald to pay respondent.
    The requests to charge were properly disposed of. If there was one error, the exception is too extensive.
    The charge of the learned justice was lucid and fair, and the law properly expounded by him; and the exceptions to the parts are without legal support.
   By the Court:

Jones, J.

The act of sending a business advertisement to a newspaper for publication is, in the absence of instructions to the contrary, a direction to publish it in each issue of the paper until it is ordered to be stopped.

This is one of those propositions which depend for their support solely on the conviction which the fair statement of them carries to the mind of their correctness; and which are incapable of being enforced or supported, to any great extent, by a train of reasoning.

There is, however, one consideration to be urged in its support. The object of such an advertisement is to draw the attention of the public to the business advertisement; a single insertion would have comparatively so slight an effect toward attaining the object in view, that the idea of such a limit cannot be supposed to have entered into the mind of the party.

It may be, as suggested by the chief justice, that in some instances the character of the advertisement will, of itself, operate as a limit on the running of the publication. That question, however, is not now presented.

The foregoing views dispose of most of the questions raised on the appeal in this case.

Under it a charge that the plaintiff could not recover without proving it to be a custom that, in absence of directions to the contrary, an advertisement is continued until forbidden, would have been erroneous. Consequently there was no error in refusing so to charge.

So, also, under it the burden of proving that a limit was placed on the time of publication devolved on the defendants, and the exception to the charge to that effect is not well taken.

Likewise under it the proof as to a custom is wholly immaterial. That proof was introduced for the sole purpose of establishing that, where there is no instruction to the contrary, an advertisement is to be continued until it is stopped. As that is, as above held, the necessary effect of sending a business advertisement to a newspaper for publication without any accompanying directions as to how often or for how long it is to be inserted, the proof of custom was wholly unnecessary, and had no effect whatever on the case or on the verdict, since it was conceded that the advertisements had been sent for publication, and the only question was, whether any, and if so what, directions were given respecting their insertion. The evidence of custom had no bearing whatever on that issue, and consequently it could not, by any possibility, have affected the verdict.

Therefore, even though there may have been error in its admission, that error does not call for a reversal.

Indeed, the only question of fact submitted to jury and passed upon by them was as to whether the advertisements were limited as to the times and length of insertion. That question was fairly submitted to the jury, and the evidence is sufficient to support their finding.

The remaining exceptions are to the reception in evidence of a letter written by the president of the defendants, and to the refusal of the judge to charge, as requested, that the burden of proof is on the plaintiff to establish the claim by a preponderance of evidence.

The letter was written by the president in the course of his business as such president, and, in the absence of any restriction contained in the charter or act of incorporation of the company, or the by-laws thereof, or of the general statutes, on the power of the president to make a contract of this character, was competent evidence.

As to the request to charge: the only issúe left to the jury was one as to whether the burden of proof rested on the defendants. ..To charge as requested would consequently have been error.

Judgment affirmed, with costs.

Barbour, C.J.

(concurring). I think the objection of the defendants to the question touching the general custom of newspaper offices in regard to the period during which advertisements are inserted, where no time is specified, and their exception to its admission, were well taken. Evidence of the custom of newspaper publishers in that regard would no more tend to establish a valid custom, binding upon persons dealing with them in ignorance thereof, than would proof of a contrary custom on the part of advertisers. The plaintiff might, perhaps, have been entitled to prove a general custom as between publishers and advertisers, and within the knowledge of each, as a class, by which their dealings with each other in this respect were regulated, but he had no right to prove his custom, and that of other publishers, unless such evidence was connected with, or followed by, proof that such custom was known to the defendants, or, at least, that the custom was general, and was so well known to and universally acquiesced in by advertisers, in their dealings with the former, that the defendants might well be presumed to have knowledge of such usage.

But, although the admission of the testimony in question was erroneous, I do not think the defendants were prejudiced or injured thereby. For it is a rule of common sense, and therefore of law, that where an advertisement is handed to the publisher of a periodical newspaper, with a general direction to publish the same, and without limitation as to the period during which the publication shall be continued, such publisher has a right to assume that the advertiser desires to have the same,inserted in each paper, as published, until he shall direct it to be discontinued, unless the advertisement is itself of such a character that the publisher would be bound to assume that the advertiser designed to limit its publication to a certain period; such an one, for instance, as an advertisement of a sale or other act, to take place on a certain day. The advertisement itself, in the latter case, would, of course, be sufficient to inform the publisher that the advertiser could not desire to have the publication continued beyond that day. The application of this rule of law to the facts proven, therefore, rendered the evidence touching the existence of a custom among newspaper publishers, which was in conformity with the rule of law, wholly unimportant; and, for that reason, its admission did not tend to the prejudice of the defendants.

Subject to these remarks, I concur in the opinion that the judgment should be affirmed.


author: Jones, J. Barbour, C.J.

text:
    JESSE M. EMERSON, Plaintiff and Appellant, v. MILO H. PARSONS and LEVI S. PARSONS, impleaded, Defendants and Respondents.

