author: By the Court. —Freedman, J.

text:
    ESTHER D. POHALSKI, Plaintiff and Respodent, v. THE MUTUAL LIFE INSURANCE COMPANY, Defendant and Appellant.
    Interpretation of a permit issued by a life insurance company, under a policy issued to plaintiff upon the life of her husband, upon his application in her name, and as her agent, for that purpose, and the admissibility of parol evidence to explain or vary its language.
    The words of the permit are as follows: “Permission is hereby given to J. M. Pohalski to proceed to Cuba, and return before April 1st, 1871. Ho to take his own risk of death from epidemics. ” Mr. Pohalski, the husband of the insured, obtained this permit Jannary 23d, 1871, and soon after proceeded to the city of Havana, island of Cuba, and while there was seized with a sudden and fatal illness, and died of such illness, February 22d, 1871. That the disease of which Pohalski died was yellow fever.
    The yellow fever did not prevail as an epidemic in Havana at any time in the month of December, 1870, or in January or February, 1871, and did not prevail or exist there as an epidemic when the said Pohalski took the disease and died of the same.
    On the trial the defendant claimed the right, and offered to show that when Pohalski applied for the permit, the issuance of the same was objected to by the president of the defendant, on the ground of the risk the defendant would run by reason of the prevalence of yellow fever in Cuba at all seasons of the year, and that the permit was finally issued to him, upon the express condition and agreement that he would take his own risk of death from yellow fever. That the parties in their conversation with respect to the permit specified yellow fever and cholera as the diseases intended to be announced by the language used in the permit.
    The defendant also offered to show by Dr. Elisha Harris, claimed to be a well-known physician and authority on sanitary subjects, that yellow fever is properly classified in medical science, and known as belonging to diseases called epidemics; that yellow fever, whenever it exists in the city of New York, where the permit was given, is always an epidemic; that yellow fever exists at all times in Havana, and is the peculiarly fatal disease of that climate, and is especially dangerous to strangers, and to persons from the Northern States visiting Havana. All these offers were objected to by plaintiff, and the proffered evidence was excluded on the trial, and exception taken by defendant to the ruling of the court.

      Held, by the General Term, That the ruling of the court below was correct.
    That the permit was in writing as required by the policy, and it was issued as contemplated by the policy, and in modification of the same, or as a waiver of one of its conditions, and it must be taken to be the repository and evidence of the final intention, understanding, and agreement of the parties, and all oral testimony of a previous colloquium between the parties, or of declarations made at the time of its completion or afterwards, should be rejected.
    Before Freedman, Curtis, and Van Vorst, JJ.

      Decided June 28, 1873.
    That although the permit was issued without any new consideration, and the company was not bound by the terms of the policy to give it, yet, having given it, it is bound by it, because it springs out of, and is based upon, the consideration and terms of the policy; and therefore, whether the said permit be regarded as a modification of the original contract of insurance, or as a waiver of certain of the conditions of the policy, the rule which holds that parol contemporaneous evidence is inadmissible to change its legal effect, is equally applicable (Buckley v. Bentley, 48 Barb. 283).
    That it not appearing that the word ‘ ‘ epidemics ” was used and understood . by the parties in any other sense than in its plain, ordinary, and popular-sense as a familiar word in the English language, no evidence of any kind, from any other source, was therefore admissible to change that meaning (Baptist Church in Brooklyn v. Brooklyn Fire Insurance Co. 28 N. Y. 153; Neff v. Friedman, 2 Sweeney, 607). That the company meant to ; stipulate, and did stipulate for exemption from liability from any disease that might by any possibility prevail in Cuba to an extent which could be called epidemic.

    It was also held to be a fact of some significance in interpreting the permit, that it required PohalsM to return from Cuba before the first day of April.
    Appeal from a judgment entered upon the report of a referee in favor of the plaintiff, in an action brought upon a life policy.
    The referee’s findings were substantially as follows, in regard to the important facts of the case.
    That prior to and on the fourth day of June, in the year 1866, the plaintiff was the wife of Jacob M. PohalsM.
    That on the said 4th day of June, 1866, the said Jacob M. PohalsM, on behalf and in the name of the plaintiff, applied to the defendant, by application in writing, for an insurance upon Ms life, in the sum of five thousand dollars for the benefit of the plaintiff, and upon such application, on the same day, in consideration of the representations made in the said application, and of the cash payment then made by the plaintiff to the .defendant of the premium of fifty dollars and sixty cents, and- of the semi-annual payment of the like amount thereafter to be to be made on or before the 4th day of June and December in every year during the continuance of the policy, the defendant made and issued to the plaintiff its policy of insurance upon the life of the said Jacob M. Pohalski, whereby the defendant assured the life of the said Jacob M. Pohalski, for the sole use of the plaintiff as his wife, in the amount ‘of five thousand dollars, for the term of Ms natural life. By which said policy the defendant promised and agreed to pay to the plaintiff, if living, for her sole use, the amount of the said insurance, at its office in the city of New York, in conformity with the statute, in sixty days after due notice and proof of the death of the said Jacob M. Pohalski, the balance of the year’s premium,, if any, being first deducted therefrom.
    That the said policy contained the condition, that if the said Jacob M. Pohalski should pass beyond the settled limits or the protection of the government of the United States (excepting into the settled limits of the two Canadas, Nova Scotia or New Brunswick), or between the first of July and the first of November, south of the parallel of 36° 30' of north latitude, or enter upon a voyage upon the high seas without the consent of the defendant in each or either of the foregoing cases, previously given in writing, then in every such case the said policy should be null and void.
    That on the 23d day of January, 1871, the defendant, upon the application of the said Jacob M. Pohalski, made and delivered, without charging or receiving extra premium therefor, a consent in writing in accordance with the terms of said policy, by which permission was given to the said Jacob M. Pohalski, in reference to and under said policy, to proceed to Cuba and return before April 1st, 1871—“ he to take his own risk of death from ‘ epidemics.’ ”
    That the said Jacob M. Pohalski soon thereafter proceeded to the city of Havana, in the island of Cuba, and while there was seized with a sudden and fatal illness, and on the 22d day of February, 1871, died of such illness.
    That the disease of which the said Jacob M. Pohalski so died was yellow fever.
    That though yellow fever, in Havana and the island of Cuba is an endemic or an endemical or indigenous disease, and though there occasionally occur, in Havana, in the winter months, from time to time, a few sporadic cases of that disease, yet it rarely prevails or exists in Havana in the winter months as an epidemic, or in the form or condition or to the extent of an epidemic, and did not prevail or exist in Havana, in the form or condition or to the extent of an epidemic, or as an epidemic, at any time in the month of December, 1870, or in the month of January or in the month of February, 1871, and was not an epidemic in Havana, and did not prevail or exist in Havana, in the form or condition or to the extent of an epidemic, when the said Jacob M. Pohalski took the said disease in Havana as aforesaid, or when he died in Havana of that disease as aforesaid.
    That the said Jacob M. Pohalski did not die of an epidemic or of a disease prevailing or existing at Havana epidemically, or in the form or condition, or to the extent of an epidemic, either when he was- seized with the disease with which he died, or when he died.
    That at sundry times after the making and delivery of the said policy, there were declared by the defendant dividends of over payments of premiums by the plaintiff to certain amounts which, by the terms of the charter of the defendant, were appropriated by the defendant to the purchase of additional insurance, payable with the policy, and that the sum of reinsurance which the said dividends of over payments were so appropriated to purchase, and did purchase, amounted to six hundred and twenty-two dollars and fourteen cents.
    And I find and report, as conclusions of law, from the facts above found:
    1. That the death of said Jacob M. Pohalski occurred under circumstances bringing it within the risk assumed by the defendent in issuing the said policy.
    2. That the plaintiff fulfilled all the conditions of the said policy on her part, and that the samé was in full life and force at the time of the death of the said Jacob M. Pohalski, and has evei since remained, and still is in full life and force.
    3. That the plaintiff is entitled to recover from the defendant the said sum of five thousand dollars, and the said sum of six hundred and twenty-two dollars and fourteen cents, both amounting to the sum of five thousand six hundred and twenty-two dollars and fourteen cents, and interest on the same from the 18th day of May, 1871, to the date of this my report, which interest amounts to the sum of six hundred and twenty-three dollars and twelve cents, making the whole sum which the plaintiff is entitled to recover from the defendant six thousand two hundred and forty-five dollars and twenty-six cents.
    To each of which findings of fact and of law the defendant duly and separately excepted.
    And as additional findings of fact, at the request of the defendant; the referee found as follows :
    1. For the seven years previous to 1871, the number of annual deaths in Havana from yellow fever were from 500 to 1,000, independent of the Spanish army.
    2. During some years deaths from yellow fever occur in Havana at all seasons of the year.

      3. Yellow fever is a disease'climatic in its nature, and peculiar to the climate of Havana. .
    4. As a further additional finding of fact, the defendant requested the said referee to find that yellow fever is generally known and classified among the division of diseases called “epidemics,” which the said referee refused to do, to which refusal the said defendant duly excepted.
    5. As a further additional finding of fact, the defendant requested the said referee to find that the word “ epidemics” has in general use two proper meanings.

      a. A class definition including any diseases that may or may not (but generally do) exist in an epidemic form.

      b. Diseases existing at the time when the definition is applied in an epidemic condition, or to an epidemic extent.
    Which the said referee refused to do, to which refusal the said defendant duly excepted.
    6. As a further additional finding of fact, the defendant requested the said referee to find that in the findings of fact contained in the report as signed, the word “epidemics” is used in the sense conceived by the referee to be that in which the word was used by the contracting parties in the permit referred to in the case, viz., ns a disease existing at the time when the definition is to be applied, in an epidemic condition, or to an epidemic extent; which the said referee refused to do, to which refusal the said defendant duly excepted.
    The rulings of the referee on the trial, appear in the opinion of the court.

