text:
    John E. Hoffman, Appellant, v. Henry Markham, Respondent.

      Replevin ' in the cepit — form of the complaint — unnecessary allegations — what judgment is proper — Code of Civil Procedure, § 1690,
    A complaint wliich alleges that the plaintiff is the owner of certain property of a value stated; that the defendant has wrongfully taken possession of it, and wrongfully refuses to deliver it to the plaintiff upon demand, to his damage of twenty-five dollars, is a sufficient statement of the cause of action formerly known as replevin in the cepit.

    Under such a complaint the plaintiff may properly demand and have judgment for the recovery of the possession of the property, or, if delivery of it cannot he had, for its value and for damages.
    Where an action to recover a chattel is in effect replevin in the cepit, it is not necessary to allege in the complaint that the action is not within any of the exceptions mentioned in section 1690 of the Code of Civil Procedure.
    A conclusion of law hy a referee which directs that judgment he entered in favor of the plaintiff for the value of the property, hut which refuses to find that the plaintiff is entitled to the possession of the property, is properly excepted to as erroneous in form.
    Appeal by tlie plaintiff, John E. Hoffman, from a judgment of tbe Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Livingston on the 22d day of December, 1891, upon the report of a referee.
    The question as to the form of the judgment will appear from the judgment itself, which was as follows :

      The above cause having been, tried before Otto Kelsey, Esq., as referee, and lie having found a verdict in favor of the plaintiff for thirty dollars damages, and the defendant’s costs having been assessed at seventy-six dollars, now on motion of G. W. Atwell, defendant’s attorney, ordered that the sum of thirty dollars be allowed as an offset to plaintiff’s recovery, and that the defendant have judgment against the plaintiff for the balance of forty-six dollars and have execution therefor.
    The defendant claimed that, as the plaintiff had recovered less than fifty dollars, the defendant was entitled to costs.

      John E. Robson, for the appellant.

      George W. Atwell, Jr., for the respondent.
   Beadlet, J.:

The questions presented on this review have relation only to the form of the action and of the recovery. The plaintiff by his complaint charged that lie was the owner of the personal property in question of the value of thirty dollars; that the defendant seized and wrongfully took possession of said property and refused to deliver it to the plaintiff upon his demand therefor, and unjustly and wrongfully refuses to deliver the same, to his damage of twenty-five dollars. The plaintiff demanded judgment for the recovery of the possession, or, if the delivery could not be had, for thirty dollars as the value, and for twenty-five dollars damages.

The referee found that title to the property was in the plaintiff; that the defendant wrongfully took it from his possession, and that its value was thirty dollars, and, as conclusion of law, that the plaintiff was entitled to recover that sum. Exception was taken to such conclusion and to the refusal of the referee to find that the plaintiff was entitled to the possession of the property, and, if it could not be delivered to him, to the value of it. In the complaint were alleged the facts essential to replevin in the oepit, as it was formerly termed. The action in that form could be sustained only when trespass would lie. (Dunham v. Wyckoff, 3 Wend. 280; Barrett v. Warren, 3 Hill, 348.)

The same causes which then permitted recovery in an action of replevin will support “ an action to recover a chattel.”

The peculiarity of the action under the Revised Statutes was that it was commenced by writ, while now the action for the like relief is commenced by summons as are other actions.

The alleged title in the plaintiff and wrongful taking by the defendant were the requisite substantial facts to justify the demand for judgment with which the complaint was concluded. (Code Civ. Proc. § 1720; Pattison v. Adams, 7 Hill, 126; S. C., Lalor’s Supp. 426; Bond v. Mitchell, 3 Barb. 304; Vandenburgh v. Van Valkenburgh, 8 id. 217; Seifret v. Kraft, 13 Civ. Proc. Rep. 321.) And as those facts were found by the referee the plaintiff was entitled to a conclusion of law which would permit the recovery of judgment in the form demanded.

It is not necessary in such case to allege in terms detention of the property by the defendant. That is only necessary in an action in the nature of replevin in the detinet. The action founded upon the wrongful taking can be maintained although the defendant before its commencement may have parted with the possession of the property. (Brockway v. Burnap, 16 Barb. 309; Nat. Steamship Co. v. Sheahan, 122 N. Y. 465.) The nature of the action is to be ascertained by reference to the complaint. In replevin it is unnecessary to there allege that the action is not within the exceptions mentioned in section 1690 of the Code. That is matter to appear in the affidavit made for the purpose of requisition. This is not essential to the action. (Id. § 1718). The plaintiff’s exceptions before mentioned were well taken with a view to the form of recovery. The importance of it in that respect relates only to the question of costs. (Code Civ. Proc. § 3228.)

The judgment should be reversed and a new tidal granted, costs to abide the event, unless the defendant stipulates to so modify the judgment as to make it conform to a judgment in favor of plaintiff as in an “action to recover a chattel ” by striking out its provisions relating to costs and to recovery by the defendant and inserting the recovery of thirty dollars costs by the plaintiff, and in that event the judgment should be so modified, and as modified affirmed.

Lewis and "Ward, JJ., concurred; WerNer, J., not sitting.

Judgment reversed and new trial granted, costs to abide the event, unless the defendant stipulates to so modify the judgment as to make it conform to a judgment in favor of the plaintiff as in an “ action to recover a chattel ” by striking out the provision relating to costs and to recovery by defendant, and inserting recovery by the plaintiff of thirty dollars costs. In that event the judgment be so modified, and as modified affirmed, without costs of this appeal to either party.


source: Caselaw Access Project

author: Lewis, J.:

license: Public Domain

text:
    James D. Cobb, Appellant, v. Henry S. Hanford, Respondent, Impleaded with Others.

      Promise by a grantee to will the 'property to the grantor —probate of a will at variance with, the promise, enjoined —prospective executor a proper pcvrty.

    The complaint in an action alleged that the plaintiff, in 1881, conveyed certain real estate to his wife, in consideration of which transfer she agreed to make an irrevocable will, devising the premises and their increase to the plaintiff; that she did this, and delivered the will to the plaintiff;, that in 1894 she made another will, in which the defendant, Henry S. Hanford, was named as executor, making a different disposition .of her property. Judgment was asked that Hanford be enjoined from proving the last will; that the former will be adjudged irrevocable and entitled to probate, and that the plaintiff be declared to be the owner of the property. A demurrer was interposed by Hanford.

      Held, that the complaint stated a cause of action;
    That the action was not premature, and that the court had power to enjoin Hanford as an individual from putting himself in a position as executor, where he might take the property into his own custody to the damage of the plaintiff, the rightful owner, and create a cloud upon the title.
    Appeal by tlie plaintiff, James D. Oobb, from an interlocutory judgment of tlie Supreme Court in favor of the defendant, Henry S. Hanford, dismissing the complaint as to said defendant, entered in the office of the clerk of the county of Monroe on the 26th day of February, 1895, upon the decision of the court rendered after a trial at the Monroe Special Term.

      W. A. Sutherland, for the appellant.

      Albert II. Harris, for the respondent.
   Lewis, J.:

The complaint alleges that on January 12,1881, the plaintiff was the husband of Elizabeth M. Cobb; that he on that day conveyed to her certain real estate in Monroe county, in consideration of which she agreed to make her irrevocable will, in and by which she should devise the premises conveyed and their increase to her husband; that slie did on the same day duly execute her will in accordance witli said agreement and delivered tlie same to the plaintiff; tbat slie died August 23, 1894, leaving only the said property and tlie produce and income of the same, and that the defendant Hanford has filed with the surrogate of Monroe county his petition, reciting that a few days before her death Mrs. Cobb made another will, dated August 18, 1894, whereby she attempted to make a different disposition of her property, in which will she named the defendant Hanford as the executor thereof and constituted and appointed him as trustee of an undivided half interest in tlie property for the plaintiff. The plaintiff asked for judgment; that the defendant Han-ford be enjoined from proving said last will; that the will of 1881 be decreed and adjudged to be the irrevocable last will, and, as such, entitled to probate, and that tlie plaintiff be adjudged to be the owner of said property.

The defendant Hanford demurred to the complaint on the ground that it did not state a cause of action against him. It is conceded by his attorney that if the facts pleaded be true the plaintiff will have, after the will is probated, a cause of action against all of the defendants except Hanford, and will have a good cause of action against him in his official capacity as executor, so that the question presented is as to whether there is a cause of action stated in the complaint against Hanford personally. The plaintiff unquestionably had such a right in this property under the agreement by which his wife became possessed of it, that if she had attempted to convey or incumber it in her lifetime she could have been restrained from so doing by this plaintiff. Such an attempt would have been a wrongful interference by her with his property, because she never ■acquired from the plaintiff the right to convey away the property either by deed or will. It is alleged in the complaint that the defendant Hanford is making such an attempt in the name of tlie testatrix and by her authority, and if he should succeed she would throw a cloud upon the plaintiff’s conceded right and title to the property and place the same in his own custody wrongfully, and would create a charge and incumbrance upon the same in his own favor to the injury of the plaintiff’s rights. It is conceded that, as soon as he had completed the wrongful act by proving the will, an action by tlie plaintiff would lie against him in his official capacity as executor to declare wrongful and illegal all that he may have done, and to set aside such probate and adjudge the plaintiff to be the owner of the property, but until this last will has been actually proved and Hanford has been appointed executor thereof, it is claimed that no action will lie against him.

This position, which would be absurd if applied to a contract, a deed or a mortgage, is claimed by respondent to apply to a will, because of its exceptional and peculiar character, and that courts of equity are powerless to deal with wills as they do with other instruments.