      [Decided June 4, 1870.]
    An instrument given by one partner to his co-partners, certifying that he had purchased their interest in the firm, and agreeing to assume all liabilities of the firm and hold them harmless, is some evidence that the partnership was dissolved on the day of its date.
    Before Barbour, C.J., Jones and Spencer, JJ.
    Appeal from a judgment.
    This case was tried before Mr. Justice Monell and a jury.
    The point chiefly litigated on the trial was whether the defendants, Milo H. Parsons and Levi S. Parsons, who defended this action, were liable with Edward F. Baker, also made a defendant, but who did not defend.
    The solution of the point turned on the question whether a copartnership which had been entered into by the three, under the firm name of E. F. Baker & Co., was dissolved on the 3d of September, or the 5th of December, 1867; the contract out of which the demand in suit arose having been made personally with Baker between those dates, and plaintiff not having dealt with the firm prior to the first date.
    On this point the evidence was substantially as follows :
    Defendant Milo H. Parsons testified that the partnership was dissolved the 3d or 5th of September, by mutual agreement, and that the dissolution was in writing. The writing was then offered in evidence. Plaintiff objected to its reception, the objection was overruled, and plaintiff excepted.
    The writing was as follows:
    This is to cebtify that I have purchased the interest of M H. Parsons and Levi S. Parsons in the firm of E. E. Baker & Co., and I hereby agree to assume all liabilities of the said firm, and hold M. H. Parsons and Levi S. Parsons harmless.
    E. F. Bakes.
    Signed in presence of
    A. S. Quackenbush.
    Hew York, September 3,1867.
    ; Eive-cent :
    : U. S. Rev. Stamp :
    : Uncancelled. :
    On his cross-examination the witness was asked, “Did the company, E. F. Baker & Co., assume, after September 3, to sell out to any body an interest in that matter ? ” His answer was: At the date of that paper, when this dissolution was made, Mr. Baker said to us that he would have a partner, and wished to continue the business under the same firm name of “ E. F. Baker & Company.” We had some days previous to September the 3d, informed Mr. Baker that we did not want to continue the business any more, that we were dissatisfied with it, and should not do anything more in relation to it. He said, “Very well,” that he had a party in view who would be very glad to take hold of it. Q. Did the old firm, Baker, your brother and yourself, afterwards assume to sell out to another person the interest in this matter ? A. We did, by way of transfer.
    Plaintiff then read in evidence a paper of which the following is a copy:
    Dissolution oe copartnership.—The copartnership heretofore existing under the name, style, and firm name of E. F. Baker & Co., of Ho. 141 Maiden Lane, in the City of Hew York, is hereby dissolved by mutual consent, and E. F. Baker is fully authorized to liquidate and settle all of the outstanding affairs of the said firm. The above firm of E. F. Baker & Co., as aforesaid, have this day sold and transferred all their right, title, and interest in and to “ Baker’s Hoof Liniment,” and all of the other articles heretofore manufactured and sold by them, to the
      “ Baker’s Hoof Liniment Manufacturing Co.,” of the City of New York, organized November 22, 1867.
    E. F. Baker. [l. s.] M. H. Parsons, [l. s.] L. S. Parsons, [l. s.]
    Dated New York, December 5,1867.
    He also read in evidence a bill of sale, dated December 5, 1867, executed by Edward F. Baker, Milo H. Parsons, and Levó. S. Parsons, under seal, reciting that they comprised the firm of Parsons & Co. and E. F. Baker & Co., and transferring to the Baker’s Hoof Liniment Manufacturing Co. all their right, title, and interest in and to a certain secret or process for compounding, manufacturing, and vending the article known as Baker’s Hoof Liniment, together with the copyright, trade-mark, stock on hand, and also the secret or process for the manufacturing and compounding “Baker’s Condition Powders,” and “ Baker’s Union Leather Preservative,” and also a full and complete list of all the agents vending the same, and their places of residence and business.
    ' The witness Milo H. Parsons, on his cross-examination, testified in regard to the paper of December 5 as follows:
    Q. How did you come to execute that paper on the 5th of December ? A. By a previous agreement with Mr. Baker at the date of September 3, when the dissolution was made, which was read. Mr. Baker said to us, “ I intend to get another partner in this business, and wish to keep the firm name the same,” but did not wish us to advertise the dissolution at that time because he wished to advertise the dissolution of copartnership at the same time with the partnership he said he was about to form, in order to keep the business in the same firm name. Mr. Baker said, “As soon as I get this, gentlemen—it will not be very long—you will have no hesitation to allow me to transfer these things to whomever I wish.” I had a conversation with Baker myself, and from time to time I saw Baker; he said the next day or the next week he hoped to do that. On the 5th of December, at the time this was executed, Mr. Baker came to us and said he had made an arrangement with a party to take hold of this thing, and he wished to transfer it. We had nothing to do with the business after the 3d of September, but lived where he carried on his business.
    This paper was executed to carry out that understanding; it was distinctly understood by Baker, as well as ourselves, that it was not intended for any other purpose; it was simply to transfer that into the hands of the company.
    Levi S. Parsons was called and testified substantially the same as Milo.
    In rebuttal plaintiff called William Youngblood, who testified that he presented the account in suit to the defendants Parsons, and asked them if Baker was the partner; they said he had not been since the 5th of December, that previous to that he was.
    Milo H. and Levi S. Parsons were recalled, and each testified that he never said to Youngblood that he had not been a partner with Baker since December 5.
    The judge charged the jury that there was evidence that on the 3d of September, the partnership was dissolved, “ that the evidence is contained in the instrument certifying to the purchase by Mr. Baker of the interest of his copartners in the firm, and .■also the evidence of a parol dissolution of the partnership made .at the time, which latter would be sufficient without any writing. It is competent for parties to dissolve a partnership by parol, and it is not necessary that the dissolution should be in writing. If, therefore, the jury believe that the dissolution did take place upon the 3d of September, then there is no cause of action made out against these two defendants. But there is some evidence tending to show that there was not in reality a dissolution of the partnership on the 3d of September, and that the dissolution did not in fact take place till the 5th of December.” He then adverted to the evidence which tended to show that the dissolution did not take place until December 5, and wound up ¡by .charging: “ It is for you to say from this evidence whether the dissolution took place on the 3d of September. If that was a mere simulated or pretended dissolution, and the dissolution did not in reality take place until the 5th of December, then the plaintiff is entitled to recover the amount he claims in this action.”
    The jury rendered a verdict for the defendants. A motion was made for a new trial on the judge’s minutes, which was denied.
    Judgment was afterwards entered in conformity with the verdict.
    Plaintiff appealed from the judgment and the order denying the motion for a new trial.

      Mr. E. D. Culver for appellant.
    The court erred in receiving as evidence the writing of 3d September.
    It was only the certificate or out of court statement of one of the parties that he had (in time past) purchased the interest of the other two.
    It was not signed by all, but merely by one alone, and hence not a dissolution.
    It was a secret transaction—no publicity of it given, and none intended to be given.
    It was therefore a fraud on their creditors and the public.
    The evidence of dissolution on the 5th December was overwhelming and controlling, because it was a complete, entire dissolution, by the solemn act of all the parties, under their hands and seals.
    They entitle it “ Dissolution of Copabtoebship,” showing it had not before been dissolved.
    They call it a partnership “ existing,” that is on 5th December, showing that it had not to that time terminated.
    They all declare it “is hereby (that is by this act) dissolved,” showing it had not been dissolved before, or by any other act.
    In the same article of “ dissolution” they all declare that they “have this day” that is, the 5th December, and not the 3d of September, “ sold and transferred ” their interest, title, etc., to the new company.

      In the bill of sale they again all declare under their hands and seals “ That we, Edward F. Baker, Milo H. Parsons and Levi S. Parsons, comprising ” (in the present tense, on the 5th December) “ the firm of Parsons & Co., and E. F. Baker & Co., do grant, sell and convey,” etc., to the new company, all the assets, etc., binding themselves by covenants to warrant and defend the sale, etc.
    How does all this tally with the pretence of a dissolution on 3d September ?
    That pretence is falsified by every act and word of the parties on the 5th December, in their articles of dissolution, and in the bill of sale of that date.