      Henry E. Davies and Julien T. Davies for appellant, argued as follows:
    Looking at the permit in the case, in view of the facts that stand admitted and were not disputed, viz., that the deceased could not go to Cuba without forfeiting the policy, unless by permission ; that he made application for a permit to visit the island of Cuba during the month of January, 1871, and that in consequence of such application this permit was issued to him, the question first presents itself, what is the meaning to be given to the expression, “he to take his own risk of death from epidemics ” ?
    On the part of the plaintiff it is claimed that these words confine the risk to be taken, to such diseases as may exist in an epidemic form or to an epidemic extent. On the part of the defendant, it is claimed that these words, even if susceptible of the meaning sought to be given them by the plaintiff, also imply that the deceased was to take his own risk of such diseases as are properly known and classified among epidemics, for the reason that they' generally exist as epidemics. On the part of the plaintiff it is contended, that as yellow fever did not exist to an epidemic extent when Jacob M. Pohalski died of that disease at Havana, the company is liable. On the part of the defendant it is claimed that as yellow fever generally exists to an epidemic extent, and is generally classified and named among the epidemics or epidemic diseases, that the defendant is not liable.
    A distinction may be drawn between the word “ epidemic” in the singular, and “ epidemics” in the plural. An epidemic, in the singular, is a disease affecting many , people. Epidemics, in the plural, are those diseases that generally exist epidemically, but they may or may not exist epidemically at the time spoken of, and, as a class definition, is used, and properly used, to include such diseases as generally exist to an epidemic extent in their manifestations. Any one of the epidemics, when manifested, does not always cause an epidemic, but an epidemic is always caused by one of the epidemics. When the diseases themselves are sought to be classified, they are called epidemics, and when the manifestation of one of them is in view, and it is spoken of with reference prominently to that manifestation, the term “an epidemic” is used.
    “Epidemics,” as a definition, is easily understood, and its meaning can be accurately defined by reference to the medical works giving a list of diseases classified as epidemics ; but if the intention was to cover only a disease that was to exist to an epidemic extent] at the time the definition was to be applied, the parties were contracting with reference to a very loose and undeterminate term.
    An examination of the use of the word in literature will show that the meaning here applied to the word “epidemics,” is a proper and legitimate one. See Copeland) s Medical Dictionary, title Epidemics. f ‘ Epidemics—epidemic diseases.”
    “1. Epidemics are such diseases as occasionally pre- “ vail more or less generally in a community at the “same time or season, and depend upon a common “cause.”
    “ As respects these epidemics which are less universal “ and fatal, the influence of the seasons is more or less “ manifest.”
    “It is impossible to reconcile the modes in which “epidemics are observed to diffuse themselves, or the “ peculiar or novel characters they often assume, or the “ very opposite physical circumstances in which they “occur, with changes in the electric fluids often of in- “ appreciable and insensible kinds.”
    “Infection and contagion are amongst the most important agents in the spread of certain epidemics.”
    “Epidemics present themselves in one or other of “these modes, according to the combination of the “elements or agents cooperating in their produc- “ tion, and to the influence of these elements, either in “predisposing the system to, or in directly exciting, “ certain trains of morbid action.”
    “Thus, it will be seen that epidemics are either (a)
      “not manifestly infectious, (&) or conditionally infectious, owing to the co-operation of certain circum- “ stances, (c) or primarily infectious and contagious; “the epidemic constitution, or state of the atmosphere, “ etc., favoring their general diffusion.”
    “43a. “ The localities to which certain epidemics, as “ yellow fever, are chiefly confined, have been for many “successive years circumstanced, in respect of season “ and weather, similarly to the periods in which that “ disease has been most destructive.”
    “Different ages are not equally affected by epidem- “ ics. The exanthematous fevers and whooping coughs “ are most prevalent among, and fatal to, infants and “ children ; influenza to the aged and debilitated.” See also Anstie on Epidemics, a popular work, preface, page 4.
    “Special forms of epidemic disease,” page 12. The expression, “ epidemic disease,” is here used as synonymous with “ epidemics.”
    See also pages 14, 16, 17, British Epidemics.

    “Erysipelas and puerperal fever do not come under the head of serious and widely spreading epidemics.” “ The remaining diseases which are to form the subject of this paper,” page 19.
    “ The febrile kind of epidemics,” page 26.
    (See authentication of these works by Dr. Harris at folios 124 and 128 of case.)

      Joseph R. Flanders, for respondent.
    Ho proof is required, or, indeed admissible, of the meaning of words, and the grammatical construction of the English language, so far as they are established by the rules and usages of the language. Such meaning, and grammatical construction, are, prima facie, matter of law, to be construed and passed upon by the court (Brown v. Brown, 8 Met. 576, 577).

      This whole controversy hinges upon this single clause In the permit: “ He to take his own risk of death from “epidemics.” And the effect of this clause is determined by the meaning which shall be attached to the word £i epidemics.”
    1.. This is an established and familiar word in our language, in universal use, having a clearly defined and well-known meaning, as well in our standard dictionaries as in popular understanding and usage, and uniform in both, and of this the court will take judicial notice.

      a. Webster defines an “epidemic” to be " a disease “ generally prevalent, but not dependent upon any “local morbific cause, and not confined to any season, “climate, region, or country.”
    In defining the adjective he says :
    “1. Common to many people. An epidemic disease “is one which, independent of local causes, seizes a “great number of people at the same time, or in the “ same season. Thus we speak of epidemic fever ; epi- “ demic catarrh. It is used in distinction from endemic.

      “2. Generally prevailing; affecting great numbers ; as epidemic rage; an epidemic evil.”

      b. This word is used in the same sense in the press and among the people at large, there being few words in our language the meaning of which is better understood by all persons not of a very low grade of mental capacity and intelligence. This is as well known as a fact, and it is as much within the cognizance of the court, as is the meaning attached to the word tree, pump, hat, or the name of any other familiar object. So, too, in the press, nearly every day there appears some reference to disease breaking out or prevailing somewhere, in which the word is used, and never in any other sense than that given by Webster. Thus, two summers ago, when the yellow fever appeared at Charleston, it will be recollected that the press made frequent allusions to the progress it was making, using' such expressions as these : " Although cases of fever " have been reported, it cannot be regarded in its na~ ture epidemic. ” " The highest evidence that the disease “is not epidemic, is a reference to the past. Whenever “it assumes that shape, it develops speedily after its •“first appearance. We have before us the tables for “the years 1854 and 1858, when it became epidemic.”
    In fact, such references are of notable frequency both in conversation and in the press, in which this word is uniformly used in the same sense.

      c. Of the meaning of the word, then, there can be no-doubt. It is fixed and uniform, and free from all ambiguity.

      d. It was used, in the transaction involved in this litigation, by business men, in an ordinary transaction, and is to be given that common meaning which the court will take judicial notice is attached to it by both the dictionaries of our language, and the popular understanding.
    Accurately speaking, yellow fever, as it ordinarily occurs in Havana, even when prevailing extensively, is not an epidemic, but an endemic disease, because of its being generated by local causes, producing the same disease at certain seasons, year after year, in the same locality. Such is the definition of this word given in the dictionary:
    “ Endemic, n. A disease of an endemic nature.”— Webster.

      “Endemic, a. Peculiar to a people. An endemic “ disease is one to which the inhabitants of a particular “country are peculiarly subject, and which, for that " reason, may be supposed to proceed from local causes, “as bad air or water. The epithet is also applied to a “ disease which prevails in a particular season, chiefly “or wholly in a particular place.”—Id.

    The case was simply a sporadic one, and being sporadic, it could not be either an epidemic, or an endemic7 as will be seen by Webster’s definition of the word, which is as follows :
    “ Sporadic, a. Separate; single; scattered, used “ only in reference to disease. A sporadic disease is “ one which occurs in single and scattered cases, in distinction from an epidemic and endemic, which affects ■“many persons at the same time.
    “ Sporadic diseases are opposed to endemics, as accidental scattered complaints.—Parr.”

      a. Though the word sporadic is not in very common use among the mass of the people, it is familiarly used, and its meaning is well understood, by educated, intelligent persons. It also frequently appears in the newspapers, expressed in its true sense. STo longer ago than April 26th, the papers in this city contained the following dispatch:
    “Vienna, April 25th, 1873.
    “ There were twenty cases of sporadic cholera—scattered, individual attacks—brought to hospital yester“day.”
    The true construction of this permit, then, can admit ■of no doubt. The meaning of the word epidemics is beyond all question; find the analysis of the provisions ■ of the permit, above given, shows that the parties could not have intended to use the word in any other sense than its familiar and popular one.
    1. The intent of the parties must be drawn from the language they have used, and if ordinary and popular language has been used, in plain and express terms, it must be taken in its usual and familiar sense, and by that the parties must abide.
    2. The court has but to accept what the parties have written, and give to it its natural and obvious meaning.

      a. “ The law, as we have already had occasion to ' ‘ say, in reference to various topics, frequently supplies, “by its implications, the want of express agreements “between the parties. But it never overcomes, by its

      11 implications, the express provisions of parties. If “these are illegal, the law avoids tüem. ' If they are “legal, it yields to them, and does not put in their steal "what it would have put if they had been silent ” (2 Pars. on Con. 27 [3d ed.]).
    3. The appellant had the power to make its own conditions, in issuing this permit, and did make such as it saw fit. They thereupon became a part of the contract between the parties. The court will not make a different contract for them.

      a. “We have frequently had occasion to state, that “ courts of justice can only carry into effect such con- “ tracts as parties have made. They cannot malee con- “ tracts for them, or alter or vary those made by them” (Id. 34; Emery v. Owings, 7 Gill [Md.] 494).
    4. “It is not allowable to interpret what has no need “of interpretation” (Broom’s Leg. Max. 456, 6th Am. ed.).
    5. “The law will not make an exposition against the “ express words and intent of the parties ” (Id.).