It is not contended but that Mrs. Cobb could have been herself enjoined from executing the second will, but it is claimed that, having in fact executed it and assumed to revoke the former will, her last will must be allowed to go to probate.

The law is administered as well for the prevention as for the redress of wrongs, and it would seem upon principle that courts should possess as full power and authority to prevent such an attempt' or threatened wrongful act as to render compensation for the wrongful act when committed.

It is true that the plaintiff in his complaint asks to have the last will adjudged fraudulent and void, and that the first will be proved and established. That, however, is not all the relief asked for. The plaintiff is not to be denied the relief to which he is entitled, for the reason that he has claimed too much in his complaint. The principal question here presented is, whether the defendant Hanford can be prevented from placing a cloud upon the plaintiff’s conceded and unquestionable title to the property in question, and from creating a charge thereon, and from taking the same into his own custody and control against the consent of the rightful owner, and from raising an apparent, illegal and wrongful barrier against the right of the plaintiff to enforce the lawful and binding contract set out in the complaint, or whether the plaintiff must wait until the wrongful acts are committed before he can obtain relief. It is the contention of the respondent’s counsel that the plaintiff’s complaint asks this court to take cognizance of a question which exclusively belongs to the Surrogate’s Court. It is the policy of this State to commit to the courts of probate the decision of questions arising upon the execution of alleged wills, and it is only in exceptional cases that courts of equity will assume to interfere. (Anderson v. Anderson, 112 N. Y. 104.) We do not understand that tlie purpose of this action involves the consideration by the Supreme Court of any question which can arise upon the probate of a will.

The questions here for adjudication precede any action which can take place upon the probate of the will. The court is asked to enforce a legal contract made by the testator, which if enforced will prevent the presentation of the will to the Surrogate’s Court for probate.

It is the contention of the plaintiff that Mrs. Cobb did not possess the power legally to dispose of the property in question by the second will; that in attempting to do so she was guilty of a fraud upon her husband’s rights, and that the second instrument never became a will, and, hence, that the former will was never revoked, and is the one that should be presented to the surrogate for probate.

The defendant claims that if the plaintiff has any cause for action it is against him in his official capacity as executor and not against him individually. Until a will is admitted to probate the person named therein .as executor is not vested with power to act as such. Lfetters testamentary may never be issued to him. Having been named in the will as executor he is authorized by the Code of Civil Procedur to offer the will for probate; this he can do, although he may not intend to accept the letters. The defendant Hanford, in addition to being designated as executor, is made trustee of an undivided half interest in the testatrix’s property for plaintiff’s benefit. We see no reason for holding that he is not individually a proper party defendant in such an action.

We are referred to many authorities bearing upon the questions presented for our decision, but none of them seem to be decisive of the questions before us. Although they are not free from doubt we incline to the opinion that a good cause of action was stated in the complaint against the demurring defendant individually, and that the interlocutory judgment appealed from should be reversed, but with leave to the defendant to interpose an answer within twenty days.

Bradley and Ward, JJ., concurred; Werner, J., not sitting.

Interlocutory judgment reversed and demurrer overruled, without costs, with leave to the defendant to answer within twenty days.'


author: Lewis, J. :

text:
    William H. Smith, Appellant, v. Abijah Weston, Respondent, Impleaded with Others.

      Accommodation indorser — the reneical of a note by the maker is notice to the creditor of the fact — a partner indoising for accommodation — estoppel.

    ■Where a creditor takes from, his debtor, in renewal of an existing note made by him, a new note already indorsed, it is notice to the creditor that the indorsement upon the new note is for the accommodation of the maker and that no consideration was received therefor.
    Where a partner indorses the firm name for accommodation, and such act is' not done in the course of the firm business, and the holder has notice of the nature of the indorsement, he cannot recover against the firm.
    Ho estoppel can arise against a partner, from the fact that he was aware that another partner was indorsing the firm name for accommodation, where it appears that the former remonstrated against the practice on every occasion and finally dissolved the firm because it was continued.
    Appeal by the plaintiff, William II. Smith, from a judgment of the Supreme Court in favor of. the defendant Abijah Weston, entered in the office of the clerk of the county of Cattaraugus on the 12th day of February, 189-i, upon the dismissal of the complaint directed by the court after a trial at the Cattaraugus Circuit.

      Charles 8. Ca/ry, for the appellant.

      J. II. Warning, for the respondent.
   Lewis, J. :

The action was brought against the defendants as second indorsers upon a promissory note made by George Yan Campen & Sons, for the sum of $2,000, payable to the order of J. K. Yan Campen, administrator, etc. It was indorsed by the payee, who was a member of the firm of makers, and at his request William W. Weston, one of the firm of Weston Brothers, indorsed thereon the firm name of Weston Brothers. Abijah Weston alone defended. The indorsement of the defendants’ firm name was for the accommodation of the makers and not in the course of the partnership business, and was made without the knowledge or consent of the respondent, who was at the timo a member of said firm of indorsers. Tbe payee, J. N. Van Campen, after obtaining such indorsement upon the note, transferred the same directly to the plaintiff in renewal of another promissory note of a like amount made by the same makers and indorsed in like manner. There was no substantial conflict in the evidence, and at its close plaintiff’s counsel stated to the court that in his opinion there was no'question for the jury and he asked for a direction of a verdict for the plaintiff. Ilis motion was denied, and thereupon defendants’ counsel requested the court to direct a verdict for the defendant, which the court did, and the plaintiff duly excepted. The effect of this request by both parties for a direction of a verdict was to submit the questions of fact for the decision and determination of the court without a jury. (Thompson v. Simpson, 128 N. Y. 283.) The firm’s name having been indorsed upon the note by William W. Weston for the accommodation of the makers, and not in the course of the partnership business, Abijah Weston was not liable upon it if the plaintiff was aware of the facts at the time he took it. Taking the note directly from the makers in renewal of a loan previously made to them, was evidence to the plaintiff that the' defendants’ indorsement was for the makers’ accommodation and without consideration. (Nat. Park, Bank v. G. A. M. W. & S. Co., 116 N. Y. 281-293.)

It is claimed by the appellant that the defendant should be estopped from interposing the defense for the reason that he was aware his brother William W. had on many .prior occasions used the firm name in like manner. There was evidence tending to show that the defendant William W. had so indorsed the firm name on prior occasions without the consent of the other partners, and that knowledge thereof had from time to time been communicated to Abijah. Abijah testified that he had known that his brother had thus used the firm name, but that on every occasion when the information came to him he remonstrated with his brother for so doing and threatened to dissolve the firm if the practice was persisted in, and that William on every occasion promised that he would not repeat it, but that he violated his promise, and the defendant finally caused a dissolution of the firm in consequence thereof. It was not shown that the plaintiff knew at the time he discounted the note of these former indorsements of the defendants’ firm name by "William. The plaintiff failed to make a case entitling him to judgment.

The judgment should be affirmed.

Bradley and Ward, JJ., concurred; Dwight, P. J., not voting.

Judgment affirmed.


text:
    Frank B. Lyon, Respondent, v. Western New York and Pennsylvania Railroad Company, Appellant.

      Oommon carrier — liability for transportation to a place beyond, its line- — •parol evidence to mry a bill of lading.

    Where a common carrier, in an action brought against it to recover the damages resulting from its delay in the shipment of perishable property, admits by its answer that it agreed to transport the property to a point beyond its line, it is liable for damages caused by the negligence of its connecting carrier.
    Where ?. bill of lading fails to state the kind of car in which goods are to be shipped, testimony that the carrier agreed to transport them in a ventilated car, and that the injury resulted in part from their shipment in a common car, is admissible. The reception of such evidence is not a violation of the rule that parol evidence cannot be given to vary or contradict a written instrument.
    Appeal by the defendant, the Western New York and Pennsylvania Railroad Company, from a judgment of the County Court of Allegany county in favor of the plaintiff, entered in the office of the clerk of said county on the 19th day of March, 1894, affirming the judgment of a justice of the peace of the town of Cuba, Allegany county, and also from an order entered in said clerk’s office on the 17th day of March, 1894, affirming the judgment of the said justice.

      Allen J. Hastings, for the appellant.

      Frank M. Todd, for the respondent.
   Lewis, J.:

The plaintiff on the 8th day of July, 1889, at the village of Cuba, shipped by the defendant’s road 900 dozen of eggs, consigned to a firm at Wilkesbarre, Penn., which the defendant, for value received, agreed to transport with reasonable dispatch and delivery to plaintiff’s consignee at Wilkesbarre, in the State of Pennsylvania.

Plaintiff claimed that the defendant failed to perform its agreement with reasonable dispatch, and in consequence of such negligence tlie eggs, when delivered, were in a decayed and broken condition to plaintiff’s damage.

The evidence as returned by the justice is very brief and fragmentary, and fails to give a very satisfactory statement of what ■occurred upon the trial. It is conceded by the pleadings that tlie defendant received the eggs from the plaintiff and agreed, for a consideration, to transport them as stated above. The defendant gave •evidence tending to show that it delivered the eggs with reasonable dispatch to the Delaware, Lackawanna and Western Railroad Company, a connecting common carrier, and claims that if the eggs were injured by delay in their delivery it was the result of the negligence ■of the Delaware, Lackawanna and Western Railroad Company and not of the defendant. The justice’s return contains what purports to be a copy of a bill of lading delivered to the plaintiff at the time of the shipment of the eggs.