      Mr. Edward Patterson for respondents.
    Hot only in this case is there written evidence of Baker’s purchase of Parsons’ interest on 3d September, but there is the positive testimony of both Parsons that an actual dissolution did take place on that day.
    The jury have so found on this evidence, and unless it can be overcome by some stronger evidence (and all that can militate against it is the instrument of December 5th, 1867, which both Parsons have explained) the finding of the jury must be sustained. To do otherwise in such a case as this would be to destroy the function of the jury.
    To warrant disturbance of a verdict there must be such prepondera/nce of evidence as to induce the belief that the verdict was the result of prejudice, passion, or mistake (Allgro v. Duncan, 24 How., 212; Murphy v. Boker, 3 Robt. R., 1; Townsend Manfg. Co. v. Foster, 51 Barb., 350; Hall v. Morrison, 3 Bosworth, 520; Lewis v. Blake, 10 Bosworth, Monell, J.).
    There was no error at the trial, either in the admission of testimony or in the charge of the judge.
    On the appeal from the judgment, the only questions of law to be considered are upon matters arising under exceptions taken at the trial (Morrison v. N. Y. & N. H. R. R. Co., 22 Barb., 571; Ingersoll v. Bostwick, 22 N. Y., 425; Hunt v. Bloomer, 13 N. Y., 341; Wheeler v. Garcia, 40 N. Y., 585).
    The purchase by Baker effectually determined the partnership (Marquand v. N. Y. Manfg. Co., 17 Johns., 527).
    The paper of September 3d was the evidence of the purchase by Baker, and taken in connection with the independent testimony of L. S. and M. H. Parsons, of verbal agreement to dissolve on 3d September, it was proper to connect date of verbal dissolution with date, of purchase.
    That it was properly admitted, also appears thus:
    The only issue was as to acts between Baker and Parsons, viz., dissolution of their firm.
    That fact could be established in either of two ways, by written or verbal evidence of the purchase.
    The best evidence of which the case, in its nature, was susceptible, was the written evidence, the instrument of September 3d.
    That evidence, proved by the subscribing witness, was produced, and as it related most pointedly and peculiarly to the issue, it is not easy to see how it could have been rejected.
   By the Court:

Jones, J.

There is no error in the charge of the judge. The paper of September 3, 1867, does contain some evidence of a dissolution on that day. That is all that the judge charged. There was sufficient conflict of evidence on the question as to whether a dissolution took place on the 3d of September, or not until the 5th of December, to carry the case to the jury. The judge, very fairly, left that disputed question of fact to the jury; and there is no ground for disturbing this verdict.

Judgment affirmed, with costs.

Barbour, C.J.

(dissenting). The testimony of Milo H. Parsons shows that if there was any agreement on the third of September by which the partnership was dissolved, such agreement is to be found in the written instrument or certificate signed by E. F. Baker, and there only. His examination upon that question was as follows:

“ Q. When was that partnership dissolved ?
cc A. The forepart of September, sir.
“ Q. How was it dissolved ?
A. By rrmtual agreement between Baker and us.
Q. In writing ?
A. Yes, sir.
“ Q. It was dissolved by an agreement in writing ? .
“A. Yes, sir.”

The statement of Hilo Parsons, as well as that of Levi Parsons, to the effect that the partnership was dissolved on the third of September, must, therefore, be taken and understood to be the mere expression of the opinions of those witnesses as to the legal effect of the written instrument which, they say, embodied the agreement of dissolution.

As the language of the paper is unambiguous, its legal intent and effect must be determined, as matter of law, by the court.

I will not waste words in the discussion of the question as to whether the phrase “ the interest of M. H. Parsons and Levi S. Parsons in the ji/rm of E. F. Baker and Co.,” was designed to cover their interest in future profits and acquisitions, or only the property of which the firm was then the owner, for I am satisfied that the written instrument cannot, properly, be held to be an agreement between the partners in the firm dissolving the co-partnership, nor to constitute any evidence of a purchase by Baker, operating, in law, a dissolution.

First.—Even if we concede that Baker, in and by the paper in question, acknowledged that he had purchased all the interest and property, present and prospective, of his partners in the firm, and assuming, as we then may, that such purchase, if madé, operated in law and was a dissolution of such firm, still that paper does not constitute any legal evidence of the'purchase. If the purchase was made and perfected by means of a bill of sale or other written instrument, the paper itself, with proof of its delivery, would, if in existence, be the best and only evidence of the fact; or, if not in writing, the bargain should be proven by some person who made or heard it. The mere certificate of the purchaser in such a case neither conveys to him a title nor is any evidence in an action against the firm that such purchase has been made.

Second.—The written instrument does not purport to be an agreement whereby the partners in the firm consent and mutually agree to a dissolution thereof.

Third.—It is not, m fact, an agreement at all. To constitute an agreement in writing between the partners, either dissolving the partnership or for any purpose, the signatures of all the parties thereto were essential, while the paper in question was signed by Baker only.

Fourth.—The paper is really nothing more than the written statement of one of the defendants in this action of a fact, and could not, properly, be read in evidence by the defendants, or either of them, in a suit against the firm to establish the fact therein stated, or for any purpose.

It appears to me, therefore, that the learned judge erred in admitting the paper as evidence, as well as in his charge to the jury upon the subject.

That error, however, would not entitle the plaintiff to upset the judgment if the evidence in the ease dehors the written instrument was sufficient to establish the fact that the partnership was dissolved on the third of September. But, I think it was not; for the defendants,having proven that the agreement by which the firm was dissolved was committed to writing, were precluded from proving such agreement otherwise than by its production; and the moment it appeared upon the trial that the agreement of dissolution was in writing, the statements contained in that instrument constituted the only evidence of the fact that the jury were authorized to consider (1 Greenleaf Ev., sec. 87). Besides, as the witnesses who state that the firm was dissolved on the third of September by an agreement between the parties also say that such agreement was in writing, although the writing produced by them does not constitute an agreement nor provide for a dissolution, we cannot assume, as matter of law to be determined here, that those witnesses were not equally mistaken in supposing that any agreement was then made by which the firm was dissolved, more especially when we consider that they do not testify to the language used by the parties, nor even to the terms of the bargain, but only to a resulting fact or, rather, legal conclusion.

For these reasons I am of opinion that the judgment should be reversed, with costs, and a new trial granted.


author: Barbour, C.J.

text:
    EDWARD S. STOKES et al., Plaintiffs and Appellants, v. DANIEL BROWN et al., Defendants and Respondents.

      [Decided June 4, 1870.]
    Where an executory contract for the sale of oil, to he delivered at seller’s option, in certain lots, and at certain times, to bulk-lighter at his yard, contained a clause to the effect that five days’ notice should be given to the buyer on each lot—held, that the giving of such notice was a condition precedent to the right of the vendor to deliver, and to the obligation of the buyer to receive it.
    To sustain an action for the recovery of damages sustained by the buyer because of the non-delivery of the oil, according to the terms of said contract, it is sufficient that the buyer was at all times ready to send his bulk-lighter, and to receive and pay for the oil whenever required to do so by the vendor’s notice that he would deliver at a certain time.
    Before Barbour, C.J., Monell and Spencer, JJ.
    This case was tried before Judge Freedman and a jury.
    The action was brought upon a written contract or sold note, signed by the defendants, for the recovery of damages alleged to have been sustained by the plaintiffs because of the non-delivery to them of forty thousand gallons-of petroleum according to the terms of the contract, which contract or sold note was in the following form:
    “ New York, February 21,1868.