   By the Court. —Freedman, J.

This action is brought upon a life policy, and the questions presented by the appeal may be said to relate almost exclusively to the interpretation of the permit issued under the policy, and the admissibility of parol evidence to vary its language.

The policy was issued to the plaintiff directly, and by its terms, in consideration of the sum of fifty dollars and sixty cents, duly paid by the plaintiff, and of the semiannual payment of a like amount, to be made by her during the continuance of the policy, the company insured the life of Jacob M. Pohalski, plaintiff’s husband, for the sole use of the plaintiff, in the amount of five thousand dollars, for the term of his natural life. It was issued and accepted upon the express condition enumerated therein,, that if the said Jacob M. Pohalski should pass beyond certain limits, specifically described therein, without the consent of the company, given in writing, it should be null and void. Subsequently permission in writing was given to Mr. Pohalski to proceed to. Cuba, a place within the prohibition of the policy, by the following permit:

“Permission is hereby given to J. M. Pohalski . . . “to proceed to Cuba, and return before April 1, 1871. “ He to take his own risk of death from epidemics.”

Mr. Pohalski proceeded to Cuba, and died in the city of Havana in the month of February, 1871. As to the cause of his death, the referee, upon sufficient testimony, found as follows:

“ That the disease of which the said Jacob M. Pohalski so died was yellow fever.
“ That though yellow fever, in Havana and the island of Cuba, is an endemic, or an endemical or indigenous disease, ahd though there occasionally occur in Havana, in the winter months, from time to time, a few sporadic cases of that disease, yet it rarely prevails or exists in Havana in the winter months as an epidemic, or in the form or condition or to the extent of an epidemic, and did not prevail or exist in Havana, in the form or condition or to the extent of an epidemic, or as an epidemic, at any time in the month of December, 1870, or in the month of January, or in the month of February, 1871, and was not an epidemic in Havana, and did not prevail' or exist in Havana, in the form or condition or to the extent of an epidemic, when the said Jacob M. Pohalski took the said disease in Havana as aforesaid, when he died in Havana of that disease as aforesaid.
“ That the said Jacob M. Pohalski did not die of an epidemic, or of a disease prevailing or existing at Havana epidemically, or in the form or condition or to the extent of an epidemic, either when he was seized with the disease with which he died or when he died.”

Upon these facts the referee found, as a conclusion of law •-

That the death of said Jacob M. Pohalski occurred under circumstances bringing it within the risk assumed by the defendant in issuing the said policy.

The defendant, upon the trial, claimed the right to show that when Mr. Pohalski applied for the permit to visit the island of Cuba, the issuance of it was objected to by the president of the defendant, on the ground of the risk the defendant would run by reason of the prevalence of yellow fever in the island of Cuba at all seasons of the year, and that the permit was finally issued to said Pohalski, upon the express condition and agreement that he would take his own risk of death from yellow fever; that the parties, in their conversation with respect to the permit, used the word “epidemics” as including yellow fever and cholera as diseases, without any reference to their existing in an epidemic form or to an epidemic extent at any particular time, and that the word was so used in the permit. The evidence, however, of the conversation between Mr. Pohalski and Mr. Winston, showing their use, and their intent in the use of the word epidemics, was excluded, and to its exclusion the defendant duly excepted.

The defendant also offered to show, by Dr. Elisha Harris, a well-known physician and authority on sanitary subjects, that yellow fever is properly classified in medical science, and known as belonging to diseases called epidemics ; that yellow fever, whenever it exists in the city of New York, where the permit was given, is always an epidemic, and that yellow fever exists at all times in Havana, and is the peculiarly fatal disease of that climate, and is especially dangerous to' strangers and to persons from the Northern States visiting Havana.

All these offers were objected to by the plaintiff.

The evidence was excluded and defendant excepted.

i entertain no doubt as to the correctness of this tuIing. The permit was in writing, as required "by the policy, and it was issued in modification of the policy, or as a waiver of one of its conditions, as contemplated "by the policy. Being reduced to writing, it must "be taken to be the repository and evidence of the final intention and understanding of the parties. The rule is elementary that when parties have deliberately put their engagements into writing, in such terms as import a legal obligation, without any uncertainty as to the object or extent of such engagements, it is conclusively presumed that the whole engagement of the parties and the extent and manner of their undertaking was reduced to writing; and all oral testimony of a previous colloquium between the parties, or of conversation or declarations at the time when it ivas completed, or after-wards, is rejected (Greenl. on Ev. § 275; Norton v. Coons, 2 Seld. 33 ; Barry v. Ransom, 2 Kern. 462).

So firmly established is this rule, that it has frequently been applied and enforced without the citation of authorities in support of it (Thorp v. Ross, 4 Keyes, 546 ; O’Beirne v. Lloyd, 1 Sweeny, 19 ; Milton v. Hudson River Steamboat Co., 4 Lansing, 76 ; Delamater v. Bush, 63 Barb. 168).

As the books abound in cases of the application of this rule, a few appropriate examples will be amply sufficient here.

Lamott v. The Hudson River Fire Ins. Co. (referred to in a note to 17 N. Y. 199) was an action upon a fire policy which prohibited the use of camphene on the premises insured, except upon permission, in writing, to be endorsed upon the policy, with a charge for an extra premium therefor. The amount of premium endorsed upon the policy exceeded the regular premium upon such risks as appeared to be covered by the policy by sufficient to cover the price for the use of camphene. It was held, nevertheless, that, as the endorsement did not state that the amount of premium noted was for the privilege of using camphene, and as it did not appear in some other manner in writing that such privilege had "been secured to him, the assured was not protected, and parol evidence could not be received to vary the terms of the policy, or to show a waiver of the prohibition at the time of the execution of the instrument.

Howell v. The Knickerbocker Life Ins. Co. (19 Abb. 217) was an action brought by the widow of George H. Howell to recover on a policy effected by her upon the life of her deceased husband, for one year, with the privilege of annual renewal for life, if, on the 15th day of July in each year, the premium was paid. On July 15th, 1864, the annual premium was not paid. On the same day Mr. Howell was seized with apoplexy, and on the following day he died. Some days thereafter the premium was tendered to the company, and refused by the latter. The court held that the stipulated payment was a condition precedent to the continuance of the policy, and that parol evidence of a usage or agreement on the part of the company at the time the insurance was effected, to receive payment of premiums after the day named, could not be received.

In the case of the Mayor, etc., of the City of Hew York against The Brooklyn Fire Insurance Company (41 Barb. 231), it was determined that the evidence offered by the defendant of the verbal statements of the agent of the plaintiffs, who effected the insurance, in respect to the future use and occupation of the building was properly excluded, because such evidence would tend to vary the operation and effect of the language contained in the policy, and because a warranty as to such future use and occupation must be contained in the policy, or be reduced to writing in proper form, before it can be admitted to affect its. construction or obligation.

In Thompson v. Hall (45 Barb., 214), the defendant, Hall, had signed the note in suit as surety for the defendant Thompson, with the knowledge and at the request of the plaintiff, who was the mother of the principal debtor. On the trial Hall offered to prove that he signed only on condition, which was assented to by the plaintiff, that upon the maturity of the note plaintiff would collect it promptly, and that plaintiff had failed so to do. The evidence was excluded and the General Term affirmed the ruling.

How, it is undoubtedly true that the permit in question was issued without a new consideration. The company was not bound to give it. But, having given it, it is bound by it, because it springs out of and is based upon the consideration and terms of the policy. Consequently, whether the said permit be regarded as a modification of the original contract of insurance, or as a waiver of certain of the conditions of the policy, the rule which holds parol contemporaneous evidence inadmissible to change its legal effect, is equally applicable. This has been substantially determined in Buckley v. Bentley (48 Barb. 283). In that case the endorser of a note had. subsequently written over his signature the words “ notice of protest waived by me.” On the trial evidence was admitted to show that the verbal arrangement between the parties, which resulted in the entry of those words on the note by the defendant, was, that demand of payment, as well as of notice, was waived. On appeal this was held error, for which the judgment was reversed and a new trial ordered. The court held, that although the arrangement then made was not a contract, because there was no consideration, and had to operate, if at all, by way of estoppel in pais, still the question was, what was the arrangement % and as the parties undertook to put it in writing, they were to be deemed to have given thereby full expression to their meaning, and hence parol evidence of their language, contradicting, varying, or adding to that which was contained in the written instrument, was inadmissible. “That there was no consideration for the agreement,” says Pabkeb, J., in delivering the opinion of the court, “ cannot change the rule of evidence in regard to what shall be competent proof of what the agreement was. It is a rule of evidence applicable to the mode of proving a fact, and whether that fact is a contract or a waiver, can make no difference with reference to its applicability.”