We assume that the copy returned was the one testified to by defendant’s agent, although the justice’s return fails to so state. Dpon the copy thus returned appear to be some letters, words and figures which are claimed by the defendant to mean that the defendant’s contract was to deliver the eggs to the connecting road mentioned. The testimony fails to explain the meaning of the figures •and letters referred to, and without some explanation we are not Informed as to their meaning. The plaintiff’s evidence tended to show that he filled out at the time of the shipment a blank bill of lading furnished him by the defendant’s agent, and that one copy thereof was delivered to him; that at the time it was delivered to him it did not contain the letters, words and figures referred to, but that they must have been inserted by the agent or some other official ■of the defendant after the execution and delivery of the bill of lading and after the shipment of the eggs. This evidence does not appear from the justice’s return to have been contradicted.

The defendant having admitted by its answer that it agreed to transport the eggs to Wilkesbarre, it was liable for damages caused by the negligence of its connecting road. (Jennings v. G. T. Ry., 127 N. Y. 438.)

The plaintiff testified that the defendant agreed to transport the ■eggs in a ventilated car and that it failed so to do, and that the injury to the eggs resulted in part from their being shipped in a common unventilated car. The objection of the defendant, that this testimony was inadmissible for the reason that it tended to vary or contradict the terms of the bill of lading, was not, we think, well taken; there was nothing in the copy of the instrument returned stating the kind of car to be used. The evidence, we think, fairly established the plaintiffs cause of action.

The judgment appealed from should be affirmed.

Dwight, P. J., Bradley and Waed, JJ., concurred.

Judgment of Allegany County Court affirmed, with costs.


text:
    First National Bank of Friendship, N. Y., Appellant, v. Abijah Weston, Respondent, Impleaded with Others.

      Bills and notes — duty of a purchaser to inquire — notice of indorsement for accommodation — presumption as to the inception of anote.

    It is not tlie duty of parties about to purchase negotiable paper to make any inquiries, not required by good faith, as to possible defenses of which they have no notice either from the face of the paper or from facts communicated at the time.
    A note made by the firm of George Yan Campen & Sons, payable to the order of J. K. Yan Campen, indorsed by him and by the firm of Weston Brothers as second indorsers, was mailed to a bank by the payee for discount.
    It was discounted and its proceeds were applied to the payment of a note, falling due at the time, which was one of a series of notes in all respects similar to it. The first note of this series was discounted for the benefit of George Yan Campen.
    In an action upon the first-mentiqned note the plaintiff’s cashier testified that the application of the note was made according to instructions, and that he did not know that J. K. Yan Campen was one of the makers of the note, or that he was a member of the firm of George Yan Campen & Sons — and there was in fact, on the trial of the action, no affirmative proof that he was a member of that firm.
    Abijah Weston, one of the firm of Weston Brothers, defended the action upon the ground that the indorsement was made for accommodation by another member of that firm without his consent and was not made in the business of the firm. The court directed a verdict for the defendant.

      Held, that the direction was erroneous and that the case should have been submitted to the jury;
    That as the note was presented for discount by the payee, the legal presumption was that it had its inception in his hands.

      Appeal by tbe plaintiff, the First National Bank of Friendship, N. Y., from a judgment of the Supreme Court in favor of the defendant Abijah Weston, entered in the office of the clerk of the county of Cattaraugus on the 12th day of February, 1894, upon the dismissal of the complaint directed by the court after a trial at the Cattaraugus Circuit.

      Charles S. Cary, for the appellant.

      J. 1L Waring, for the respondent.
   Lewis, J.:

This action was brought upon a promissory note dated December 31, 1891, made by the firm of George Yan Campen & Sons, payable to the order of J. K. Yan Campen, and indorsed by the payee, and by the firm of Weston Bros, as second indorsers. The indorsement of the firm name of Weston Bros, was made by William W. Weston, one of the members of the firm, solely for the accommodation of the makers, without consideration, and not in the business of the firm of Weston Bros. It was presented to the plaintiff for discount by the payee, J. K. Yan Campen, in the month of September or October, 1892. It was discounted by the plaintiff’s cashier and the . proceeds thereof were applied in payment of a promissory note falling due that day, which was one of a series of notes made by the same makers and bearing the same indorsements as the note in suit.

The first note of the series was discounted by the plaintiff, and the proceeds thereof were placed to the credit of George Yan Campen. Whether he was a member of the firm of makers did not appear from any affirmative evidence on the trial.

Abijah Weston, a member of the firm of Weston Bros., alone defended, setting-up as his defense that the indorsement of his firm name was made without his consent, and not in the business of his firm; that it was presented to the plaintiff for discount by the makers, which was alleged to be notice to the plaintiff that his firm was an accommodation indorser.

Many of the facts of this case are similar to those of the case of William II. Smith against the same defendants, which was argued at the same time with this case, but a different question arises here.

Both parties requested the direction of a verdict in their favor, ■ respectively, in the Smith case, thereby submitting the questions of fact for the decision of the court, and the decision was in favor of the defendant Abijah Weston. But such was not the case here; the plaintiff, at the close of the evidence, asked to have the questions of fact submitted to the jury. His request was refused, and a verdict was directed for the defendant.

The plaintiff’s cashier, Minor Wellman, testified that the note in suit was sent by mail to the plaintiff’s bank by the payee, J. K. Van Campen, with a request that it should be discounted and the proceeds used to take up the note heretofore referred to, and which was held by the bank ; that J. K. Van Campen paid the discount; that he did not know that he was one of the makers of the note, neither did he know who composed the firm of makers.

That he had no knowledge who J. K. Van Campen represented in this correspondence, and did not know who composed the firm of George Van Campen & Sons; that he discounted the notes on the strength of the indorsement of Weston Bros.; that that firm was the only one he knew anything about.

There was evidence in the Smith case justifying the court in finding that the note was, to the knowledge of the plaintiff, presented for discount by the makers, and, hence, presumably had its inception in their hands.

That circumstance was notice to the plaintiff Smith that the note belonged to the makers, and that the indorsement in the name of Weston Bros, was made for the makers’ accommodation without consideration.

If presented by the first indorser, as in this case, the presumption would be that it had its inception in his hands. It is not the duty of parties about to purchase negotiable paper to make any inquiries not required by good faith, as to possible defenses of which they have no notice either from the face of the paper or facts communicated at the time. (§775, Daniels on Negotiable Paper.)

The evidence presented facts which should Lave been submitted to the jury.

The judgment appealed from should be reversed and a new trial granted, with costs to abide the event.

Beadley and Waed, JJ., concurred'; Dwight, P. J., not voting.

Judgment reversed and a new trial granted, costs to abide the event.

      See ante, page 25.


text:
    Joseph F. Grant and Edward G. Grant, Appellants, v. John B. Smith, Respondent.

      Chattel mm'tgage to secure an accommodation indoi'ser — when the right to enforce the mortgage accrues.

    A firm gave to their accommodation indorser, John T. Baxter, as security and by way of indemnity, a chattel mortgage upon their stock of goods, which provided that if judgment was recovered or execution was issued against the mortgagors, or if they should sell, assign, secrete or remove any of the mortgaged property, the indebtedness should at once become due, the liability of the indorser should become fixed, and that after paying the indebtedness he should be entitled to immediate possession of the property; it further provided that if the mortgagee should at any time deem himself in danger of having to pay said indebtedness, or any part thereof, by delaying until it was due, he was authorized after paying it to take immediate possession of the property and to sell it.
    Thé note in question was indorsed by Baxter, was discounted by a bank and was by it before maturity transferred to John B. Smith, to whom the mortgage was also assigned; thereafter a judgment was recovered against the mortgagors, and an execution was levied on the property in question.
    The mortgagors were disposing of the property by sale and had given a second mortgage upon it. Smith, deeming his debt unsafe, threatened to take possession under his mortgage, whereupon this action was brought to restrain him from so doing.

      Held, that the action could not be maintained;
    That when Smith paid the bank for the note he had, within the meaning of the mortgage, paid the indebtedness, and deeming the latter unsafe had a right to-enforce the mortgage, which was not merely an indemnity to the mortgagee, but also a collateral security for the payment of the debt.
    Appeal by tbe plaintiffs, Joseph F. Grant and another, from an. order of the Supreme Court, made at the Erie Special Term and entered in the office of the clerk of the county of Cattaraugus on. the 18th day of December, 1894, vacating and dissolving a temporary injunction.

      W. II. Fourse, for the appellants.

      F. L. Eaton, for the respondent.
   Lewis, J.:

The plaintiff Joseph F. Grant made his promissory note for the sum of 8107.75, payable to the order of the plaintiffs, and at their request John T. Baxter- became a second indorser upon said note, and to secure Baxter against loss, damage or liability which he might sustain or incur as such indorser, the plaintiffs gave him a chattel mortgage upon their stock of goods in their store in the city of Olean.

The mortgage provided that it was given as collateral and continuing security to Baxter as indorser upon the plaintiffs’ note mentioned, or any renewal or renewals thereof, and against any loss, cost, damage or other liability which he might sustain as such indorser. It further provided that if at any time during the existence of the mortgage any suit should be commenced, judgment recovered, or execution issued against the mortgagors, or if they should sell, assign, secrete or remove away any portion of the property so mortgaged, or attempt to do so, then the whole of the indebtedness, although not then due by its terms, should become immediately due and payable, and the liability of Baxter, as indorser, should thereupon become fixed, and after paying such indebtedness the said Baxter should have the right to the immediate possession of the mortgaged property.