      “ Sold to Sterling Oil Works, for account of Messrs. D. Brown & Sons, 80,000 gallons crude petroleum, gravity 40 to 47, at 11-| cents per gallon, to be delivered to bulk-lighter at yard free of expense, tank measurement, quality and quantity to be accepted at the time of delivery at yard, sellers’ option, during the months of March and April next, in lots of 40,000 gallons each. Five days’ notice to buyer oh each lot. Notices to be given at least five days apart.
    “ Terms cash.
    [Written across the face:]
    “ Accepted, D. Beowjv & Sons.
    “ Per 0. J. Tatloe.”
    The complaint alleged, among other things, that on the 28th of April an agreement was made by and between the plaintiffs and the defendants, whereby the time for delivering the 40,000 gallons of oil, which had not yet been delivered, was so extended as to cover and include the 1st day of May, 1868. That fact, however, was fully denied by the answer.
    Upon the trial the plaintiffs proved that they constituted and were the “Sterling Oil Works” named in the contract, their readiness to receive and pay for the oil, the non-delivery of 40.000 gallons, that no notice was ever given to them by the defendants that the latter were or would be ready to deliver the 40.000 gallons in question, and that on the first day of May the plaintiffs requested the defendants to deliver the same, and they refused to do so; and then the plaintiffs, after proving market value, rested their case, without having proven the fact, alleged in the complaint, that the time within which the oil was to be delivered had been extended by agreement. The defendants thereupon moved the dismissal of the complaint, which was granted, and a judgment entered in favor of the defendants. The case comes here upon an appeal from the judgment, and embraces an exception to the dismissal of the complaint.

      Mr. Roger A. Pryor for appellants.
    It suffices for the plaintiff to make a prima fade case, and a nonsuit will be directed at the close of his case only when he wholly fails to offer any evidence of some fact essential to the support of the action (Weber v. Kingsland, 8 Bosw., 425; Kelly v. Kelly, 3 Barb., 421; Safford v. Stephens, 2 Wend., 163).
    On a motion for a nonsuit, the defendant admits not only the facts proved by the evidence, but also the facts which the evidence may legally conduce to prove; and the party nonsuited is entitled, upon appeal, to have every doubtful fact found in his favor (Colegrove v. N. Y. & N. H., & N. Y. & H. R. R. Co., 20 N. Y., 492).
    The judge at circuit was understood to dismiss the complaint because the plaintiffs neglected to show payment or tender of payment for the oil, to which we answer:
    1st. That assuming the contract to be an executory contract of sale, imposing concurrent and dependent duties, it sufficed that the plaintiffs were ready, willing, and able to pay for the oil in conformity to the contract. Payment, or tender of payment on their part, was not essential to put the defendants in default (Topping v. Root, 5 Cowen., 404; Porter v. Rose, 12 Johns., 210; Vail v. Rice, 1 Selden, 156; Coonley v. Anderson, 1 Hill, 522; Smith’s Merc. Law, 623; Wheeler v. Garcia, 40 N. Y., 584; Bronson v. Wiman, 4 Selden, 182).
    2d. But this is not an ordinary executory contract of sale, and it does not impose dependent and concurrent obligations on the parties; 1st, the defendants reserved to themselves an option when to deliver, and until the declaration of that option, no duty devolved upon the plaintiffs (Benjamin on Sales, 431; Hilliard on Sales, 158); 2d, the defendants were to give five days’ notice of delivery, which notice is obviously a condition precedent to any duty on the part of the plaintiffs; 3d, the plaintiffs reserved the privilege of rejecting the oil at the time of delivery, in the event it should fail to conform to the contract. Hence, until they had an opportunity to inspect the oil, they were under no obligation to pay or to tender (Startup v. Macdonald, 6 Man. & Gr., 610; Benjamin on Sales, 508, 510, 519; Addison on Contracts, 235; Isherwood v. Whitmore, 11 Mee. & Wel., 347).
    Even if plaintiffs would otherwise have been in default in not mating tender, they were excused by the absolute refusal of the defendants to deliver (Hilliard on Sales, 156; West v. Emmons, 5 Johns., 180).
    Independently of all question as to the plaintiffs’ obligation to pay or to tender, the default of the defendants was clear and consummate. Their failure to serve the five days’ notice of delivery gave the plaintiffs an immediate and absolute right of action (Fowler v. Rigney, 5 Abb., N. S., 184).

      Mr. George W. Cotterill for respondents.
    The plaintiffs having brought suit upon the alleged contract as extended by the alleged extension of the 28th of April, 1868, to and including the first of Hay, it became necessary for them to prove such extension; on the contrary, they offered no evidence whatever on the subject.
    In an answer to a question by the court, they did, however, attempt to prove a demand on the first of Hay, but no extension.
    Defendants’ counsel came prepared to meet the plaintiffs on the question of performance or offer to perform on their part, provided they established the fact that there had been an extension, and to try no other issue of fact.
    The court, as indicated by the above question, was trying the same issue, and both counsel for defendants and the court supposed very properly that that issue was being tried, for after-wards the plaintiffs proved that on the first of Hay they demanded, not the oil, but an order for the oil, which was refused, as it very properly might have been refused.
    The complaint, too, apprised us of that issue distinctly, for by the contract the defendants had until the last of April to deliver, but prior to that it alleges that the contract was extended.
    If the plaintiffs designed to recover upon any other state of facts they should have at least asked leave to amend.
    But that could not have been awarded them, for the plaintiffs had sworn under oath that the contract had been extended; if so, the defendants were excused from performing at any other time.
    The contract of extension would have been valid, even if made by parol.
    The defendants were not shown to have been in default at any time.

      The plaintiffs, by the very terms of the contract, were bound to have a lighter at the defendants’ yard for the purpose of taking the oil away. The defendants were not obliged to store it.
    This was a condition precedent to the right of recovery; especially as it is proven in the case that their yard was at the foot of Sixty-fifth street; that the plaintiffs knew it.
    And they received the first 40,000 gallons under this contract at that yard.
    This is expressly decided in a case precisely like this in 48 Barb., p. 596, Ketcham v. Hiller.
    By the contract the terms were cash.
    Delivery and payment were to be concurrent acts. The obligations to deliver on the one part and to pay on the other, were mutual and dependent. ¡Neither could maintain an action against the other for a breach of contract without showing performance or an offer to perform (Fickett v. Brice, 22 How., 194).
    A performance or tender of performance must be shown (Dunham v. Mann, 4 Seld., 508).
    The oil was to be delivered to bulk-lighter at yard. The yard was therefore, of course, the place for delivery, and therefore the plaintiffs should have shown an offer to perform at that place.
    Had the defendants sued, it would only have been necessary for them to have shown that they had the oil at their yard ready for delivery, and that the plaintiffs were not there.
    The contract was void for want of mutuality; nowhere are the plaintiffs shown to be parties to the alleged contract.
    On its face it is an executory contract of sale “for account of D. Brown & Sons” to the Sterling Oil Works, and accepted by D. Brown & Sons, and “ stamped and executed in the presence of Smith & Ohlen, Brokers.”
   By the Court:

Barbour, C.J.