It is also true, that the rule referred to is directed only against the admission of any other evidence of the language employed by the parties in making the agreement than that which is furnished by the writing itself, and that the writing may be read by the light of surrounding circumstances. But this is permitted only for the purpose of finding out the true sense of the written words as the parties used them. It is for this reason that, whenever the necessity arises, the rule does not exclude the testimony of experts to aid the court in reading the instrument.

Unless, therefore, the terms of a written instrument have generally, in respect to the subject-matter, as, by the known usage of trade or the like, acquired a peculiar sense, distinct from the popular sense of the same words, or unless the context points out that, in the particular instance, and in order to effectuate the immediate intention of the parties, they should be understood in a peculiar sense, they are to be understood in their plain, ordinary, and popular sense (Greenl. on Ev., § 278). It is not allowable to interpret what has no need of interpretation (Broom's Leg. Max.), and parol evidence should never be allowed to create an ambiguity where none exists (Auburn City Bank v. Leonard, 40 Barb. 119.)

The word “ epidemics,” in the permit, is not shown to have been used in the peculiarly medical sense attributed to it by the learned counsel for the company ; nor was it used in a sense peculiar to the business of life insurance. On the contrary, it is plainly to be seen that it was used and understood in its plain, ordinary, and popular sense as a familiar word in our language. Ho evidence of any kind from any other source was, therefore, admissible to change that meaning (Baptist Church in Brooklyn v. Brooklyn Fire Ins. Co., 28 N. Y. 153 ; Neff v. Friedman, 2 Sweeny, 607).

The company evidently did not intend to stipulate solely against diseases which usually assume an epidemic character. It meant to stipulate, and did stipulate, for exemption from liability in case of death, from any disease, however simple and harmless, under ordinary circumstances, at home, that might, by any possibility, prevail in Cuba to an extent which could be called epidemic.

The requirement of the permit, that Pohalski should return from Cuba before the first day of April following its date, at which time the sickly season usually commences there, is not without significance upon this point. This interpretation, which, upon the whole, is the one most favorable to the company, excludes, however, the idea that plaintiff assumed the risk of her husband’s death from yellow fever when not prevailing to an epidemic extent.

The evidence offered by defendant, to vary or explain the ordinary and popular meaning of the language of the permit, was, therefore, properly excluded; and when it is finally considered that the attempt to give such evidence was, in fact, an attempt to vary such meaning, by the alleged assent of one now deceased, who was not shown to have had any authority whatever from the plaintiff to make terms or stipulations for her, plaintiff’s case becomes still stronger in reason, though perhaps not in law.

The judgment should be affirmed, with costs.

Curtis and Van Vorst, JJ., concurred.

Note.—Unanimously affirmed by Court of Appeals, April 7, 1874, 'without a written opinion, the Court resting its decision upon the foregoing opinion of Judge Fbbedmait.—Repobtebs.


source: Caselaw Access Project

author: By the Court.—Freedman, J.

license: Public Domain

text:
    T. LETITIA PHILLIPS, Plaintiff and Respondent, v. GEORGE A. WICKS and ANGELINA G. WICKS, Defendants and Appellants.
    Before Freedman, Curtis, and Van Vorst, JJ.

      Decided June 28, 1873.
    Where a promissory note was made by a person payable to and endorsed by his wife, and there was no declaration contained 'in the note, or endorsement, to the effect that the separate estate of the wife was to he held chargeable with the consequences of her endorsement, nor did the proofs establish that the endorsement was in point of fact for the benefit of the wife’s separate estate, the wife cannot be charged with it (The Com Exchange Ins. Co. ®. Babcock, 43 _V. Y. 613 ; Yale v. Dederer, 33 W. Y. 450; White i>. McNett, 33 W. Y. 371, cited and approved). The facts proved that the note was made and delivered for the purpose of effecting an assignment of the property and facilitating a settlement of the affairs of a firm that owed the wife a large sum of money, and of which the maker of the note and the husband had been a member, and that the wife had some time previous to the said endorsement expressed a desire that said firm should make an assignment rather than go into bankruptcy, and that under the assignment by the firm made after the endorsement, the wife received a dividend of about fifty per cent., was insufficient to establish an actual benefit to the wife's separate estate additional to what she would have received if the firm had gone into bankruptcy, especially as the same proofs further established that the assignment and arrangements of the firm were not concurred in and consented to by all its creditors.
    Appeal by defendants from a judgment against them rendered on the report of a referee.
    The complaint alleged a promissory note, dated May 11th, 1868, made by George A. Wicks, payable to the order of and endorsed by Angelina G. Wicks, six months after date, for $2,800 value received, protest at maturity and notice given to the endorser; that said “Angelina G. Wicks, being the wife of said George A. “Wicks and having a separate estate, endorsed and de“livered the said note for the benefit of her said separate estate.” ' Judgment demanded for amount of the note with interest.”
    The defendants answered separately. They both alleged want of consideration, and denied plaintiff’s ownership of the note. Angelina Gf. Wicks further pleaded that the said note was endorsed by her at the request of her husband, and as surety for him, and without any consideration whatever, and without any advantage or benefit to her or to her estate or property.
    The referee found for the plaintiff and against both defendants, and defendants appealed.

      William A. Boyd, for appellants.

      Charles H. Smith, for respondent.
   By the Court.—Freedman, J.

There is very little, if any, conflict as to the real facts of the case. In January, 1867, plaintiff’s husband, George S. Phillips, and the defendant George A. Wicks were members of the firm of George A. Wicks & Co. ; and as such member the first named had contributed thirty thousand dollars to the capital stock. In July, 1867, the firm stopped payment, and was succeeded in September following by the firm of Wicks, Julliard & Co., composed in part of the said George A. Wicks and George S. Phillips. This firm existed only a few months when a new firm was formed under the name of Wicks, Van Alstyne & Co., into which George S. Phillips was not taken. The last-named firm undertook to assume the liabilities, and to take the assets and property of Wicks, Julliard & Co. But Phillips, who had not been consulted, objected, and was about to commence a suit for the enforcement of his supposed rights, when a settlement was made with him, to which he assented, by which the new firm agreed to give Mm their note for $12,000 for his claim, and to employ him for one year at a salary of $7,000. Under this agreement Mr. Phillips went to work, "but at the time the firm ceased he had received no salary, nor had he "been paid the $12,000. The third firm was not more successful than its predecessors, and after a short existence stopped business, unable to pay its debts. It was then suggested that an assignment for the benefit of creditors should be made of the property and assets of the three firms, and as it was necessary to its validity that George S. Phillips should join in the execution thereof, he was requested so to do. It turned out that he was indebted to his wife, the plaintiff, for moneys belonging to her in her own right, which he had borrowed, and he insisted upon receiving some money with which to pay her. It was then agreed that his wife should have $7,000 in cash, and $3,000 in notes of the firm of Wicks, Van Alstyne & Co., then held by Mr. Julliard. But when the assignment was ready to be executed he was informed that there was no money. He replied that he regretted hav"ing consented, that it was against his interest to join, and he declined to affix Ms signature. Mr. Hoyt, one of the creditors and of the assignees named in the instrument, inquired whether Phillips would take security for the money to be given to his wife, and Phillips finally consented to accept such security as Mr. Hoyt should pronounce to be unquestionable. Mr. Hoyt thereupon consulted with the other parties, and after a short time he came back and assured Mr. Phillips that it had been made all right. Upon that assurance Mr. Phillips executed the assignment, and a few days thereafter he received from Hoyt the note in suit as part of the $7,000 referred to. The note appears to have been procured from George A. Wicks for the very purpose of being handed over to Mr. Phillips on account of his claim, and as an inducement to join in the execution of the assignment, and to have been endorsed by the defendant Angelina Gr. Wicks at the request of her husband, with some knowledge of the purpose for which it was intended to be used.

Upon this state of facts it is clear that the plaintiff, to whom the note has been turned over, is entitled to recover thereon against the defendant Greorge A. Wicks, as the maker thereof. There was a sufficient consideration, and the plea that plaintiff took the note in payment of a precedent debt will not avail him.

But as to the defendant Angelina Gr. Wicks, the case is different. She was and still is a married woman, and as such she had no legal capacity to bind herself generally. The object of all recent legislation upon the law of husband and wife has been to shield the wife against the power of her husband and against his disposition to squander her property more effectually than the case previously was, and for this reason the legislature has not yet seen fit to entirely remove the common-law disability of a married woman to bind herself by her contracts at large. Power was therefore conferred upon her to contract for certain purposes and for these only. To be obligatory upon her or her estate, her contract must relate either to her separate property or to the particular trade or business in which she is engaged. For these purposes she may enter into any contract in the same manner and with the like effect as if she were unmarried. The law gives to her the practical ownership of her estate, with the power to bind it for the payment of her debts. Where the debt has been contracted for the benefit of her estate, the latter is bound ipso facto. But where she incurs a liability for another, it is absolutely necessary that her intent to make such liability a charge upon her separate estate be declared in the contract creating -the indebtedness (The Corn Exchange Ins. Co. v. Babcock, 42 N. Y. 618; Yale v. Dederer, 22 N. Y. 450; White v. McNett, 33 N. Y. 371).