And it further provided that if the mortgagee should at any time deem himself in danger of having to pay said indebtedness or any part thereof by delaying until the same should have become due and payable, he was authorized, after paying said indebtedness, to take immediate possession of the mortgaged property either before or after the maturity of the indebtedness, and sell the same at public or private sale and retain the proceeds thereof to the amount of the indebtedness, together with costs, etc. It further provided that the mortgagee, his heirs, executors, administrators or assigns, might purchase at such sale, etc.

The note, after the same was indorsed by Baxter, was discounted by the Exchange National Bank of Olean, and said bank, before the note fell due, transferred the same to the defendant, and Baxter, the mortgagee, assigned the said mortgage to the defendant as security for the payment of the note. The defendant thereby became the owner of the note and the mortgage before the maturity of the note. While the note and mortgage were held and owned by the defendant a judgment was recovered against the plaintiffs for some $400 or $500, and by virtue of an execution issued thereon the goods mortgaged as aforesaid were levied upon. The plaintiffs, after giving the mortgage to Baxter, executed and delivered to another party a chattel mortgage upon their stock of goods covered by the Baxter mortgage, conditioned to pay the sum of $300.

The defendant deeming himself in danger of losing his security by delaying the enforcement of his mortgage until the note matured, threatened to take possession of the property by virtue of his mortgage, and the plaintiffs thereupon commenced this action to restrain the defendant from interfering with the mortgaged property, and obtained a temporary injunction restraining him from so doing; and, upon defendant’s motion, the order appealed from was made.

There was nothing in the mortgage which affirmatively provided that the mortgagors should have the right to retain the possession of the mortgaged property until the maturity of the note.

It was made to appear pretty clearly upon the hearing of the motion that the mortgaged property was being disposed of and dissipated by the mortgagors, and that delaying the enforcement of the mortgage till the note matured would probably have resulted in the loss to the defendant of his security. It appeared from the affidavit of the mortgagors, read upon the hearing of the motion, that they had paid the larger part of the judgment recovered against them, and that they were financially responsible and were able to pay the balance of the judgment and the note in question when it matured, but they had violated the provision of the mortgage as to permitting the recovery of a judgment, and had by their subsequent mortgage transferred their interest in the property covered by defendant’s mortgage, and had thereby imperilled the defendant’s security.

Our attention is called by the appellants’ counsel to the provision in the mortgage that the mortgagee was at liberty to take possession of the property after he should have paid the indebtedness. It is bis contention that this clause prohibited defendant from interfering with the property until he had paid the note.

The mortgage, as we have seen, provided that, if a judgment was recovered against the mortgagors, or they should sell or assig;n any portion of the mortgaged property, the indebtedness, although not then due by the terms of the note, should become due and payable, and the liability of the indorser should then become fixed. Under such circumstances the mortgagee was entitled to possession of the property. The defendant having paid the bank for the note and become its owner, and the mortgage having been assigned to him, he must, we think, be held to have, within the meaning of the mortgage, paid the indebtedness, as provided by the mortgage, and he having good reason to believe that his security was being imperil-led, had the right to enforce the mortgage by taking possession of the property. The mortgage was not only to indemnify the mortgagee from loss or damage by reason of his indorsement, but it was also security for the payment of the note.

We fail to find any evidence tending to sustain the claim that the note was usurious. Baxter appears to have been simply an accommodation indorser, and the sums of money which the plaintiffs were shown to have paid him he received as compensation for his indorsement. Baxter was not shown to have had title to the note at any time. It had its inception in the hands of the bank.

The order appealed from should be affirmed, with ten dollars costs and disbursements.

Dwight, P. J., Bradley and Ward, JJ., concurred.

Order affirmed, with ten dollars costs and disbursements.


text:
    Ransford Button, Respondent, v. Andrew Kinnetz, Appellant.

      Case on appeal— working a farm on shares — landlord’s remedy for the negligence of the tenant — contract to plant wheat — damages for its breach — joint owners’ right of possession of personal property — no interest allowed upon unliquidated demands.

    Where a case upon appeal does not state that it contains all the evidence given upon the trial of the action the court can review only questions of law.
    Where a tenant, who is working a farm for the owner on shares, negligently allows the owner’s cattle to escape and commit a trespass upon the lands of another, the owner may pay the damages to the person, injured without consulting the tenant and charge them against the tenant.
    Where, hy the terms of a lease, the tenant agrees to leave as much wheat growing upon a farm at the expiration' of a lease as there was upon it at the date of the lease, and he fails to sow a part of the farm, but there is no evidence to show what this part would have produced if sown, the owner is entitled to recover upon the basis of the deficiency in quantity from the last year’s crop, estimated at the price prevailing for wheat at the time of the breach of the contract. Joint owners of personal property have an equal right to its possession.
    Where parties have mutual demands, which are unliquidated and are not capable of being ascertained by computation, it is error to allow interest upon an amount found due to one of them.
    Appeal by tlie defendant, Andrew Kinnetz, from a judgment of tlie Supreme Court in favor of tlie plaintiff, entered in tlie office of the clerk of tlie county of Seneca on the 2d day of July, 1894, upon the report of a referee.

      G. c& W. M. Wilcoxen, for the appellant.

      Hammond c& Hammond, for the respondent.
   Lewis, J.:

The plaintiff, by a written lease dated the 5th day of April, 1890,. leased to the defendant, to work upon shares, his farm in Seneca county for the term of one year, with the privilege to the defendant of continuing the term for one or two years longer. The defendant entered into possession and remained through the first year and into the second year until‘February, when lie surrendered possession. Misunderstandings arose between tlie parties, and this action was commenced in September, 1891, while the defendant was still in possession of the farm. The items of the respective accounts of the parties were very numerous, and ranged in amount from twenty-five cents up to hundreds of dollars. The trial occupied, so it is stated by tlie counsel in their briefs, from thirty to forty days. The referee appears to have discharged liis onerous duties with a desire to do justice to the parties, as is evidenced by the fact that out of thirty-seven pages of his findings tlie appellant excepted to only four of the findings in favor of the plaintiff, which are as follows : 1. To damages to KusselPs garden, $5. 2. Tc damages for sowing 18 acres less ivheat than in 1891, $96.86. 3. For one-half of the value of the Yosburgli wagon, $17.50. 4. Damages to cows, $340.

In considering tlie questions presented by this appeal we are confined to a review of the questions of law only, as the case fails to state that all the evidence bearing upon the questions sought to be reviewed has been included in it. The plaintiff was the owner of a large number of cows kept upon the farm, and by the arrangement the defendant had charge of them. Through the negligence of the defendant the cows escaped from the barn in which they were kept and damaged a neighbor’s garden to the extent of five dollars. The defendant neglected to pay this damage. On demand of the owner of the garden the plaintiff paid the five dollars. This he did without the defendant having requested him so to do. The plaintiff being the owner of the cattle he was liable to the owner of the garden for the damage caused by the trespass. He was not required to wait until the damages were assessed by an action before paying them, as the defendant had negligently caused the damage. By the terms of the lease the defendant agreed to leave as much wheat growing upon the ground as there was upon the farm at the date of the lease. There were forty acres of wheat upon the ground at the commencement of' the term and the defendant left only twenty-two acres, being eighteen acres short of the amount he agreed to sow the last year. The wheat upon the ground when the defendant took the farm produced 410 bushels, which was then worth one dollar and five cents per bushel, making §430.50. The defendant was entitled to one-half of this amount. The defendant having been guilty of a breach of his contract was liable to the plaintiff for the damages which he sustained.

The referee in arriving at his findings upon this claim seems to have proceeded upon the theory that the transaction amounted to a sale by the plaintiff to the defendant of the wheat crop of the first year, and that the defendant was, therefore, liable for eighteen-fortieths of the 205 bushels which he received from the first crop at one dollar and five cents per bushel which he found amounted to ninety-six dollars and eiglity-six cents. We do not see upon what principle the plaintiff was entitled to the one dollar and five cents per bushel, for the evidence shows ‘that at the time of the breach of the contract wheat was selling for only seventy-five cents a bushel. Had the defendant’s agreement been to deliver to plaintiff at the end of the term an amount of wheat equal to the first year’s crop the measure of damages would have been the value of the wheat at the time of the breach of the contract and not its value when the first crop was harvested. The lease provided that the plaintiff was to furnish one-half of the seed wheat for the last crop. The evidence shows it would have required one bushel jjer acre. The plaintiff was obliged to harvest the crop which was worth one dollar per acre. There was an absence of any evidence as to the cost of marketing the crop. The evidence tended to show that the twenty-two acres which the defendant sowed the last year produced but five bushels an acre.

We are not furnished with any evidence from which to determine how much the eighteen acres would have probably produced if sown, and in the absence of this information the referee correctly held that the plaintiff was entitled to recover the value of eighteen-fortieths of 205 bushels, being ninety-two and one-quarter bushels, which he should have computed at seventy-five cents a bushel, making sixty-nine dollars and eighteen cents. From this sum there should be deducted the value of eighteen bushels of seed wheat at seventy-five cents a bushel, thirteen dollars and fifty cents, and the expense of harvesting, eighteen dollars, making thirty-one dollars and fifty cents, which taken from the sixty-nine dollars and eighteen cents would leave thirty-seven dollars and sixty-eight cents as the amount of damages to which the plaintiff was entitled for the breach of this part of the contract.