It appeared upon the trial that the term “ bulk-lighter,” used in the written contract, meant a schooner so constructed that petroleum could be pumped or run into it, to the extent of some 20,000 gallons, and thus be transported in bulk, without barrels or containing vessels other than the schooner itself.

Construing the instrument with the aid of that fact, it appears to be a contract not merely to deliver to the plaintiffs 80,000 gallons of oil, at such time or times during the months of March and April as might suit their own convenience, but to deliver it in a particular manner and in that way only. They were not entitled to deliver it all in one lot, nor in parcels materially larger or smaller than 40,000 gallons each. Mor could they deliver the second parcel within five days after the delivery of the first. Mor were they entitled to deliver either parcel until they had given five days’ previous notice of their intention to do so. Indeed, as I understand it, the giving of the five days’ notice required by the terms of the contract was intended to be, and was, a condition precedent to the right of the vendors to deliver and to the obligation of the plaintiffs to receive the oil (see Fowler v. Rigney, 5 Abb., N. S., 184).

The reason and object of the provision, in the contract in regard to the notice are quite apparent. The oil being in bulk and not inclosed in casks was, for that reason, to be delivered at the defendants’ yard to a bulk-lighter, the same being a vessel so peculiarly constructed as to be capable of carrying oil in bulk. Of course, no actual full delivery of the oil could have been made according to the terms of the contract unless the lighter was there to receive the same; and it was for the protection of the plaintiffs’ interest, and to enable them to have their peculiar vessel at the place of delivery at the proper time to receive the oil, as well as the money to pay for it if required, that this provision was placed in the contract. It is unreasonable to suppose, in the face of this stipulation, that the parties contemplated that the vendees should either keep their bulk-lighters at the defendants’ yard all through March and April, or intended to require them to incur the expense and trouble of sending such lighters there upon an uncertainty, at any time during the running of the contract, even on the last day thereof. As, then, no demand of delivery could properly be made by the vendees unless they were then prepared to receive the same into their bulk-lighters, it follows that the contract in question did not require the plaintiffs to make such demand in order to entitle them to recover the damages they had sustained by reason of the defendants’ failure to deliver the oil. It was sufficient that they were at all times ready to send their lighters and receive and pay for the oil whenever they should be required to do so by the vendors’ notice that they would deliver at a certain time (Coonley v. Anderson, 1 Hill, 519; Topping v. Root, 5 Cowen, 404; Fowler v. Rigney, supra; Benjamin on Sales, 431; Hilliard on Sales, 158).

I am, therefore, of opinion that when the plaintiffs rested they had established by their evidence all the facts necessary to entitle them to recover; and that the dismissal of the complaint was, consequently, erroneous.

The judgment should be reversed, with costs to the appellants to abide the event, and a new trial ordered.


author: Barbour, C. J.

text:
    ELIJAH C. SCHANCK and Another, Plaintiffs and Appellants, v. JOHN J. MORRIS, Defendant and Respondent.

      [Decided June 4, 1870.]
    Where the evidence before the jury is sufficient, if credited, to authorize them to find a verdict for plaintiff, it is error to direct a verdict for defendant.
    Before Barboub, C.J., Freedman and Spencer, JJ.
    TMs case was tried before Judge McCunn and a jury.
    This action was brought to recover the sum of $6,000, alleged in the complaint to have been obtained from the plaintiffs by means of certain false and fraudulent statements and representations made to them by the defendant. Upon the trial a verdict was rendered for the defendant by direction of the court, and the plaintiffs appealed from the judgment entered thereon.

      Mr. John E. Parsons for appellants.

      Mr. William Norton for respondent.
   By the Court:

Barbour, C. J.

Evidence was given upon the trial sufficient, if credited by the jury, to establish the following facts, viz.:

First.—In May or June, 1864, the defendant called at the store of the plaintiffs, and then told them that he had a big thing for them, an oil company, called The New York and Pennsylvania Oil Company; that he had a few shares for his most intimate friends, and wished to give some of it to the plaintiffs; that the company owned some two hundred acres of land in fee, with a lease of other lands; that they had purchased and paid for twenty-eight engines, with sufficient tools and implements to put down the wells; that the wells were then going down; that they had everything that was necessary to put down the wells, and he thought that by the first of January they would have fifty wells down; that the plaintiffs need not hesitate to take the stock as he had examined into the thing thoroughly and knew it was all right; and if they subscribed they would have their stock upon the same terms that he had Ms.

Second.—That the plaintiffs were induced by those representations to, and they then did, subscribe for 2,000 shares of the stock, and subsequently, and on the 12th of July, 1864, by direction of the defendant, paid $6,000 therefor to the secretary of the company.

I do not find that either of the plaintiffs testified, directly, that he was induced to subscribe by the representations. But as they both testified that they had no knowledge whatever respecting even the existence of the company, except such as they obtained from the defendant at that time, the conclusion that such representations induced them to subscribe as they then did, is irresistible. Indeed, as evidence, it is all that could have been given before the admission of parties as witnesses, and I think it is entitled to greater credit as proof of the fact, than would be the unsupported declaration of each as to the workings of his own mind.

Third.—When those representations were made by the defendant they were literally untrue in every particular, as the company was then wholly unorganized, and no conveyance whatever had yet been made to it. And even if the jury had arrived at the conclusion that the defendant intended to be understood as speaMng of the property wMch was covered by the arrangement that had been made between Underhill and Holley, and which was to belong to the company when organized, the evidence before them was sufficient to justify a finding that most of the material statements and representations so made by the defendant to the plaintiffs were false.

For instance: It clearly appears from the testimony of Holley and others, that the subject of the arrangement between himself and Underhill was land and nothing else. Ho engines, machinery, or tools were included in that arrangement with Under-hill, nor, eventually, in his conveyance; nor had any wells been commenced upon the land purchased prior to its conveyance to the company. Indeed, the company never had more than five engines upon the property, and they were sent there by the company with the tools after its organization. The jury, therefore, would probably have found, had the question been submitted to them, that the defendant’s representation that the company owned twenty-eight engines, with the necessary tools, machinery, and implements for sinking fifty wells, etc, was false and fraudulent; and as each engine would cost some $1,500, and the representation, moreover, was such an one as was calculated to induce the belief that the company was at work, with all the necessary materials for obtaining oil at an early day, instead of being mere owners of tracts of land, the materiality of the representation in this regard is easily perceived. The representation of the defendant, too, touching his own interest in the company was no less important, and the jury might well have found from the testimony that it was equally untrue.

It is not very important, perhaps, to inquire whether the evidence before the jury was sufficient to prove that the defendant expected to be in any way benefited, personally, by the plaintiffs’ subscription for stock, or the payment to be made by them therefor. I am satisfied, however, that, considering the relation he 'occupied toward the contemplated company, and the part he took with Holley in obtaining subscriptions and getting it up, 'the jury might properly have found that he had a direct personal interest in procuring the subscription of the plaintiff by the means he employed.