There is no evidence that Angelina G. Wicks was engaged in any business or profession, nor does the note in suit contain a declaration such as George S. ^Phillips might have insisted upon, to the effect that her estate was to be held chargeable with the consequences of her endorsement. Unless, therefore, the proof established that the said endorsement was in point of. fact for the benefit of her separate estate, the latter cannot be charged with it. The only evidence upon this point is that she had a claim of eighty thousand dollars against the firm of George A. Wicks & Go. ; that some time •prior to the said endorsement she had expressed a desire that said firm should make an assignment rather than go into bankruptcy, and that under the assignment she received a dividend of about fifty per cent. This is ■clearly insufficient to establish an actual benefit to her separate estate, in addition to what she would have received if the said firm had gone into bankruptcy, -especially as the proof further shows that the assignment was not concurred in by all the creditors.

The judgment should be affirmed, with costs as against the defendant George A. Wicks, and as to Angelina G. Wicks it should be reversed, and the order of reference should be vacated, and a new trial ordered, with costs ,to abide the event.

'Ouetis and Yah Youst, JJ., concurred.


author: By the Court—Curtis, J.

text:
    ROBERT L. TAYLOR, Plaintiff and Appellant, v. RICHARD S. GRANT et al., Defendants and Respondents.
    Before Freedman, Curtis, and Van Vorst, JJ.

      Decided June 28, 1873.
    If the court at General Terra, in the consideration and decision of a case on appeal, has committed some obvious mistake, or the court of the highest appellate jurisdiction has, pending the decision, decided otherwise upon the question involved, a reargument may very properly be ordered; but if the error claimed is one of law, as in the case at bar, the remedy of the party aggrieved is by appeal, and not in an application to another General Term for a reargument, and a review of the decision of a former one (see Hayner v. Popular Life Insurance Co., ante 211, and Coleman v. Livingston, ante 231).
    Motion for a reargument made by the defendant Grant.

      George H. Forster, for the motion.

      Joseph H. Choate, opposed.
   By the Court—Curtis, J.

The plaintiff, by his complaint, claims that he is the accommodation acceptor of certain drafts amounting to $80,000 for Hub-bell’s accommodation, who has become insolvent; that Grant & Son claim to have made Hubbell certain advances which are usurious, and have agreed to compound their claim at fifty cents on the dollar ; that plaintiff has tendered fifty per cent, of the advances, but that they claim fifty per cent, of the face of the acceptance, and have sued the plaintiff on them; that plaintiff’s liability depends on the unpaid amount of valid cash advances by Grant & Son thereon, which can only be ascertained by the accounts between Grant & Son and Hubbell, that the balance against Hubbell was reduced to $40,155.44, and that Hubbell has paid Grant & Son sums amounting to $80,981.25, and is entitled to be credited with these and other sums. The complaint then alleges sundry transactions and suits between plaintiff and Hubbell, and avers that Grant claims to recover from plaintiff the whole amount of the" drafts, $40,000 for himself, and the balance for Hub; bell’s benefit, with whom he is acting in concert, and who is insolvent.

The prayer, with other relief, asks for an accounting as to Grant’s advances for the surrender of the drafts as usurious, and if any amount is due Grant, that on the payment of fifty per cent, of such amount the drafts be-surrendered.

The trial of the issues before a referee resulted in a judgment for the defendants, which upon appeal to the General Term was reversed, and a new trial ordered, and the .order of reference set aside.

The defendant Grant now moves for a reargument, on the ground that the General Term failed to consider or notice an important question raised and argued on his behalf, and that they misconstrued and misapprehended, or overlooked and did not consider, the decisions cited by the defendants’ counsel in his argument, and that the decision of the General Term is in conflict with the controlling decisions of the Court of Appeals,- and that by its opinion the General Term did not discuss or consider certain questions, or the decisions upon such questions, but appear to have overlooked them.

It is not the province of one General Term to overrule or set aside the decisions of another General Term. If the court has committed some obvious mistake, or the court of the highest appellate jurisdiction has, pending the decision, decided otherwise the question involved, then, to save delay and expense to the parties, •a reargument may very properly be ordered. But if the error is one, as is claimed here, of law, then the remedy for the party deeming himself aggrieved is not to apply to another General Term to review the decision of the former.

It by no means follows that because an opinion of the court does not consider and discuss all the decisions referred to by counsel on the argument, or the questions presented on their briefs, that those decisions and those questions have not been carefully examined and weighed. Such omission, even if it existed in the

present case, affords no ground to support the present motion. If the General Term erred in respect to the law of the defendant’s case, he has his remedy, but not by a reargument.

Upon the argument of the present motion these views were suggested, as those which usually governed the court in determining this class of applications ; and the attention of the defendant’s counsel was directed as to whether there had been any recent decisions of the Court of Appeals, touching the question raised, to which the attention of the court had not been called on the argument.

He referred to the case of Allerton v. Belden (49 N. Y. R.), which had not then been reported. Upon an examination of that case, it does not appear to dispose of the questions before the General Term, and decided by them in the present action.

From these considerations, and from the rare instances in which courts not of final jurisdiction have granted motions of this character, and the delays and difficulties liable to result therefrom, it is apparent, that the defendants’ motion for a reargument should be denied, with costs.

Freedman and Van Vorst, JJ., concurred.


text:
    WILLIAM SCHAUS, Plaintiff and Appellant, v. THE MANHATTAN GASLIGHT COMPANY, Defendant and Respondent.
    Before Freedman, Curtis, and Van Vorst, JJ.

      Decided June 28, 1873.
    Although, under the requirements of section 149 of Code, new matter must be pleaded, and consequently the defences of payment, release, accord and satisfaction, arbitrament, and many other entire and partial defences, which while they do not deny the cause of action stated in the complaint, yet seek to avoid or to bar it, and which were formerly available under the general issue, must now be set up in the answer before evidence in support thereof can be received (McKyring v. Bull, 16 N. Y. 297), yet, under a general or specific denial of any part of the complaint, which the plaintiff is required to prove to maintain his action, the defendant, upon principle and authority, is at all times at liberty to prove anything tending to show that plaintiffs allegation is untrue (Wheeler v. Billings, 38 N. Y. 263; Greenfield v. Mass. Mut. Life Ins. Co., 47 N. Y. 430).
    Appeal by plaintiff from judgment entered in favor of -.defendant upon the verdict of a jury, and from the order denying plaintiff’s motion upon the judge’s minutes for a new trial.

      F. R. Sherman and A. R. Rodgers, for appellant.

      Henry H. Anderson, for respondent.
   By the Court.—Freedman, J.

This action was "brought to recover damages alleged to have been sustained by plaintiff from water which entered the plaintiff’s cellar, as claimed by plaintiff, through the negligence of the defendant in opening a ditch in front of plaintiff’s premises for laying gas-mains in the street. On the trial evidence was admitted against plaintiff’s, objection and exception, which tended to show that the

water which caused the injury did not come from the ditch, but from the sewer or the connection with the sewer, and that the injury was the result of a defective sewerage system in that vicinity. We think the evi- .< dence was properly received. Although, under the requirements of section 149 of the Code, new matter must be pleaded, and consequently the defences of payment, release, accord and satisfaction, of arbitrament, and many other entire and partial defences, which, while they do not deny the cause of action stated in the complaint, yet seek to avoid or to bar it, and which were formerly available under the general issue, must now be set up in the answer before evidence in support thereof can be received (McKyring v. Bull, 16 N. Y. 297), yet, under a general or specific denial of any part of tire complaint which the plaintiff is required to prove to maintain his action, the defendant, upon principle and authority, is at all times at liberty to prove anything tending to show that plaintiff’s allegation is untrue (Wheeler v. Billings, 38 N. Y. 263 ; Greenfield v. Mass. Mutual Life Ins. Co. 47 N. Y. 430).

The testimony of the parties was conflicting, and therefore presented a proper case for the jury. Plaintiff conceded that by refraining from moving for the direction of a verdict subject to an assessment of damages (Rowe v. Stevens, 12 Abb. N. S. 389; S. C., 44 How. 10).

The case having been submitted to the jury, under a charge to which no valid objection lies, and plaintiff’s exception to the refusal of the court to charge otherwise as requested, and to the rulings of the court upon the questions of evidence that arose during the trial, appearing to be clearly untenable, the judgment and order appealed from must be severally affirmed, with costs.

Curtis and Van Vorst, J.J., concurred.


author: By the Court.— Barbour, C. J. Sedgwick J. (concurring).

text:
    ALEXANDER IRVINE, Plaintiff and Respondent, v. LUTHER A. MILLBANK, LEWIS MEALIO, and CHARLES B. WOOD, Defendants and Appellants.
    Before Barbour, Ch. J., Freedman and Sedgwick, JJ.

      Decided June 28, 1873.
    Tort-feasors.— Joint Debtor Act, Chapter 257, Laws of 1838, and Chapter 348 of Laws of 1845.
    I. JRdease or discharge of one when it does not release or discharge the othe/rs.