There was a wagon used upon the farm which was the joint property of the parties. "When the defendant left the farm he took the wagon with him and stored it in a neighbor’s barn. The referee found its value to have been thirty-five dollars, and charged the defendant with one-half thereof, seventeen dollars and fifty cents. There was an absence of any evidence showing that the defendant in any manner ignored the plaintiff’s interest in the wagon. As the joint owner with the plaintiff he had an equal right to its possession. We are not aware of any principle of law upon which he could be charged with this item.

The defendant was required by the lease 'to take charge of the' cattle upon the farm and to return them to the plaintiff at the termination of his lease in as good condition as when taken, natural wear and damage thereto excepted. The evidence tended to show that during the last year of liis term he failed to take proper care of the cows, and when he left the farm they were in a very poor and bad condition. The referee found that in consequence of this neglect of the defendant the cattle were worth ten dollars a head less, being $238, in the spring of 1892, than they would have been had they been properly cared for and in fair condition. This item seems large and raises a suspicion in our minds that injustice was done the defendant in this finding, but as we are not at liberty to review the facts this finding cannot be disturbed. The referee included in the amount for which judgment was directed and recovery had against the defendant forty-nine dollars and forty-two cents interest; this was error; the damages were for breach of contract and were unliquidated and» could not be ascertained by computation. (Mansfield v. N. Y. C. & H. R. R. R. Co., 114 N. Y. 331.)

The referee found that the plaintiff sold a calf for $2.50, one-half of which belonged to the defendant, and for which the plaintiff had not paid the defendant. By an obvious oversight his conclusion of law was that this item should be disallowed. He evidently intended to allow this sum to the defendant. There should be deducted from the recovery on account of wheat $59.18, $17.50 for the wagon, the $1.25 mentioned and the interest item of $49.42, making in all $127.35.

The judgment should be reversed and a new trial granted, with costs to abide the event, unless the plaintiff stipulate to deduct from the amount of his recovery the sum of $127.35, and in case such stipulation be given then the judgment as thus modified should be affirmed, without costs of this appeal to either party.

Bradley and Ward, JJ., concurred.

Judgment reversed and a new trial granted, costs to abide the event, unless the plaintiff stipulate to deduct $127.35 from the amount of the recovery, and in that event judgment as thus modified affirmed, without costs of this appeal to either party.


author: Bradley, J.:

text:
    Walter H. Sherman, Respondent, v. Julius Robertson, Appellant.

      Action In’ouffht to recover for an alleged conversion — property delivered as collatei’al — evidence.

    Upon the trial of an action "brought to recover for the alleged conversion of a quantity of leather, the plaintiff claimed that the leather in question was deposited with the defendant as collateral security for certain renewal commercial paper only, while the defendant claimed that the property was delivered to him as security both for the renewal paper and also for a further indebtedness of the plaintiff to him.
    The evidence fairly justified the conclusion that the property when delivered was delivered as collateral security for the payment of the renewal commercial paper only. Shortly after the leather was sent to the defendant, he, in a letter written in acknowledgment of the receipt of the bill of lading, stated that he would take due care of the property delivered as collateral “ until pending obligations have been met by you.”

      Held, that such expression did not conclude the plaintiff from asserting a right ' to the return of the property after the payment of such "renewal paper only, and that whether or not the security furnished by the leather extended beyond the renewal notes was a question of fact for the jury.
    It was also shown upon the trial that, in the beginning of the negotiation for the renewal of the maturing notes, an employee of the plaintiff called upon the defendant, and had an interview with him upon the subject, as he had been instructed by his employer to do, and there was evidence to the effect that the defendant then made to such employee a proposition as to the terms and conditions upon which a renewal of the notes would be granted, and requested him to submit the proposition by letter to his employer, and by it request his employer to wire the defendant, whether or not he accepted it. The employee wrote a letter which was followed by a telegram from the employer accepting the projiosition.

      Feld, that the letter, abstractly considered, was not competent as evidence, but, in view of the fact that it appeared to state the proposition as made by the defendant, and was sent at his request and acted upon by acceptance, it was competent evidence, in connection with proof that it contained the proposition as made by the defendant, tending to prove the proposition which the plaintiff accepted by his telegram.
    Appeal by the defendant, Julius Robertson, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Monroe on the 4th day of October, 1894, upon the verdict of a jury rendered after a trial at the Monroe Circuit, and also from an order entered in said clerk’s office on the 2d day of October, 1894, denying the defendant’s motion for a new trial.

      Fragile M. Goff, for the apjiellant.

      II. L. Bennett, for the respondent.
   Bradley, J.:

The action was brought to recover for the alleged conversion of a quantity of leather which the plaintiff and John M. Sherman, then constituting the firm of Sherman & Sherman, had placed in the hands of the defendant as collateral security for some indebtedness to him. The main controversy has relation to the extent of the security for which the leather was deposited with the defendant. The evidence on the part of the plaintiff tends to prove that it was solely as security for the payment of two notes of lii@ firm of date July 26, 1893, for equal sums due at one and two months amounting to $551.50, while, on the part of the defendant, it is claimed that the leather was delivered to and held by him as security for the payment of those notes, and a further indebtedness of the plaintiff’s firm to him existing in account and amounting to $244.25.

The purpose for which the leather was delivered to and taken by the defendant, as shown by the arrangement between him and the plaintiff’s firm, rests mainly in written correspondence. The occasion for the security arose when they desired renewal of their note about to mature. This the defendant consented to do on condition that they furnished the collateral.

The two notes before referred to and the deposit of the leather were the result of that arrangement. And the correspondence in the outset and when the leather was sent to the defendant, fairly justifies the conclusion that it was delivered as collateral security for the payment of the renewed paper only. Shortly after the leather was sent to the defendant, he, in acknowledgment of the receipt of the bill of lading, inserted in his letter the expression that he would take due care of the property for the plaintiff’s firm until pending obligations have been met by you.” It is urged that such expression shows that the leather was received by the defendant as security for the payment of the account as well as the notes, and that it concluded the plaintiff from asserting any right to the return of the property until payment of it was made. The most that the evidence permits to be said in that respect is that whether or not the security furnished by the leather extended beyond the renewed notes, was a question of fact for the jury. The notes were paid, and thereupon the plaintiff, who had become the sole owner of it, demanded the possession of the property of tlie defendant. The defendant insisted upon the payment of the account as a condition precedent, and refused, until its performance, to return the property to the plaintiff. The questions of fact were fairly submitted to the jury, and its verdict is supported by the evidence.

In the outset of the negotiation for the renewal of the maturing notes before mentioned, one Martin, who was in the service of the Sherman firm as salesman, called upon the defendant and had an interview with him on the subject as he had been requested and instructed by the firm to do. There is evidence to the effect that the defendant then made to Martin a proposition as to the terms and conditions upon which a renewal of the notes would be granted, and requested Martin to submit the proposition by letter to his firm, and by it request Sherman & Sherman to wire him, defendant, whether or not they accepted it. Martin wrote the letter, which was followed by a telegram from them accepting the proposition. The letter, abstractly considered, was not competent as evidence, but in view of the fact that it appears to have stated the proposition as made by the defendant, and was sent at his request by Martin and acted upon by acceptance, the letter, in connection with evidence of the fact that it contained the proposition as made by the defendant, was competent as tending to prove the- proposition which Sherman & Sherman by the telegram accepted.

It appears that some time before the commencement of the action the plaintiff wrote the defendant that he had made a deposit of the amount of the account subject to the order of the defendant when the property should be received, examined and found to be in good condition. This letter was received in evidence without objection, and to the testimony of a witness to the fact that the money had been so deposited, the only specific ground of objection made was that it was not the best evidence. Neither the letter nor this evidence had any apparent materiality upon the issues on trial. But the objection specifically taken was not tenable.

There was no error in the rulings at the trial to the prejudice of the defendant.

The judgment and order should be affirmed.

Dwight, P. J., Lewis and "Wabd, JJ., concurred.

Judgment and order affirmed.


author: Beadlet, J. :

text:
    Henry Van Wagenen, Respondent, v. Genesee Falls Permanent Savings and Loan Association, Appellant.

      Estoppel as to facts peculiarly within the knowledge of a corporate officer or agent— payment of money to an officer of a savings and loan association — when not a payment to the association — the possession of a pass hook does not conclude the association.

    When an agent or officer of a person or corporation acts -within the apparent scope of his authority the principal is estopped from effectually asserting want of power in a particular case against a party who, in reliance upon such authority, has in good faith proceeded upon it and would suffer injury were the authority of the agent or officer repudiated by the principal. In such a case the principal is concluded by the representation of the agent as to any extrinsic fact which rests peculiarly within his knowledge, although false, and which is not ascertainable by reference to the power conferred in relation to the act so-done by the agent.
    A party dealing with an agent is presumed to have ascertained his power and that his act corresponds with it. He may then take his representation as to the fact dehors the power, unknown to him, although such fact be.misreprescnted by the agent, who, by reason of the fact not being as represented, is denied the right to do the act which he assumes to perform as such agent.
    It was shown upon the trial of an action that the plaintiff, by the solicitation or advice of the secretary of a savings and loan association, consented to take twenty-five shares of stock therein and handed to the secretary a certain sum to be paid to the association (the defendant) as his entrance fee into membership, and that soon after the next regular meeting of the association the secretary handed to him a passbook of the association regular inform. Thereafter from time to time the plaintiff handed to the secretary (into whose company lie was frequently brought and with whom he was on intimate relations) sums of money to pay for him to the association, which amounts were credited on such pass book. The secretary paid none of the.money to the association but converted it to his own use.
    The articles of association of the defendant provided that all payments of the character of those made by the plaintiff must be made at the regular weekly meetings of the association, and on the plaintiff’s pass book the amounts therein entered were entered as having been made on dates the same as those upon which the regular weekly meetings of the association were held.
    The duties of the secretary of the association, prescribed by the articles of association so far as pertinent, were to keep a correct account of all the proceedings of the association and to enter them in a book kept for that purpose ; to keep an accurate account of all moneys paid the association and enter the same in a book kept for that purpose; to keep a true account between the association and. the shareholders and to give the shareholders at all times any desired information in relation to its financial affairs.