Assuming, then, as I think we may, that there «was evidence before the jury which was sufficient, if credited by them, to 'authorize the finding of those facts, the conclusion that the learned justice erred in withdrawing the case from their consideration, and directing a verdict, follows as a matter of ■course.

The judgment should be reversed, with costs, and a new trial awarded.


author: Freedman, J.

text:
    JOHN PREMO, Plaintiff and Appellant, v. PHILIP SMITH, Defendant and Respondent.

      [Decided June 4, 1870.]
    Upon proof that the plaintiff fraudulently made away with the specifications of a building contract, defining the rights of the parties to the action, and material to the determination of such rights, the court has power to stay plaintiff’s procee dings and extend defendant’s time to answer until after service by plaintiff of one of said specifications upon defendant or his attorney.
    Before Barbour, C.J., Freedman and Spencer, JJ.

      Mr. John E. Parsons for appellant.

      Mr. James W. Culver for respondent.
   By the Court:

Freedman, J.

This is an appeal from an order staying plaintiff’s proceedings. Upon the hearing of the motion below the defendant showed by affidavit, and the records of the Court of Common Pleas for the city and county of Hew York, that the plaintiff had wilfully and fraudulently either destroyed or withheld from the defendant the original specifications of a written building contract, which defined the rights of the parties to the action, and were material for the determination of such rights. The plaintiff read no papers in opposition to the motion, and the court thereupon granted an order staying all proceedings on the part of the plaintiff in the action, until he shall produce and deliver to the attorney for the defendant one of the said original specifications, and giving to the defendant twenty days after such service to answer the complaint or take such other proceedings in the action as he shall be advised.

Upon an examination of the facts it clearly appears that the court below had not only the power to make the order appealed from, but that the order, as made, was a proper one under the circumstances.

The order should be affirmed, with costs.


text:
    PHEBE A. HENDERSON, Plaintiff and Respondent, v. WILLIAM L. STONE, impleaded, etc., Defendant and Appellant.

      [Decided June 4, 1870.]
    Where the order requiring a judgment debtor to appear and submit to an examination is not served upon him until after the return day specified therein, no jurisdiction is acquired by the subsequent appearance of such debtor for the purpose of raising objection.
    The objection of a total want of jurisdiction may be raised at any stage in the proceeding.
    Before Barbour, C.J., Freedman and Spencer, JJ.
    Appeal from an order made at Special Term in proceedings supplementary to execution.

      Mr. L. J. Lansing for appellant.

      Mr. James Henderson for respondent.
   By the Court:

Freedman, J.

The proceedings, in the course of which the order appealed from was made, seem to have been instituted for the sole purpose of compelling the defendant Stone to pay the costs, amounting to twenty-eight dollars and ninety-five cents, alleged to be still due upon a judgment of one thousand and twenty-eight dollars and ninety-five cents, the principal amount of which had been paid prior to the commencement of the proceedings. There is no proof that the court or a judge thereof ever acquired jurisdiction over the person of the appellant. The original order requiring the appellant to appear, to make discovery on oath concerning his property, was not served upon him during the time the order had any vitality, but three days after the return day specified therein, and so far as there has been any appearance on the part of the appellant afterwards, it has been solely for the purpose of making his objections, by which no jurisdiction was conferred. The objection that there is a total want of jurisdiction may be taken at any stage in the case. The order appealed from must be reversed.


text:
    WILLIAM H. SHEARMAN, Plaintiff and Respondent, v. THE NIAGARA FIRE INSURANCE COMPANY, Defendants and Appellants.

      [Decided June 4, 1870.]
    Although the operation of a fire insurance policy may be suspended by the sale or transfer, without the consent of the company, required by a clause in the policy, of the property insured, yet, if a union of the ownership of the property and the interest in the policy in the assignee subsequently occur, and the company assent thereto, the policy again becomes effectual and reattaches to the property.
    Such assent amounts to a new agreement on the part of the company to become directly answerable upon the policy to the assignee.
    Where a policy contained a clause which, literally construed, required the written consent of the company not only to the assignment of the pblicy, but also to the transfer of the property, and but one printed form to be,filled up and signed by the assignor, in case of an assignment, and but one printed form to be filled up and signed by an officer of the company for the purpose of demonstrating the company’s assent to the assignment, it was held that an assignment of the policy, and the indorsement of the company’s consent thereto, to the assignee of the property, in accordance with such printed forms, which the company led the assignee to believe was sufficient, must, after the occurrence of a loss, be held sufficient to bind the company.
    Before Barbour, C.J., Freedman and Spencer, JJ.
    Appeal from a judgment.
    The cause was tried before Mr. Justice Monell and a jury.
    The action was brought upon a policy of insurance.
    On March 21, 1866, the defendants, with three other companies, issued a policy whereby each of the companies named therein, acting and contracting for itself, and in consideration of one fourth of the sum of fifty-two -/-fa dollars to each of them paid, insured L. J. Shearman against loss or damage by fire to the amount of one fourth part of three thousand dollars, for the term of twelve months from the date of the policy, upon his dwelling and shrubbery and fencing around it, situate on Castle street, Wilmington, N. C.

      The policy contained the following clause, among others:
    “ If the property be sold or transferred, or any change take place in title or possession, whether by legal process or judicial decree, or voluntary transfer or conveyance, or if this policy shall be assigned without the consent of the companies indorsed thereon, ***** 0r if the interest of the assured in the property, whether as owner, trustee, consignee, factor, mortgagee, lessee, or otherwise, is not truly stated in this policy, * * * then, and in every such case, this policy shall be void.”
    On November 22,1866, the insurance was increased to $3,500.
    On March 21,1867, the policy was renewed for one year.
    On March 4,1867, L. J. Shearman conveyed the property insured to William H. Shearman, the plaintiff, reserving, however, the right to rent the same for three years or to redeem the same.. The companies’ agents were notified of the sale, and on April 15, 1867, L. J. Shearman filled up the blank printed by the companies on the policy for a transfer of the said policy, and executed the transfer, as follows:
    “ For value received, I hereby assign, transfer, and set over to William H. Shearman, all the right, title, and interest in and to the within policy, and all benefit and advantage to be derived therefrom.
    “ Dated at Wilmington, N. 0., the 15th day of April, 1867.
    “ Lewis J. Sheabmab.”
    The companies consented to the transfer, as follows:
    “ The insurance companies within named hereby consent that the interest of L. J. Shearman in the within policy be assigned to William H. Shearman, subject to all the terms and conditions therein mentioned and set forth.
    “Dated at Wilmington, N. C., the 15th day of April, 1867.
    “De Rossett & Co.,

      “Agents.”

    The property was totally destroyed by fire in the night of June 4,1867.
    The defendants refused to pay the insurance on the ground that they had been released from liability by reason of a violation of that clause of the policy which is above set forth.
    Upon the trial the court held that they were liable, and refused to submit any other question to the jury except the question of the value of the property destroyed.
    The jury found that the loss equalled the insurance, and rendered a verdict accordingly.
    Judgment was entered upon the verdict, and the defendants appealed.