    1. After rendition of judgment against several sued as tort-feasors, they become joint debtors within the meaning of the above Joint Debtors Act.
    1. Therefore the plaintiff may compromise with one and discharge him from liability without affecting the liability of the others for the balance remaining due on the judgment, or discharging them therefrom.
    Appeal from judgment and order denying motion for new trial.
    This was an action upon an undertaking given pursuant to section 335 of the Code, to stay execution on a judgment pending an appeal to the Court of Appeals. The action in which the undertaking was given was brought by the present plaintiff against one Fowler, as owner, and Wood Brothers, as occupants, of certain premises on Broadway, in the city of New York, to recover for injuries suffered by him by reason of the negligent construction and maintenance of a coal-hole and cover in front of said premises. In that action, judgment was entered on a verdict against the said owner and occupants for $6,184.08, July 1, 1867.
    The defendants Fowler and Wood Brothers took separate appeals to the General Term. Judgment of af-firma,nc.fi, as against both Fowler and Wood Bros., was entered March 14, 1868.
    The defendants Wood Bros., appealed from the General Term to the Court of Appeals, and filed the undertaking in suit.
    But the defendant Fowler, not appealing, paid the plaintiff twenty-five hundred dollars to be released from further liability on the judgment.
    The plaintiff executed to Fowler a release pursuant to the provisions of the act for the relief of joint debtors, etc., passed 1838.
    The only point raised was that execution and delivery of the release by the plaintiff to Fowler, one of the judgment debtors, was an extinguishment of the judgment.
    A verdict was rendered for the plaintiff for the amount of the judgment against Fowler and Wood Brothers and interest thereon less the sum received from Fowler on the settlement with him and the interest thereon.
    A motion was made for new trial by the defendants, which was denied.
    The judgment was entered in conformity with the verdict.
    Defendants appealed from the order denying the motion for a new trial; also from the judgment.
    Arthur, Phelps & Knevals, attorneys, and D. C. Brown, of counsel, for appellants, urged:
    I. The question presented to the court upon this appeal is whether the settlement effected between the plaintiff and the defendant. Fowler, and the execution and delivery of the release, was effectual to bar the plaintiff’s claim for any further damages in the action as against the defendants Wood Brothers.
    There can be no doubt that upon general principles of law, this release is equally operative in favor of all the defendants in this judgment, but its effect in this particular case is sought to be avoided by an attempt to-bring the settlement within the protection afforded by the Joint Debtor Act. The release upon its face purports to have been given under that act; but it is confidently submitted this case is not brought within the; spirit or terms of said act.
    It was not intended to apply, because there was no-necessity in the nature of things that it apply, to cases where the claim or debt was not originally exclusively of a joint nature.
    In the case before the court the defendants were sued in tort. The action was for a wrong, for negligence in allowing the coal-hole to remain open, in consequence of which the plaintiff was injured.
    There was no joint wrong-doing or omission alleged or proved.
    They were sued in tort, and upon no othér theory could they be joined at all; and the recovery against them was in the same capacity.
    This case is not within the spirit.of the law, because not within its necessity. The rule ceases when the reason for it ceases.
    But the ease is not within the letter of the act.
    The term joint debtor, as used in the act, means the obligation arising from the joint undertaking of two or more persons ; like the undertaking on appeal sued upon here. It implies that the parties have voluntarily united in incurring the obligation.
    “ The legal acceptation of debt,” says Blackstone, “is “a sum of money due by certain and express agree-ument, as by a bond for a determinate sum, a bill or “ note, a special bargain, or rent reserved in a lease” (3 Black Com. 154).
    “ It is a species of contract whereby a chose in action or right to a certain sum of money is mutually acquired and lost” (2 Blk. Com. 464).

      That a joint judgment has been obtained against two persons does not make them joint debtors, if they were not such before. This would be to allow the plaintiff to put persons in an attitude or relation to each other against their will or consent.
    The infallible test of joint debtorship is that of contribution. If two owe a debt jointly, whether in judgment or not, and one discharge it by payment, he may call upon the other for contribution. The doctrine is founded upon the principle that equality of burden as ■ to a matter of common right is equity.
    But among wrong-doers there is no contribution (Merryweather v. ¡Nixon, 8 T. R. 186).
    And the rule is the same when they are guilty only of neglect (1 M. & W. 504; Andrews v. Murray, 33 Barb. 354).
    This doctrine is founded on public policy.
    The Chancellor says in Peck v. Ellis (2 John Ch. 138):—“ There would be no safety to property if a large combination of trespassers were entitled to the assistance of courts of justice in the apportionment of the damage. The knowledge that each individual is responsible for the whole constitutes the great check.”
    The courts always look beyond the judgment to see the relation of the parties ; as in the case of tort-feasors, when proceedings subsequent to judgment are taken for contribution, the courts deny the relief on the ground of their former relation. So, if the maker and endorser of a note be sued in the same action, and judgment joint in form be obtained against them, the maker cannot, by paying the judgment, compel the endorser to contribute.
    The courts regard the antecedent relation of the parties frequently as continuing after judgment, as in the last case. Even after judgment, if the plaintiff give time to the maker without the consent of the endorser, he discharges him from the judgment (Bangs v. Strong, 7 Hill, 250; Bangs v. Strong, 4 Coms. 315; Alden x. Clark, 11 How. 209).
    The principle clearly established by these cases is, ■ that though in a general sense the judgment merges the cause of action; yet it does not extinguish the relation which the parties to it sustained to each other before judgment, nor establish a new one for them.

    II. The Woods and Fowler, not being joint debtors within the meaning of the statute, the release to Fowler discharged all (Livingston v. Bishop, 1 John. 290 ; Knickerbocker v. Culver, 8 Cow. 111; Bronson, v. Fitzhugh, 1 Hill, 185; Barrett v. 3d Ave. R. R., 45 N. Y. 635, Allen, Justice).
    III. Mo point will be probably attempted—certainly none can be successfully taken—that the release to Fowler was inoperative for the purpose of a discharge as to him.
    This instrument is in the hands of Fowler, and is produced by him upon the trial, and the court will consider the case precisely as though the j ndgment was actually discharged of record.
    The settlement is a good discharge of the judgment as against Fowler, under the provisions of art. 2, title 4, •chap. 6, part 3, of the Rev. St. It is “an acknowledgment of satisfaction, signed by the party, acknowledged before the proper officer.”
    The statute does not prescribe the form of a satisfaction, and any instrument which substantially conforms to the act is sufficient.
    This instrument unmistakably implies upon its face that the judgment mentioned in it, so far as Fowler is concerned, is paid and he is exonerated from the same —that is, that he is discharged therefrom.
    This was a release under seal and within the technical rule which requires such a release to discharge a judgment or debt of record aside from ordinary satisfaction.

      It is more than a parol release, it is acknowledged "before an officer, to make it matter of record; it is thus a release of record, and of the same grade as evidence as the judgment itself (Booth v. F. and Ms. Bk., 4 Bans. 301).

      Barrett & Redfleld, attorneys, and A. A. Redfleld, of counsel for respondent, urged:
    I. The compromise with, and exoneration of, Fowler, is pursuant, to the statute, and does not work an extinguishment of the judgment—a protection which the statute expressly gives against a technical and rigorous rule of the common law.
    1. The- statute provides for the composition or compromise “of every liability;’’ and “if such liability shall be by judgment in any court of record,” the judgment may be discharged of record as against the compromising debtor.
    The operation of the statute is not confined to any particular kind or form of “ liability; ” and the court will inquire neither into the character of the liability nor the nature of the evidence of such liability—it being admitted that a certain liability does exist.
    If the legislature had intended that not every liability, but only certain liabilities might be compromised, it does not seem that the legislature could have been embarrassed for apt words to express such intention.

      2. This was a composition of a judgment, or a liability by judgment, with one of the judgment debtors.
    Whatever may have been the constituents of this judgment, whether contract, tort, statutory, penalty, or other cause of action—they were merged and lost in the judgment. The “liability” that was compromised by the defendant Fowler, was a liability by judgment and not for the cause of action on which the judgment was founded. So that if there be any difficulty in holding that a joint liability for a tori cannot be compromised under the statute of 1838, there certainly can be no difficulty in holding that a liability by judgment, even if founded on a tort, can be so compromised.
    II. The defendants, Fowler and Wood Bros., were not joint tort-feasors. One was the owner and the others were occupants of the premises, for the negligent maintenance of which they were all sued in one action. But it was not necessary to make both the owner and • the occupants parties. Bach of them was liable to the plaintiff. They were jointly and severally liable to the plaintiff, and the judgment was recovered against them as such. It follows that the compromise with Fowler did not need the protection of the statute of 1838, because the common-law rule as to joint debtors did not apply.
    • 1. It was claimed on the trial of the action against Fowler and Wood Bros., that inasmuch as they were only severally liable to the plaintiff for their respective negligences, and as they had severed in their pleas, the jury should sever the damages, but the court held, at General Term, that they were jointly as well as severally liable, and therefore the damages need not be severed (Irvin v. Wood, 4 Rob. 138 ; Irvin v. Fowler, 5 Id. 482; see Robbins v. Mount, 4 Id. 553 ; Eakin v. Brown, 1 E. D. Smith, 36).
    So a master and servant are jointly as well as severally liable for the tortious negligence of the servant (Phelps v. Wait, 30 N. Y. 78.)
    So a party injured ,by the collision of two vehicles owned by different persons, may sue either or both owners. Their liability is joint and several (Colegrove v. Harlem, etc. R. R. Co. 6 Duer, 402).
    2. The fact that the defendants Wood may not be able to recover contribution from the defendant Fowler, is not a reason for holding that they are not severally, but only jointly, liable. For if the damages had been severed, and a judgment had against each for the same amount, it is not apparent, as suggested by the court in 8 Duer, 402, on what principle either defendant could recover contribution from the other. The Woods’ want ■of a remedy for- contribution against Fowler, is, therefore, not an argument that their liability is joint and not joint and several.
    3. But it is by no means clear that Wood Bros, have not a right to contribution against Fowler. It is stated as well settled in England that the rule that there is no contribution among joint tort-feasors does not apply to a case where the party seeking contribution was a tortfeasor only by inference of law, and was not personally in fault (Pearson v. Skelton, 1 Mees. & W. 504 ; Wooley v. Batte, 2 Carr & P. 417).
   By the Court.— Barbour, C. J.