      Tlie duty of tlie treasurer of the association was to be present and receive all moneys paid to tlie association and give Ills receipt to the secretary for the same.
    The practice was, that the money was paid to the treasurer, and his receipt to the secretary was not given as each payment was made by each member, but the entire payments at a meeting were embraced in a single receipt.

      Held, that the handing of the money to the secretary to pay to the association could not be treated as a payment to the association;
    'That the secretary had no authority to represent the association in so receiving the money, nor could any such power be implied from the fact that he had on other and previous occasions received money from members and paid it in at the weekly meetings of the association;
    That tlie payments could be legitimately made only at the regular meetings of tlie association;
    That under the circumstances no equitable estoppel as against the association could be based upon the fact of the plaintiff's possession of the pass book.
    Appeal by tlie defendant, tlie Genesee Falls Permanent Savings and Loan Association, from a judgment of tlie County Court of Monroe county in favor of tlie plaintiff, entered in the office of tlie cleric of the county of Monroe on the 27th day of April, 1894, upon tlie report of a referee.

      Fdwim .McKnight and II. Nelson Peck, for the appellant.

      Frank M. 'Goff, for the respondent.
   Beadlet, J. :

The defendant, a domestic coloration, was organized in 1887. Its place of business is the city of Focliester, N. Y.

The plaintiff alleges that he became a member in June, 1891, by the purchase of twenty-five shares of its stock and payment of his •entrance fee; that between that time and June 13, 1892, lie paid to the defendant $140, and that having the right to withdraw the money so paid with dividends, etc., he demanded payment of such amount, which was refused. The defendant puts in issue all the allegations of the plaintiff other than that of its corporate existence and place of business.

The defendant’s articles of association provide that members not having received a loan may withdraw their shares, and thereupon the amount paid thereon shall be refunded as soon as tlie necessary funds are in the treasury. If the plaintiff was a member he had a riglit to withdraw his shares and demand payment from the defendant of the amount paid in, etc. He gave the requisite notice for withdrawal, and demanded payment. The defendant refused to recognize him as a member of the association, and asserted that he had paid nothing to it. The main question which will be considered here, is whether or not he had by payment created any fund in the association.

It is provided by the articles that the association shall hold regular meetings on every Monday evening, and that all payments must be made at the regular weekly meetings. The plaintiff attended no-meetings and personally made no payments at any such meeting.

Early in June, 1891, the plaintiff, on the solicitation or advice of George II. Butts, consented to take twenty-five shares, and he then handed to Butts two dollars and fifty cents to be paid to the defendant as entrance fee into membership, and soon after the next regular meeting of the association Butts handed to him a pass book regular in form as such, and thereafter from time to time until in June, 1892, the plaintiff handed and sent to Butts sums of money to-pay for him to the association, which money, with that first mentioned, amounted to $140. This with the alleged dividends constitutes the. amount of the fund which the plaintiff seeks to recover. It turns out that Butts paid none of the money to the defendant,, and this fact was first brought to the attention of the plaintiff when he afterwards had delivered to another person a sum of money to pay to the defendant, and who having offered to pay it at a meeting, of the association, was advised that the plaintiff was not a member, and that no money had been paid in by or for him. This last-mentioned sum was returned to him. The question, therefore, is whether or not the defendant is chargeable with the money so paid by the plaintiff to Butts. The plaintiff was a conductor on the New York Central and Hudson River Railroad, and resided at Niagara Falls. Butts was an express messenger. They were frequently brought-together, and their relations wTere intimate. Butts became secretary of the defendant in 1887, and continued in that relation to it until in July, 1892. When the pass book was handed to the plaintiff it contained the entry of the sum of two dollars and fifty cents as of the date of the previous meeting of the association. The pass book accompanied all the other sums handed to Butts, and when it was returned by bim to tlie plaintiff it had the entry upon it as of date of regular meetings respectively of the sums so delivered and sent to him by the plaintiff.

The plaintiff knew the methods of the transaction of the business of the association and what was required by the articles in that respect. He also knew that Butts was its secretary. He had in like manner previously transacted business through him when the plaintiff was a member of the association as trustee for his children, which relation was terminated some two years before. The claim of liability of the defendant is founded mainly on the fact that Butts was such secretary. By reference to the articles of association it is seen that it is the duty of the secretary to keep a correct account of all proceedings of the association and to enter them in a book kept for the purpose; to keep an accurate account of all moneys paid the association and enter the same in a book kept for the purpose; to keep a true account between the association and the shareholders, and to give the shareholders at all times any desired information in relation to its financial affairs. There are certain other duties to which it is unnecessary to refer. He is also required to give security for the faithful performance of his duties. These are duties which he ■owed to the defendant in his official relation to it. There is also a treasurer whose duty it is “ to be present and receive all moneys paid to the association, and give his receipt to the secretary for the same, and to pay all orders approved by the board of directors and .signed by the president and secretary, to compare and settle with the secretary quarterly all accounts.” Whatever may be the construction to which that provision of the articles is entitled it seems that the practice was such that money was paid to the treasurer, and his receipt to the secretary was not as payment was made by each member, but the entire payments at a meeting were embraced in a single receipt • It is very clear that the handing of money to the person who was secretary to pay to the defendant cannot be treated as a payment to it. He had no authority to represent the association in so receiving it. Nor can any such power be implied from the fact that he had on other and previous occasions received money from members and paid it in at the weekly meetings. It was the payment there and that only which can be deemed recognized by the defendant in behalf of such members in relation to such payments. The payments could legitimately be made only at the regular meetings. It is unnecessary to inquire whether it may not by estoppel be charged with payment to a depository authorized by it to receive money elsewhere to be handed to its treasurer. No such question arises in the present case. The agency assumed by Butts to take the money to the defendant was for the plaintiff, who testifies: “ When I gave him this money I simply told him to take it to the association for me I suppose.” Such relation was necessarily the consequence of the purpose for which the money was delivered and received by Butts. He failed to execute the commission, and that is the end of the controversy unless some other reason is applicable to the fact that the plaintiff had a pass book upon which the sums so delivered to Butts were entered by him as of such dates as to lead the plaintiff to suppose that the money was paid as represented by it to the association. It is difficult to see how any equitable estoppel as against the defendant can be predicated on that state of facts. When an agent or officer of a person or corporation acts within the apparent scope of his authority the principal is estopped from effectually asserting the want of power in the particular case against another who in reliance of such authority has in good faith proceeded upon it and would suffer in jury by the repudiation of the act of the agent or officer. In such case the. principal is concluded by the representation of the agent as to any extrinsic fact which rests peculiarly within his knowledge, although false, and which is not ascertainable by reference to the power in relation to the act so done by the agent. (Griswold v. Haven, 25 N. Y. 595; N. Y. & N. II. R. R. Co. v. Schuyler, 34 id. 30; Bank of Batavia v. N. Y., L. E. & W. R. R. Co., 33 Hun, 589; 106 N. Y. 195.)

The party thus dealing with an agent is presumed to have ascertained his power, and that his act corresponds with it. He may then take his representation of the fact dehors the power unknown to him, although misrepresented by the agent who, by reason of the falsity of the fact, is denied the right to do the act which he assumes to perform as such agent.

For instance, in the Banlt of Batavia case the extrinsic fact peculiarly within the knowledge of the freight agent of the railroad company was whether the property described in the bill of lading issued by him had been received by the company for transportation. lie, by the bill of lading, falsely represented tliat it bad been so received, and on the faitli of that representation the bank discounted a draft with the bill of lading annexed as a collateral. In an action by the bank against the railroad company to recover damages resulting to it by reason of the fraud, the company was estopped from making available as a defense the fact that such property had not been, received, and that the representation in the bill that it had been was utterly false. The agent there assumed to perform the act for the company. In the present case Butts, in taking the" plaintiff’s money, assumed to act for him, and he failed to perform what he undertook and what the plaintiff expected he would do. It was not within his power as an officer of the defendant to receive the money as he did from the plaintiff, nor did he in that relation to the association put it in his pocket, retain and appropriate it to his own use. The money never went to the defendant, nor was any entry of it made on its books. The fact that the plaintiff had a pass book does not, nor do the entries made upon it, furnish any aid to him as against the association. These facts, concurrently with the transaction, facilitated the opportunity for deception practiced by Butts upon the plaintiff. The entries made by Butts upon the pass book were merely his representations that he had paid the money to the defendant for the plaintiff, as he had been requested, and as he had promised to do. And that has no more potency for the purposes of the questions presented than would his verbal representations that he had paid the money to the treasurer of the defendant have been entitled to. The omission to do it was merely the default of the plaintiff’s trusted and untrustworthy bearer of his money, and not of the defendant’s secretary in that relation to the association. Then there is a further reason (not essential for the purposes of this case), preclusive of the asserted claim, in the fact that the plaintiff parted with nothing upon the faith of any representation in the pass book of payment of his money to the association. The money which produced each entry in the pass book was. delivered to Butts before, and not after, the representation thus furnished by it was made.