      Mr. George W. Cotterill for appellants.
    The policy having been issued to Lewis J. Shearman for one year from March 21,1866, and he having sold the property on the 4th of March, 1867, all insurable interest in him ceased.
    If the property therefore had been destroyed before the lapse of the year, and after his sale, he could not have recovered; neither could his assignee, because the policy was not transferred to the plaintiff until April 15, 1867 (Parsons on Marine Insurance, vol. 1, pp. 56 and 57; Howard v. The Albany Fire Insurance Company, 3 Denio, 303).
    Lewis J. Shearman obtained a renewal on the 21st of March, 1867, but he had sold the property on the 4th of March previous, and having no insurable interest the renewal became converted into a wager policy, which not only became void at common law but also by statute.
    A policy without insurable interest is a wager policy.
    Such policies are more than wager policies, because they hold out an inducement to destroy the property (Parsons on Marine Insurance, vol. 1, p. 156).
    If the interest of the assured be any other than the entire wneonditional and sole ownership, etc., for the use of the assured, it must be so represented to the companies, and so expressed in the written portion of this policy, otherwise the policy shall be void.

    The policy expressly provides that if the property shall be sold or transferred etc., or if this policy shall he assigned without the consent of the company indorsed thereon, it shall be void.

    There was a change of possession of the property at the time of the fire, contrary to the provisions of the policy.
    The policy states that, if any change takes places in title or possession, whether by legal process or voluntary transfer, without the consent of the companies indorsed thereon, the policy shall be void.
    The property was burned in the possession of H. Brown and Paul McGreal, and had been repeatedly fired.
    The case shows, under exception, that the agents of the defendants were notified of the intention of L. J. Shearman to come North and leave Brown in the house.
    Nothing was said about McGreal, his co-tenant, nor is it pretended that any consent was given or indorsed on the policy. Now, this was a substantial change of possession, and the policy thereby became void. The policy does not mean “ change of title ” when it uses the words “ possession” and “ title.”
    There is no privity of contract between the plaintiff and defendants, for the premium was paid by Lewis J. Shearman on a void renewal, without even the consent or knowledge of the plaintiff.
    The same principles that govern contracts generally apply equally the same to insurance policies, and they are construed by the same rules precisely (Yonkers and N. Y. Ins. Co. v. Hoffman Ins. Co., 6 Robertson, p. 319).

      Mr. John E. Parsons for respondent.
    Lewis J. Shearman' remained in possession of the property to the time of the fire. His brief absence while taking his family to Brattleboro’ did not constitute a change of possession in any sense which the policy could attach to that expression. Brown was a mere servant or employé, taking care of the property for Shearman (Jolly v. Baltimore Equitable Society, 1 Harris & Gill, 295; Rafferty v. New Brunswick Fire Ins. Co., 3 Harrison, 488; Lyon v. Com. Ins. Co., 2 Rob. La., 266).

      The notice of loss was given forthwith, and there was no evidence that the .preliminary proofs were not rendered as soon as possible. Plaintiff resided at Camden, N. J., the insured property was. at Wilmington, N. C., and the defendants are a New York corporation, facts naturally causing delay. The policy required as part of the proofs the certificate of a magistrate, which plaintiff, against whom, as a Northern man, there was a strong prejudice at Wilmington, was not able to obtain till November 18,1867.
    The defendants, however, waived the necessity of any such rigid presentation of proofs.
    Immediately upon reaching New York, the plaintiff called upon the defendants in respect to his loss, and they said that Mr. De Bossett was their agent at Wilmington, and “ that as soon as the papers were fixed by him, it would be attended to.”
    The defendants cannot now say to the plaintiff, who, in reliance on their promise waited, that by doing so he has forfeited his claim. They have waived the condition (Kernochan v. N. Y. Bowery Fire Ins. Co., 17 N. Y., 428).
    On April 15,1867, the defendants, with full notice that the property had been previously sold by Lewis J.' Shearman to plaintiff, consented that all the right, title, and interest of Lewis J. Shearman, in and to the policy, and all benefit and advantage to be derived therefrom, be assigned to plaintiff.
    That benefit consisted solely in the right to be paid in case of damage by fire to the property; which William H. Shearman could only realize to the extent of his ownership of the property.
    The consent is, therefore, not only to be construed most strongly against the defendants, contra proferentem, but the words are apt to express such a consent as would make the policy available to plaintiff.
    The consent was given with knowledge that the property had been previously transferred, and so relates to the time of that transfer.
    Both plaintiff and the company intended—there could be no other intention—that the policy, its renewal, Lewis J. Shearman’s transfer, and Ms assignment of the policy, with the company’s consent, should operate as an insurance to the plaintiff. He has relied upon it, and the defendants cannot now commit so great a cheat as to say that because the consent was not given on March 21, 1867, at the time of the renewal, they are not held (Hooper v. Hudson River Fire Ins. Co., 15 Barb., 413; affirmed, 17 N. Y., 424).
    The renewal will be construed as given at the time of the transfer to the plaintiff and of the company’s consent, and is sustained by the insurable interest acqmred by the plaintiff (Hooper v. Hudson River Fire Ins. Co., 17 N. Y., 424, affirming 15 Barb., 413).
   By the Court:

Freedman, J.

It is now firmly settled that no transfer of interest will work a forfeiture under the clause contained in a policy, forbidding a transfer of the interest of the assured in the policy, or úi the property insured thereby, without the written consent of the company, wMch does not so entirely deprive the assignor of all insurable interest as to prevent Ms recovering on the policy for his own benefit, if that clause was not contained in it. To take away the cause of action in one case, and to render void the policy in the other, equally requires a transfer or termination of the entire insurable interest. So long as the insured retains such an interest that he may be a sufferer by the loss, the policy remains valid to protect that interest (Hitchcock v. North-western Ins. Co., 26 N. Y., 68; Van Deusen v. Charter Oak Fire and Marine Ins. Co., 1 Rob., 55; Fernandez v. The Great Western Ins. Co., 3 Rob., 458; Phelps v. Gebhard Fire Ins. Co., 9 Bosw., 405).

And, in case of an actual transfer of the entire insurable interest, the following additional propositions, arising under the same clause, have been established as the law of tMs State:

After a sale of the property insured, and previous to the assignment of the policy to the purchaser, the effect of the policy as an indemnity becomes suspended, not from any vice in the policy, but from the absence of a subject for it to act upon.

If á fire occurs during this time no recovery can be had against the underwriters, not because the policy had become void, but because, at the time of the fire, the insured had no goods covered by the policy, and the purchaser had no policy to cover his interest in the goods. ■

But the moment the interests become again united by the union of the ownership of the goods and the interest in the policy in the same person, the policy again becomes effectual and reattaches to the goods.