There can be no doubt that the three defendants against whom the judgment was recovered in an action brought against them j ointly were joint debtors within the letter of the 5th section of the act of 1838, which empowers a creditor to make a compromise with and discharge one or more of his joint debtors, without affecting the liability of the others. For, certainly, the sum found by the judgment to be ■due from the one party to the other is a debt established and determined by the law, which cannot be disputed so long as the judgment remains unsatisfied either in fact or in law. Indeed, the act of 1845 (p. 110, ch. 257) ■ expressly authorizes a joint debtor in a judgment, thus compromising, to have the judgment satisfied as to himself.

The counsel for the appellant claims, however, that the three defendants against whom judgment was recover in the original action were not joint debtors according to the intent and meaning of the act of 1838, so as to bring them within its provisions, inasmuch as they appear to have been joint tort-feasors, between whom there can be no right to compel contribution ; and he urges that “the infallible test of joint debtorship is that of contribution.” Without considering the question whether the legal proposition thus presented by the learned counsel is or is not correct, it is sufficient to say that the evidence before us is quite insufficient to enable us to determine whether the defendants might or might not be entitled to contribution, inter se-se, in case of payment by one or more of them. True, the action was for negligence; but the negligence imputed t.o Fowler, as owner merely, was quite different from that charged against the Woods as tenants and occupants of the premises, and, for aught that appears, the obligations and duties of one of those classes to the other may have been such as to entitle the latter to recover such sum as he may be compelled to pay under the judgment. The Woods claim in their answer, in effect, that the injury was caused by the fault and negligence of the landlord, while the latter asserts the reverse, and we cannot say which, or whether either, is right.

The judgment should be affirmed, with costs.

Sedgwick J. (concurring).

If the instrument made by the plaintiff to Jonathan O. Fowler is within the terms of the act for the relief of partners and joint debtors, clearly the other debtors in the judgment remained liable upon it, and the defendants are liable upon the undertaking given by them.

But if that instrument is not within the act, the defendants must at least make it appear by proof that Fowler was discharged from the judgment, in order to claim that such a discharge operated in favor of the other jointly liable upon it.

The only proof given on this point was the making of the instrument referred to, and its delivery to Fowler. It does not appear in the case that the latter ever used it to procure a satisfaction or discharge of the judgment of record so far as he was concerned. If we should take for granted, however, that such a satisfaction or discharge was effected, it would be made by the clerk only by virtue of the supposed applicability to the case of the Joint Debtor Act. If in fact it was not within the act, the instrument would not justify the clerk proceeding upon it to absolutely satisfy the judgment, because such would not be the purpose of the party making it, as shown by its contents.

The appellants’ position, that the case hot being one under the Joint Debtor Act, Fowler was released or discharged from the judgment, rests alone upon the terms of the instrument referred to. As to this, we must say that it was not a release (needing no consideration to uphold it, and being in law a satisfaction), for it had no seal. Being without a seal, in order to bind the party making it, it must be supported by a consideration. The money paid by Fowler, however, was but a part of a sum altogether due, and cannot be a consideration for a new obligation by the party receiving that money.

In either aspect of the case, whether it is or is not controlled by the Joint Debtor Act, the judgment should be affirmed. »


text:
    EMIL JUSTH and ALEXANDER FRANCK, Plaintiffs and Appellants, v. THE NATIONAL BANK OF THE COMMONWEALTH, Defendant and Respondent.
    I. Banks.—Fraud.
    1. Liability of a bank to the lender for money or cheeks lamed to one of its depositors, and by him deposited in the bank, such loan having been obtained on the faith, of forged securities.

      1. When the bank receives the checks as so much money, immediately charges itself with the amount thereof, credits the depositor’s account accordingly, other deposits being made and charged and credited in like manner, and pays the check of the depositor out of the general balance to his credit, and delivers up to the depositor certain securities held for advances made by it to the depositor, neither the check, nor the amount represented thereby, can be recovered from the bank by the person who loaned them to the depositor, although such loan was made on the faith of forged securities, the bank having received the same in good faith, and having no notice of, or connection with the fraud.
    Before Freedman, Curtis, and Vau Vorst, JJ.

      Decided June 28, 1873.
    II. Evidence.—Admissions by Officers of Corporations, when not
    admissible.
    1. After rights of parties have become fixed, statements by officers of corporations are immaterial.
    Appeal by plaintiffs from judgment dismissing the complaint.,
    The facts sufficiently appear in the opinion.
    Burrill, Davidson & Burrill, attorneys, and John E. Burrill, counsel for appellants.

      Hammond & Pomeroy, attorneys, and James Emott, counsel for respondent.
   By the Court.—Freedman, J.

This action was brought by the plaintiffs to recover the sum of $40,000 loaned by them to William E. Gray & Co., and deposited by the latter with defendant, on the ground that the loan was made on the security of certain collaterals which proved to be forged. On the trial, the following facts were established.

William E. Gray & Co. kept an account with defendant, and* on the morning of December 10th, 1869, they commenced the business of the day by borrowing $30,000 from said bank. The loan was made in the ordinary manner of doing business with brokers, on call, upon collaterals, and on condition that it should be repaid during the day. The collaterals consisted of three New York State "bounty "bonds of $10,000 each. During the day Gray and Co. made deposits and drew checks. Between 12 and 2 o’ clock they paid by their check upon said bank $10,000 on account of the loan, and took up one of the bonds.

At about 2.10 p. m. on the same day, plaintiffs’ firm loaned Gray & Co. $30,000, and about ten minutes thereafter, $10,000 upon the pledge of securities purporting to consist of New York State bounty bonds, U. S. 5-20 bonds registered, and U. S. 5-20 coupons. Each of these loans was made in the form of a check, drawn by plaintiffs upon the National Bank of the State of New York, and certified by the latter to be good. The checks thus certified were separately deposited by Gray & Co. with the defendant in the usual way, and collected by said bank.

At or shortly after three o’ clock on the same day, Gray & Co., by their check of $20,000 upon defendant’s bank, repaid the balance of the loan obtained from said bank, and demanded the remaining two of their bonds. These were at this time in the hands of the cashier, who had gone out to make inquiries concerning them. The inquiry resulted in the discovery that the two bonds had originally been issued for $1,000 each, and had been altered to represent a value of $10,000 each. Upon such discovery Gray & Co. assented that the said bonds should be turned over for their account to the Manhattan Company, which acted as the transfer agents of the State, and the bonds were turned over by defendant accordingly.

William E. Gray, who had made the transaction with the plaintiffs, absconded on the 11th day of December, 1869. About a month thereafter plaintiffs ascertained that most of the securities upon which they had made the two loans above referred to were forgeries, and upon such discovery they immediately tendered to the defendant the said securities, and demanded payment of the $40,000 collected by defendant on plaintiffs'' checks, which demand was refused.

There was no evidence that the defendant had taken plaintiffs’ money in bad faith, or with any notice of the fraud perpetrated by Gray & Co. upon the plaintiffs, and the proof was wholly insufficient to sustain the theory that the defendant delivered to Gray & Co. the same forged bonds that were received by plaintiff as collaterals, with a view or for the purpose of enabling Gray & Co. to raise money from the plaintiffs on them to make good a deficiency in their account with the- defendant. On the contrary, it appeared that plaintiffs’ checks were received on deposit by defendant in the ordinary course of business, and that their respective amounts were credited to Gray & Co. in the usual way. There was no evidence that the first bond that was taken up and surrendered between 12 and 2 o’clock was not a perfectly valid instrument, nor was it shown that it ever went to the plaintiffs. It was shown that the other two bonds never went to plaintiffs at all.

Upon this state of facts it is difficult to see how the action can be maintained. Although the fundamental principle of our law of personal property is that no man can be divested of his property without his own consent, and that consequently even a bona-fide purchaser from a person in the possession of property, who has no title to it and no authority whatever from the owner to sell or dispose of it, cannot acquire any title against the true owner (Williams v. Merle, 11 Wend. 80; Ely v. Ehle, 3 Comst. 509; Everett v. Saltus 15 Wend. 474; S. C. on error 20 Wend. 69 ; Wilson v. Nason, 4 Bosw. 155; Grand Trunk Railway Co. v. Edwards, 56 Barb. 408 ; Decker v. Matthews, 12 N. Y. 313; Boyce v. Brockway, 31 N. Y. 490), there are numerous exceptions to the general rule, which are founded on the obvious policy of human affairs. Thus the law will in many cases imply an authority from the owner to sell,, and where the owner has conferred an apparent right of property upon the vendor, or an apparent right of disposal, where he has furnished the vendor with the external indicia of such right, and the vendor has sold the goods and delivered the possession thereof, the law will protect a purchaser who has acquired the property for a fair and valuable consideration in the usual course of trade, and without any notice of any conflicting claim, or of suspicious circumstances calculated to awaken inquiry, or to put him on his guard, although the goods were in fact obtained by the vendor from the true owner fraudulently. The same exception applies with still greater force to a case of negotiable paper. In the present case, plaintiffs made their checks payable to the order of Gray & Co., and delivered them without restriction as to their use. They intended to part, and did part, not only with the possession of them, but also with their right of property in the money, which the checks represented. Gray & Co. therefore were not limited as to the manner of the use of the checks, and a subsequent bona-fide holder for' a valuable consideration could acquire a good title to them.