.Our attention is called to Fifth Avenue Bank v. F. S. S. & G. S. F. R. R. Co. (137 N. Y. 231). That case gives no support to the plaintiff’s claim. There the person who was the secretary, treasurer and transfer agent of 'the company issued a certificate of a number of shares of stock of the company, and to accomplish it he forged the name of the president of the company. It was within the power of the . secretary, as transfer agent, to countersign certificates, and he, as such, countersigned the certificate there in question and affixed the corporate seal. This was the method of authentication, and in effect was the representation of the secretary and transfer agent in the manner he was authorized to make it that the certificate was duly issued. And for that .reason it was held that, as against the plaintiff, which had advanced money on the faith of the certificate, the company was estopped from asserting the fraud of the agent who thus authenticated it. Butts, because he was secretary, had no power, real or apparent, more than any other person had, to charge the defendant, as with payment to it, by his representation that money delivered to him to pay for another to the association liad been paid to it when such representation was false. In such case it is a matter of confidence in the person selected to pay the money. The misfortune of the plaintiff arises from his misplaced confidence in the person who was faithless to him.

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

Dwight, P. J., Lewis and Ward, JJ., concurred.

Judgment reversed and a new trial granted, Costs to abide the event.


author: Bead ley, J.:

text:
    Daisy B. Miller, Respondent, v. John E. Richardson, as Executor, etc., of Lucy Schryver, Deceased, Appellant.

      Married woman — Tier separate estate charged for services agreed to he compensated for in her will — opinion of a witness as to the value of services as described in the testimony of another witness.

    A married woman may, by lier special promise, intending to charge her separate estate, bind herself to pay for services of a nature which the law would ordinarily presume to have been performed upon the credit of her husband.
    Where a servant, not a relative, goes to the house of an aged married woman to perform services under circumstances which fairly imply an intention upon the part of the married woman to compensate such servant by will pifou^oi’^er separate estate, and the servant receives nothing under the will, the ■^s^rvant^ may enforce her claim against the separate estate of the deceased parried woman.
    of a disputed claim of this nature it is not erroneous to prove the boitaltfé Of the services performed by the servant, as such services are described B r%tfre, testimony of another witness. The opinion in such a case is regarded as n; b^d, ,-pjppn the character and extent of the services as they were described, the same.as if the statement furnished by the description had been embodied MiW il.tüOliU .. , in a hypothetical question. Gííl .ifsfrrfio'
    cGlíáífiRteS.u by the defendant, John E. Richardson, as executor, etc., ¡bLjAiéyí'Schryver, deceased, from a judgment of the Supreme Court 4rf ftafioF/of the plaintiff, entered in the office of the clerk of the sepTftifcy (of Seneca on the 4th day of October, 1894, upon the report h$&fá referee.
    bad iron nr Mg,ojQonald Bros., for the appellant.

      'Y‘a&)iaries Kellogg, for the respondent. aonobhnr.-)

   Bead ley, J.:

3fa3Hi$EJmtter of the plaintiff’s alleged claim against the estate of the defendant’s testatrix was referred pursuant to the statute. The referee found that the plaintiff stayed with the defendant’s testatrix, did her work and took care of her from some time in March, 1892, §g$iy}ftjf)death in-July, 1893, for the period of sixty-nine weeks; that this service of the plaintiff was performed upon and in consideration of the promise of the defendant’s testatrix that she would treat the plaintiff as a daughter and remember her in her will, an'd that the value of^such services of the plaintiff was twelve dollars per week. ífi^Mferee directed judgment accordingly for the plaintiff. The decedent was a married woman upwards of eighty years of age, in fe&hl©qhealth, and there is evidence tending to prove that during tife^ito&'in question she required and had from the plaintiff much care and attention, and that the service performed by her in that behfitlffiWas of a character not at all times the most agreeable to the sifeaee&it"’''

The^’dfefendant’s testatrix had a separate estate. She made no provision ’by will for the plaintiff.

jy.Jtj.jp[urged upon the part of the defendant that the presumption prevails in this case that the service of the plaintiff was performed for or oil tbe credit of the husband of the decedent. This would be so unless the promise of the wife may be treated as haying been such as to charge her estate. (Kegney v. Ovens, 18 N. Y. St. Repr. 482; Winkler v. Schlager, 64 Hun, 83.)

But notwithstanding the services were those which the husband in his relation as such may be deemed to have been required to provide, the decedent could, by her promise intended to create her personal liability, charge herself and her separate estate for the price or value of the services. (Maxon v. Scott, 55 N. Y. 247; Tiemeyer v. Turnquist, 85 id. 516; Ackley v. Westervelt, 86 id. 448.)

There is evidence tending to prove that the decedent, by her promise, intended to charge herself personally for the services performed by the plaintiff. It appears that a short time before the commencement of the services, on one occasion she said to a witness that if the plaintiff would come and live with her she (the decedent) “ would treat her as a daughter and remember her well in her will,” and, on another occasion, that if the plaintiff “ would come and stay with her as long as she lived she would remember her well in her will.” The plaintiff was not present at those conversations, and for that reason it was urged that such purpose so expressed by the testatrix is not available to the plaintiff to charge her estate with the claim. It is true that tbe mere expression of intention to pay not haying the nature of an agreement or promise may not support an action. While the relations between the Miller family and the testatrix were friendly and somewhat intimate, they were not relatives, so as to characterize the services as gratuitous in the absence of an express agreement.

In the present case the inference is permitted that the plaintiff entered upon the service on a promise made to her by the decedent to, in some manner, pay her. She went there soon after the statements before mentioned were made by the testatrix of her purpose in the event that the plaintiff came and remained with her; and, after, the plaintiff had been there some time, the decedent said in her presence that Daisy should wait on her and do for her and it would be all right. The witness did not recollect that she then stated in what way she would make it all right with Daisy. The plaintiff remained with the decedent until her death.

In view of all the circumstances as represented by the evidence, the conclusion was warranted that the defendant’s testatrix personally undertook to pay the plaintiff for the services ; that they were performed by the latter upon her credit, and that their value was equal to the amount of the recovery.

There was no error in the reception of evidence offered to prove the value of the services performed by the plaintiff- as described by the testimony of another witness. The opinion in such Case is deemed based only upon the character and extent of the services as they had been so described, the same as if the statement furnished by such description had been embraced in a hypothetical question.

In this there was no error. (McCollum v. Seward, 62 N. Y. 316; Seymour v. Fellows, 71 id. 178.)

In Reynolds v. Robinson (64 N. Y. 589) the opinion of the expert called for was not confined to and based upon the description given by any witness, but after hearing the testimony of several witnesses he was asked what would be the value of services mentioned in the question put to him. That case, is not necessarily applicable to the question here, and between it and the MoOollmn and Seymour cases, above cited, there is a clear distinction.

None of the exceptions were well taken.'

The judgment should be affirmed.

Lewis, Davy and Ward, JJ., concurred.

Judgment affirmed, with costs against the estate of -the defendant’s testatrix.


text:
    The Vogt Manufacturing and Coach Lace Company, Respondent, v. Carl Oettinger, Appellant.

      Costs upon an issue of law, discretionary— their amount.

    Where an issue of fact and an issue of law. are joined between the same parties to the same action, and the issue of fact remains undisposed of, hut the issue of law is decided, costs are allowable in the discretion of the court; but, if awarded, their amount is governed by the provision of section 8251 of the Code of Civil Procedure as follows: “For the trial of an issue of law twenty dollars.”

      Appeal by the defendant, Carl Oettinger, from an order of tbe County Court of Monroe county, entered in the office of the clerk of Monroe county on the 21st day of December, 1894, denying his motion for an order amending a decision upon a demurrer by striking from it “ $10.00” and causing it to read, “ Demurrer sustained and said second cause of action in plaintiff’s complaint dismissed, with costs of demurrer against plaintiff to be taxed by the clerk of this court.”

      George M. Williams, for the appellant.

      Frcrnk M. Goff, for the respondent.
   Lewis, J.:

There was a joinder of an issue of law and an issue of fact in this action between the same parties; the issue of law was tried and decided while the issue of fact was still undisposed of. Whether the successful party should have costs of the demurrer was a matter in the discretion of the court. (§ 3232, Code Civ. Proc.)

The trial court exercised its discretion in favor of the party demurring and decided that he was entitled to costs. The decision was as follows : “ Demurrer sustained and said, second cause of action in plaintiff’s complaint dismissed, with $10.00 costs against plaintiff.” The defendant moved the court to correct its decision by striking out the words “$10.00;” the motion was denied. The court having determined that the defendant was entitled to costs, he was, we think, entitled to the statutory costs.

We do not see upon what theory the court could arbitrarily fix any different amount. It is provided by section 3251 of the Code that costs awarded to a party to an action must be at the following ;-ates : For the trial of an issue of law twenty dollars,” etc. ( Van Gelder v. Van Gelder, 13 Hun, 118.),

• The order appealed from should be reversed, with ten dollars costs and disbursements, and the motion for the modification of the decision granted.

Dwight, P. J., Bradley and Ward, JJ., concurred.

Ordered reversed, with ten dollars costs and disbursements, and defendant’s motion to modify the decision granted. •


text:
    Sarah J. Cushman, Appellant, v. Samuel N. Oothout, Respondent.