And when the assignment of the policy, with the consent of the insurers, is absolute to one who has become the entire owner of the subject of insurance, it becomes a new contract of insurance between the underwriters and the assignee. If the assignment, taken in connection with the policy, plainly transfers the assured’s whole interest, the underwriters’ consent to it is evidently equivalent to their agreement to become directly answerable to the assignee. In such case the proceedings to enforce payment may be in the assignee’s name, and he becomes, to all intents and purposes, the substituted party to the contract (Hooper v. The Hudson River Fire Ins. Co., 17 N. Y., 424; Wolfe v. The Security Fire Ins. Co., 39 N. Y., 51).

It is true that in the last-named two cases the property insured consisted of a stock of goods kept for sale ; and for that reason it may be claimed that the propositions therein laid down should be confined to that particular class of cases, on the ground that it must be considered as the intention of the parties to the policy that the assured may sell and replace his entire stock as often as his own interests may require, and that the policy is to protect whatever goods he may chance to have on hand at the time of the fire. But I can perceive of no good reason why the same propositions should not be applied in the decision of the case at bar. The cases cited by defendants on the argument afford no reason to the contrary. In Smith v. The Saratoga Mutual Fire Ins. Co. (3 Hill, 508) and Neely v. The Onondaga County Mutual Ins. Co. (7 Hill, 49), the assured, previous to the fire, had done an act which, according to the peculiar conditions of the policy, being that of a company organized on the mutual plan, put an end to the policy, and, as the consent of the company had not been obtained thereto in any manner, the court held that an assessment by the company for losses did not establish a waiver without further proof that the losses happened after the forfeiture of the policy had occurred. And in Howard v.The Albany Ins. Co. (3 Denio, 303), in which case the policy, covering a brewery and the stock and utensils therein, had been renewed several times, the same learned judge who had delivered the opinion of the Court in Smith v. The Saratoga County Mutual Fire Ins. Co. (supra) expressly held “ that when the assured owns the property at the time the insurance is effected, a subsequent transfer of his interest cannot render the policy void. The contract will be of no value to the assured, for the reason that there is no longer anything upon which it can operate; but the subsequent transfer cannot infuse any vice into that which was originally a valid agreement.”

These remarks dispose of the claim set up by the defendants that, because L. J. Shearman conveyed the property to his brother, the policy became a mere wager policy, and that consequently the renewal of it, notwithstanding the acceptance of the payment of the premium, was null and void. The subsequent consent of the defendants, indorsed upon the policy, that the interest of L. J. Shearman in the said policy, not merely in the renewal receipt, but in the policy, be assigned to the plaintiff, subject to all the terms and conditions mentioned and set forth in the policy, revived the policy in favor of the plaintiff and reattached it to the property described therein just as effectually as if a new policy had been issued to the plaintiff therefor. In Wolfe v. The Security Fire Ins. Co. (39 N. Y., 49) the property had been transferred from John Engleheart to one Stupp, who afterwards transferred the same to Margaretta, wife of John Engleheart. The company never consented to the transfer to Stupp, but some months afterwards consented to the transfer of the interest of John Engleheart in the policy to his wife Margaretta, and upon that consent the company was held liable.

The defendants also claim that, inasmuch as their policy provided that if the property should be sold or transferred * * * or if the policy should be assigned without the consent of the company, to be indorsed thereon, the same should be void, it was necessary for plaintiff to show not only defendants’ consent to the assignment of the policy, but also their consent to the transfer of the property covered by it, and that they cannot be held liable in the absence of evidence that in point of fact they did consent in writing to the transfer of the property. It requires hut little argument to demonstrate the hollowness of this claim. The assignment of the policy, in order to be of any benefit to the plaintiff as assignee, had to be accompanied with a transfer to ■ him of the interest of the assignor in the subject of insurance. Such being the case, the request made to the defendants, to consent to an assignment to plaintiff, was of itself notice to them that plaintiff had acquired or was about to acquire an interest in the insured property. Besides that they had actual notice of the fact that the said property had been conveyed to plaintiff. Their jDolicy contained but one printed blank to be executed by the assignor to the assignee in case of an assignment, and but one blank to be filled up and to be executed by the company for the purpose of demonstrating the company’s assent to the assignment. What then was the intention of the defendants, and what was the legal effect of the return of the policy, after full knowledge of all the facts, with the company’s consent indorsed thereon, that the interest of L. J. Shearman in the said policy be assigned to William H. Shearman, subject to all the terms and conditions therein mentioned ? In the language of Hunt, J., in Solms v. The Rutgers Fire Ins. Co. (5 Abb., N. S., 211), the intent could honestly be no other than to insure anew the property described for the plaintiff. If the defendants can be supposed to have reasoned with themselves that “ There is a defect in the consent as to the property, but we will say nothing about it, we will keep the unearned premium and avoid a liability if a loss should occur,” the well-settled principles of law and morality would compel the indemnity to the party claiming. The defendants must be held to the contract, as they allowed the other party to understand it and to suppose that they understood it. The act of the defendants was either a trick unworthy of a respectable company, or it was a statement to the plaintiff that he might regard his policy as valid to all intents and purposes, and that if any loss occurred they would pay it to him in the same manner as they would be bound to do if the policy had been issued directly to him. At any rate, they allowed and induced plaintiff to understand that the transfer of the property was entirely satisfactory to them, and they caused him to rely upon the policy as binding. If they meant to withhold their consent to the transfer of the property, although they were willing to consent and did consent to the assignment of the policy, they should have said so, so that the plaintiff could have effected other insurance. Hot having done so, they cannot be permitted to escape liability on the ground that their consent was only a partial one, but the renewal of the policy must be construed as having taken place at the time of the transfer of the policy to the plaintiff, and of the execution of defendants’ consent.

The only remaining point urged by the defendants is that there was a change of possession of the property, contrary to the terms of the policy, which provided that if any change should take place in title ob possession, whether by legal process or judicial decree, or voluntary transfer or conveyance, without the consent of the company indorsed thereon, the policy should be void. The evidence shows that after the conveyance of the property to the plaintiff, and up to the time of the fire, L. J. Shearman remained in possession as tenant of the plaintiff, and that Hr. HcGreal, the city marshal, lived with him; that shortly before the fire L. J. Shearman took his wife and children to Brattleboro’, Vermont, for their- health; that before leaving Wilmington, H. 0., said Shearman requested one Hr. Brown to occupy part of the house and take care of it, together with Hr. HcGreal, until his (the said Shearman’s) return; that Brown complied with such request, and that at the time of the fire L. J. Shearman was on board of a steamer off Hatteras on his way back to Wilmington. It also appears that the defendants were notified, by way of precaution, of the intention of L. J. Shearman to come North on a short visit, and to leave Brown in charge of the house. These facts fall far short from establishing a forfeiture of the policy. Shearman’s brief temporary absence did not constitute a change of possession in any sense which the policy could attach to that expression. Brown was a mere servant or employe, taking care of the property for Shearman, and his possession was, in judgment of law, the possession of his employer.

The judgment should be affirmed, with costs.