As has been pointed out in Philbrick v. Dallett (43 How. 419, S. C. 12 Abb. N. S. 419), the doctrine as to what constitutes a person.a bona-fide holder of negotiable paper for value varies with the facts peculiar to different classes of cases. In the case of commercial paper obtained by fraud or fraudulently put in circulation, the rule undoubtedly is, as claimed by plaintiffs, that the mere receipt of such paper as payment or security for a precedent debt, no new credit or other things of legal value being given on the faith thereof, .and no security being relinquished or discharged, nor any new responsibility incurred on the credit thereof, is not parting with value such as to enable the holder to enforce such paper against an accommodation party, or to hold it against the true owner, or to hold it free of equities existing upon it against the transferrer at the time of the transfer. But this rule is not broad enough for several reasons to enable plaintiffs to recover back their money. The defendant is no longer the holder of checks. It received them as so much money, and immediately charged itself with the amount thereof,, and credited Gray & Go.’s.account accordingly. The-, relation of banker and depositor being that of debtor and creditor (Ætna National Bank v. Fourth National Bank, 46 N. Y. 82; Oddie v. National City Bank of New York, 42 N. Y. 735 ; Bank of the Republic v. Millard 10 Wallace, 152), the defendant on receipt of the certified checks became the debtor of Gray & Co. for so much, money, and the title to the deposit passed to the defendant. Gray & Co. made other deposits, and it was from, the general balance standing to the credit of Gray & Co. that defendant afterwards paid a check drawn by Gray & Co. to the order of Brown & Loveridge for $24,362.50, and the checks taken by the defendant in payment of the loan made to Gray & Co. in the morning. By these various transactions, and the surrender of Gray & Co.’s securities, the relations of all the parties were so changed that the defendant musf be deemed to have acquired the usual rights of a bona-fide holder for value (Market Bank v. Hartshorne, 3 Keyes, 137).

But even if the question were with the defendant as actual holder of the checks, neither the National Bank of the State of New York, on which they were drawn, and which had certified them, nor the plaintiffs, could resist their payment or collection, for the defendant not only discharged upon its books the indebtedness of Gray & Co., but it also surrendered the bonds pledged as collateral security. The validity of one of these bonds has not been disproved, and the other two, 'as the evidence shows, were still good for $1,000 each. This ’ would constitute the defendant a bona-fide holder for a, valuable consideration within the rule above cited (Bank of Salina v. Babcock, 21 Wend. 499 ; Bank of Sandusky v. Scoville, 24 Wend. 115; Mohawk Bank v. Corey, 1 Hill. 513 ; White v. Springfield Bank, 3 Sandf. 223; N. Y. Marbled Iron Works v. Smith, 4 Duer, 362 ; Youngs v. Lee, 12 N. Y. 551; Boyd v. Cummings, 17 N. Y. 101; Brown v. Leavitt, 31 N. Y. 113; Pratt v. Coman, 37 N. Y. 440 ; Chrysler v. Renois, 43 N. Y. 209).

The rights of the parties having become fixed on the 10th of December, 1869, the testimony offered by plaintiffs as to the verbal statements made by certain officers of the defendant in January, 1870, was rightfully excluded on account of its immateriality (Baptist Church v. Brooklyn Fire Ins. Co., 28 N. Y. 153).

The complaint was properly dismissed, and the judgment appealed from must be affirmed, "with costs.

Cubtis and Van Vobst, JJ., concurred.


author: By the Court.—Van Vorst, J.

text:
    JANE QUINN, Plaintiff and Respondent, v. REUBEN VAN PELT, Defendant and Appellant.
    The defendant, an attorney and counsellor at law, obtained from his client, the plaintiff, a satisfaction of a bond and mortgage made by him for the sum of $3,000, as payment for services that had been, and were to be, rendered to the plaintiff in and about the settlement of the estate of her deceased husband. Neither at the time of the receipt of the $3,000 bond and mortgage, by defendant, nor afterwards, did defendant render service of any moment or importance, and after the receipt of the satisfaction he engaged in the service and interest-of other persons hostile to the plaintiff, and refused to act for and in the interest of plaintiff. Plaintiff sues to recover damages for a breach of his contract. The jury found a verdict for plaintiff for the amount of the bond and mortgage and interest.

      Edd, on appeal to General Term, If it was proper for the defendant to advise the plaintiff to pay, and for him to demand so large a considtion in advance, for services to be rendered by him, in her interest, then, he should at all times have held himself in readiness to render them, dis-embarrassed from all complication with others, and take no position against • her, and should not appear as attorney and counsel for parties litigating with her in relation to her rights or claims under the will upon the estate of her husband.
    Before Barbour, Ch. J., Freedman and Van Vorst, JJ.

      Decided June 28, 1873.
    When defendant accepted a retainer from parties that were hostile, or claimed to be hostile to plaintiff and her interests in the estate, he violated his agreement with plaintiff, and absolved her from all responsibility under the contract, unless for the value of services rendered before the bond and mortgage was satisfied; and having failed to prove the value of these services, the ruling of the court and verdict of the jury cannot be disturbed.

      R. W. Van Pelt, respondent in person.

      James M. Smith, counsel for appellant.
   By the Court.—Van Vorst, J.

Among the assets left "by the deceased husband of the plaintiff, was a bond and mortgage for $3,000, executed by the defendant a few months before the death of her husband.

The defendant is an attorney and counsellor at law, and had prepared the last will and testament of the deceased.

A few days after his death, the defendant was at the house of the plaintiff on the day of the appraisement of the estate, and requested the plaintiff to bring forward the papers of the deceased. She did so, and amongst others produced the bond and mortgage of the defendant.

Defendant, in speaking of this bond and mortgage, said to the plaintiff, in substance, that there was likely to be trouble, that the relations of her late husband were much dissatisfied, and complained of the provision of the will in her favor, and would be likely to make opposition.

Defendant proposed that if plaintiff would discharge the bond and mortgage, he would receive the same in full for all services rendered or to Tbe rendered Tby him as attorney and counsel.

Application was made to the executor Tby "both the plaintiff and defendant for the "bond and mortgage.

The exectutor finally delivered the same to the plaintiff, with an assignment thereof, not knowing at the time the precise purpose for which she wanted it, except from her statement to him that it was necessary to close up the estate, and having no idea what part of it she meant to give defendant. The plaintiff delivered the bond and mortgage with an assignment and satisfaction thereof to the defendant on the 10th of August, and took from him a receipt in these words :

“ Received, Yonkers, August 10, 1861, of Mrs. Jane Rhead, a satisfaction of bond and mortgage executed by myself and wife to Benjamin Rhead, March 2d, 1861, for $3,000, in full of services rendered, and to be rendered, in and about the settlement of. the estate of Benjamin Rhead.”
Signed, “R. W. Van Pelt.”

As this paper was given so shortly after the death of the husband, but little if any services could have yet been rendered by the defendant about the settlement of the estate; in fact, the evidence does not disclose the performance of any, except the drawing of the will before the death of her husband, and which could have no relation to services in respect to closing the estate of the deceased. It is quite evident, therefore, that the real consideration for the satisfaction of the bond and mortgage was services thereafter to be rendered. There has not been in fact, as was suggested by the defendant there was likely to be, any opposition made either to the probate, or the carrying into effect of the will.

It is difficult to perceive how so considerable a sum as $3,000 could be demanded or fairly earned in the settlement of so small an estate as this proved to be, unless involved in extensive litigation through services indicated by defendant as likely to arise. And defendant in fact performed no services to meet such contingencies.

The principal service rendered by the defendant as attorney and counsel after the death of the husband of the-plaintiff in any proceeding beneficial to her interests under the will, was in the defence of an action brought against the executor by Garret Vermilyea, to recover moneys which the husband in his lifetime had received.

This action was defended by the executor, with the knowledge and concurrence of the plaintiff.

It might seem as though the plaintiff was not called upon to bear all the expenses incident to the settlement of her husband’s estate, as by his will provision was made for others who were interested with her, both in maintaining the will, and properly adjusting the affairs.

But if it was proper for the defendant to advise the plaintiff to pay, and for him to demand, so large a consideration in advance for services to be thereafter rendered by him in her interest, then he should at all times have held himself in readiness to render them, disembarrassed by complication with others, and take no position against her, at least should not appear as attorney or counsel for parties litigating with her in relation to her rights or claims under the will, or upon the estate.

The evidence shows that the defendant did assume a position hostile to the plaintiff, and did act in litigations and proceedings against her growing out of the property embraced within the provisions of the will.

After taking such attitude, the plaintiff could not with confidence rely on the defendant’s services or hearty aid and co-operation to advance her interest under the will.

The contract between plaintiff and defendant was executed, and whenever defendant accepted a retainer from other parties, either actually, or claimed by plaintiff to be, hostile to her interests, he vitiated the true spirit of Ms engagement with her, and absolved plaintiff from all responsibility under the contract, except, perhaps, for services rendered by him prior to taking such hostile attitude.

The value of the prior services rendered should have been affirmatively proven by him on the trial. This he failed to do, there being no proof given of their value. In this view, the rulings of the learned judge who presided at the trial were correct, and the verdict of the jury cannot be disturbed.

We see nothing in the exceptions taken by the defendant which would justify a reversal of the judgment.

The judgment and order should be affirmed, with costs.

Barbour, Oh. J., and Freedman, J., concurred.