      Conversion — demand made on a servant, when insufficient against the master.

    In an action ’brought to recover damages for the conversion of certain household goods, it appeared that at the time of the conversion the goods were in an apartment house belonging to the defendant, having been taken there by a tenant who had mortgaged them to the plaintiff and had made default in the payment provided to be made by such mortgage; that the defendant had a janitor who had never been intrusted with the custody or control of the goods and had never been instructed by the defendant to withhold them from the plaintiff; that the plaintiff, meeting the janitor upon the street, demanded the goods from him and he refused to surrender them unless she paid a bill for storage, and also certain rent due for the use of the rooms where the goods had been stored.

      Held, that, under the circumstances, the demand made on the janitor and his refusal to deliver were insufficient to sustain an action for conversion against the defendant, his master.
    Appeal by the plaintiff, Sarah J. Cushman, from a judgment of the County Court of Monroe county in favor of the defendant, entered in the clerk’s office of the county of Monroe on the 1st day of June, 1894, dismissing the complaint upon the merits after atrial before the court and a jury, and also from an order entered in said clerk’s office on the 15th day of January, 1895, denying her motion for a new trial made upon the minutes.
    The action was for the conversion of household goods. It was originally brought in the Municipal Court of the city of Rochester, where the plaintiff recovered a verdict. It was retried in the County Court of Monroe county, where the defendant had a verdict.

      Hiram H. Wood, for the appellant.

      James /S'. Havens, for the respondent.
   Lewis, J. :

The household goods in controversy were placed in an apartment house belonging to the defendant by a Mr. Cook, a tenant of the defendant. Cook thereafter and while the furniture was in said house gave a chattel mortgage thereon to the plaintiff, as security for her indorsement of his promissory notes.

Plaintiff got title to tlie property mortgaged by tbe défáíifíf bftbe mortgagor in paying such notes. Tlie plaintiff sued for a cbii'véMdii of tlie mortgaged property. Her claim is that- she demanded? E&ié defendant the possession of the property and that he 'ie'fiiseteff deliver it. Whether a demand was ever, in fact, made dip'^nP-’-ffil defendant for the possession of the goods was a controvet'teÍPTtfd^ tion upon the trial. The plaintiff gave evidence tendinjf'Md'-skfów that a demand was made ujion tlie defendant personally iííid ííMuí demand was also made upon the janitor of the defendaÜfís^íjj&rtment house, a Mr. Hagadorn, and that there was a reiusahj-to deliver in both cases. The defendant testified that no demand'was ever made upon him, but that, on the contrary, when the ^pgj’lgggor, Cook, left the rooms in which the property was, the defendant called upon the plaintiff and requested her to remove the furniture from his building, as he wished to lease the rooms to another tenant. The plaintiff gave evidence tending to show that in the springyof 1893-she demanded possession of the property of liagadorn, the janitor, whom she found upon St. Paul street in the city of Bochester: that Hagadorn refused to let her have the goods unless sIM^M'iÍté" bill for storing them and also paid rent due for the rooms in which the goods had been stored. ....

The property, at the time of the alleged demand, was,in de|gnd^ ant’s building on Monroe avenue in another part of th^.cjty^aijicf there was evidence tending to show that the janitor did npjt^cftívíbe time of the alleged demand, have the key to the rooms in whi.uk? tKP furniture was, at the time, stored. Hagadorn was showiPtb ‘hWve been employed at the time of the alleged demand and refrisaTipTii^ capacity of a janitor simply. huwss siü

He had never been intrusted with the control or keeping rof«the goods. He testified that he had never been instructed -by the defendant not to deliver the goods to the plaintiff. i/>.-i<íkA

Assuming that the demand was made upon the janitoij~ks Awtiiff to by the plaintiff’s witnesses, we do not think his'refusal'1 id1 deliver possession constituted a conversion by the d^fendantc-. (Goodwin v. Wertheimer, 99 N. Y. 149.)

We agree with the trial court that there was not sufficient dvf-' deuce to establish a cause of action, based upon the allegteff’trlhsaStion with the janitor on St. Paul street. ' °J

Defendant gave evidence tending to sliow that intermediate the times of the demands, as testified to by the plaintiffs witnesses, and the commencement of the action, he informed the plaintiff that he made ho claim upon the goods, and that he wished her to remove them from his building, and that the plaintiff neglected so to do and allowed the goods to remain in the defendant’s building for a long time thereafter before commencing her action. We fail to find any reason for disturbing the verdict.

The judgment and order appealed from should be affirmed.

Beadley, Waed and WeeNER, JJ., concurred.

Judgment and order affirmed.


text:
    In the Matter of the Probate of the Last Will and Testament of Eliza A. Fish, Deceased. Malinda Crouch and Others, Appellants; Henry L. Fish, Respondent.

      Will — the subscribing witnesses must both sign during the lifetime of the testatrix.

    A will must be a valid, perfect instrument at the time of the death of the testator It takes effect at the instant the testator dies, and, if invalid at that time, life cannot be given to it subsequently by the act of a third party.
    The statute in reference to the execution of a will requires that there shall be at least two subscribing witnesses, and they must become such during the lifetime of the testatrix.
    Proof that one witness signed the. attestation clause of a will during the life, of the testatrix, and that the testatrix died before the other witness had affixed his ■ signature, will not justify the admission of the will to probate.
    Appeal by Malinda Crouch, one of tlie executors named in the will of Eliza A. Fish, deceased, and others from a decree of the Surrogate’s Court of the county of Monroe, entered in said Surrogate’s Court on the 12th day of June, 1894, adjudging an instrument purporting to be the last will of Eliza A. Fish to be null and void and refusing it probate, and also from an order entered in said court on the 15th day of October, 1894, denying on the merits an application to vacate the decree which refused probate to said.will.

      Hannibal Smith, for tlie appellants.

      P. Chamberlain, for tlie respondent.
   Lewis, J.:

Tlie instrument presented as the will of Mrs..Fish was prepared as directed by her. It was presented to her for execution just previous to her death. She was aware of its contents. She was exceedingly feeble and not able even to subscribe her name to -the will without help; by the assistance of Doctors Morris and Williams, two physicians who were in attendance upon her, she was raised in bed to a partially reclining position and Dr. Morris guided her hand and a mark was made as and for her signature to the instrument. Dr. Morris subscribed his name to the paper as a witness in the presence of the deceased, and then requested Dr. Williams to subscribe his name. Dr. Williams was at the time standing by Mrs. Fish. She had, in consequence of the exertion made in subscribing the will, become, very much exhausted. She remarked: “ I am dying; I feel so weak,” and died before Dr. Williams had affixed his name to the document. It is quite doubtful if Mrs. Fish was at all conscious of what was occurring at the time Dr. Morris signed Ms name. Dr. Williams, soon after Mrs. Fish died, at the suggestion of Dr. Morris, subscribed his name to the instrument as a witness.

We assume, in deciding this appeal, that ail the requirements of the statute for the due execution qf the instrument as a will were complied with, with the exception of the omission of Dr. Williams to become a subscribing witness during the lifetime of Mrs. Fish. The proof, however, that Mrs. Fish ever requested Doctors Morris and Williams to become subscribing witnesses is somewhat unsatisfactory. We do not think it necessary to rehearse the evidence bearing upon that question, for we consider the fact that there was but one subscribing witness when Mrs. Fish died to be fatal to the validity of the instrument as a will. The statute requires that a will shall have at least two witnesses, and they must, we think, become such during the lifetime of the testator. If the act of subscribing by the witnesses can be performed immediately after the .death of the principal and the instrument be valid, it may be done in a month or a year thereafter with the same effect. A will takes effect at the instant the testator dies. If the contention of the appellants should prevail the anomaly might be presented of the disposition of an estate being suspended intermediate the death of the testator and the time the witness or witnesses shall perform the act of subscribing their names to the instrument. The final disposition of the estate w'ould thereby be made to depend,- not solely upon the intention of the testator, but upon the will or caprice of one who had been requested to perform the very simple act of becoming a witness. The Legislature never intended to give to subscribing witnesses such power. Such construction would tend to break down the barriers to frauds which the statute was enacted to prevent.

In construing this statute it is the intention of the Legislature that must be kept in mind, and not that of the testator. Mrs. Fish could at any time before her death have revoked her request to Hr. Williams to become a subscribing -witness to her will. Had she done so he could not have acted in that capacity. After making such a request her wish that he should become a subscribing witness would be presumed to have continued until he performed the act, in the absence of revocation of his authority. It was incumbent upon those propounding the will for probate to establish either by affirmative or presumptive evidence that such desire upon the part of Mrs. Fish existed at the time the witnesses subscribed their names. The undisputed evidence shows that such desire did not exist at the time Hr. Williams subscribed his name, for Mrs. Fish was then dead. A will'must be a valid, perfect instrument at the time of the death of the testator. It takes effect at the instant the testator dies. If invalid then life cannot be given to it by the act of a third party.

It is not necessary to consider the question raised by the appeal from the order of the surrogate denying the appellants’ motion to open the decree which refused probate of the will. As the fact that one of the witnesses did not sign the attestation clause until after the death of Mrs. Fish is, we think, fatal to the validity of th§ instrument as a will, opening the decree would not in any way benefit the appellants.

Tbe decree and order appealed from should be affirmed, with costs against the appellants.

Dwight, P. J., and Bradley, J., concurred ; Ward, J., concurred in result.

Decree and order of the Surrogate’s Court. of Monroe county affirmed, with costs against the appellants.